[Senate Hearing 112-72, Part 6]
[From the U.S. Government Publishing Office]
S. Hrg. 112-72, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
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JANUARY 26, FEBRUARY 15, AND FEBRUARY 29, 2012
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Serial No. J-112-4
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PART No. 6
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 112-72, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JANUARY 26, FEBRUARY 15, AND FEBRUARY 29, 2012
__________
Serial No. J-112-4
__________
PART No. 6
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
76-678 WASHINGTON : 2013
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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WEDNESDAY, JANUARY 26, 2012
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin, a U.S. Senator from the State of Maryland,
prepared statement............................................. 345
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement............................................. 354
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 363
PRESENTERS
Boozman, Hon. John, a U.S. Senator from the State of Arkansas
presenting Kristine Gerhard Baker Nominee to be District Judge
for the Eastern District of Arkansas........................... 8
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland presenting George Levi Russell III, Nominee to be
District Judge for the District of Maryland.................... 6
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona
presenting Andrew David Hurwitz, Nominee to be Circuit Judge
for the Ninth Circuit.......................................... 4
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
presenting George Levi Russell III, Nominee to be District
Judge for the District of Maryland............................. 5
Pryor, Hon. Mark L., a U.S. Senator from the State of Arkansas
presenting Kristine Gerhard Baker Nominee to be District Judge
for the Eastern District of Arkansas........................... 7
STATEMENTS OF THE NOMINEES
Baker, Kristine Gerhard, Nominee to be U.S. District Judge for
the Eastern District of Arkansas............................... 100
Questionnaire................................................ 101
Hurwitz, Andrew David, Nominee to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 10
Questionnaire................................................ 11
Lee, John Z., Nominee to be U.S. District Judge for the Eastern
District of Illinois........................................... 147
Questionnaire................................................ 148
Russell, George Levi, III, Nominee to be U.S. District Judge for
the District of Maryland....................................... 244
Questionnaire................................................ 245
Tharp, John J. Jr., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 178
Questionnaire................................................ 179
QUESTIONS AND ANSWERS
Responses of Kristine Gerhard Baker to questions submitted by
Senators Grassley and Klobuchar................................ 290
Responses of Andrew D. Hurwitz to questions submitted by Senators
Coburn, Grassley, Klobuchar and Sessions....................... 295
Responses of John Z. Lee to questions submitted by Senators
Grassley and Klobuchar......................................... 317
Responses of George Levi Russell, III to questions submitted by
Senators Grassley and Klobuchar................................ 324
Responses of John J. Tharp, Jr., to questions submitted by
Senators Grassley and Klobuchar................................ 329
SUBMISSIONS FOR THE RECORD
American Bar Association, Allan J. Joseph, Chair, Washington, DC:
Kristine G. Baker, November 2, 2011, letter.................. 335
Andre Hurwitz, November 2, 2011, letter...................... 336
John Z. Lee, November 2, 2011, letter........................ 337
George L. Russell, III, November 10, 2011, letter............ 338
John J. Tharp, Jr., November 10, 2011, letter................ 339
Asian American Bar Association (AABA), Mehpara A. Sulerman,
President, Chicago, Illinois, January 20, 2012, letter......... 340
Asian American Institute (AAI), Michael P. Chu, President, and
Tuyet Le, Executive Director, Chicago, Illinois, January 17,
2012, joint letter............................................. 343
Boozman, Hon. John, a U.S. Senator from the State of Arkansas,
Award list..................................................... 344
Cummings, Hon. Elijah E., a Representative in Congress from the
State of Maryland, January 27, 2012, letter.................... 352
Foreman, Fred, Circuit Judge, Nineteenth Judicial Circuit,
Waukegan, Illinois, January 18, 2012, letter................... 353
Huckabay, Mike, Attorney at Law, Huckabay Law Firm, Little Rock,
Arkansas, December 12, 2011, letter............................ 358
Kirk, Hon. Mark, a U.S. Senator from the State of Illinois,
prepared statement............................................. 359
Law clerks (former) to Justice Hurwitz, January 19, 2012, joint
letter......................................................... 361
Lufrano, Michael R., Chicago, Illinois, January 18, 2012, letter. 366
Park, Samuel S., President, Korean American Bar Association,
Chicago, Illinois, January 13, 2012, letter.................... 368
Schwartz, Allen C., Executive Director, Carpls Legal Aid,
Chicago, Illinois, February 14, 2011, letter................... 370
Smedstad, Heather, Corporate Vice President, McDonald's, Oak
Brook, Illinois, January 19, 2012, letter...................... 372
Tharp, John J. Jr., Nominee to be U.S. District Judge for the
Northern District of Illinois, January 30, 2012, letter........ 373
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WEDNESDAY, FEBRUARY 15, 2012
STATEMENTS OF COMMITTEE MEMBERS
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 375
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 376
prepared statement........................................... 677
PRESENTERS
Brown, Hon. Scott P., a U.S. Senator from the State of
Massachusetts presenting Timothy S. Hillman, Nominee to be U.S.
District Judge for the District of Massachusetts............... 377
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio
presenting Jeffrey J. Helmick, Nominee to be U.S. District
Judge for the Northern District of Ohio........................ 380
Clyburn, Hon. James E., a U.S. Representative from the State of
South Carolina presenting Mary Geiger Lewis, Nominee to be U.S.
District Judge for the District of South Carolina.............. 383
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina presenting Mary Geiger Lewis, Nominee to be U.S.
District Judge for the District of South Carolina.............. 383
Kerry, Hon. John, a U.S. Senator from the State of Massachusetts
presenting Timothy S. Hillman, Nominee to be U.S. District
Judge for the District of Massachusetts........................ 376
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey presenting Patty Schwartz, Nominee to be U.S. Circuit
Judge for the Third Circuit.................................... 378
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenting Patty Schwartz, Nominee to be U.S. Circuit
Judge for the Third Circuit.................................... 379
STATEMENTS OF THE NOMINEES
Helmick, Jeffrey J., Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 463
Questionnaire................................................ 465
Hillman, Timothy S., Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 561
Questionnaire................................................ 562
Lewis, Mary Geiger, Nominee to be U.S. District Judge for the
District of South Carolina..................................... 509
Questionnaire................................................ 510
Schwartz, Patty, Nominee to be U.S. Circuit Judge for the Third
Circuit........................................................ 384
Questionnaire................................................ 386
QUESTIONS AND ANSWERS
Responses of Jeffrey J. Helmick to questions submitted by
Senators Grassley and Klobuchar................................ 626
Responses of Timothy S. Hillman to questions submitted by
Senators Grassley and Klobuchar................................ 621
Responses of Mary Geiger Lewis to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 637
Responses of Patty Shwartz to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 656
SUBMISSIONS FOR THE RECORD
American Bar Association, Benjamin H. Hill, III, Chair, Tampa,
Florida:
Jeffrey James Helmick, May 12, 2011, letter.................. 670
Timothy S. Hillman, December 1, 2011, letter................. 672
Mary G. Lewis, March 17, 2011, letter........................ 673
Patty Shwartz, October 5, 2011, letter....................... 675
Daniel, E. Bart, Attorney at Law, Charleston, South Carolina,
February 10, 2012, letter...................................... 676
Guryan, Sheppard A., Attorney at Law, Lasser Hochman, LLC,
Roseland, New Jersey, January 9, 2012, letter.................. 683
Hall, Kevin A., Hall & Bowers, LLC, Attorneys at Law, January 23,
2012, letter................................................... 685
Wagoner, Mark, State Senator, 2nd District, Columbus, Ohio,
February 3, 2012, letter....................................... 687
Wilkins, William W., Member, Nexsen/Pruet, Columbus, Ohio,
February 10, 2012.............................................. 688
Zouhary, Judge Jack, U.S. District Court, Toledo, Ohio........... 689
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WEDNESDAY, FEBRUARY 29, 2012
STATEMENTS OF COMMITTEE MEMBERS
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 691
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 691
prepared statement........................................... 948
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 950
PRESENTERS
Levin, Hon. Carl, a U.S. Senator from the State of Michighan
presenting Gershwin A. Drain Nominee to be U.S. District Judge
for the Eastern District of Michigan........................... 692
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Robin S. Rosenbaum Nominee to be U.S. District Judge
for the Southern District of Florida........................... 693
STATEMENTS OF THE NOMINEES
Drain, Gershwin A., Nominee to be U.S. District Judge for the
Eastern District of Michigan................................... 754
Questionnaire................................................ 756
Rosenbaum, Robin S., Nominee to be U.S. District Judge for the
Southern District of Florida................................... 823
Questionnaire................................................ 825
Taranto, Richard Gary, Nominee to be U.S. Circuit Judge for the
Federal Circuit................................................ 694
Questionnaire................................................ 703
QUESTIONS AND ANSWERS
Responses of Gershwin A. Drain to questions submitted by Senators
Coburn, Grassley, Klobuchar, Lee, and Sessions................. 899
Responses of Robin S. Rosenbaum to questions submitted by
Senators Coburn, Grassley, and Klobuchar....................... 917
Responses of Richard Gary Taranto to questions submitted by
Senators Coburn, Grassley, Klobuchar, and Lee.................. 922
SUBMISSIONS FOR THE RECORD
American Bar Association, Allan J. Joseph, Chair, Washington, DC:
Gershwin A. Drain, November 17, 2011, letter..................... 944
Robin S. Rosenbaum, December 1, 2011, letter..................... 945
Richard G. Taranto, November 10, 2011, letter.................... 946
Farr, H. Bartow, III, Washington, DC, February 23, 2012, letter.. 947
Lawers, February 16, 2012, joint letter.......................... 952
Rubio, Hon. Marco, a U.S. Senator from the State of Florida,
prepared statement............................................. 958
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan,
prepared statement............................................. 963
ALPHABETICAL LIST OF NOMINEES
Baker, Kristine Gerhard, Nominee to be U.S. District Judge for
the Eastern District of Arkansas............................... 100
Drain, Gershwin A., Nominee to be U.S. District Judge for the
Eastern District of Michigan................................... 754
Helmick, Jeffrey J., Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 463
Hillman, Timothy S., Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 561
Hurwitz, Andrew David, Nominee to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 10
Lee, John Z., Nominee to be U.S. District Judge for the Eastern
District of Illinois........................................... 147
Lewis, Mary Geiger, Nominee to be U.S. District Judge for the
District of South Carolina..................................... 509
Rosenbaum, Robin S., Nominee to be U.S. District Judge for the
Southern District of Florida................................... 823
Russell, George Levi, III, Nominee to be District Judge for the
District of Maryland........................................... 244
Schwartz, Patty, Nominee to be U.S. Circuit Judge for the Third
Circuit........................................................ 384
Taranto, Richard Gary, Nominee to be U.S. Circuit Judge for the
Federal Circuit................................................ 694
Tharp, John J., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 178
NOMINATION OF HON. ANDREW DAVID HURWITZ, OF ARIZONA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT; KRISTINE GERHARD BAKER, OF
ARKANSAS, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
ARKANSAS; JOHN Z. LEE, OF ILLINOIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS; JOHN J. THARP, JR., OF ILLINOIS,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; AND
HON. GEORGE LEVI RUSSELL III, OF MARYLAND, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MARYLAND
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THURSDAY, JANUARY 26, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:15 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, presiding.
Present: Senators Durbin and Kyl.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. Good afternoon. This hearing of the
Judiciary Committee will come to order. Today we consider five
judicial nominees to the Federal bench: Andrew Hurwitz,
nominated to serve on the U.S. Court of Appeals for the Ninth
Circuit; Kristine Baker, nominated to the Eastern District of
Arkansas; George Russell, nominated to the District Court of
Maryland; and two nominees for the Northern District of
Illinois, John Lee and Jay Tharp. Each of these nominees has
the support of their home State Senators, and I commend
President Obama for sending them to the Senate for
consideration.
At these hearings it is traditional for nominees to be
introduced to the Committee by Senators from their home States.
I am going to first turn to my Ranking Member and friend,
Senator Jon Kyl of Arizona, for opening remarks he has relative
to the nomination of Andrew Hurwitz. After Senator Kyl speaks,
I will invite my colleagues at the witness table to make their
introductions, and I know they have busy schedules, so after
each of you has introduced your nominee, you are certainly free
to leave.
Senator Kyl will be introducing Justice Hurwitz; Senator
Mikulski and Senator Cardin for Judge Russell; Senators Pryor
and Boozman for nominee Baker.
I will now introduce the two district court nominees from
Illinois, John Lee and Jay Tharp. Before I do, I want to say
with some sadness that my colleague Mark Kirk cannot be with us
today. As we all know, he suffered a medical illness last
Saturday, is hospitalized, and he has all of our thoughts and
prayers with him every moment of the way until he returns. He
fully supports both of these nominees, and we will enter his
statement into the record reflecting that fact. We look forward
to Mark's quick return to the Senate. Senator Kirk and I both
support these nominees. These two will fill vacancies that have
been identified as judicial emergencies by the Administrative
Office of the U.S. Courts, and we will work together to see
that the nominees are confirmed.
The first Illinois nominee is going to be John Lee,
nominated to the Chicago-based seat formerly occupied by Judge
David Coar. He is currently a partner at the law firm of
Freeborn & Peters where his practice concentrates on commercial
litigation. Born to Korean parents, Mr. Lee came to this
country as an immigrant at the age of 5. His father was a coal
miner, his mother a nurse. They settled in Chicago's Albany
Park neighborhood in a one-bedroom apartment that got a little
crowded when they were later joined by Mr. Lee's grandmother
and his younger brother.
From his humble beginnings, Mr. Lee went to Harvard
College, graduating magna cum laude, then earned his law degree
cum laude from Harvard Law School. After law school, he worked
as a trial attorney in the Department of Justice Environment
and Natural Resources Division, representing the United States
in litigation. After his tenure at the Justice Department, Mr.
Lee worked at the law firms of Mayer Brown and Grippo & Elden
before joining Freeborn & Peters in 1999. His practice has
focused on antitrust, intellectual property, environmental, and
other complex litigation matters. He has received numerous
awards and recognitions, including being named a Leading Lawyer
from 2008 through 2011 by the Leading Lawyers Network. He has a
distinguished record of community service in the Chicago area,
serves as the president of the board of directors of the Asian
Human Services of Chicago, an organization that provides social
services to Asian American immigrant communities. He serves on
the board of directors and was past president of the
Coordinated Advice and Referral Program for Legal Services,
which is a Legal Services hotline in Cook County, serving more
than 50,000 low-income individuals each year. Additionally, Mr.
Lee is a member of the board of directors of the Asian American
Bar Association of Chicago.
Mr. Lee's nomination is historic. If confirmed--and I trust
he will be--Mr. Lee would be the first Korean American ever to
serve as a Federal Article III judge in Illinois. He would also
be only the second Korean American to serve as a Federal
district judge in our Nation's history. He is joined here by
family and friends that I know he will have the opportunity to
introduce when he comes to the table.
Our other Illinois nominee is Jay Tharp, nominated to fill
the Chicago district court seat open with the fact that Judge
Blanche Manning is taking senior status. He is currently a
partner in the Chicago office of Mayer Brown, where he is co-
leader of the firm's securities litigation and enforcement
practice.
He has quite a military history in his family. He was born
into a military family, the son of a lieutenant colonel in the
Marine Corps. I might also add that he told me that he had a
grandfather who was serving in the Marines in World War I, so
it is a distinguished career in the Marine Corps including
himself and his son, who is currently training in the Marine
Corps.
He attended Duke University on an ROTC scholarship, an
undergraduate degree summa cum laude, commissioned as a second
lieutenant in the Marine Corps, served on active duty with the
Marines from 1982 to 1987, achieving the rank of captain,
earning the Navy Achievement Medal and the Navy Distinguished
Midshipman Award.
After his military service, Mr. Tharp attended Northwestern
University Law School where he graduated magna cum laude,
served on the Northwestern University Law Review, served as
judicial clerk for Judge Joel Flaum of the Seventh Circuit,
then worked as Assistant U.S. Attorney from 1992 to 1997 in the
appellate and general crimes divisions, also on the Organized
Crime Drug Enforcement Task Force.
After his tenure as Federal prosecutor, he joined Mayer
Brown where his practice specializes in complex commercial
litigation and criminal investigations with a focus on
securities fraud.
He has received numerous recognitions, including being
named an Illinois Super Lawyer from 2009 through 2011, served
as the adjunct professor of trial advocacy at Northwestern
University Law School, a member of the Law Fund Board at
Northwestern, served for a year as vice chair of the Chicago
Bar Association Judicial Evaluation Committee.
At this point I would like to ask consent to include in the
record the statement that I mentioned earlier by Senator Mark
Kirk, who actually brought his name to nomination, and without
objection, we will include that in the record at this point. I
am sure Senator Kirk, were he here, would be joining in
supporting both of these nominees enthusiastically.
[The prepared statement of Senator Kirk appears as a
submission for the record.]
Senator Durbin. Senator Kirk and I each have established a
bipartisan process with screening committees that are
bipartisan in nature, and we each have an ultimate veto on the
other's choice, so this is clearly a bipartisan effort from
start to finish. Upon the strong recommendation of the
committee, Senator Kirk came to me and suggested Mr. Tharp, and
I agree with that choice, and I look forward to working with
him, as he is going to work with me, to help Mr. Lee become a
Federal district court judge as well.
Mr. Tharp is also joined by family and friends whom I am
sure he will be introducing when he comes to the table.
Let me turn first to the first panel, the Ninth Circuit
Court nominee, and I am going to ask Senator Kyl if he would be
kind enough to introduce him.
PRESENTATION OF HON. ANDREW DAVID HURWITZ, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. JON KYL, A U.S.
SENATOR FROM THE STATE OF ARIZONA
Senator Kyl. Thank you very much, Mr. Chairman, and it is a
privilege for me to introduce to the Committee Justice Andy
Hurwitz from the State of Arizona to serve on the Ninth Circuit
Court of Appeals. Senator McCain could not be here today but
asked me to express his strong support for the nominee as well.
A bit about Justice Hurwitz. He received his undergraduate
degree from Princeton University and law degree from Yale,
where he was the note and comment editor of the Yale Law
Journal. He served as a law clerk to Judge Jon Newman of the
United States District Court for Connecticut and Judge Joseph
Smith of the U.S. Court of Appeals for the Second Circuit, and
finally to Associate Justice Potter Stewart of the United
States Supreme Court.
He has served on the Arizona Supreme Court since the year
2003. Before joining the Arizona Supreme Court, Justice Hurwitz
was a partner in the Phoenix firm of Osborn & Maledon, where
his practice focused on appellate and constitutional
litigation, administrative law, and civil litigation. He is a
member of the bar both in Arizona and Connecticut and received
the highest grade on the Arizona bar examination back when he
took it, and I will not tell you what year.
He has argued cases before the United States Supreme Court.
He served as chief of staff to the Governor of the State of
Arizona, and I have known him since those days 30 years ago.
That was Governor Babbitt, and then also Governor Mofford in
1988. He has been a member of the Arizona Board of Regents from
1988 through 1996, also having served as president of the
board. That is the entity in Arizona that has jurisdiction over
all of our universities and colleges.
He has taught regularly at Arizona State University Law
College. He delivered the Willard H. Pedrick Lecture at the
College of Law in 1999, and that is a big deal. I am going to
be doing that this year, so I can tell you I am honored to do
that. He was appointed by Chief Justice Rehnquist in 2004 as a
member of the Advisory Committee on the Federal Rules of
Evidence and reappointed to a second term by Chief Justice
Roberts. It is very easy to see and it is obvious to those of
us who have been in Arizona a long time why Justice Hurwitz was
awarded the ABA's highest rating, unanimous well qualified.
So it will be my privilege to support his nomination, and I
am honored to be able to introduce him to the panel today.
Senator Durbin. Senator Kyl, thank you very much, and the
other nominees, I am sure, are honored by the presence of four
of our colleagues, and I would like to turn at this moment to
Senator Barbara Mikulski.
PRESENTATION OF HON. GEORGE LEVI RUSSELL III, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY HON.
BARBARA MIKULSKI, A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you very much, Senator Durbin,
Senator Kyl, and to you, Senator Durbin, we express our good
wishes to Senator Kirk as well.
Today Senator Cardin and I are both delighted and
enthusiastic to introduce to the Committee Judge George Russell
III to serve on the United States District Court for Maryland.
We want to thank Senator Leahy and Senator Grassley and their
excellent staff for moving this procedure along.
We are so enthusiastic to bring this nominee, and as I look
at taking this issue--Senator Cardin and I take this
recommendation very seriously, and when I consider a nominee
for the Federal bench, I have four criteria: absolute personal
integrity, judicial competence and temperament, a commitment to
core constitutional principles, and a history of civic
engagement in Maryland. We want someone who both understands
and grasps the law, but understands the human condition as
well. I mention these standards because this is exactly what we
are talking about, about Judge George Levi Russell III.
Mr. Russell already serves as a judge. He serves on the
circuit court of the State of Maryland. It is a testimony to
his commitment and the belief of those who appoint judges that
he will render impartial justice by the fact that this man was
recommended by a Republican Governor, Governor Ehrlich, and he
has served with distinction there.
He comes with a wonderful education. He went to Morehouse
for his undergraduate degree, the University of Maryland for
his law degree, passed the bar, and has worked both in the
public domain as well as in the private sector.
As a young attorney, he served as a law clerk for Judge
Robert Bell, the chief judge for the Maryland Court of Appeals.
He also worked in the public area for 10 years as an Assistant
U.S. Attorney handling criminal and civil cases and then,
because of his deft skills with people, was asked to be the
community outreach coordinator to help reduce violent crime. He
also then worked in the private sector working for three well-
known Maryland law firms.
He is a homegrown guy, born and raised in Baltimore. His
father is one of the most beloved and esteemed jurists in
Maryland. His father, George Russell, Jr., was a legal pioneer,
serving as the city's first African-American circuit judge, but
he was not only the first, he served with such great
distinction.
This George Russell maintains his--is well known and well
respected for the number of cases that he has presided over,
over 2,700. He is well known for having the appropriate
judicial temperament in a hard-scrabble court, which is the
Baltimore City Circuit Court, and at the same time to really be
able to render justice in a way that everyone has confidence.
He has maintained his connection to everyday people by
serving on the board of directors of the Enoch Pratt Library,
his deep commitment to the empowerment of all. He has been a
Big Brother, and he served in the Community Law Center.
So whether it is working in a private law firm as a skilled
and deft litigator, as a tough, strong prosecutor, as someone
who has already demonstrated a judicial ability, this is George
Russell. He is joined here today by his mother and father, by
his wife and his children, and by his in-laws. So when you have
the endorsement of the Maryland Bar and your in-laws and the
two hometown Senators, I think that is a pretty good set of
recommendations.
Senator Durbin. Thank you, Senator Mikulski.
Senator Cardin.
PRESENTATION OF HON. GEORGE LEVI RUSSELL III, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY HON.
BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Senator Durbin, Senator Kyl, thank you very
much for the opportunity to introduce Judge Russell to the
Committee. I join Senator Mikulski in my enthusiastic support
for his confirmation, and I would ask consent that my statement
be made part of the record.
Senator Durbin. Without objection.
Senator Cardin. Let me just summarize a few points.
Senator Mikulski mentioned how we take these appointments
or recommendations very, very seriously. Like Senator Durbin,
we have a nonpartisan process to try to get the very best on
the Federal bench, and we think Judge Russell is the very best
for this lifetime appointment to the district court for the
District of Maryland.
I want to thank Judge Russell for his commitment to public
service. He has been a trial court judge. He has served our
community well. I want to thank him, his wife, and his entire
family for the sacrifices that they make. This is a family
commitment.
Senator Mikulski mentioned his father, who is here, a
person whom I have known all my life. I have known the Russell
family all my life. Judge Russell's father was a pioneer and
leader in our community and has been a role model for many of
our leaders today. I admire him greatly for his skills as a
judge. He served on the same bench that my father served on,
and we are good friends. He has been a civic leader and a
person whom we look up to as one of the giants in the legal
profession. His son is following in those footsteps. The family
knows public service. His wife is a district court judge in
Baltimore, so this is a family that takes public service very,
very seriously.
Senator Mikulski mentioned the experience of Judge Russell,
and I will not repeat it. But I do want to point out that he
has been a prosecutor; he has handled civil cases in the U.S.
Attorney's Office. He has experience in the private sector of
law, and he has trial experience as a judge. I think that is
the type of experience that we look at and we can judge that he
will be the type of person we would want to have for a lifetime
appointment on our district court.
He also brings community commitment. Senator Mikulski
mentioned the Enoch Pratt Library where he is a trustee. There
is Big Brothers and Big Sisters he is involved in; the
Community Law Center, where he serves on the board of
directors.
I asked him the question during the interview process why
he wanted to be a Federal judge. I ask that usually routinely
of our nominees. His answer was one that came from his heart
about how he really wants to help the community and serve the
community, and he thinks he can serve the people best by what
he is doing on the bench.
He has taken on some of the toughest problems in our
community. He is known for taking on drug violence. He is known
for taking on mental health issues. And I think that
sensitivity will serve him well on the district court.
I strongly encourage the Committee to report out his
nomination. He has my strong support.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Senator Durbin. Thank you very much, Senator Cardin. You
and Senator Mikulski are welcome to stay, but I also understand
with your schedules you may have to absent yourself. But I am
sure it is a great honor to your nominee that you are both
present here and supportive of his candidacy.
I would like to now introduce Senator Mark Pryor of
Arkansas to speak to the nomination of Kristine Baker.
PRESENTATION OF KRISTINE GERHARD BAKER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON.
MARK L. PRYOR, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Pryor. Thank you, Mr. Chairman, and I want to thank
you and Senator Kyl for allowing me to come here today and
introduce Kris. G. Baker. I would also like to thank her family
and friends who made the trip. I am not sure if all of her
family is here because it is awfully quiet in the room right
now. Her four children, who are all 8 years old and under, came
in my office earlier, and it was like having four little
Arkansas tornadoes running around my office. But I kind of
thought if she can handle these kids, she can handle any lawyer
in the courtroom. So, anyway, I am glad that she brought them,
and it is great to have them here.
I am really honored to sit here today and recommend her for
confirmation as a Federal judge in the Eastern District of
Arkansas, and I am also honored to be joined by Senator
Boozman. I think one of the things that John and I both know is
that Kris has earned a reputation in legal circles, in the
business community, and also around the State of Arkansas as a
hard-working and brilliant attorney.
While this Committee has seen its fair share of polarizing
nominees and controversial nominations, you will not find that
in Kris Baker. She is very well respected for her extensive
experience in civil matters and has a strong commitment to a
fair and impartial legal system.
I have a three-pronged approach when considering judges.
First, I ask, Is the person qualified? Second, do they have the
proper judicial temperament? And, third, do they have the
ability to be fair and impartial? I am not only comfortable
that she passes these, but I am confident that she far exceeds
all of these standards. And as you learn about this nominee, I
think you will feel the same way about her.
She currently practices law as a partner in the law firm of
Quattlebaum, Grooms, Tull & Burrow in Little Rock, and she
specializes in commercial, employment, and First Amendment
litigation. In fact, before the hearing, one of her law
partners, Steve Quattlebaum, who came up from Little Rock to be
with her today, told me, ``I just do not know what I would have
done without her all these years.''
She joined the firm as an associate in the year 2000 and
became a partner in 2002. Previously, she worked at the law
firm of Williams & Anderson in Little Rock from 1998 to 2000.
She began her career as a law clerk to Hon. Susan Webber Wright
of the U.S. District Court for the Eastern District of
Arkansas, from 1996 to 1998. She earned her law degree with
honors from the University of Arkansas School of Law and her
B.A. from St. Louis University in 1993.
It is not just her friends and family who think a lot of
her, but she has been recognized as one of Chambers and
Partners' America's Leading Lawyers for Business, named a
Rising Star by Mid-South Super Lawyers, and listed with the
Best Lawyers in America, the Martindale-Hubbell Bar Register of
Preeminent Women Lawyers, and she has been named an Arkansas
Business' Forty Under 40.
So character and integrity are two qualities that she also
has, and she has done extensive pro bono work representing
clients in a variety of cases through the Pulaski County Bar
Association's Volunteer Organizations Center for Arkansas Legal
Services that we call ``VOCALS'' down in Little Rock by helping
elderly and sick prisoners receive the proper medical care. She
is also involved in many other community and school
organizations and efforts.
So I am very confident that she has what it takes to be a
great Federal judge, and I want to thank the Committee again
for giving her the consideration, and I would encourage you all
to give her a good vote as she goes through the Committee.
Senator Durbin. Thanks, Senator Pryor.
Senator Boozman.
PRESENTATION OF KRISTINE GERHARD BAKER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON.
JOHN BOOZMAN, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Boozman. Thank you, Senator Durbin and Senator Kyl,
for allowing me to speak today at this really very important
hearing. I am proud to be here to introduce and support, along
with Senator Pryor, Kristine G. Baker's nomination as United
States District Judge for the Eastern District of Arkansas. Her
extensive experience and her impressive background I think
unanimously qualifies her for the position of district judge.
I also would like to acknowledge her family. Her husband,
John, is with us, and her four children. I know they are
awfully proud of their wife and mom. Why don't you guys stand
up? Again, this is an active little family. I have got three
daughters, so I cannot relate to the little boys.
She was born in Colorado Spring, Colorado; moved to the
State of Arkansas in 1994; received her J.D. from the
University of Arkansas School of Law, where she graduated with
high honors, was ranked No. 3 in her class. She was articles
editor for the Arkansas Law Review, a member of the Board of
Advocates, and a member of the University of Arkansas First
Amendment National Moot Court Team.
Upon graduation, as Mark mentioned, she clerked for Susan
Wright, then chief judge for the Eastern District of Arkansas.
As also mentioned, Kris currently is in the Quattlebaum,
Grooms, Tull & Burrow law firm, in which she became a partner
in 2002, joined the firm in 2000. Her practice has been devoted
to litigation in really a diverse range of topics, which is so
important in assuming the position that she will be in,
including allegation of deceptive trade practices, breach of
contract, breach of fiduciary duty, and fraud. She also handles
First Amendment and Freedom of Information Act issues and has
received several awards and accolades, including being
recognized in commercial litigation in Chambers and Partners'
America's Leading Lawyers for Business, listed with the Best
Lawyers in America in the areas of commercial litigation,
litigation of First Amendment, litigation of labor and
employment law, individuals' employment law, management and
labor law, named Best Lawyers 2012 Little Rock Litigation, and
the list goes on and on. And I ask unanimous consent to put all
of this in the record.
Senator Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Boozman. Kris has had extensive jury trial
experience, has also served as counsel in non-jury trials,
arbitration, and very successful in that area. She is a member
of the Pulaski County Bar Association, the Volunteer
Organizations Center for Arkansas Legal Services, and devotes
significant time each year to pro bono cases, which, again, is
very important.
She is very active in her church, affiliated with the
Presbyterian Village, Our Lady of the Holy Souls Catholic
Church, Dress for Success Little Rock, and the March of Dimes.
So I believe that one of the most important things that we
do in the Senate is the confirmation of judges, the process of
selecting people with the right temperament and qualifications.
I believe that Kris Baker will do an excellent job and we will
all be proud of her future service on the bench. I congratulate
her on her nomination and strongly support her confirmation.
With that, I yield.
Senator Durbin. Thank you, Senator Boozman. Thank you,
Senator Pryor. We appreciate your being here today.
Now the Committee will move to the consideration of the
nominees. As is the custom of the Committee, the first panel
will consist of the circuit court nominee, the Ninth Circuit
nominee, Andrew Hurwitz, and I would ask, while we are changing
some of the identification cards here, if Justice Hurwitz would
please come to the witness table.
Remain standing for just one moment, please. If you would
please raise your right hand. Do you affirm that the testimony
you are about to give before this Judiciary Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Justice Hurwitz. I do.
Senator Durbin. Thank you. Let the record reflect that the
witness answered in the affirmative.
I might say to Senator Kyl, my only chance to ever be in a
movie was a movie called ``Contagion,'' which they filmed in
Chicago, and I administered that oath. I thought I did it
flawlessly, but I was lost on the cutting room floor.
[Laughter.]
Senator Durbin. So I practiced for it a lot before I got
here, Justice Hurwitz, as you can tell. Thank you for being
here. Please at this moment, if you would be kind enough to
introduce family and friends who are in attendance, and you are
welcome to make an opening statement.
STATEMENT OF HON. ANDREW DAVID HURWITZ, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Justice Hurwitz. Thank you, Senator Durbin, Senator Kyl. I
do not have a formal statement today. I do want to thank the
President for his confidence in me in making this nomination. I
want to thank Senators Durbin and Kyl for holding this hearing.
And I want to thank Senator McCain for his support and also
Congressman Pastor for his support in this process.
I do want to introduce some guests who are here with me
today:
The most educated person in our family, Dr. Sally Hurwitz,
my wife, the associate dean of the Mary Lou Fulton Teachers
College at Arizona State University;
My baby brother, Gary, who is a practicing lawyer in
Pennsylvania, and his wife, Holly;
And five friends of longstanding whom I will not embarrass
with their titles and how I met them: We have back here Brian
de Vallance; Molly Broad; Hattie Babbitt; Iris Roman Burnett,
whom I have known since I was a very small child. And have I
forgotten someone in this group? I do not think I have.
And I also wanted to say hello to my children, who are
watching online today, my three children; to my chambers family
and colleagues at the court; and--I suspect they can hear me--
to my father and mother, who are no longer with us, but I think
are listening from someplace else.
[The biographical information of Justice Hurwitz follows:]
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Senator Durbin. Thank you, Justice.
Let me say at the outset, for those who have not attended
these hearings before, that if you are waiting for Senator Kyl
and I to ask those questions to catch the nominees in some
erroneous ruling on a case or something, that is not likely to
occur.
Justice Hurwitz. And I have made one error already,
Senator. I think I forgot to introduce my friend Bartow Farr,
who is back here in the audience also.
Senator Durbin. What we do during the course of preparing
for these nominations is to ask the prospective nominees to go
through a series of screening committees, a number of
questions, and that is just the beginning. Once they have
cleared that hurdle, they are on to the White House where the
White House and the Federal Bureau of Investigation go through
extensive background checks. A lot of questions are asked
preparing them for their next step to come before the Judiciary
Committee. And if there is no controversy associated with their
nomination, it is rare that these become controversial and
contentious hearings. So instead we ask a few questions, but I
hope that you understand that most of the questions of
substance about character and knowledge and the like have been
asked in detail before these witnesses arrive.
Let me turn it over first to my colleague Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman, and thank you for
making that comment. Back when I used to be able to chair the
Committee, I said something similar because I think it was
somewhat disappointing for folks who would come all the way
back to Washington and then go home and say was that all there
was to it. Well, that is just the tip of the iceberg. All of
the hard investigation and the like has occurred really behind
the scenes.
But sometimes there is a question that you just want to ask
to be able to get something out into the open, and I do have--
incidentally, I think, Justice Hurwitz, were you playing hooky
from--I heard something about how you were not sure you could
get to the hearing because you had some hearings in the court,
and I think somebody said that would be an adequate excuse.
Justice Hurwitz. In fact, Senator Kyl, we had a calendar
yesterday morning, and so I scooted out of town as soon as it
was over. So you have not interfered with the business of the
Arizona Supreme Court.
Senator Kyl. That is a hard-working Justice.
I just wanted to make sure that one of my favorite subjects
was covered, and that is, the ability of a person who has been
active in life, including political life, as you have been, and
working for political figures and a person with strong
political convictions can get on the bench and put those
personal convictions aside, applying the law as you believe it
applies to any given case. It is not always easy for people to
do, but I will say, Mr. Chairman, that Justice Hurwitz does not
have a reputation as an activist judge and to my way of
thinking has been quite successful in that very difficult job
of separating political views from the job at hand, namely,
deciding cases.
I wanted to read or at least comment on one decision, and
that has to do with your personal disagreement with a very
long, 200-year prison sentence that the appellant was arguing
was unconstitutional. And you said in your concurring opinion
that your personal opinion was that it was unduly long, but
that you had to uphold the punishment anyway because you
believed you were constrained by the power of the legislature
and the precedents of the United States Supreme Court.
Now, that is not easy to do. Can you explain to us how you
tried to accomplish that result in your jurisprudence?
Justice Hurwitz. Thank you, Senator. I think that for every
judge, no matter what his or her background, one of the most
difficult parts of the job is deciding the case in front of you
on the law and the facts and trying not to let extraneous
things interfere. In that regard, I had some interesting
mentorship earlier in my career from Justice Stewart, who once
said, I think, in an opinion that he regarded a law as
``uncommonly silly,'' but it was nonetheless constitutional.
And our job is to decide whether on the law and the facts of
the case a particular statute or particular set of facts meets
legal muster, not whether we would have done it differently.
And I think that is something my career on the Arizona
Supreme Court has demonstrated I can do and will do, if lucky
enough to be confirmed to the Ninth Circuit.
Senator Kyl. Thank you. Just one other point. It is
related. You wrote something or said this in a comment--I think
it was written down--that it is better for a court to confront
issues when presented, briefed, and argued by the parties with
a stake in the outcome, and yet I know at least your reputation
is not one as an activist. So can you comment, if you recall
what that statement was made in the context of, and what your
views on how aggressively judges should approach deciding cases
is?
Justice Hurwitz. Senator, I do not remember the particular
context in which I made that remark, but I adhere to it. It
seems to me that judges in almost every case should decide the
issues in front of them as well and as completely as they can
and leave for the next case the issues that are not posed by
this one, where the parties have the opportunity in front of
them to make the arguments, where people have the opportunity
to know that the issue is before the court and might get
decided. And I think without regard to liberal/conservative
sort of political labels, I think that is a judicious
conservative approach to decision-making. Decide the issue in
front of you. Decide it fairly. Do not duck the issues in front
of you, but do not reach out for issues that are not presented
in the particular case.
Senator Kyl. I appreciate it. Thank you, Mr. Chairman.
Senator Durbin. Justice Hurwitz, when you were in private
practice, you argued a case, Ring v. Arizona, before the United
States Supreme Court, and in that case the Supreme Court held
that under the 14th Amendment, a jury, not a judge, is required
to find the aggravating circumstances that make a defendant
eligible to receive the death penalty. Interestingly enough,
your opposing counsel in the case was then-State Attorney
General of Arizona, Janet Napolitano, who later appointed you
to the Arizona Supreme Court when she was Governor.
Could you tell me a little bit about the facts of that case
and your involvement in it, both at the Supreme Court level as
well as subsequent litigation on remand in Arizona?
Justice Hurwitz. Thank you, Senator. First, I should say
that when I was appointed to the Arizona Supreme Court, then-
Governor Napolitano said she did this so she would not have to
argue against me ever again.
[Laughter.]
Justice Hurwitz. I took that with a grain of salt.
I got involved in this case because one of my law partners
at the time, Larry Hammond, was one of the noted criminal
lawyers in the State, and Mr. Ring's lawyers approached him to
file a cert. petition, and he said, ``That is not the kind of
work I do but Andy Hurwitz does, and so maybe he will take this
on for you.'' And I did because it was clear that it was an
issue that the Court had to take in light of the Apprendi
decision, which had talked about juries finding aggravating
circumstances.
Our firm took on the argument pro bono, and I was helped by
my friend Mr. Farr, who is in the back of the room. And it was
a very expedited schedule. We took on the case in December, and
the Court heard the argument in April.
I did have the privilege of arguing against an old friend
and an excellent appellate lawyer, then-Attorney General
Napolitano. And the issue for the Court was really whether or
not the Apprendi decision would apply to capital cases, and the
Court decided 7-2 that it did.
After that, in something that I thought was unprecedented,
when we got back to Arizona and I thought I had exhausted the
resources of my firm in doing this large pro bono
representation, one of the Justices of the Court asked me to
represent the 28 people who were still on Death Row on direct
appeal in an argument about how the Ring case ought to apply to
them. And so we had to put together a consolidated brief that
covered these 28 cases, to which I argued to the Arizona
Supreme Court just before I went on the bench. I learned of the
decision after I got on the bench, which I thought was a
tribute to my colleagues on the bench, none of whom told me how
it was going to come out. And, essentially, the court decided
that the Ring decision would apply to these people. Some of
them go new trials; some of them did not. And as to the
remainder of them, the State agreed to reduce their sentences
to life.
Senator Durbin. Let me ask you about one other case that
you presided over, the case of State v. Gant in 2007, involving
a compelling Fourth Amendment question, namely, whether it is
constitutional under the search incident to the arrest
exception to the Fourth Amendment's warrant requirement for
police officers to conduct a warrantless search of a person's
car when the person has been arrested and placed in handcuffs
in the back of a police car and the scene has been secured. You
joined with the majority of your court in holding this
warrantless search was not constitutional, the view later
upheld by the United States Supreme Court.
Can you tell us about the facts of the case and the
reasoning that your court adopted?
Justice Hurwitz. Yes, and as you pointed out, Senator
Durbin, I was not the author of that opinion. I think now-Chief
Justice Berch was the author of that opinion.
The facts of the case, as I recall them, were that the
police had a tip that Mr. Gant was coming to a particular
place, and they suspected him of being involved in, I think,
marijuana trafficking. When he got there, he was taken out of
the car and arrested, put into the police car, and then the
police thereafter searched the car. And the question, which was
an open one under Supreme Court jurisprudence, at least as we
viewed it, was whether or not the so-called Shermell exception
to warrantless searches--the notion that the police are
entitled to protect themselves by searching the scene around
them and making sure there is nothing dangerous there--still
applied once the defendant had been taken away from the car and
effectively immobilized. And our court determined that because
the defendant had been put in the back of the police car, there
were no other people present, there was no danger to the police
officers, there was no obstruction or no inability to get a
warrant, that the warrant requirement of the Fourth Amendment
applied.
That was a 3-2 decision in our court. It was appealed to
the U.S. Supreme Court, and the U.S. Supreme Court took the
position of the majority, that under the circumstances of this
case, the warrant was required.
Senator Durbin. The last case I want to ask you about is
one that has been the subject of law school debate as well as
debate in the Judiciary Committee, and will continue to be, I
guess, as long as we try to understand the Bill of Rights in
the context of modern America. It was Citizens Publishing
Company v. Miller ex rel. Elleithee, 2005. You authored a
unanimous opinion holding that a newspaper was protected by the
First Amendment when it ran a letter to the editor that
advocated to ``execute five of the first Muslims we encounter''
in relation to the Iraq war. Your court held that the letter
did not constitute an incitement to imminent lawless action,
fighting words, or true threat of violence.
Can you tell me your reasoning in that case?
Justice Hurwitz. Yes, Senator. The letter was in a strange
context. It said the next time there is an atrocity in Iraq we
should find the first five Muslims we see and execute them. So
one of the questions in the case was did that mean in Iraq or
in the United States. The plaintiffs in the case were Muslim
American citizens from Tucson who were suing for intentional
infliction of emotional distress, arguing that this letter was
actionable. And what we did, I think, was applied classic First
Amendment law, which is that, in general, we should not
restrain newspapers from saying things; in general, speech is,
as Justice Brandeis once said, the great disinfectant, that we
enter into the American debate and we have this speech and
people say bad things and we respond to them by telling them
they are wrong.
In this case we found that, in context, this really was not
truly a threat against anybody living in Tucson. It was
hyperbole about the atrocities in the war, and that while it
was a reprehensible statement and one that ought to be
condemned, it ought not be condemned by the courts by removing
it from the paper or making the newspaper liable, but condemned
by responsible citizens responding to the statement, as they
well did in the Tucson citizen letters to the editor section.
Senator Durbin. Senator Kyl, anything further?
Senator Kyl. No. Thank you.
Senator Durbin. You get the closing argument. Is there
anything you would like to say before----
Justice Hurwitz. I have been a lawyer long enough to know
not to say anything when it is not needed, and so I have no
closing remarks, sir.
[Laughter.]
Senator Durbin. Justice Hurwitz, thank you for joining us
today. We are honored.
Justice Hurwitz. Thank you both.
Senator Durbin. And we thank all your friends and family
for joining you as well.
Senator Durbin. The second panel that we will have approach
the witness table includes previously introduced Kristine Baker
of Arkansas, George Russell III of Maryland--because I met
George IV--John Lee of Illinois, and Jay Tharp of Illinois.
If you would please raise your right hand. Do you affirm
that the testimony you are about to give before the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Baker. I do.
Mr. Lee. I do.
Mr. Tharp. I do.
Judge Russell. I do.
Senator Durbin. Let the record reflect that the witnesses
have answered in the affirmative, and let me start with Mrs.
Baker. Please, if you would like to introduce family and
friends who are present and make an opening statement, I invite
you.
STATEMENT OF KRISTINE GERHARD BAKER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS
Ms. Baker. Thank you, Senator. I appreciate it. Thank you,
Mr. Chairman, and thank you, Ranking Member Kyl, for convening
the hearing today. I would like to thank President Obama for
the nomination. I would like to thank Senator Pryor for
recommending me to the President. And I would like to thank
Senator Boozman for his support of my recommendation and also
nomination. I would also like to take this time to thank
Senator Pryor and Senator Boozman for their kind words today.
If I could briefly introduce family and friends who are in
attendance: my husband, John Baker, is here, and as the
Senators alluded to, my four children are in attendance as
well.
My parents are here, Karl and Edie Gerhard; and my in-laws
are here, Charlie and Nancy Baker.
In addition to those family members, I am joined today by
several colleagues and friends, and I also have several family
members, colleagues, and friends watching from home.
I have no other opening remarks. I appreciate the
opportunity. Thank you.
[The biographical information of Ms. Baker follows:]
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Senator Durbin. Thank you.
Mr. John Lee of Chicago, please introduce family and
friends with you and make any opening statement you feel
appropriate.
STATEMENT OF JOHN Z. LEE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS
Mr. Lee. Thank you, Senator. First of all, I would like to
thank this Committee for your consideration of my nomination. I
would like to thank particularly Senator Durbin for chairing
this hearing and for recommending me to the President for
nomination.
I would also like to thank Senator Leahy and Senator
Grassley for this hearing, as well as Senator Kyl for being
here today. Thank you very much.
I would also like to thank President Obama for the great
privilege and honor of the nomination itself.
I would also like to thank Senator Kirk for his support of
my nomination, and I am sure like everyone else here, I wish
him a fast and speedy recovery.
If I may, I would like to introduce my friends and family
who are here today. First of all, with my family, I would like
to introduce Dr. June Lee along with our children: my daughter,
Kaitlyn Lee, and our son, Noah. Also with me today are my
parents, Sun Koo Lee and Hwa Za Lee, who brought me to this
country many, many years ago, over 40 years ago.
I would also like to acknowledge my brothers, who could not
be here today: my brother, Daniel, his wife, Carrie, and their
sons, Wyatt and Ryder; as well as my brother, David, who is a
school teacher in Chicago.
I would also like to acknowledge my grandmother, who passed
away this last year. She raised me for much of my young
childhood, and much of whom I am today I owe to her kindness,
generosity, and love, so I was to acknowledge her.
Last, my friend and colleague, Jeff Cross, who joined me
today, and I want to recognize all the friends and colleagues,
particularly those at Freeborn & Peters, who are watching on
the webcast.
Thank you.
[The biographical information of Mr. Lee follows:]
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Senator Durbin. Thank you.
Mr. John Tharp, same opportunity.
STATEMENT OF JOHN J. THARP, JR., NOMINEE TO BE U.S.DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Tharp. Senator Durbin, thanks very much. As a trial
lawyer, I am loath to waive an opening statement, but I will do
so today in favor of just making a few thank-yous and
introductions.
I would like to start out by thanking you for the kind
words in your introduction and joining you in your wish to
Senator Kirk for a very, very speedy recovery.
With respect to you and Senator Kirk, Senator Durbin, I
also wanted to thank you for the bipartisan leadership that the
two of you show through your cooperation and consultation in
making judicial recommendations to the President for our State.
It is a credit to the State of Illinois, and I think it is a
great example for the rest of the country, so I thank you for
that.
I would like to thank you and Senator Kyl for chairing and
convening this Committee hearing today. I know that Thursdays
are not the usual day for these hearings, and I greatly
appreciate your work, Senator Leahy and Senator Grassley's
work, and the work of the staffs for putting this hearing
together.
I would like to make a couple of introductions, if I may.
My wife of 28 years, Betsy, is here with me today, and I hope I
got that 28 years right.
[Laughter.]
Mr. Tharp. My middle daughter, Emily, who is a junior at
Villanova University outside of Philadelphia was able to join
me today. I am very happy about that.
I have two other children. You mentioned one. My son, Matt,
is a lieutenant in the Marine Corps stationed at Camp Lejeune,
training right now, and he could not join us. And I have a
freshman down at Tulane University in New Orleans who--Mardi
Gras is approaching, and I did not think she ought to be
missing class just now, so we left her there. But I know they
are watching on the webcast.
I also wanted to introduce my nephew, Michael Mulshine, who
is a brand-new lawyer in the State of Maryland, just passed the
bar, working there now, and he was able to join us.
And two friends, Peter Baugher, who was the chairperson of
Senator Kirk's bipartisan recommendation Committee that you
adverted to, Senator, and my very, very good friend, the
Reverence Henry Brinton, whose friendship goes back to college,
and I am just delighted he was here to join me, and I thank you
for this opportunity.
[The biographical information of Mr. Tharp follows:]
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Senator Durbin. Thank you very much, Mr. Tharp.
Judge Russell.
STATEMENT OF HON. GEORGE LEVI RUSSELL III, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND
Judge Russell. Yes, good afternoon, Senator Kyl, as well as
Senator Durbin. I am certainly honored and humbled by the
nomination. I do not have any formal introductory remarks, but
I do want to express great gratitude and thanks to President
Obama for this nomination, Senators Mikulski and Cardin for
their kind words and support of my nomination, in addition to
both of you taking the time out of your busy schedule to afford
me the opportunity for a hearing, as well as the other
individual Senators that are on the Committee.
I am accompanied here today and honored and privileged to
be accompanied here today by various family members. First and
foremost, my mother and father, George and Marion Russell, are
here, and I am also accompanied and honored to have my in-laws,
Doward and Helen Patterson, who are in the back here.
And certainly, last but not least, my immediate family. My
wife and friend, Devy Patterson Russell, has accompanied me
here, as well as the two individuals who the sun rises and sets
with, my two children: George, who just turned 10, and Madison,
who is about to turn 13.
I do not have any other remarks, Senator. Thank you.
[The biographical information of Judge Russell follows:]
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Senator Durbin. Well, thank you very much. It has been my
pleasure to meet some of the members of your families, and I
know that they are proud of your achievement in reaching this
point.
Repeating briefly what I said earlier, the process to this
point for all four nominees has involved extensive
investigation, interrogation, a lot of questionnaires, which I
am sure they got very tired of filling out, that led them to
this moment, followed by more formal investigations at the
White House level of all nominees, and coming to this
Committee, where staff and members will be looking closely. But
each and every one of these nominees would not have reached
this point were it not for their success in dealing with
questions and issues that have been raised.
The difference, of course--and most everyone in the room
knows it--is that these four judges who face the opportunity of
serving at the district court level will, for the most part of
every day, see real people and not just attorneys. Before them
will appear defendants and plaintiffs, jury members, the public
at large on a regular basis, unlike judges at a higher level
who work a lot of time directly with attorneys and in research
with law clerks. So it is a little different style of law that
the district court judges face. I spoke to Mr. Lee and Mr.
Tharp earlier about my limited experience in that field before
coming to Congress.
My first question goes to a point which most every lawyer,
if honest, will say is the most important thing. Has this judge
with this lifetime appointment becomes so full of himself or
herself that they have forgotten what real life is like, that
they become imperial in their manner, that they do not have a
temperament where they really care who is standing in front of
them? That was a nightmare for every trial lawyer, and I think
most people who practice trial law have run into judges like
that. So here is your chance on the record under oath to say
what you think about that subject. Kristine Baker can start.
Ms. Baker. Thank you, Senator, for the question. I agree
that I think, win or lose, most litigants and folks who appear
in court remember how they were treated by the bench. As a
result of that, I think, if honored to be confirmed to a
position as a district court judge, the most important thing is
temperament, to treat everyone who appears before the court
with an attentive listening ear, to be patient, to treat them
with dignity and respect.
Senator Durbin. Judge Russell.
Judge Russell. I think judicial temperament is an
absolutely critical criteria that a judge must possess. In my
court, I treat every litigant the way--every litigant, every
party, the way I wanted to be treated when I practiced law. But
it is not--it does not just stop at the litigants. It stops at
the clerks, the deputy sheriff, and all of the people that are
associated with my part or my courtroom. So I think it is an
absolutely critical criteria and factor that I think every
judicial candidate and certainly nominee should have.
Senator Durbin. Mr. Tharp.
Mr. Tharp. Thank you, Senator. If I could say at the
outset, despite my best efforts here to name everybody to
thank, I think I omitted the most important person in the
process, the President for the nomination, and I certainly
thank him for the honor of this nomination.
In response to your question, Senator, I think it really
goes to what I think one of the most important characteristics
of a good judge is, and that is humility. And by that I do not
necessarily mean or exclusively mean personal modesty, but
humility in the sense that you recognize your role in the
process and that you are serving a system and you are serving
individual litigants, and that you are really the face of
justice. As you so rightly point out, we are the judges--the
district court judges are the judges that those litigants see
in court, and you have got to respect your role in the system,
your limited role, your duty to apply the law, and to be fair
and impartial to those litigants, and to recognize that this is
what they see and take away from the judicial system. And I
think if you keep that in mind, you will go a long way to
having the appropriate temperament.
Senator Durbin. Mr. Lee.
Mr. Lee. Thank you, Senator. I do not know if I can add
anything to what my esteemed colleagues here have stated. I do
completely agree that judicial temperament is extremely
important. I believe a judge must have an abiding and deep
respect for the rule of law so that he or she can apply the
controlling law to the facts of a particular case without
regard for personal belief or background.
I also believe that humility and humbleness is extremely
important, realizing that a judge's personal view may not be
the controlling view and be open to all sides of an argument in
a case before him or her.
Senator Durbin. A number of lawyers came to see me in
Chicago a few years ago after I had been involved in this
process for a little while and said to me--they were from the
defense bar, and they said, ``Why do you keep picking
prosecutors? Aren't there any criminal defense lawyers who
could be judges? A lot of our people think we kind of go in at
a disadvantage if a judge thinks like a prosecutor and cannot
put themselves in the shoes of a defense.''
Judge Russell, you have been through this. You went from
the prosecutor's role to the judge's role. Tell me how you
could have that experience and the criminal defendant before
you feel like they have a fair shake coming.
Judge Russell. Well, I was very fortunate to have worked
with some tremendous colleagues over at the U.S. Attorney's
Office, and mentors, both in the Civil Division as well as the
Criminal Division. And one of the tenets that I always
practiced by, whether I was in criminal prosecution or civil
prosecution, was fairness and justice. And I think that is
critical--that is a critical characteristic for me as a judge.
I must be fair. And as a prosecutor, I strove to be fair. There
was not a criminal defense lawyer that would, I dare say, say
that I was not fair.
My pursuit was not winning or losing. It was simply
justice. And so the transition from a prosecutor to a judge was
not as difficult as maybe it would be for others.
Senator Durbin. Before I ask another question or two, I
will turn to my colleague Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. Let me ask a couple
of specific questions.
First of all, John Lee, to you. One of the things that we
learned about your background was looking at the firm profile
at Freeborn & Peters. There the website indicates that during
your time at the Department of Justice you served as Special
Assistant to the Counsel to Attorney General Janet Reno. I
think I have that title correctly. But that was not in the
answers to your Senate questionnaire. I wondered, first of all,
why that was not the case and what your responsibilities for
Attorney General Reno were.
Mr. Lee. Thank you, Senator, for that question. Basically,
I was a trial lawyer officially at the Environmental and
Natural Resources Division assigned to the Environmental
Defense Section. I was asked to take a special assignment to
assist Attorney General Reno's office with regard to particular
issues regarding the environment, particularly issues with
regard to, for example, the scope of CERCLA regulation, the
impact of RCRA, and citing issues. And so while I was on
special assignment or designation to her office for, I believe,
a period of 4 to 5 months, I still remained a trial lawyer at
the Environmental Defense Section with all my usual
responsibilities.
Senator Kyl. So it just did not seem necessary to put on
the Senate questionnaire. Is that correct?
Mr. Lee. That is correct, Senator. Perhaps in hindsight, to
make it more complete I should have put that on, but because I
was a trial attorney at EDS at the time, I thought that that
would cover that time period.
Senator Kyl. Second, in a case called Taylor, Bean and
Whitaker Mortgage Company v. Sevuleck, the judge dismissed a
myriad of civil RICO claims that you had filed on behalf of
your client saying that the complaint contained a glaring
deficiency and citing the plaintiff's failure to properly
plead. Do you recall why you made the allegations that you did
and if, as the judge implies, you had no factual basis to back
them up?
Mr. Lee. Thank you, Senator. We believed that at the time--
certainly the client believed and we believed that we did have
a factual basis for a good claim, a good-faith claim under
RICO. As the Senator is probably aware, the area of civil RICO
has been a developing area over time, and we certainly believed
that at the state of the case law at the time that we had a
good-faith basis to state a RICO claim, particularly in light
of the allegations that we made, which was that there was a
cadre or a conspiracy of people involved in mortgage fraud in
the Chicago area.
Senator Kyl. Kristine Baker, let me ask you a question that
relates back to the testimony of Justice Hurwitz from Arizona.
You will recall I said he had firm political opinions, but at
least has a reputation of being able to distinguish those from
his judicial decisions and the way he approaches judging. You,
too, have a record of supporting Democratic candidates and
causes in your State, and so I wonder if you have given thought
to how you will commit to all of us who will be involved in
your confirmation that you, too, will approach judging in a way
that leaves out your own political beliefs.
Ms. Baker. I do not believe, Senator, that political
beliefs or personal views have any place in the role of a
district court judge. I think a district court judge--I was
fortunate enough after law school to serve as a law clerk to a
United States district judge in the Eastern District of
Arkansas, and I witnessed Judge Susan Webber Wright making
decisions that came before her based upon the rule of law. I
believe that a district court judge's role is an important one
but a limited one. It is to follow the precedent. It is to
decide the facts of the case based upon applicable law. And,
again, I do not believe political views or personal views play
a role in that position or that job.
I believe in my conduct this far as an advocate I have
shown that I can be fair to all sides of an issue when
reviewing issues, and I think my colleagues have that
confidence in me as expressed through the Senators and the
recommendations that I have received through this process
today.
Senator Kyl. And I gather for the other three members of
the panel--and, by the way, congratulations to all of you for
your nominations--that you share more or less the views that
have been expressed by Ms. Baker. If you have a different view,
I would like to hear it, but at least to confirm for us that
this is the approach that you will take if you agree with the
approach expressed.
Mr. Lee.
Mr. Lee. Certainly I am in agreement, Senator.
Senator Kyl. Mr. Tharp.
Mr. Tharp. Absolutely, Senator.
Senator Kyl. Judge Russell.
Judge Russell. I am in agreement as well.
Senator Kyl. Thank you. I am within my time, Mr. Chairman.
Senator Durbin. Thanks a lot, Senator Kyl.
Ms. Baker, in your practice you have handled a number of
cases involving First Amendment and Freedom of Information Act
issues. Can you talk about your work in this area and how you
think it will affect your service on the Federal bench?
Ms. Baker. Thank you for the question, Senator. I have
spent a lot of time looking at those issues to the extent they
have come up in my practice. Our firm has served as counsel to
the Arkansas Press Association, and I have done work on their
behalf, as well as on behalf of other newspapers throughout the
State. So I have studied those issues and looked at them in
practice.
On the bench, I do not know that that brings very much to
bear other than I have looked at constitutional issues in the
First Amendment area as a practitioner. I have looked at it
from both sides, from folks who have come seeking to bring a
claim and also folks who have been sued under First Amendment
claims.
So I think I can analyze issues from both sides, but,
again, I think the role of a judge is to decide the case on
applicable law, on precedent, and on the facts before the
court.
Senator Durbin. Thank you.
Mr. Tharp, I do not know enough about securities litigation
to engage in a meaningful conversation, but I note in your
background that you have written and spoken several times on
the new Dodd-Frank law, questions of extraterritoriality and
the like. Could you comment on your observations, at least from
your current vantage point, and what impact that might have if
an issue involving that law comes before the bench?
Mr. Tharp. Certainly, Senator. Dodd-Frank obviously is a
very large piece of legislation with a lot of moving parts,
many of which are still under study and review, and I would
guess under still legislative or agency consideration in terms
of further rulemaking or legislation. But, clearly, there are a
number of aspects of Dodd-Frank that have impacted my practice
that I am quite familiar with in terms of the implementation of
new whistleblower provisions, provisions relating to the
scienter requirement for securities fraud cases under the
securities statutes and things like that.
In terms of how those developments would affect me as a
judge, if I am fortunate enough to be confirmed, I will
approach those as I do any statutory question in terms of
interpreting the statute, applying any precedent that the
higher courts have applied, and considering the ongoing
legislative and regulatory amendments and changes to that law
as they go forward. But my experience with the law, I have got
experience with lots of Federal laws. There are plenty of
Federal laws that I have never dealt with before, but my
approach as a judge to them will be exactly the same.
Senator Durbin. Thank you.
Mr. Lee, your family and life story is a compelling one.
Like many of our families, yours comes from a very humble
beginning, and your immigration to the United States is part of
the great story of our Nation. At what point did you come to
realize you wanted to get into law and that you would aspire to
serve on the Federal bench?
Mr. Lee. Thank you, Senator. I decided to go into law
really with the realization and I think appreciation as a
first-generation immigrant that this country is a country that
is governed by the rule of law. That is what drives a lot of
immigrants to come here and to seek out a new life in this
country.
I saw that in practice as my parents were developing their
new life here, as I was coming up through school and given the
opportunities that I had. And so as I started to get older and
started to realize and really appreciate--have a deep
appreciation for the rule of law as one of the central elements
of this country. It was that, Senator, that really kind of
drove me to a career in law and ultimately in my belief that
the judiciary is the embodiment of that principle, the
principle of the rule of law, and that is why I am here today.
Senator Durbin. The last question I will have for each of
you, and you can answer this brief, I hope. Could you give us
some indication of how you have used your personal or legal
skills in a pro bono capacity before you have come to this
hearing?
Ms. Baker.
Ms. Baker. Thank you, Senator. Prior to hearing, in my
capacity as an advocate I have worked on behalf of individuals
as appointed counsel by Federal courts in Arkansas on behalf of
prisoners who have brought 1983 claims. One of them was a
female inmate who had been raped by a guard, and others were
inmates who made claims in regard to medical care.
In addition to that, I have accepted cases through VOCALS.
Both Senator Pryor and Senator Boozman referenced that, and
that is a program for indigent clients to seek out
representation in a variety of legal matters.
Senator Durbin. Thanks.
Mr. Lee.
Mr. Lee. Thank you, Senator. I have dedicated a large
amount of my time to pro bono practice and to provide access
for indigent clients to the court system. Over the years I have
been intimately involved in an organization called CARPLS,
which is the Cook County legal hotline. It is really what we
consider the legal triage of Cook County, and we are proud to
say that we serve 50,000 to 60,000 clients a year at an average
cost of $25 per client consultation. That is just kind of how
we figured it out.
Also, over the last couple of years, a couple of partners
at Freeborn & Peters and I recognized that there was a dearth
of legal services up in the northwest Chicago suburbs area, and
so we created a partnership between CARPLS and Willow Creek
Church to start a legal clinic up in the northwest suburbs at
Hoffman Estates, and we are open Tuesday mornings and Tuesday
afternoons, and it is open to anyone who comes in, whatever
their background, whatever their religious affiliation. If they
have a legal issue, they can come and speak to one of the
lawyers there. And in that capacity, I have had the opportunity
to assist a lot of people with their issues as well.
Senator Durbin. Thanks.
Mr. Tharp.
Mr. Tharp. Thank you, Senator. Throughout my legal career,
really going back to law school, I have been involved in a
number of pro bono representations in various matters, most
recently in an immigration asylum case, the defense of a first-
degree murder case, among those.
In addition, our firm has a longstanding program where we
provide assistance in the Seventh Circuit to criminal
defendants appealing their criminal convictions that typically
involve an associate and a partner supervising the work of the
associate on criminal appeals in the Seventh Circuit, and I
have regularly participated in those kinds of appeals.
And then, more broadly, I have certainly made contributions
through work through, for example--and you mentioned this in
your very generous introduction--the Chicago Bar Association's
judicial evaluation process for candidates and retention of
judges in Cook County, Illinois.
So those are some of the primary examples, Senator.
Senator Durbin. Thank you.
Judge Russell.
Judge Russell. Thank you. Thank you very much, Senator.
During the course of my employment with the Federal Government
in the United States Attorney's Office, I was somewhat limited
in my ability to be able to represent individuals in court on a
pro bono basis. However, I did serve as the office's Project
Safe Neighborhoods coordinator which required me to go outside
into the community with community group leaders to discuss with
them the problems that they were having with violent crime and
narcotics.
In addition to that, I served on the board of directors for
the Community Law Center, Big Brothers and Big Sisters, the
Enoch Pratt Free Library, all the organizations that serve the
underprivileged here in Baltimore City.
Finally, as a judge, I often speak to young people,
especially our middle school kids in some of the tougher
sections of Baltimore, and I bring them into the court, and
especially the ones that want to--aspire to become a judge or a
lawyer. I bring them up on the bench, I let them try on my
robe, just to try to inspire them that they, too, can be a
lawyer or they even can be a judge 1 day.
And so that community outreach is very personal to me, and
it is something that is very important to me. So those are
examples.
Senator Durbin. Thank you.
Senator Kyl, do you have any further questions?
Senator Kyl. Mr. Chairman, I do not have any other
questions. Obviously, there will be some questions for the
record for all of the members of the panel, but, again, I
congratulate them all on their nominations and wish them all
the very best.
Senator Durbin. Thank you, Senator Kyl.
Without objection, a statement from Chairman Leahy will be
included in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Durbin. If there are no further questions, we will
conclude this hearing. I want to thank all the nominees and
their families and friends who are in attendance today. The
record is going to be open for a week for additional letters,
statements, and questions from Committee members.
Thank you for being here today, and this Committee will
stand adjourned.
[Whereupon, at 3:24 p.m., the Committee was adjourned.]
[Questions and answers ans submissions for the record
follows.]
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NOMINATIONS OF PATTY SHWARTZ, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE
FOR THE THIRD CIRCUIT; JEFFREY J. HELMICK, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO; MARY GEIGER LEWIS,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH
CAROLINA; AND, TIMOTHY S. HILLMAN, NOMINEE TO BE UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF MASSACHUSETTS
----------
WEDNESDAY, FEBRUARY 15, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Chris Coons
presiding.
Present: Senators Grassley, Graham, Coburn, and Lee.
OPENING STATEMENT OF HON. CHRIS COONS, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Coons. (Off microphone) U.S. Senate and
congratulate them on being before us today, the nominees.
I would also like to welcome those of my colleagues who are
here to introduce the nominees. I think the sheer number of my
colleagues speaks to the high regard in which the nominees are
held.
The judicial roles we will discuss today carry life tenure
and, thus, require the highest levels of character, temperament
and judgment. And the participation of Senators here today in
offering introductions and commendations speaks to the
importance of nominations as an important part of the work of
this Committee.
As we approach the summer before a Presidential election,
the longstanding Thurmond rule, as it is known, may once again
prevent the Senate from confirming any more judges this
Congress. Notwithstanding the Thurmond rule, however, the
vacancy rate in our Federal judiciary currently stands near 10
percent, a very high rate in the third year of any modern
President's administration.
So it is my belief that it is urgent the Committee and the
full Senate give today's nominees fair and reasonably
expeditious consideration without procedural obstacles.
Due to the large number of home State Senators here to give
introductions, I will refrain from offering any longer opening
statement.
Senator Grassley, would you like to proceed with a
statement at this time?
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Today we are continuing our progress on
processing President Obama's judicial nominees. Earlier this
afternoon, we confirmed the 127th Article 3 judge nominated by
our President.
With today's confirmation, we have confirmed over 62
percent of the President's circuit judge nominees. This is the
same confirmation percentage for President Bush's circuit
nominees at a comparable time in the first term.
Today marks the 21st nomination hearing held in this
Committee during this Congress, and we will have heard from 80
judicial nominees. All in all, nearly 85 percent of President
Obama's judicial nominees have received a hearing.
Even as we go forward with a hearing today, there remains
an underlying concern about the President's abuse of
appointment power. I am not going to elaborate on that again,
because you heard me speak about it many times. But I want to
note that that does affect the operating environment that we
are in. It is the President who has put a cloud over the
confirmation process.
I welcome the nominees today. And I will put the balance of
my statement in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Coons. Thank you, Senator Grassley.
I know my colleagues' schedules are tight. So I would
encourage you to feel free to leave after you have concluded
your introduction.
Following statements and introductions, each of the
nominees will be invited to give an opening statement and to
recognize their family, friends and supporters when the panels
are called.
We will begin with Timothy Hillman, nominated to be the
United States District Court Judge for the District of
Massachusetts.
Senator Kerry, please proceed, if you would, with a
statement and an introduction.
PRESENTATION OF TIMONTHY S. HILLMAN, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS BY HON. JOHN
F. KERRY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Kerry. Thank you very much, Chairman Coons, Ranking
Member Grassley, Senator Graham. Thank you for the privilege of
being here today to introduce Judge Tim Hillman. And I can
reaffirm in doing so what Senator Scott Brown and I said when
we recommended Judge Hillman jointly to President Obama.
This jurist is the best of the best, and we are convinced
that he is going to do a tremendous job. And I say that not
only for myself, and, obviously, Scott will also join me here
in speaking for him, but a broad segment of the judicial
community in Massachusetts was involved in this.
Senator Brown and I have continued a tradition that we have
had for some years in Massachusetts. Senator Kennedy and I did
it together for some 27 years. And that is to have a
nonpartisan group of judicial--of a search committee. And it's
a system of nonpartisan judicial search that has served our
State very, very well.
The Committee was made up of many of our State's top
lawyers, former prosecutors, representatives of the
Massachusetts Bar Association, the Worcester Bar, the Hamden
Bar, and they undertook an exhaustive screening of candidates.
And it surprised no one that Judge Hillman emerged from this
process at the top of their list, and the details of his
outstanding career were widely known from the State.
He served in private practice as counsel to several
municipalities in Massachusetts, and, finally, as a magistrate
judge in Worcester.
His reputation has been that of a thoughtful, fair, honest
jurist, and I might say that he has shown considerable
creativity and thoughtfulness in his approach.
Mr. Chairman, he has worked diligently on the reentry
court, the kind of initiative that I think a lot of us really
value in a judge.
As a former prosecutor, I was particularly impressed by the
work he has done in lowering recidivism and putting people back
on track.
The Restart program that he began in 2008 is a national
model for reentry courts. He has turned the courtroom into a
major community asset. And all you have to do is look at some
of the cases he has handled, which include terrorist plot,
economic espionage, and I think it is very, very clear that
Judge Hillman is not going to face any kind of learning curve
serving on the district court.
So I am grateful to the President for nominating him. I am
grateful that he and his family--his wife, Kay, is here with
him--that he is prepared to serve enthusiastically. And I think
that serving on the district court in Worcester, Massachusetts
is really a capstone to decades of tireless public service. I
know he is going to bring his signature brand of thoughtful
deliberation to that bench.
I would defer to my colleague, Senator Brown, if I may,
Senator Coons.
Senator Coons. Thank you, Senator Kerry.
Senator Brown.
PRESENTATION OF TIMONTHY S. HILLMAN, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS BY HON. SCOTT
P. BROWN, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Scott Brown. Thank you, Mr. Chairman, Ranking
Member, and Senator Graham.
I, too, first of all, want to thank Senator Kerry for the
process that we went through. It was clearly bipartisan and it
was actually quite informative for me personally, being my
first go-around in this endeavor, and the fact that we were
able to come up with a nonpartisan Committee to make the
recommendations to us, and which we took the time to interview
each and every candidate.
So, John, I want to thank you for that opportunity, and I
think we have done a great job.
We have in Judge Hillman somebody who is greatly respected
in Massachusetts and especially in the Worcester area through
his innovation and integrity and dedication to fairness. He is
really to be commended, and I want to thank he and his wife
for, obviously, putting up with the process. And I am going to
do everything in my power to encourage my colleagues to make
sure that we get a vote on this right away, because
Massachusetts needs a jurist like him right away to do the
people's business, and that is so critically important.
John has references a lot of his actions and activities. I
will not duplicate them, but just note that the process for me
and I think for the judge has been really beyond reproach.
So, John, once again, I want to thank you for that, and I
am looking forward to making our next recommendation. And I
appreciate you taking me out of order.
Senator Coons. Thank you, Senator.
Next, we welcome Patty Shwartz, who is currently a
magistrate judge in the district of New Jersey. She has been
nominated to be a Circuit Judge for the United States Court of
Appeals for the Third Circuit.
Senator Lautenburg, please proceed.
PRESENTATION OF PATTY SHWARTZ, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE THIRD CIRCUIT BY HON. FRANK R. LAUTENBERG, A U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenburg. Thanks, Mr. Chairman and members of the
Judiciary Committee, for the opportunity to introduce Judge
Patty Shwartz to the Committee.
Although I came from a business career before the Senate, I
have always been deeply conscious of the fact that the backbone
of our society is respect for the law. In fact, I am proud to
have a Federal courthouse in Newark carry my name, and Judge
Patty Shwartz, the nominee you will meet today, works in that
courthouse.
I requested that an inscription be placed on the wall, a
plaque, at the front of that courthouse that says ``The true
measure of a democracy is its dispensation of justice.''
The sentiment behind that quote is one of the reasons that
I am pleased to introduce to this Committee Judge Shwartz,
President Obama's nominee to the U.S. Court of Appeals for the
Third Circuit.
Judge Shwartz has been an outstanding magistrate judge,
with a solid reputation in the New Jersey legal community for
dispensing justice fairly and wisely. She will make an
excellent addition to the third circuit court of appeals.
John Lacey, past president of the Association of the New
Jersey Federal Bar, said Judge Shwartz is, and I quote him
here, ``thoughtful, intelligent, and has an extraordinarily
high level of common sense.''
Thomas Curtin, the Chairman of the Lawyers Advisory
Committee for the U.S. District Court of New Jersey, said, and
I quote him, ``Every lawyer in the world will tell you that she
is extraordinarily well qualified, a decent person, and an
excellent judge.''
Since 2003, she has served as the U.S. magistrate judge in
the district of New Jersey, where she has handled more than
4,000 civil and criminal cases. Before joining the bench, Judge
Shwartz spent almost 14 years as an assistant U.S. attorney for
the district of New Jersey. In this role, she supervised
hundreds of criminal cases, including cases involving civil
rights, violent crimes, drug trafficking, and fraud.
Judge Shwartz graduated from Rutgers with highest honors.
She received her law degree from the University of Pennsylvania
Law School, where she was an editor of the law review and was
named her class' outstanding woman law graduate.
Judge Shwartz's roots in New Jersey run deep. Like me, she
is a native of the city of Patterson, where she learned the
value of hard work from her parents, who owned and operated a
store there for more than 50 years.
Judge Shwartz inherited her parents' strong work ethic, and
that is another reason why I believe she is so well qualified
to serve on the U.S. Court of Appeals.
When President Obama announced her nomination, he said, I
am going to quote, ``Judge Shwartz has a long and impressive
record of service and a history of handing down fair and
judicious decisions. She will be a thoughtful and distinguished
addition to the third circuit court.''
Like President Obama, I believe Judge Shwartz is well
qualified to serve on this court, and I am confident that this
Committee will agree.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Lautenburg.
Senator Menendez.
PRESENTATION OF PATTY SHWARTZ, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE THIRD CIRCUIT BY HON. ROBERT MENENDEZ, A U.S. SENATOR
FROM THE STATE OF NEW JERSEY
Senator Menendez. Well, thank you, Mr. Chairman. And let me
say how thrilled I am to see your quick ascension to chairing
the hearing. So my congratulations to you.
To my dear friend, the Ranking Member, we sit on the
Finance Committee, always good to be with you.
And to all the distinguished members of the Committee, I am
here today to express my unqualified support for Judge Patty
Shwartz for the third circuit court of appeals.
As the nominee's home State Senator, I take my advise and
consent role for judicial nominations extremely seriously.
These are lifetime appointments to the Federal bench and should
not be taken lightly. And when it comes to the circuit court,
the last stop before the United States Supreme Court, that
responsibility takes on even more weight.
Because of that, I undertake an in-depth and thorough
review not only of a nominee's past record, but also of their
understanding of the law, their intellect, their analytical
thinking and reasoning.
I have had the opportunity on more than one occasion to
pursue with Judge Shwartz the important issues that I believe
reflect the high standards to which a nominee for the circuit
court should be held. And having that full breadth of
understanding and the fact that I am here supporting her speaks
volumes to the nominee's character and, I believe, suitability
for the position.
Aristotle said ``Character may be called the most effective
means of persuasion,'' and I can say that in my meetings with
Judge Shwartz, I have learned that she is clearly a person of
character.
In short, Mr. Chairman, I have been persuaded to be
supportive of Judge Shwartz, and I join with Senator Lautenburg
in introducing Judge Shwartz to the Committee, urge the
Committee to send her name to the full Senate with a unanimous
recommendation to be confirmed to the third circuit court of
appeals.
I will not replicate all of the judge's achievements, which
my distinguished colleague has listed, but certainly they are
worthy of the Committee's consideration.
I would also like to mention in closing that during this
process, I had the benefit of invaluable advice and counsel
from many members of the Federal bar who spoke very highly of
Judge Shwartz, and I would like to specifically mention three
of them, among others, but three of them who were very
helpful--Gerry Krovatin, James Cecchi, and John Vazquez, who
came forward to affirm what I subsequently discovered for
myself in discussions with Judge Shwartz--that she possesses
the intellect, the character, and the integrity to be confirmed
to the third circuit court of appeals.
And I look forward, Mr. Chairman, to the swift and
favorable consideration of Judge Shwartz. And notwithstanding
some of the comments both you and the Ranking Member have made,
I hope that the administration of justice ultimately needs
judges to ultimately effectuate that process.
So I look forward to--that environment is not a reason not
to move qualified judges forward, and I think this Committee
has taken that seriously on both sides of the aisle and I am
looking forward for this opportunity for it to become a reality
on the floor, as well, after the Committee's recommendation.
Senator Coons. Thank you, Senator Menendez. Thank you,
Senator Lautenburg.
We next welcome Jeffrey Helmick, who is nominated to the
United States District Court for the Northern District of Ohio.
And his home State Senator, Sherrod Brown of Ohio, is here for
an introduction.
Senator Brown.
PRESENTATION OF JEFFREY J. HELMICK, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO BY HON. SHERROD BROWN,
A U.S. SENATOR FROM THE STATE OF OHIO
Senator Sherrod Brown. Thank you, Chairman Coons, Ranking
Member Grassley, and Senators Graham, Lee and Coburn. Thank you
for the important work you do on this Committee.
It is my pleasure to introduce Jeffrey Helmick of Ohio, a
brilliant and distinguished lawyer, who has been nominated to
serve as the next judge for the U.S. District Court for the
Northern District of Ohio. I have a northern and a southern
district, as most of you know.
Jeff was born in Toledo. He lives there with his wife,
Karen, an attorney, as well, and their son, Joel. I will leave
it to Jeff to make the introductions of all of his family
members, his mother, his in-laws, and his niece.
Joel gets to take a break from school to attend today's
hearings. His parents are making him write a journal of his
experiences visiting the Capitol, the White House, the
monuments, and getting a sense for both the separation of
powers and the cooperation of powers in our government. Good
luck, as we would like to see his writings and insight after
that.
Jeff and Karen met in law school at the Ohio State
University. They tell me their lockers were next to each other.
Their last names both began with H, and, fortunately, they were
not going to business school, because it took him 3 years
before he had the courage to ask her out, supposedly, her
words--his words--his words, I guess.
One of the great privileges of our job, Mr. Chairman, as
you know, is meeting people who make us proud of our States,
and Jeff Helmick is exactly that.
In 2007, then Senator Voinovich, a Republican, and I
assembled a commission of distinguished Ohio lawyers, roughly
half Republican and half Democrat, including a former
Republican Congressman. It included leading legal professions
from the southern district of Ohio to recommend for this
appointment in the northern district, and we did the opposite
for potential nominees in the southern district.
In June of 2010, U.S. District Court Judge James Carr took
senior status, creating this vacancy. The members of the
bipartisan commission spent a substantial amount of time
screening, interviewing, and discussing the candidates. I spoke
with almost every one of--each put a report together. I spoke
with almost every one of the 17 members. Each was impressed by
Jeff's thoughtfulness, his temperament, his reputation among
his peers, including opposed counsel.
The chair of the commission, Nancy Rogers, former dean of
Ohio State's Law School and former attorney general of Ohio and
daughter of a Republican cabinet member in, I believe, the
Eisenhower Administration, said that Jeff has shown a
commitment to integrity and to excellence and a dedication to
his community and to the administration of justice.
Based on the bipartisan committee's recommendation and
based on my own judgment, I had no hesitation suggesting Jeff
Helmick's name to President Obama. I am honored that President
Obama nominated him. It is my hope this Committee will act soon
to approve his nomination.
This vacancy has been there for some 20 months. The
northern district would benefit immensely from his breadth of
experience, which includes more than 20 years of legal
practice.
He has worked in large law firms and small firms. He has
tried complex business and corporate cases. He has counseled
small business owners and large corporations. He has argued
capital murder and terrorism cases, counseling defendants,
while working closely with the United States Department of
Justice, U.S. attorneys, and Federal and State authorities.
He has practiced in Federal and State courts. He has tried
cases at the trial and the appellate levels. In their totality,
his experiences illustrate a skilled lawyer, an outstanding
professional of the bar, and an imminently qualified nominee
for the bench.
U.S. District Judge Jack Zouhary has been a judge in the
northern district since 2006, in fact, 6 years ago today. He is
a Bush Administration nominee, testified in front of this
Committee during his own confirmation hearing. He is currently
the sole active judge of the court in the western division and
the northern district. He will work closely with whoever is
appointed.
Judge Zouhary wrote to this Committee recommending Jeff
Helmick's expedient confirmation. He wrote, ``You'll find no
better candidate than Jeff. He possesses the intelligence, the
passion for our justice system, the necessary temperament and
people skills to be an outstanding district court judge.''
Ohio State Senator Mark Wagoner, Chairman of the Ohio
Senate Judiciary Committee, longtime member of the Toledo bar
and a Republican, wrote that ``Jeff is someone who stood for
principles, litigated honestly, ably defended our
constitutional system of government, and Mr. Helmick would make
an outstanding Federal judge.''
Mr. Chairman, I ask that those statements from Judge
Zouhary and State Senator Wagoner be included in the record.
Senator Coons. Without objection.
[The statements appear as a submission for the record.]
Senator Sherrod Brown. In addition to having a brilliant
legal mind, Jeff Helmick understands the needs and challenges
facing the northern district and our legal system generally.
He is a courtroom innovator, having worked with the courts
to integrate cutting-edge technologies into courtrooms to
ensure that the administration of justice is efficient and fair
and equal and open to all who seek it.
Outside the courtroom, he is equally devoted to serving the
public, a supporter of pro bono service. He volunteers at the
Maumee Valley Criminal Defense Lawyers Association, and he is
past president of the Timberville Boys Ranch, which helps
troubled young men who need a home or a safer environment to
reach their potential.
Mr. Chairman, Jeffrey Helmick will make an outstanding
judge on the U.S. District Court for our Northern District in
Ohio, and I ask for his speedy confirmation.
Senator Coons. Thank you, Senator Brown.
Finally, we welcome Mary Geiger Lewis, who is nominated to
the United States District Court for the District of South
Carolina.
Senator Graham.
PRESENTATION OF MARY GEIGER LEWIS NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA BY HON. LINDSEY GRAHAM
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Mr. Chairman, we have Congressman Clyburn
from the House who would like to speak, if that is appropriate,
and I will follow him.
Senator Coons. Absolutely. We welcome the distinguished
Congressman from South Carolina. It is a pleasure to have you
with us.
PRESENTATION OF MARY GEIGER LEWIS NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA BY HON. JAMES E.
CLYBURN, A U.S. HOUSE OF REPRESENTATIVE FROM THE STATE OF SOUTH
CAROLINA
Congressman Clyburn. Thank you very much, Mr. Chairman, Mr.
Ranking Member, other members of the Committee.
I am pleased to come over to this side of the building
today to join with my good friend, Senator Graham, in support
of Mary Geiger Lewis. That is the way we pronounce it in South
Carolina. I suspect Delaware may have a different
pronunciation.
Senator Coons. I stand corrected.
Congressman Clyburn. But I thought that in view of some of
the often thought about and even sometimes expressions about my
home State of South Carolina, I thought it was appropriate for
me to come over today and to add my voice of support to Ms.
Lewis.
I have known her and her husband a long, long time. I
consider them to be the kind of people that all us would be
proud to be associated with, and I am very pleased to be here
today in support of her nomination. And I am hopeful that this
Committee and this Senate will approve her forthrightly.
Thank you so much, and I will yield back.
Senator Coons. Thank you, Congressman Clyburn.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman. I want to thank
Jim for coming over and lending his voice to this nomination.
Mary has been practicing law for 25 years in South
Carolina, one of the best known lawyers in our State, working
with a very prominent law firm, Lewis, Babcock & Griffin. I
think Mr. Babcock is with her today.
She is a graduate from the University of South Carolina,
went to law school--excuse me--Clemson University,
undergraduate, University of South Carolina School of Law to
get her law degree.
She was unanimously rated qualified by the ABA. She has
been involved in plaintiff and defense work and very complex
litigation. She is a real bright person to have on the bench
and well respected by all her colleagues.
Our Supreme Court Chief Justice, Jean Toal, has written a
letter and had planned to be here, but she, unfortunately, had
a doctor's appointment, but she has nothing but great things to
say, says Ms. Lewis is a top-notch lawyer, the best of a new
generation of South Carolina lawyers, and I think that is a
view widely shared.
Kevin Hall, who is a well known Republican lawyer in South
Carolina, has represented our party in many legal conflicts,
has also written a letter that I would like to introduce into
the record, saying that ``Mary is a woman of sound character,
integrity, a fine legal talent, a compassionate soul and
extraordinary woman,'' and I just want to echo that.
[The letter appears as a submission for the record.]
Senator Graham. So from a South Carolina perspective, this
is a nominee that we all can be proud of, a lot of bipartisan
support. And the most important thing is that if she is chosen
by the Senate, if the Senate approves this request, she will be
a great judge for our State and I would not hesitate for 1
second to have any member of my family, someone I cared about,
appearing before her, because I know she would be fair and
apply the law as it should be applied.
So, Mr. Chairman, I cannot tell you how much support she
has throughout our State, and we look forward to voting on you.
And Cam, her husband, is a West Point graduate--we won't hold
that against you. But it is a good family, two bright kids that
are in college.
So thank you very much, Mary, for offering yourself to the
Federal judiciary and I look forward to supporting your
nomination.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Graham. Thank you,
Congressman Clyburn.
Now, I would like to ask Judge Shwartz to come forward and
please remain standing.
[Nominee sworn.]
Senator Coons. Thank you. Let the record reflect the
nominee has been sworn and has answered in the affirmative.
Judge Shwartz, I welcome you and encourage you to
acknowledge your family members and friends you have with you
here today, and then to offer a statement.
STATEMENT OF JUDGE PATTY SHWARTZ, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE THIRD CIRCUIT
Judge Shwartz. Thank you, Senator.
First, I don't have an opening statement, but I would like
to take the opportunity to say some thank yous and to give some
acknowledgments.
First, please let me extend my thanks for your having this
hearing today and for the Committee to consider my nomination.
Of course, I'd like to thank the President for the honor of
the nomination.
I would like to thank my two home State Senators from New
Jersey for their support and their kind words today.
I'd also like to thank the members of the Department of
Justice and the White House Counsel's Office who have led me
through this and guided me through this process. I'm grateful.
I'd like to also thank and acknowledge three categories of
families I have. Without belaboring you with the names of all
of them, I have a family of friends that I've had since I was a
child, through high school, college, law school, into my
professional life, who have been tremendously supportive. Some
are present. Some are present by Web, but all are incredibly
important to me.
In addition, I have been the member of a second family
which we call in New Jersey the Federal family. It's a family
of lawyers, agents, agencies, practitioners who all appear
before the Federal court.
I became a member of that family when I became a law clerk
to the honorable Harold Ackerman, who we have lost, but I
remember with fondness today and with great appreciation. And
honoring his memory and me are some of the law clerks he had
during his more than 50 years as a judge. So I didn't clerk
with all the people who are here, but they honor me with their
presence.
In addition to that, I have a chambers family. I have a
family of law clerks I've worked with in the past, both my own
and others. And then there's, of course, the very generous
Federal bar that I have been a member and participate in both
as a practitioner and as a member of the court, and I give
great thanks to all of them, as well as members of the court
family that I'm a member of.
Finally, I would like to take a moment just to introduce
you to and acknowledge members of my family. I have cousins who
are watching, hopefully, by Web from New Jersey to California,
and perhaps one even in Israel.
I have with me today members of my immediate family and I
would like to be able to at least mention them by name and
mention others who are watching by the Web.
With me today I have my brother, Richard; my sister, Nancy;
my brother, Jeff; and, my nephew and Godson, Max. Max's brother
is watching from the University of Arizona by Web, and they are
the son of our late sister, Betty, and she would be incredibly
proud of both of them.
Also watching by the Web are my brother Jeff's two greatest
accomplishments, my two nieces. They're in elementary school
and they're watching with their mom, Linda, also by Web.
My sister's fiance, John, is watching by Web. Max and
Jake's dad is watching by Web, Mitchell Smith.
Notably absent today are my parents, Jean and Harold
Shwartz. We've lost them, but I obviously am here because of
them, both from a biological standpoint, of course, but also
because of all the great support, and they've always given my
life adventure.
And, finally, with us today is someone who has been
associated with my family for such a long time, he's
practically a member of the family, Jim Nobile. And I have
others who are here in the audience and I know they'll forgive
me if I don't mention them by name.
[The biographical information follows.]
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Thank you for allowing me to do that, and I will look
forward to answering your questions.
Senator Coons. Absolutely. Thank you, Judge Shwartz, and
thank you for participating in the nominating process and for
volunteering to continue to serve after your long service with
the U.S. attorney's office.
Now, let me start, if I might, an initial round of 5-minute
questions.
My first question, Judge Shwartz, if you would, please,
just briefly describe your judicial philosophy.
Judge Shwartz. My judicial philosophy is to decide only the
case in front of me based upon the law and the facts
established in the record before the court; to give the
opportunity to the parties to be heard; to consider those
impartially; and, to render fair and prompt decisions and give
reasons for those decisions both for the benefit of the
litigants, the public, and, in the event there's a review by a
reviewing court, the reviewing court.
Senator Coons. How would the skills you've developed as a
magistrate judge translate to your responsibilities as a judge
on the third circuit? And if you feel compelled to add, and the
experience you had as clerk in the district court, feel free to
do so.
Judge Shwartz. Thank you. And I understand you clerked, as
well, so you know how important that experience is.
Senator Coons. For the third circuit, yes.
Judge Shwartz. That's right. It's a formative experience
for all.
I'm of good fortune of having a collection of experiences.
I was an assistant U.S. attorney for 13 years. I clerked for a
Federal district judge for a little more than 2 years, and I've
been a magistrate judge for what will be 9 years on March 10.
As an assistant U.S. attorney, of course, I became exposed
to a variety of areas of criminal law and the legal process
that is involved in the criminal area.
As a magistrate judge, I work in a district where the
district judges give the authority to the magistrate judges to
the broadest extent possible based upon the Constitution and
the Federal Magistrate Judges Act and, as a result, I've had
the opportunity to handle civil cases, pretty much the entire
pretrial process, with the exception of dispositive motions and
trial, unless the parties have consented to my jurisdiction.
And I've had the good fortune of having parties consent to
my jurisdiction in civil cases more than 70 times, where I've
been able to take the cases through judgment. I've tried 14
cases as a magistrate judge and more than 15 as an assistant
U.S. attorney.
And all of those collective experiences have sensitized me
to many things, including, obviously, legal research and
writing, understanding the development of a record and where to
perhaps find something in a record, if I'm fortunate enough to
be confirmed for this other position.
I have an understanding of how a record is developed and
where to find things. Of course, I'm accustomed to legal
research and writing, which is a large part of that position,
should I be lucky enough to be confirmed.
So those are just some of the experiences that I have that
I hope that would enable me to serve in this other position.
Senator Coons. Some 25 years ago----
Judge Shwartz. Yes.
Senator Coons [continuing]. At your law school graduation,
you stated, in part, in a much longer address, that lawyers
should take a, ``active position in the development of the
law.''
Do you still feel that way today? And tell me how you would
respond to those who might be concerned that you would take an
active role or how you understand that concept today, should
you be confirmed as a judge on the third circuit?
Judge Shwartz. Thank you for asking. The remarks I think
you're referencing are remarks I made 25 years ago when I was
about ready to receive my law school diploma, and I was giving
remarks to my classmates who were very talented, blessed group
who had a terrific legal education. And so I was speaking to
future advocates, not to--not as a judge nor did I think I was
speaking to a group of judges.
And I was trying to encourage them to use all their good
skills to school themselves on the law and to advocate for
their clients, but certainly I wasn't speaking at that time as
a judge.
Senator Coons. You are also going to face an interesting
situation. As a magistrate judge, a large portion of your work
consists of developing recommendations and reports for the
review and potential action by district court judges. That's
some portion of your work.
The district court is also responsible for decisions about
whether to appoint and reappoint magistrates to the bench.
As a circuit judge, you will be called to review and, where
appropriate, reverse rulings of those very same judges. How
would you guard against being unduly deferential or having your
decisions in any way complicated by judges who have supervised
you in your current role?
Judge Shwartz. I would apply the same approach that I've
taken in the job that I have now. I have people who appear in
front of me who I've known from walks of life other than the
one that I currently lead, and I'm duty-bound to apply the law
that's governing to the issue, to the facts that have been
established, and reach what I think is an appropriate decision.
Senator Coons. Thank you very much, Judge Shwartz.
Judge Shwartz. Thank you.
Senator Coons. Senator Grassley.
Senator Grassley. According to press reports, Senator
Menendez initially declined to support your nomination. These
accounts centered on the Citizen United case. The second
interview with him also appeared to focus on this, and I would
read that quote. ``In my opinion, Judge Shwartz did not
adequately demonstrate the breadth of knowledge of
constitutional law and pivotal Supreme Court decisions, such as
Citizen United, that we should expect from a United States
circuit court judge.''
First question. What did you discuss in these interviews?
Judge Shwartz. What I can tell you, during our two
interviews, is at no time did the Senator ask nor did I say how
I would rule on any case. You heard his remarks, how we did
meet twice, and during the course of our collective sessions,
we talked generally about my understanding of certain
substantive areas of the law. But, again, at no time did he ask
me what my opinion was or what my views were of any of those
cases.
Senator Grassley. Well, then, I am going to read a second
quote from him. ``Judge Shwartz satisfactorily answered
questions covering important legal topics, such as current law
on rights of corporation under the First Amendment,
constitutional limits on executive branch power, and the
application of heightened standards of review under the
Constitution. She adequately allayed my earlier concerns.''
So what changed between the first and second interview?
Judge Shwartz. I don't know that I'm in a position to say
what the Senator felt about that.
Senator Grassley. Well, you could at least tell us what
maybe you said that changed his mind.
Judge Shwartz. I can't say what it is that changed his
mind.
Senator Grassley. Did you change your answers or give him
any assurances on any legal topic or case?
Judge Shwartz. I did not give him any assurances nor did he
ask. Perhaps we talked in more detail about certain of the
subject areas, but----
Senator Grassley. I have further questions along this line.
Did you discuss Citizen United during the second meeting with
Senator Menendez?
Judge Shwartz. We discussed the corporate rights in a
general sense, and then I--we talked a little bit about the
difference between the Constitution's rights.
Senator Grassley. Did your views on these subjects change
after your initial meeting with Senator Menendez?
Judge Shwartz. At no time did I express any of my views
during either of the sessions with the Senator. We discussed
legal principles.
Senator Grassley. Did you discuss any topics at the second
meeting that you did not discuss at the first one?
Judge Shwartz. I can't remember. I'm sorry.
Senator Grassley. In Citizen United, the Supreme Court
reconsidered the ruling of Austin. In a 5-4 decision, the
Supreme Court overturned its decision in Austin and held that
campaign finance restrictions on corporations at issue in the
case were unconstitutional.
Many, including the President, have been highly critical of
the Supreme Court decision. Do you believe Citizen United was
correctly decided?
Judge Shwartz. It would be improper for me to have a
personal opinion on that subject.
Senator Grassley. Are you sure of that answer? I mean the
answer you just gave to me.
Judge Shwartz. Am I sure that I--it would be----
Senator Grassley. You mean you do not feel that you could
tell me whether or not you think Citizen United was properly
decided.
Judge Shwartz. What I can tell you, Senator, is because I'm
a sitting judge, I'm duty-bound to apply the law to the facts
without regard to my personal views concerning whether a
decision is properly decided or not.
It's the United States Supreme Court's precedent that I'm
duty-bound to follow.
Senator Grassley. The President has characterized the
Supreme Court's decision as reversing, ``a century of law.'' Do
you believe that this is a fair and accurate characterization
of the Supreme Court's decision?
Judge Shwartz. I don't know that I could characterize it.
That was the President's characterization, as you've quoted it
to me. I know what the opinion said and it had reviewed its
precedent in reaching its conclusion.
Senator Grassley. Before I ask another question--going back
to what the Chairman asked you about your commencement address,
what did you mean when you said, quote, ``We must not simply be
satisfied with precedent, but rather must embellish upon it to
satisfy the needs of both individuals and society? '' And I'm
going to follow-up with another question.
Do you believe it is ever proper for a judge to embellish
or manipulate precedent?
Judge Shwartz. Answering your latter question first, if you
don't mind, of course not. The judge is duty-bound to apply the
precedent to the facts before it.
My remarks 25 years ago were to my law school classmates
who were future advocates, and maybe my word choice should have
been more along the lines of good faith extensions of the law
was an appropriate thing for an advocate to take a position
about on behalf of a client. So it was a different context than
the context I work in today.
Senator Grassley. At that particular time, what did you
mean when you said ``use our creativity to manipulate the
preexisting doctrine to best accommodate the demands of a
greater society? '' Then I will stop here and let my colleagues
ask questions.
Judge Shwartz. What I was trying to do to my future
classmates was to energize them and let them know what
important roles they're going to have in society in whatever
way they choose to use their law degrees, and that's all I was
trying to do to a group, as I said, of future advocates.
Senator Grassley. I will conclude with this. Just simply, I
think you are trying to tell us--and I do not question your
veracity--that none of these views you expressed are with you
today as far as being a judge.
Judge Shwartz. That's correct.
Senator Coons. Thank you.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
And thank you, Judge Shwartz, for being with us today. You
have had an interesting and distinguished career, and this is
an exciting step that you have been nominated to take.
If you are confirmed to this position, let us suppose that
you discovered perhaps as you are--I do not know--on the
Metroliner going from Newark down to Philadelphia the day
before argument, while doing your last review of the bench
memos and the briefs in a particular case, you discovered
circumstances present in the case that you had not noticed
before suggesting that perhaps Article 3 standing was lacking
in that case the day before oral argument.
How might you proceed in this circumstance, supposing
further that the issue of Article 3 standing had not been
raised or briefed either before the third circuit or before the
district court?
Judge Shwartz. Well, of course, Senator, we would know that
you have to have standing in order to bring an action. It's one
of the core first steps out of the box when you bring a
lawsuit.
Having not been in the appellate court, I'm not sure of the
procedures that one would follow. But applying that scenario--
and not that I've had exactly a standing issue, but where I've
had an issue with the parties that have come up after I've
reviewed and thought we were ready to rule, I've either issued
orders to invite them to brief an issue or to raise things
orally with me on the narrow point that would be presented that
perhaps hadn't been discussed before, and, certainly, an issue
of standing would have to be one of those issues or else the
court couldn't rule.
Senator Lee. And you would certainly be willing to raise it
sua sponte.
Judge Shwartz. I think the court is obligated to do that to
be sure that there is standing of the parties and that all the
other justiciability doctrines are satisfied.
Senator Lee. Right. So assuming that this does come up
again in this scenario or you discover it the day before oral
argument, such that there is not time to ask for supplemental
briefing prior to argument, how might you proceed at oral
argument? What questions might you ask of the advocates?
Judge Shwartz. Again, since I've never been in the
appellate posture as a judge, I'm sure among the first things I
would do is speak to the other panelists to let them know I had
found this issue and then confer with them to see the best way
to elicit a response on the subject either at oral argument or
to give them an opportunity for supplemental briefings.
But, again, I imagine there's some procedural requirements
that the internal operating rules of the appellate court or its
local rules may guide us in how to handle that situation.
Senator Lee. Sure. But setting aside those procedural
rules, those internal operating procedures for a minute, just
talk about the substance, what kinds of questions? What kinds
of facts would you be looking for?
Judge Shwartz. Sure. Well, in terms of the issue of
standing, of course, the party has to have a redressable issue
that can be addressed by the court in that context; that they
had injury, in fact, and that there's redressability. That is,
the lawsuit could lead to an address of that alleged injury.
Senator Lee. Do you believe that Congress has powers other
than those that are enumerated in the Constitution? Does it
have implied powers that are not expressly granted?
Judge Shwartz. Well, not my belief, but my understanding of
the Constitution is the Tenth Amendment sets forth the
enumerated powers, and there are provisions of the Constitution
that provide Congress with its authority to act, whether it's
the commerce clause, the necessary and proper clause, the
taxing and spending authority and the like.
Senator Lee. So outside of that, if you did not have one of
those, you would not be inclined to imply a power of Congress.
Judge Shwartz. I'd have to look at the precedent to see if
there's some interpretation that's been given by the
Constitution--of the Constitution--to determine what the
authority was for the act.
Senator Lee. In light of the fact that there is sometimes
legislation passed by Congress that may come before you from
time to time that does not expressly invoke any enumerated
power in the Constitution, how might you approach that
situation? Would you be willing to invalidate legislation if it
did not invoke one or more express authorities granted to
Congress?
Judge Shwartz. I think if an issue concerning examining a
statute came before the court, the analytical process that I
would follow is look at the plain meaning of the statute first;
if it weren't clear, look at the legislative history, the
scheme in which the particular provision falls, and try to
glean from that which authority Congress was acting on,
assuming that the challenge to that statute was a challenge
that Congress was acting outside of its authority as opposed to
some other challenge.
Senator Lee. Right. Assuming that the text does not get you
there, how could the legislative history provide the necessary
link to an enumerated power under the Constitution?
Judge Shwartz. It would depend on what the history said, if
there was a history. There could be legislative history that
would give an indicator of what authority Congress was relying
upon in acting in the way it did.
The other area, of course, is if there's been--finding
precedent that's already examined the particular provision at
hand.
Senator Lee. Certainly. Certainly. I see my time has
expired, Mr. Chairman.
Senator Coons. Thank you, Senator Lee.
Senator Coburn.
Senator Coburn. Thank you, Senator Coons.
Welcome.
Judge Shwartz. Thank you.
Senator Coburn. You have done a great job so far.
Judge Shwartz. Well, thank you.
Senator Coburn. Can you assure this Committee that at no
time in the future, should you be appointed to this position
and confirmed, that you will rely on foreign law in any way
whatsoever to make a decision that is before you?
Judge Shwartz. American law dictates the outcomes of cases
in the United States courts, and only if the binding precedent
for some reason directed consideration of that, but that would
be the only circumstance that I would rely on foreign law,
unless there was some precedent that required it or some treaty
that required it.
Senator Coburn. Well, I am going to go back and ask it
again, because I want a yes or no answer. Can you assure this
Committee that at no time, should you be confirmed to this
position, that you will rely on anything other than the
Constitution, the statutes and the precedents before you to
make a decision about the outcome of that case?
Judge Shwartz. I can assure you of that.
Senator Coburn. Thank you. When you visited with Senator
Menendez about the rights of corporation under the
Constitution, what did you say those rights were under the
Constitution? What are they? What did you tell him?
Judge Shwartz. Based--well, I can tell you what my
understanding is.
Senator Coburn. Under the First Amendment. I am just asking
the First Amendment.
Judge Shwartz. Just under the First Amendment, my
understanding from the precedent of the United States Supreme
Court is that under the First Amendment, corporations have free
exercise to political speech and restrictions on that would be
subject to the highest level of scrutiny.
Corporations have other rights under the Constitution, but
not every constitutional provision gives a corporation rights.
There are differences.
Senator Coburn. So does the Citizen United ruling reflect
the same rights under the First Amendment, in your mind?
Judge Shwartz. Same rights as to an individual's rights?
Senator Coburn. Yes.
Judge Shwartz. The Supreme Court precedent says that at
least for political speech, it's not judged based upon the
speaker. To judge based upon the speaker the Supreme Court
found to be improper.
Senator Coburn. Well, that is the law. That is the law.
That is the precedent now, correct?
Judge Shwartz. That's my understanding of the precedent,
yes.
Senator Coburn. So you are bound to follow those
precedents.
Judge Shwartz. I am.
Senator Coburn. Thank you. One last question for you. When
Senator Menendez asked you about the constitutional limits on
the executive branch power, was there a specific branch power
he was referring to?
Judge Shwartz. I don't recall that during the two
conversations. We talked generally just what my understanding
was of executive power in a very general way.
Senator Coburn. Thank you. I have no other questions.
Senator Coons. Thank you, Senator Coburn.
I will begin a second round, if I might. Judge Shwartz, if
you would, just what are your views on the role of the court in
interpreting laws written in the past by an elected legislative
body? Just to follow-up on some of the questions.
Judge Shwartz. Sure. The court is duty-bound to recognize
that if legislation comes before it presumed to be
constitutional, if there's a challenge made to it, the court
would apply the standards that are applicable.
When a court gets a statute in front of it and it's called
upon to apply it to a set of facts, of course, it first looks
to the plain text of the statute. If there's ambiguity in the
text, the court would then turn to the interpretation tools it
can use, such as looking at precedent, looking at the provision
in the context of the overall statute, looking at legislative
history, if that is helpful.
So those are among the tools the court would use.
Senator Coons. And just to return to this topic, in your
two sessions visiting with Senator Menendez--in introducing you
earlier in this hearing, Senator Menendez actually specifically
quoted Aristotle, if I remember correctly.
Judge Shwartz. He did.
Senator Coons. Character is the best persuader, and said
that he was persuaded to actively support your nomination
because of your character.
To be clear, you answered some questions about your
conversations with Senator Menendez. Did you at any time give
him any assurances about a future decision or an inclination as
to how you might decide any case or controversy that might come
before you?
Judge Shwartz. I did not nor did he ask me anything like
that.
Senator Coons. Thank you, Judge Shwartz.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
I want to get back to this speech for just a minute. I
understand this is 25 years ago. It was at your law school
graduation. You were probably trying to impress your friends
and classmates.
But there are a couple of statements in there that are
fairly strong and I just want to make sure I have a good feel
for how you approach the law.
Judge Shwartz. Sure.
Senator Lee. One of the segments of that quote that I think
did not come out during the previous questioning was a
suggestion you made that lawyers should, quote, ``manipulate
preexisting doctrine to best accommodate the demands of a
greater society.''
Now, from the prior question, I gather that you do not
believe judges should manipulate the law.
Judge Shwartz. That's correct.
Senator Lee. But do you believe that it is proper for
lawyers, as officers of the court, to manipulate the law?
Judge Shwartz. My word choice was poor. I wish that what I
had said was that lawyers are allowed, under the rules of
ethics, to make good faith estimates based upon the existing
doctrine, and that--I wish I had used those words. I wish I was
as conversant with word choice at that time as I may be today.
Senator Lee. We are not all as sophisticated the day we
graduate from law school. We might hope to be later.
So you would say then, Judge, that you would not phrase
this the same way today.
Judge Shwartz. That would be correct.
Senator Lee. This does not accurately reflect how you would
counsel lawyers in your courtroom today.
Judge Shwartz. No. Indeed, I expect lawyers, as do all my
colleagues in the district of New Jersey, to have the highest
ethical actions by those lawyers as good advocates on behalf of
all their clients.
Senator Lee. Do you have any particular judicial role
models who have served on the U.S. Supreme Court in the last
century?
Judge Shwartz. My mother taught me something very
important. Love all your children the same. And I'm not blessed
with children, but I love all my judicial officers the same and
I know that you have a particular judicial officer that you
have perhaps a strong feeling with, as does Senator Coons, and
so I'm hesitant----
Senator Lee. I am a member of the third circuit, in fact.
Judge Shwartz. Indeed. So I'm hesitant to say that and it's
not--no disrespect to the Supreme Court, but you can't help but
be touched by the judge with whom you worked most closely.
Senator Lee. Would you feel more comfortable answering the
question if I allowed you to mention only those who have gone
on to a better world who are no longer living?
Judge Shwartz. I love all my children the same.
Senator Lee. Very well said. I can see that you were an
effective advocate in the court before you became a judge.
Thank you, Mr. Chairman. I have got no further questions.
Senator Coons. Thank you, Senator Lee.
Senator Grassley had requested a second round.
Senator Grassley. Yes. According to your Senate
questionnaire on December 21, 2010, you spoke to a high school
group on the role of the U.S. court system and our government.
In your handwritten notes, you discuss current subjects and
cases that have been the subject of debate.
You included the decision in Citizen United, the issue of
civil unions, and whether terrorists should be tried in
military tribunals or in Federal courts. In your notes, this
discussion comes under the bracketed heading of ``court role is
politics.''
What specifically do you mean when you say ``court role is
politics? '' What is your general view on the role politics
plays in the judicial decision-making? And do you believe it is
the role of a judge to make rulings based on desired outcomes
or policy preferences?
Judge Shwartz. Again, to answer your last question first,
it is not the court's role to decide things based on policy.
That's what the elected officials do. Courts make decisions
based upon the law and the facts in front of them following the
binding precedent.
If I could give you a little context, first, my handwriting
is not terribly legible. The background to that, those notes,
is I was invited to speak to a group of high school students
called ``The Voters of Tomorrow.'' And my good friend who asked
me to do this, young Jack, who was a sophomore at the time, he
said, ``I want you to come and talk about politics.'' And I
said, ``Well, I can't, for a few reasons. One, I'm certainly
not well versed in that subject. Second, it's improper. I'm a
judge.''
''Well, maybe you can talk about some intersection with the
court.'' And so I was trying to think of subjects that would be
recognizable to that group of individuals. They were basically
freshmen to high school seniors.
And so what I was trying to do was identify cases that
subjects that may be of interest to them and familiar to them
would come up, and that's how I ended up making some notes to
that effect so that I could talk to them about these cases
without talking about my views of the cases, just to try to
make it a little bit more concrete for them.
Senator Grassley. As an assistant U.S. attorney, did you
ever prosecute someone who was death penalty eligible? If so,
have you ever sought the death penalty?
Judge Shwartz. I was assigned to a case when I first
started. I was maybe on the case for about 2 weeks and it was
right after I had ended my clerkship.
And I was then taken off that case, because it was assigned
to the judge that I had just clerked for. So that was my only
contact with a death penalty case.
Senator Grassley. So I think you answered my second part of
that. Do you believe that--so then I will ask you a little
different approach.
Do you believe that the death penalty is an acceptable form
of punishment?
Judge Shwartz. The United States Supreme Court, in its
precedent, has found that it is acceptable in all but a few
circumstances.
Senator Grassley. In Roper v. Simmons, the Supreme Court
relied on foreign law in holding that the execution of minors
violated the Eighth Amendment. Do you think it is proper to
look to foreign law to determine the meaning of the Eighth
Amendment of the U.S. Constitution?
Judge Shwartz. My view is that the American law governs
cases brought in the United States courts, and I would follow
the American law on that subject.
Senator Grassley. A little more general question along the
same line. Do you believe it ever appropriate for a judge to
consult foreign law when determining the meaning of the U.S.
Constitution?
Judge Shwartz. The U.S. Constitution should be governed by
U.S. precedent, and that's what should guide interpretations.
Senator Grassley. Thank you very much. Thank you, Mr.
Chairman.
Senator Coons. Any further questions, Senator Lee?
Judge Shwartz, I noted that Governor Christie, who I
believe served with you when he was U.S. attorney, said to us,
in support of your nomination, that you have committed your
entire professional life to public service and New Jersey is
the better for it.
And I want to thank you for appearing before this Committee
today and look forward to the steady progress of your
nomination. Thank you.
Judge Shwartz. Thank you very much for your time.
Senator Coons. Thank you.
I would like to ask the second panel of nominees to come
forward and remain standing, please, if you would. And if you
would each raise your right hand.
[Nominees sworn.]
Senator Coons. Thank you. Let the record reflect the
nominees have answered in the affirmative. Please be seated.
Each of you will now be invited to give an opening
statement and to recognize your family and friends who may be
present or watching on the Web.
Mr. Helmick, starting with you, I would encourage you to
acknowledge family and friends and give an opening statement,
if you would.
STATEMENT OF JEFFREY J. HELMICK, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Mr. Helmick. Thank you, Senator. I'll be brief, but I
appreciate that very much.
First, I'd like to introduce my family and, also, some
friends that are here today. Senator Brown got a start on that
for me, so I'll move quickly, I assure you.
My wife, of course, Karen Helmick; our son, Joel, who, as
the Senator said, is 10 years old. Also, Judy Purpuard, my
mother; my sister, Julie Vitale; Gabrielle Vitale, my niece;
and, Lee and Marilyn Henry, my in-laws, are all here. And I
also have friends and colleagues who have traveled that were
able to make it into the hearing room today, I'm pleased to
say, Dick and Shelley Walinski, Katherine Hoolihan, Neal
McEroy, Spiros Cocoves, and David Douton.
There's a number of people watching on the Webcast and if I
might just recognize my dad and step-mom, Jim and Barb Helmick,
out in Colorado, who were unable to make the trip, but I hope
are watching today; and, my uncle, Robert Kaplan, back in
Toledo, as well.
I offer my thanks to you, Mr. Chairman, to the Ranking
Member, Senator Grassley, as well, for allowing me to have this
hearing, and all other members of the Committee.
Of course, my thanks to Senator Sherrod Brown for that very
kind and humbling introduction. To Senator Rob Portman, who has
also offered his support in this process. And, also, now
retired Senator George Voinovich, as well. I had his support
prior to his retirement, as well. And, of course, I thank the
President for nominating me.
My thanks to all of you, and I look forward to answering
your questions. I'll have nothing by way of a formal opening
statement.
Senator Coons. Thank you very much, Mr. Helmick.
We now move to Mary Geiger Lewis.
[The biographical information follows.]
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STATEMENT OF MARY GEIGER LEWIS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA
Ms. Lewis. I'd like to thank you, Mr. Chairman and Ranking
Member Grassley, for allowing me to appear here today.
I'd like, also, to thank President Obama for the great
honor of my nomination, and to Congressman Clyburn for his
words today and his recommendation of me to the President.
I would also like to thank, of course, Senator Graham for
his very kind and generous words of introduction.
I have no opening statement, but I would like to introduce
the friends and family that I have with me here today.
I have my husband, Cam. I have my law partner, Keith
Babcock; my dear friend from Upstate New York, Cricket Scullin.
And I'm sorry that Jean Toal, our chief justice, was not able
to be here.
I'd also like to acknowledge our children, our son, Will,
and our daughter, Wallis, who are watching, I hope, via
Webcast; our daughter, Amy, and her family; my mother, Wallis,
I know she's also watching.
Thank you again for this opportunity, and I look forward to
answering your questions.
Senator Coons. Thank you, Ms. Lewis.
And last, we turn to Judge Hillman.
[The biographical information follows.]
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STATEMENT OF JUDGE TIMOTHY HILLMAN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MASSACHUSETTS
Judge Hillman. Thank you, Mr. Chairman, and thank you,
Ranking Member Grassley, for the opportunity to appear before
this Committee.
I, too, would like to thank President Obama and Senators
Kerry and Brown for recommending and nominating me.
I am proud to be able to introduce my wife, Kay, who is
attending with me. Kay is a high school Spanish teacher who has
taken valuable time away from her students to be with me today,
which I very much appreciate.
I would like to thank and say hello to my three adult
children who I believe are watching on the Web, my son, Zack,
our daughter, Molly, and our son, Patrick.
Also, I just want to give a special shout out to my dad,
Buzz. He's a 90-year-old World War II Naval veteran of the
Pacific theater, and he is, I think, either watching on the Web
or cursing whoever invented computers.
[Laughter.]
Senator Coons. Did you have an opening statement?
Judge Hillman. I do not. Thank you, Senator.
[The biographical information follows.]
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Senator Coons. Thank you very much. If I might then begin
our first round of questions.
I would be grateful if, in order, you would simply describe
your judicial philosophy and your approach to the use of
precedent in the making of decisions.
Mr. Helmick. Thank you, Senator. I gather you would like me
to begin.
Senator Coons. Yes, please.
Mr. Helmick. Very good. I guess I'd indicate first that my
view of what judges should do fundamentally is settle disputes
about the party and they should settle them in a fashion that
precedent predicts. So that every party, at the end of a
decision that has been made by a district court judge, can look
at the case and know that they were treated just like other
parties who are similarly situated, without concern or bias or
prejudice or emotion on the part of the judge.
And if a judge comes to a case fairly and openly, with
patience and humility, then they are serving their role and
their function, as well.
I mentioned precedent at the start of my answer, and I'd
indicate that precedent is everything, particularly for a
district court judge at that level. In that way can parties and
future potential parties to litigation know what results they
can expect given the facts in their case versus others who have
been similarly situated in the past.
Thank you.
Senator Coons. Thank you very much.
Ms. Lewis.. I certainly agree with my fellow nominee. I
believe the role of the judge is to determine what the
applicable law is based upon the precedents and to apply those
precedents fairly and impartially, without regard to any
improper consideration, and to do that in a way that is
respectful and courteous to everyone in the courtroom.
Senator Coons. Thank you, Ms. Lewis.
Judge Hillman.
Judge Hillman. Thank you, Senator. I would echo what my
colleagues have said. In my over 20 years of experience on the
bench, I hope that my philosophy has evolved to one of being
fair and having my decisions rendered expeditiously. The
litigants deserve nothing less than getting those decisions as
quickly as we can get them done, provided that we take our time
and do it correctly.
The only other thing I would like to add as part of my
philosophy is respect, and that is not only respect for myself,
but respect for the litigants, respect for the lawyers, and,
most importantly, for the process.
As far as the stare decisis, I intend to obviously follow
the law as it is enacted by Congress and the interpretations
that are given by the appellate courts and the Supreme Court.
Senator Coons. That was a particularly articulate trio of
responses.
And next, if you would, just turn to a question that you
heard me ask previously of Judge Shwartz about the appropriate
role of a court in interpreting the laws as written and enacted
by an elected legislative body.
Mr. Helmick. Thank you again, Mr. Chairman, for that
question.
I would say first that it's a limited role. It's a fixed
role. As we all know, matters passed by the Congress are
presumed to be constitutional.
With regard to any laws that come before the court, the
court's scrutiny should be limited and strict, and
interpretations should be based upon prior precedent, which
would begin with the Supreme Court and then, for my State of
Ohio, the sixth circuit, as well, and that that must be
followed whenever a statute is reviewed or a determination is
made regarding the propriety of a statute.
Thank you.
Senator Coons. Thank you, Mr. Helmick.
Ms. Lewis.
Ms. Lewis.. And I certainly would agree with that, as well.
I think when you're dealing with an act of Congress, it's
presumed to be constitutional. If you need to--if you cannot
tell from the text of the act or the statute what is meant in a
way that you can resolve a dispute, then you do have to go and
look to precedent to decide how to interpret that.
For me, that would be the United States Supreme Court and
the fourth circuit court of appeals, and that's what I would
do.
Senator Coons. Thank you, Ms. Lewis.
Judge Hillman and I believe you have had some experience
with this.
Judge Hillman. Thank you, Senator. And, actually, I just
have to echo what my colleagues said and I don't have a lot to
add to it. The substantial deference, enormous deference that
is due to the legislative acts is only tempered by any
interpretative cases in the circuit courts or in the United
States Supreme Court.
Senator Coons. Thank you, Judge Hillman.
I will now defer to Senator Grassley.
Senator Grassley. Thank you each for your willingness to
serve. I am going to start with Mr. Helmick.
You have made some arguments in court, there representing
terrorism. There is some concern that you may believe terrorism
cases are less serious than other criminal cases, and that, in
turn, causes some concern about how you would handle terrorism
cases that may come before you.
A pretty simple question. Do you believe the U.S. is at war
with terrorists?
Mr. Helmick. Yes, Senator, I do.
Senator Grassley. Do you believe terrorists pose a danger
to Americans?
Mr. Helmick. Yes, Senator, I do.
Senator Grassley. When you were representing Wassim
Mazloum--and you know he was convicted by a jury of conspiracy
to kill U.S. troops overseas and providing material support for
terrorists.
According to the sentencing guidelines, Mazloum deserved
life in prison, but he received only an 8-year sentence.
Do you believe that that was an appropriate sentence?
Mr. Helmick. Senator, I don't know that I have an opinion
about what an appropriate sentence should be. You're exactly
correct, the advisory guideline range was life. I did not ask
for a sentence. I think, technically, Senator, it was 8 years
and 4 months, 100 months. I did not ask for a specific
sentence.
I merely advocated on behalf of my client in arguing that
perhaps the life sentence that was called for in the advisory
sentencing guidelines was too severe or too harsh.
It was the district court judge that chose that sentence.
And I might add, Senator, that that sentence is on appeal now
by cross-appeal by the government before the United States
Court of Appeals for the Sixth Circuit and will be argued this
spring.
So the government does have a remedy with their
dissatisfaction as a result of that sentence, but I did not
choose that sentence nor did I ask for it, sir.
Senator Grassley. In reviewing the dockets where you
defended terrorists on capital murders, it looks like you are
frequently accusing the government of, ``outrageous conduct.''
It leads me to believe that you regularly employ a defense
strategy--if you cannot win on facts, attack the government.
Do you believe you will be able to make the transition from
defense attorney to impartial judge?
Mr. Helmick. Thank you for that question, Senator. Yes. I
am very confident that I can do that. I should add, Senator--
this may not change your perspective--many of those motions are
form motions that are produced in capital cases and the like
and we feel compelled or have a duty to file those motions so
that the record is preserved.
As you know, they are routinely denied. But in order to
protect the record, in many of those cases, it's necessary to
file those motions in the event that there might be some change
in constitutional precedent or law at a later time.
Senator Grassley. As a prospective judge, would a
government prosecutor appearing before you feel that they would
be treated fairly and impartially?
Mr. Helmick. Senator, I don't mean to seem immodest, but I
think that every prosecutor with whom I've ever worked on the
State or Federal level feels that I was fair as an adversary
and that I would be fair as a judge, as well.
Senator Grassley. In the year 2000, you faced disciplinary
action for failing to comply with a court-issued subpoena. You
refused to turn over an incriminating letter signed by your
former client in the same case and you refused to appear before
a grand jury.
The trial found you in contempt of court. You appealed the
decision. Ultimately, the Supreme Court of Ohio held that you
must comply with the subpoena, although they lifted your
contempt citation.
The Supreme Court of Ohio stated that your concerns
regarding the attorney-client privilege were not enough to,
``override the public interest and maintain public safety in
promoting administration of justice,''
Would you please give a short and direct answer as to why
you refused to appear before the grand jury as ordered to do so
by the trial court after it denied your motion to quash the
subpoena?
Mr. Helmick. Thank you, Senator. The shortest response that
I can give would be that this was a case of first impression.
There was no precedent in Ohio about what to do in such a case
with regard to such evidence; that I sought out the advice of a
disciplinary counsel in Columbus, the Supreme Court of Ohio. He
is the senior lawyer that is in charge.
He is the one that agreed that I should disclose the
existence of a threat--excuse me--that I could disclose the
existence of a threat and that I should. He agreed with my
assessment. After I did that, I asked him, Senator Grassley,
whether or not--what I should do with the letter and he told me
``I don't know'' was the response I got from the chief
disciplinary counsel.
In reviewing the disciplinary rules in Ohio, Senator, the
way that document came to me--I don't know how much you want me
to go into this, sir. I don't want to cut into your time.
But the way that it came to me, it was classified as a
client secret in Ohio, which is afforded the same protection as
attorney-client privileged information and discussion and, as a
result of that, I felt I had no choice but to challenge the
matter.
The State of Ohio was on board with me. They did not ask
that I be jailed or anything else for contempt. There was a
fine imposed. The judge put a stay on the fine and I was given
leave to appeal the matter to the higher courts.
As you mentioned, Senator, the court of appeals voted 3-0
in my favor in vacating the contempt citation. They lauded me
on the way I handled the case and commended me for doing
everything right in the case, and that was also true of the
unanimous seven members of the Ohio Supreme Court who did the
same thing.
It was for them, Senator, to reach the balancing test about
whether or not, under those new unprecedented facts, I should
actually turn over the letter. They voted 4-3 that I should. I
respect that decision and I complied with it, sir.
Senator Grassley. Following up on that, in your view, under
what circumstances is it appropriate for the court to override
the attorney-client relationship?
Mr. Helmick. Senator, I only have experience, I suppose, in
the case that I had. There are much more classic examples where
it would have been easy for me to have made the decision.
For example, had I received the instrumentality of the
crime for which the defendant was charged, Senator, the classic
example would be a gun that someone brings to you and says,
``Here, I have this. This is what I used to shoot someone,''
the law is clear that I have to turn over that evidence at that
time.
This was somewhat different. The State only knew about the
letter because I chose to disclose the threat in order to
protect their witness. And I moved quickly, Senator, in calling
the disciplinary counsel. It was only a matter of a few hours
from the time I was given the letter until I spoke with the
detective in the case.
He was able to get the man, David Morris, and his family
and move them to a safe house.
Senator Grassley. Thank you for your answers.
Do not feel bad, Mr. Hillman, if I do not ask you
questions. I am going to ask Ms. Lewis questions.
Do you want me to go ahead?
Senator Coons. Yes. Then I may ask some.
Senator Grassley. I want to ask you about the experience
you have and give you a chance to respond to an article that
was published anonymously on a Website called fitsnews.com.
That article questioned your qualification to be a district
court judge. And, again, I want to stress that this was
published anonymously.
I think it is only fair to give you an opportunity to
respond. The article concludes that your work at your firm has
been, ``mostly ceremonial, cosmetic, superficial.''
So I think it would be fair to let you address that.
Ms. Lewis.. Thank you, Senator. I would like to address
that. Obviously, we don't know who wrote that or why they would
write such a thing. But I can tell you that I have a wealth of
experience in this justice system. I have practiced law in it
for almost 30 years. I have represented all different kinds of
clients in all different kinds of cases, and I'm not talking
wreck cases. I mean very complicated civil matters.
So that person, whoever wrote that, was not very familiar
with my legal experience.
Senator Grassley. Since you just stressed that you have a
great deal of experience in civil, let me ask you about lack of
experience then with criminal cases.
According to your questionnaire, your private practice has
not included any criminal cases. Is there anything more that
you can share with us about your legal background to ease
concerns about your lack of criminal law experience?
Ms. Lewis.. Thank you for that question, Senator. It's
true. My practice has been exclusively civil. But I have moved,
as I said in my last response, from one area of substantive law
to another frequently.
So I'm a pretty quick learner and I have taken the
opportunity since my nomination to actually attend criminal
trials and other proceedings that I might be called upon to
preside over, if I'm fortunate enough to be confirmed. And, of
course, criminal trials are very much like the civil trials
that I've tried. The rules of evidence are the same.
I've also attended many sentencing proceedings, pleas, just
the kinds of things that I would face as a district court
judge. And I've even attended some seminars on the sentencing
guidelines and stuff.
I want to assure you and really all the members of the
Committee that I will be completely prepared for whatever
matter comes before me, be it civil or criminal.
Senator Grassley. In your Senate questionnaire, you
indicate that you were involved in three cases your firm
handled before the Supreme Court. In two of those cases, you
indicate that you contributed briefs and preparation of oral
argument. However, your name does not appear on any of the
briefs submitted in the case.
You did not provide the third brief and my staff was unable
to locate a copy of it. Could you please clarify or perhaps
expand upon the role that you played in those cases?
Ms. Lewis.. The role that I played in those cases is
exactly as I explained in my questionnaire. And I'm not sure
why you didn't get a copy of anything that I participated in,
but I can check on that for you.
My role, I guess, as a young lawyer--and some of these
cases did come across my desk as a young lawyer--I wasn't
particularly concerned about whether my name appeared on the
brief. I think most people in the practice know that a lot of
the work, a lot of the research, the writing, actually even
framing the arguments, is done by some of the younger lawyers
who may not share in the glory.
But I was asked to identify those in my questionnaire, and
I did so.
Senator Grassley. Thank you for that answer.
The next question--I do not want to imply that there is
anything wrong with being politically involved, but I want to
set that as a background for my next series of questions. And
this will be the last questions I will have of you.
Both you and your husband have been active politically. You
hosted a political fundraiser at your house for then Senator
Biden, and you also have donated considerable sums to the
Democratic candidates.
Moreover, you served as part of the transition team of
Democratic Governor Jim Hodges, who also appointed you to
various committees. And as I said, there is certainly nothing
wrong with that, but political history may concern future
litigants, should you be confirmed.
What is your view on the role of politics in the judicial
decision-making process?
Ms. Lewis.. Thank you, Senator. Politics has absolutely no
role in what a judge does. If I'm fortunate enough to be
confirmed, any political views of mine or anyone else's will
have nothing to do with my decision-making.
I'm going to determine what the applicable law is according
to the precedent and apply it to the facts that come before me,
without regard to anything improper, including political views.
Senator Grassley. I think you answered my next question
with your last sentence. Well, I think you have answered the
third question, as well. Thank you.
Ms. Lewis.. Thank you.
Senator Coons. If I might, Ms. Lewis, just to follow-up on
that sort of line of questioning. You have been a partner, if I
am not mistaken, in Lewis & Babcock since 1987; is that
correct?
Ms. Lewis.. I believe that's correct, yes.
Senator Coons. And you have participated in the preparation
and briefing of at least three cases that ultimately went to
the Supreme Court. One of them is quite well known, I think,
Lucas v. South Carolina Coastal Council.
Ms. Lewis.. Yes.
Senator Coons. And it established that principled state
land use law would constitute impermissible taking under the
Fifth Amendment.
As someone who was very active in county government and
land use law for a long time previously, that interested me.
What constraints, in your view, subject to that precedent,
do localities face when seeking to impose conditions or
extractions as a condition for approving development by a
landowner? What are the constraints?
Ms. Lewis.. Well, Senator, that's really--that's not a
question that I really feel prepared to answer. The land
regulation law that we've done in our law firm has primarily
been handled by my other partners. But I do know that it's an
active area.
And if I were called upon to answer any of those questions,
I would have to consult the Supreme Court precedent and the
fourth circuit precedent to decide what to do.
Senator Coons. Thank you.
Mr. Helmick, the situation that Senator Grassley asked you
about was one that was quite interesting to me, as well. You
confronted an extremely serious ethical dilemma, one where, if
I understand correctly, your client presented you with a letter
that detailed an assassination plot to kill the remaining chief
witness.
Could you just describe in a little more detail the balance
you struck, because, obviously, it resulted in a contempt
citation? So some may argue that you did not pursue the perfect
case.
I thought you laid out how you struck the balance between
attorney-client and public safety, but tell me in a little bit
more detail how you struck that balance and what you learned
from it and what you would apply to your role as a district
court judge.
Mr. Helmick. Thank you for that question, Senator, and a
chance to clarify and expound upon what I talked about earlier.
I guess I'd indicate, in the first instance, the letter
came to me from my investigator, an agent for me. The letter
was not given to me by the client, but was actually intercepted
from his mother.
That triggered the protection of the client secret doctrine
in Ohio. When I got it, I immediately called my co-counsel
together. We reviewed the letter. We determined that the threat
was real and that it was serious.
I consulted the disciplinary rules at once. Ohio rules say
that you may disclose, not ``shall.'' And so I thought I had
the authority to do it, and I also knew that I wanted to do it
if I did have that authority, and that's when I called the
chief disciplinary counsel for his advice and, again, he agreed
both that I had the discretion and he agreed with my decision
to exercise it.
I then called the judge at home that evening and advised
her of the threat. She put me in touch with the detective and I
advised him of the threat, and he moved, as I said, David
Morris and his family over there.
What to do with the letter was a separate matter. The
disciplinary counsel told me, ``You're off the case,
counselor.'' That's the one thing I do know for sure. When I
said, again, ``What should I do with the letter,'' ``I don't
know, but you're off the case.''
I hadn't even got that far in terms of thinking through the
process, but he said, ``You've just effectively ratted out your
client, Jeff, and, therefore, you need to take action to get
off the case,'' and I did.
I was lauded by the local county prosecutor for bringing
the threat to their attention. Then the next day I was served
with a grand jury subpoena to produce the letter.
Again, I sought out the advice of counsel. Fortunately, it
was a family member, a lawyer that's very good that's married
to my cousin, because, obviously, no one was going to pay for
me to go through this process, through the court of appeals and
the Ohio Supreme Court in terms of legal fees and so forth.
And in meeting with him and reading the rules, it really
looked like it was a client secret under Ohio law. The court of
appeals disagreed. And so I felt that I had no choice at that
point. In order to trigger review, I had to withhold the
letter. Otherwise, I couldn't get a determination past the
trial court.
The prosecutor's office wanted me to appeal and they wanted
me to turn over the letter, but they understood the dilemma
that it presented. And for them, had they chosen to proceed
forward because I had not done what I had done, he got
subsequent counsel, they would have moved to suppress the
letter from the trial court, and that would have created a
problem for them in terms of an issue with the trial court in
that trial.
That client received new counsel. He went forward to trial
without the letter. He was convicted and sentenced to death.
But the issue about what I should do with the letter still
remained. The Ohio Supreme Court is the authority on discipline
in Ohio. They set the rules, they make the rules, they make the
changes. And I needed to get it there or at least through the
intermediate appellate court.
They disagreed with the intermediate appellate court and
said, ``It is a client secret. Helmick was right.'' But then
they had to decide what should we do in this case of first
impression, and that's when they decided, on balance, that I
should turn over the letter in a 4-3 decision.
Senator Coons. Thank you. And do I remember correctly? Did
Senator Brown, in his introduction, specifically refer to a
process in which Senators Portman and, I think before him,
Voinovich specifically consulted with opposing counsel in
coming up with a recommendation for you? Because I thought
Senator Grassley had a fair question about someone who has been
an engaged advocate, whether prosecution and defense counsel
could expect equal treatment before you.
Mr. Helmick. My understanding is that--and I don't know
firsthand--but that they contacted prosecutors at the
municipal, State and Federal level.
Senator Coons. Judge Hillman, if I might, you expressed in
an article some time ago, I think it was in 1992, your
opposition to mandatory sentencing. I would just be interested
if you would answer one final question about the proper role of
mandatory sentences in our criminal justice system and when
they are helpful or unhelpful.
Judge Hillman. Well, thank you for that question, Senator.
That was in 1992, and I have evolved a great deal. Those were
the----
Senator Coons. I am familiar with having things taken out
of context from one's previous writings.
Judge Hillman. Actually, it was not taken out of context.
It was our first experience in Massachusetts with mandatory
sentences, and all of the judges were being a little bit, I
think, over-reactive, myself included.
I have since come around to the realization that the
mandatory minimum sentences are a legitimate legislative
function and I'm very comfortable dealing with them.
Senator Coons. Thank you very much, Your Honor.
I want to conclude today's hearing, if I might, simply by
thanking each of the three of you for your long service in the
bar, to the public in a variety of roles, both as volunteers,
as court-appointed counsel, as leaders in your community, and
to particularly thank your family, your friends, and your
supporters who have been engaged in sustaining you through this
process so far.
It is my hope we will be able to vote you out of Committee
in advance, all of your nominations.
Thank you so much for appearing before this Committee
today.
We will hold the record open for a week for those members
of the Committee who were not able to join us today who may
wish to submit further questions.
With that, this hearing is adjourned.
[Whereupon, at 4:04 p.m., the hearing was concluded.]
[Questions and answers and submissions follows.]
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NOMINATION OF RICHARD GARY TARANTO, NOMINIEE TO BE U.S. CIRCUIT JUDGE
FOR THE FEDERAL CIRCUIT; GERSHWIN A. DRAIN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; ROBIN S. ROSENBAUM, NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
----------
WEDNESDAY, FEBRUARY 29, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:34 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Al Franken,
presiding.
Present: Senators Grassley and Lee.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. This hearing will come to order.
I would like to welcome each of you to this hearing of the
Senate Judiciary Committee. We will hear from three nominees to
the Federal bench: Richard Gary Taranto; Robin Rosenbaum, and
Gershwin Drain. These nominees are accomplished lawyers and
jurists. They unanimously have received positive reviews from
the American Bar Association's Standing Committee on the
Federal Judiciary, and have strong support. I am looking
forward to hearing from each of them.
Ranking Member Grassley, would you like to give any opening
remarks before we turn to our esteemed colleagues, Senator
Levin and Senator Nelson, to introduce their nominees?
Senator Grassley. I will say about 2 minutes and then put
the rest of the statement in the record.
Senator Franken. Very well.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I think we ought to realize that we are
making real progress on President Obama's judicial nominees.
Since convening a couple months ago this second session of the
112th Congress, the Senate has been in session only 18 days,
including today. During that time we've held three nomination
hearings, receiving testimony from 12 judicial nominees. All in
all, more than 85 percent of President Obama's judicial
nominees have received a hearing.
We've confirmed 5 nominees in those 18 days. In total, we
have confirmed 131 of President Obama's judicial nominees, and
that's about 71 percent. We continue to hear concern about
judicial vacancy, but I want to emphasize that for more than
half of the vacancies, including those designated as judicial
emergencies, the president has yet to submit nominations for
those positions. So critics need to look at the beginning of
the process when commenting on vacancies.
So I welcome all of our nominees today and I'll put the
balance of my statement in the record.
Senator Franken. And we will do that, without objection.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Franken. Well, now I'd like to introduce my
colleague from Michigan, Carl Levin, who will talk about Judge
Drain.
PRESENTATION OF JUDGE GERSHWIN A. DRAIN, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN BY HON.
CARL LEVIN, A U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Levin. First, thank you very much, Chairman Franken
and Ranking Member Grassley. Thank you for holding this
hearing, for the progress that you are making on these
nominees. I am delighted to be here today to introduce Judge
Gershwin Drain, whom the President has nominated to the Federal
bench for the District Court in the Eastern District of
Michigan. He is here today with his wife Meredith; his mother
Vera; his daughters Shelly and Shannon, and Shannon's husband;
his sister Cassandra; his aunt Winona; and his cousin.
Senator Stabenow wanted very much to be here today but
she's not feeling well and she asked me if I would ask you to
insert her statement in the record, so I would make that
request.
Senator Franken. Absolutely. Without objection.
[The prepared statement of Senator Stabenow appears as a
submission for the record.]
Senator Levin. The American Bar Association's Standing
Committee on the Federal Judiciary was unanimous in its
decision that Judge Drain is qualified for this position on the
Federal bench, as you have mentioned, Mr. Chairman. Judge Drain
has had an impressive legal career. He graduated from the
University of Michigan Law School and went on to earn a
Master's of Judicial Studies degree in 1991.
Since 1997, he has served at the Wayne County Circuit Court
as a judge. This is our highest trial court in Michigan. Prior
to that service, Judge Drain served on both the District and
Recorder's courts in Michigan, so he's had a great deal of
trial experience which well prepares him for service on the
Eastern District Court. He has also served as faculty and
faculty advisor for the National Judicial College.
Judge Drain has served on the Detroit-Wayne County Criminal
Advocacy Board, Criminal Jury Instruction Committee,
Association of Black Judges of the Michigan Mock Trial Program
and Mentor Program. He served on his civic association, where
he lives in the neighborhood in Detroit. His legal
qualifications are indeed impressive, but in addition he's
demonstrated a career-long dedication to helping people that
our legal system serves to understand how it works.
He's been a long-time columnist for a newspaper in Michigan
called The Michigan Chronicle. He has explained often complex
legal issues in language that is accessible to his lay readers,
broadening understanding of and appreciation for our courts.
Beyond his writing, Judge Drain has been active in the
community as a member of the Education Committee of the
Southfield Christian School Board. He has also helped guide
prison inmates to rehabilitation. So, I very much support his
nomination, as does Senator Stabenow, and again want to very
much thank this committee for holding a hearing and hopefully
moving forward on this very important nomination.
Senator Franken. Thank you, Senator Levin, for taking this
time. I know you've got a busy schedule, so certainly feel free
to take off.
Senator Nelson, I know you're going to introduce Judge
Rosenbaum.
PRESENTATION OF JUDGE ROBIN S. ROSENBAUM, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON.
BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Thank you, Mr. Chairman and Senator
Grassley. You know, we are fortunate, Senator Rubio and I in
Florida, that we don't have a lot of vacancies, fortunately
because you all are so prompt in considering them. But you
recognize that Senator Rubio and I bring to you nominees that
are selected not because of politics, because that's the way we
select them.
We have a Judicial Nomination Commission composed of
prominent people in the communities and they do all of the
applications, the interviewing, and they send at least three
applicants to us for each judicial vacancy and then we
interview them and tell the White House if we have an
objection. The two Senators interview them together. That's
what we've done with the panel that came forth, and the
President then selected the judge that I'm going to introduce
to you.
Now, Robin Rosenbaum, who has been nominated--she's a
magistrate judge and she has been nominated to the Southern
District--United States District Court in the Southern District
of Florida. She is here with her husband Phil, who is right
behind me; her two children, Evan and Rosie; her parents, and
her two sisters. They're all here.
Senator Franken. Welcome to all of you. You should be very
proud.
Senator Nelson. And it is because of the bipartisanship
that we come to the table as you examine this judge that we are
offering for your consideration.
She had an undergraduate degree from Cornell, a law degree
from the University of Miami. She started her legal career in
the Attorney General's Honors Program, where she worked as a
trial attorney in the Federal programs branch of the Civil
Division of DOJ.
She's been in private practice with one of our prominent
law firms, Holland & Knight. She's been a law clerk for the
11th Circuit Court of Appeals, and she has been an Assistant
USA. So she has had all of that experience before she was
chosen by the judges to go to the magistrate court and has been
there since 2007.
So we have an especially qualified applicant here. If you
all give the green light after you've done all of your
examination, you will find that Senator Rubio and I will try to
process this as quickly as we can, working with you and the
entire Judiciary Committee to get her on up and confirmed.
The Southern District, needless to say, is one of the
busiest districts in the country and so any vacancy left for
any period of time is something that we are quite concerned
about. That is why we've had a pretty good record thus far.
Senator Franken. Thank you, Senator Nelson. You're
certainly free to continue with your busy day.
Right now, again, I want to thank both Senators for their
introductions.
Right now I'd like to introduce the first panel. Our first
witness is Mr. Richard Gary Taranto. I'll introduce you once
you're seated. I think, why don't you stand up and be sworn, if
that's all right. So, stay standing.
[Whereupon, the witness was duly sworn.]
Senator Franken. Great. Please have a seat, and thank you.
Congratulations.
Mr. Richard Gary Taranto is nominated to serve on the
United States Court of Appeals for the Federal Court. Mr.
Taranto is a partner at the law firm of Farr & Taranto. A
graduate of Pomona College and Yale Law School, Mr. Taranto has
served as a law clerk to Justice Sandra Day O'Connor and as
assistant to the Solicitor General.
Mr. Taranto has extensive experience as an appellate
practitioner and has received numerous awards for his advocacy.
The American Bar Association's Standing Committee on the
Judiciary unanimously gave Mr. Taranto its highest possible
rating. Mr. Taranto, congratulations on your nomination. Please
feel free to make a statement and to introduce anyone who is
with you today. Hit the mike.
Mr. Taranto. Sorry.
Senator Franken. That's all right.
STATEMENT OF RICHARD GARY TARANTO, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FEDERAL CIRCUIT
Mr. Taranto. Well, thank you again, both Senators Franken
and Grassley, for having me here today. I want to thank, of
course, President Obama for reposing his trust in me for the
Federal Circuit, whose work I know well and value highly, and
look forward to contributing to, if confirmed.
I do want to introduce a few people who are here with me
today: my wife, Vicki Plau and my daughter Nora.
Senator Franken. Welcome.
Mr. Taranto. Both of them are here. Our other two children
are in California and watching, as are my parents also
watching, and my sister and brother, and maybe one or both of
my two 100-year-old grandmothers.
Senator Franken. Whoa!
Mr. Taranto. Whoa is right, yes.
[Laughter.]
Senator Franken. Well, all I can say is, just eat right.
[Laughter.]
Mr. Taranto. I will follow that advice, thank you. Also
here today is my long-time partner, Bartow Farr, and our long-
time assistant, Julie Mixell, as well as several friends and
colleagues.
With that, I would be happy to answer any questions you
have.
Senator Franken. Well, first of all, congratulations to
your family and to all your friends and colleagues. They must
be very proud. Congratulations again to you on your nomination.
You have extensive experience as an appellate advocate. You
have argued in most of the Federal Circuit Courts and in the
Supreme Court. How will that experience as an advocate assist
you as a judge?
Mr. Taranto. Well, I think it gives me a sense, based on
considerable experience, about what the appellate judging
process is at its best and where it can go wrong. The mix of
careful attention to facts, what parties expect in the way of
scrupulous regard for the record, the desirability of clear and
workable reasoning, both to explain to the parties why the
winner has won and the loser has lost, and as important, to
provide guidance to litigants and private practitioners for
what the law is going to be as it applies to them.
Senator Franken. Okay. I saw in your bio that you clerked
for Sandra Day O'Connor.
Mr. Taranto. I did.
Senator Franken. What years was that?
Mr. Taranto. It was her third term on the court, 1983-1984
term.
Senator Franken. Uh-huh. Now, at that point was she as
central to sort of the, you know--to where the court was as she
turned out to be toward the end of her career there?
Mr. Taranto. You know, from a law clerk's perspective she
was central to our lives. This was, as I say, her third term on
the court, so she had two terms under her belt and there were,
therefore, many issues that were familiar to her, some that
were new, as with any justice developing a long career on the
court.
I must say I did not--I think we did not pay kind of
attention to something that might be called a swing vote, or as
you say being central in the votes. We discussed the cases with
her and she decided them, and we assisted her in the reasoning
explaining her position.
Senator Franken. Now, was that based on--this is you as a
clerk. Was that based on a philosophy of how you should be a
clerk or was that just your being oblivious to what was going
on historically?
[Laughter.]
Mr. Taranto. I think it was more the philosophy of being a
clerk.
Senator Franken. Oh, good. I'm glad you said that.
[Laughter.]
Senator Franken. Now I'm going to vote for you.
[Laughter.]
Senator Franken. What did you learn from her? I'd really be
curious. What did you learn from that experience from her? I
mean, here is one of the iconic justices in the history of the
Supreme Court. What did you learn from clerking from her that
will inform your performance as a judge?
Mr. Taranto. Well, I learned, I think, many things but one
of them was the energy and concentration she brought to what
was then an extraordinarily demanding docket on the Supreme
Court. Some 140 cases were being decided each year--each term
at that time in the Supreme Court's history.
I learned a lot about the ability to pierce through what
can be mountains of paper to identify what is central to the
disposition of the case. I learned a lot about the value of
writing narrowly in a way that is tied to the facts of the case
and not getting ahead of one's self as an institution, leaving
different matters that are not then before the court to future
cases. All of those were central virtues in my experience to
clerking with Justice O'Connor.
Senator Franken. Well, it sounds like that was an enormous
privilege to clerk for her. I'm done with my questioning,
Senator Grassley, of the witness.
Senator Grassley. I have just two areas that I want to
discuss with you, but I have several questions in each area.
One of them I hope you've been alerted to that I want to ask
you about, the Circuit you're going on and whistleblower
protection.
But before I get to whistleblower protection, for several
years you were amicus counsel for the American Psychiatric
Association. What was your relationship with the association
and what role did you play in crafting arguments on behalf of
the association?
Mr. Taranto. Since 1994, until about a year and a half ago,
I was counsel to the committee within the APA that reviews
potential opportunities for amicus participation, so I did that
for quite a long time. I more or less inherited that position
from Joel Klein, who had been the long-term amicus counsel, and
indeed general counsel, to the APA.
So my job was to discuss with the committee year in and
year out a fairly small number of matters each year that would
present issues in the Supreme Court, occasionally in other
courts, but almost entirely in the Supreme Court, issues
bearing on the interests of psychiatric patients and
psychiatrists.
The APA itself, of course, has a governing body which
adopts formal position statements and policies, and my job was
to help the committee decide whether those policies were
affected, or might be affected, by what the court case was
about and then to present the APA's position to the Supreme
Court, with a very heavy emphasis on accurately representing
what the psychiatric and psychological literature said about
particular issues.
Senator Grassley. I don't have any problems with the
advocacy position that you filled, but I have some questions
that I want to know whether it has any impact upon your
potential of being on the Federal Circuit.
So I would ask you about being an amicus counsel in the
briefs that you would have helped on with Romer and with
Lawrence, and I ask you this because there are several
challenges to the Defense of Marriage Act and other Federal
restrictions on same-sex couples.
Given the Federal Circuit's appellate jurisdiction, such
issues may come before you. So considering your past advocacy,
do you have any doubts about your ability to be a fair and
neutral arbiter should one of these cases come before you?
Mr. Taranto. I have no doubt whatsoever the role that I
played in the matters you mentioned was the role of an advocate
representing a client and its formal positions on the matter.
Senator Grassley. Okay. I'd like to ask you if you have any
views on the standard of review that should be applied in due
process and equal protection challenges to laws making
distinctions based on sexual orientation.
Mr. Taranto. Senator, I don't have a view about that, that
it feels appropriate for me to discuss here. My sense has
always been that it's very dangerous for a nominee to discuss a
legal issue in advance of the adversarial process of
adjudicating that issue in the concrete case.
It's unfair to the litigants who might suspect a kind of
confirmation or commitment. It risks speaking more broadly than
a narrow, case-specific ruling that the court should adopt, and
it risks really an ill-considered kind of broad pronouncement
when that adversarial process followed by careful study and
collaboration are bypassed.
Senator Carper. Let me move on then, still in the same
area. The administration has announced a policy that it would
not defend the Defense of Marriage Act. In justifying its
refusal to defend the suit, if there is a suit, the
administration has asserted--and I guess there is a suit. The
administration has asserted that ``classifications based on
sexual orientation should be subject to a heightened standard
of constitutional scrutiny''.
So I think it's fair for me to ask you if you're aware of
any Supreme Court precedent that would support the
administration's position that ``classification based on sexual
orientation are the subject of heightened scrutiny''.
Mr. Taranto. Senator, I have not studied that question, so
sitting right here I can't say that I'm aware of a precedent
one way or the other on that question.
Senator Grassley. Okay. I would like to have you answer, if
there is anything further to say, in writing. Since you said
you haven't had a chance to think about it, I guess you'll have
some weeks to think about it.
Mr. Taranto. I'm happy to answer that, yes.
Senator Grassley. Okay. Do you agree that it would be
improper for a District or Circuit Court to apply a level of
scrutiny other than the rational basis standard, absent further
guidance from the Supreme Court?
Mr. Taranto. Again----
Senator Grassley. And I think it's important for me to
emphasize, absent further guidance from the Supreme Court.
Mr. Taranto. Again, I think, as I understood the question,
the answer to that question depends on knowing what the current
Supreme Court precedents are. That's the question that I think
I don't really know the answer to.
Senator Grassley. Okay. But you would know whether or not
Supreme Court precedent is important in this area.
Mr. Taranto. Oh, absolutely. Indeed, Supreme Court
precedent is not only important in that area, but for a lower
Federal court judge is binding as to standards of review, as
well as particular substantive rulings, and every lower court
judge is bound to follow those standards until the Supreme
Court has said otherwise.
Senator Grassley. Yes. I'm going to quote Justices Scalia
and Lawrence, ``Countless judicial decisions and legislative
enactments have relied on the ancient proposition that our
governing majority's belief that certain sexual behavior is
immoral and unacceptable constitutes a rational basis for
regulation''. So, whether or not you would agree with Justice
Scalia that moral disapproval may serve as a rational basis for
regulation, and why or why not?
Mr. Taranto. I do think, Senator, that that's a question
that I feel uncomfortable answering precisely to the extent it
might come before me as a judge.
Senator Grassley. Okay. I'll stop there then. Maybe I'll
followup with an answer in writing.
In your view, does the Federal Government have authority to
determine the eligibility requirement for Federal benefits as
it did by defining marriage as between one man and woman in the
Defense of Marriage Act? That's the last question I have in
this area.
Mr. Taranto. I think I need to give the same answer.
Senator Grassley. Okay.
Mr. Taranto. To the extent it would be possible to come
before me as a judge, I don't think I should----
Senator Grassley. I'll followup, then.
Mr. Taranto. Okay. Thank you.
Senator Grassley. On whistleblower protection--and I've
been actively involved in whistleblower protection, going to
parts of the False Claims Act that I helped write, or the
Whistleblower Protection Act that I wrote with Senator Levin,
who was here a little while ago, and that was in 1989.
I've always pushed for strong whistleblower protections for
Federal employees. Considering that the Federal Circuit has
exclusive jurisdiction over these cases, can you describe what
experience, if any, you have had with the Whistleblower
Protection Act? Before you answer that, I don't have the
statistics with me that I used for a former nominee that's
going on the same court you are, but there's been very few
times--maybe a handful times out of a few hundred cases--where
it seems to me like the court you're going on has read our
statute.
Well, here it is. Up until February 2011, only 3 out of 219
cases that whistleblowers brought for appeal have
whistleblowers won. In 2010, the court was 0 for 9 against
whistleblowers. Maybe the whistleblowers weren't right, I don't
know, because I don't know what cases. But it just seemed to me
like one segment of people just can't lose that many times.
There's got to be something wrong.
Anyway, let me repeat the question: can you describe what
experiences, if any, you have with the Whistleblower Protection
Act?
Mr. Taranto. I have not had any experience under that
particular act.
Senator Grassley. Okay. The Federal--well, I guess I'm kind
of repeating myself here, but let me do it for the purposes of
the question. The Federal Circuit has issued a number of
decisions that have substantially limited the types of
disclosures that are protected under the Whistleblower
Protection Act. Perhaps the most egregious example of the
Federal Circuit placing hurdles in front of Federal Government
whistleblowers is the 1999 decision in LaChance v. White.
In that case the Federal Circuit held that a whistleblower
had to present irrefragable proof that wrongdoing actually
occurred in order to prove a claim. Have you ever heard of the
irrefragable proof standard, and what's your understanding of
that standard?
Mr. Taranto. Well, you know, Senator, I did not hear of it
until I did my homework for this hearing and then of course I--
--
Senator Grassley. Oh, somebody told you I might ask you
about this?
Mr. Taranto. Somebody suggested it was a matter of some
concern to you, yes. My brief study of the matter since then
has indicated two things. One, that in a 2002 case, subsequent
to the LaChance case, not in the Whistleblower Protection Act
context, the Federal Circuit said really that means clear and
convincing evidence, a much more familiar standard in the law
that ``irrefragable proof''.
I think I also saw a 2004 Whistleblower Protection Act case
in which the Federal Circuit said--called White v. Department
of the Air Force, in which the Federal Circuit said there is no
requirement of proving government misconduct by irrefragable
proof.
As far as I could tell from my own Westlaw search, that's
the last pronouncement under the Whistleblower Protection Act
that uses the term ``irrefragable'', only to reject it. So
that's my understanding of where the law is, but as I say
that's a fairly casual bit of research.
Senator Grassley. So you think it's more like clear and
convincing than anything else at this point? Is that what
you're saying?
Mr. Taranto. The Ampro case is explicit in saying the
terminology we have used, sometimes irrefragable proof,
sometimes something else, really ought to be treated as the
same as clear and convincing evidence.
Senator Grassley. Well, do you happen to believe that
whatever that standard is now, irrefragable proof, or a
substantial evidence standard should apply to whistleblower
cases?
Mr. Taranto. You know, I----
Senator Grassley. I don't think we require that in the law
we wrote.
Mr. Taranto. No. At this point my understanding of any
complexities within the precedents has run out, so I don't know
beyond having looked at those two cases I mentioned, which
suggests to me that irrefragable proof is not currently being
applied under the Whistleblower Protection Act.
Senator Grassley. Well, then I'll ask my staff, but I don't
think I should bother to answer--ask these last two questions--
should I, in regard to that standard of proof? No. We're OK on
that.
I think I'll submit the rest of my questions, including
what I've already said I might submit in writing. I have some
other questions on judicial philosophy I will submit to you for
answer in writing.
Mr. Taranto. Thank you, Senator.
Senator Franken. And we will hold the record open for a
week for questions and answers.
[The questions appear under questions and answers.]
Senator Franken. I'm on the Energy Committee. Irrefragable,
I believe, is natural gas deposits that you can't exploit.
[Laughter.]
Senator Franken. Right? Senator Lee is on Energy. I believe
we know that.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
It's good to see you, Mr. Taranto. Thanks for joining us
today.
Mr. Taranto. Good to see you, Senator.
Senator Lee. I noticed that among your many other
impressive qualifications is one that really stands out, that
of substitute teacher. I have to know, what did you substitute
teach?
Mr. Taranto. I briefly substitute taught high school
mathematics.
Senator Lee. You're a brave man. How did it go?
[Laughter.]
Mr. Taranto. They didn't ask me to do much, so what they
asked me to do, I was able to do.
Senator Lee. Yes. I suppose that's a good thing, given that
you're going onto the Federal Circuit. A lot of mathematical
issues dealing with claims against the government and patents,
so there's a connection there somewhere.
You're someone who has clerked for one Supreme Court
justice, Sandra Day O'Connor, and you clerked for another judge
who almost became a Supreme Court justice, Judge Robert Bork.
So that leads me to ask, is there any justice that has served
over the last 100 years or so who you would say is sort of your
judicial mentor, someone that you might pattern your judicial
philosophy after?
Mr. Taranto. If you will allow me to exclude living
justices, both for reasons of judiciousness and to----
Senator Lee. That's a good idea, actually. Let's exclude
the living.
Mr. Taranto. And to filter out, of course, my unique
relationship with Justice O'Connor. If there was a single
justice that I would pick out as having more of the desirable
characteristics that I value, it would--than anybody else,
though of course these characteristics are widespread, it would
probably be the second Justice Harlan, who sat on the court
from the mid-1950's until 1970 or 1971, and that's because his
opinions reflect just great respect for reason and tradition
and precedent, recognition of the dangers, the need to guard
against injecting personal preference into legal analysis, the
great value of clarity and narrowness of ruling. It seems to
me, though I haven't made a systematic study, that he did that
at a very high level of consistency for his career.
Senator Lee. Some have commented that John Marshall Harlan,
II, was something of a prototextualist or an early modern-day
textualist. Would you agree with that assessment, and is that
part of why you admire him?
Mr. Taranto. I always have a little bit of trouble with
attaching a label like textualist because most judges, even
those who are disagree--or justices, even those who are
disagreeing with each other on particular cases, would claim
that mantle but give different interpretations to the text.
What I tried to identify in Justice Harlan was the caution
and intense focus on giving reasons for everything in
interpreting a text and relying very heavily on precedents and
reading them with nuance and with great care, great attention
to the particular facts that were at issue in the case, and
then writing narrowly so as never to rule more broadly than the
case demanded.
Senator Lee. Yes. One of the things that I've always
admired about that justice was his commitment to the text and
his commitment to the notion that the law supplies an answer,
and that more often than not the overwhelming majority of the
cases you find the answer in the text. There is a competing
school of thought that focuses more on intentionalism than
textualism. Do you gravitate toward either end of the spectrum
when you're dealing with the matter of statutory construction?
Mr. Taranto. You know, in my role as advocate, which is the
role that I have had for my entire practice, as you will
understand, what I have gravitated toward was attending to the
different perspectives that the justices have had and trying to
take account of all of them, to the maximum extent possible, to
advance the interests of the particular client.
But I do understand the distinction that you are making
between what the text says and how the legal community would
have understood that text at the time as opposed to what some
individual legislator or framer may have intended to put in the
text and didn't.
Senator Lee. And your reaction to that sort of dichotomy is
what?
Mr. Taranto. Well, again, as a lawyer representing a
client, the reaction has been if there's a justice on the case
who cares one way or the other, one needs to pay careful
attention to what one can say to try to persuade that justice.
Sometimes, of course, the framer's intent, as reflected in the
papers of the Constitutional Convention or the ratification
debates, will in fact have a legitimate bearing on what the
text was widely understood at the time to mean.
Beyond that I don't think that I could tell you that I have
a particular settled judicial philosophy, and in any event, as
relevant to the job that I'm being considered for, my task
would be to follow the Supreme Court's precedent, not only
substantive rulings but indeed what the Supreme Court says
about methodology.
Senator Lee. Sure. Sure. Although certainly you would agree
that the text is the guiding--is the principle guidepost. The
text normally is the beginning and the end of the analysis when
you are interpreting something, and very often you are
interpreting something. If you're sitting on the Federal
Circuit, for example, there may not be an established precedent
telling you what the official interpretation--what the
precedential interpretation is.
Mr. Taranto. I agree with that completely, particularly for
complicated statutes. Congress has written texts that are often
complicated, and complicated for very good reasons, to try to
do certain things narrowly and not go too far and the text is
the authoritative guide to the proper resolution of the case.
Everything else is a matter of trying to understand that
text properly, including, of course, precedents that may have
already addressed the issue because no judge ought to view a
matter as never having been considered by jurists before.
Senator Lee. Well said. I see my time's expired. Thank you,
Mr. Chairman. Thank you, Mr. Taranto.
Senator Franken. Thank you, Senator. Well, sir, you'll be
excused now. Thank you so much. Congratulations once again.
Mr. Taranto. Thank you.
Senator Franken. The record will be open for a week, so if
any Senators have questions for you we'll get those to you and
this will be open for a week.
Mr. Taranto. Thank you, Senator. And thank you, Senator
Grassley.
[The biographic Information follows.]
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Senator Franken. Thank you so much.
Okay. Let's have our second panel up here, which is Judge
Drain and Judge Rosenbaum, both of whom were introduced by
their respective Senators. Welcome to both.
I am going to have you both stand and take this oath.
[Whereupon, the witnesses were duly sworn.]
Senator Franken. Please be seated.
I'll start with Judge Drain, since you're to my left there,
the first. Would you--I'd love for you to be able to introduce
your family.
STATEMENT OF GERSHWIN A. DRAIN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
Judge Drain. I would, thank you.
Senator Franken. And any friends who are here as well.
Judge Drain. Okay. Thank you, Senator Franken. Before I
introduce family, I do want to thank President Obama for the
nomination. I am deeply honored and humbled by it.
And I want to thank Senator Leahy for scheduling this
hearing. I want to thank you, Senator Franken, for presiding
here, and you also, Senator Grassley. I want to thank you for
serving as the Ranking Member. I also want to thank Senator
Carl Levin for that very generous and kind introduction.
I do have a fair amount of family here that I'd like to
introduce, with your permission. I want to first introduce my
wife, Meredith Drain, who has been an incredible partner for 43
years. We got married when we were young college students.
Senator Franken. Welcome.
Judge Drain. And I have my oldest daughter here, Shelley
Drain. She's a lawyer and she works for the Prosecutor's Office
in Wayne County. Her husband, Keith Strange, was not able to be
here this afternoon. My youngest daughter is also here, Shannon
Salinas, and she's also a lawyer. She works for the American
Council of Life Insurers. Her husband, Norberto Salinas, my
son-in-law, he works for the House Judiciary Committee.
And then my mom is here, and yesterday she became 88 years
young.
Senator Franken. Happy birthday.
Judge Drain. So I am happy that she was able to make it
here.
And my sister--my older sister Cassandra Rutledge is here.
She's a retired school teacher. My younger sister, Vernie
Drain, is not here. She's an M.D. and she works for the VA
Hospital in Cincinnati, Ohio.
My cousin is here, Johnna Cheek; my aunt Winona Thomas; my
nephew Caleb Rutledge, and I have a number of other relatives
and friends watching on the webcast. So, thank you, Senator
Franken, for allowing me to make these introductions.
Senator Franken. Absolutely. So your mom had a doctor and a
lawyer.
Judge Drain. Yes. Yes.
Senator Franken. Well, congratulations.
Judge Drain. To her real tribute. To her real tribute. She
really taught us the value of a good education and the
importance of hard work.
Senator Franken. Fabulous.
Judge Drain. So, we're grateful to her for that.
Senator Franken. Well, happy birthday, again. This is a
pretty good birthday present, I would think, to have your son
being nominated for a Federal judgeship.
Judge Rosenbaum, would you care to introduce your family
and friends who are here?
[The biographic information follows.]
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STATEMENT OF ROBIN S. ROSENBAUM, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Rosenbaum. Thank you, Senator Franken. I want to
first thank the Committee for scheduling this hearing, and
thank you, Senator Franken, for presiding over it. Thank you to
the Ranking Member, Senator Grassley. Thank you, Senator Lee,
for being here as well.
I also want to thank Senator Nelson for his remarks, and
Senator Nelson and Senator Rubio for forwarding my name to
President Obama. I'd like to thank President Obama for the
nomination. I'd also like to thank the Judicial Nominating
Commission for sending my name in the first place to Senators
Rubio and Nelson.
I'd like to introduce my family, very quickly. This is my
husband, Phil.
Senator Franken. Welcome.
Judge Rosenbaum. My daughter, Rosie. She's 10.
Senator Franken. Hi, Rosie.
Judge Rosenbaum. My mom, Hedy; my daughter, Evin, who's 12;
my father, Jerry; my sister Marci; and my other sister, Jodi.
Senator Franken. Well, congratulations to you all. You must
be very proud.
Judge Rosenbaum. Thank you.
Senator Franken. Okay. Well, I guess we should just--I'll
start the questions.
Senator Grassley. I'm going to let Senator Lee go ahead of
me because he's got to go at 3:30. So when you're done, go to
him.
Senator Franken. Okay. I will do that.
Let's see. Obviously you were both introduced by your
respective Senators. Each of you are a judge and have
experience. Judge Rosenbaum, you've been a magistrate judge
since 2007. Judge Drain, you have been a State court judge for
more than 25 years. How will each of your previous experiences
help you in the transition to the Federal bench, and what
challenges do you anticipate in making that transition?
Judge Drain. Senator Franken, I do have a pretty long
history and I spent 12 years at the Federal Defender's Office.
During that time I handled a whole host of Federal criminal
matters. I handled a lot of trials. I even handled some cases
in the Sixth Circuit, some of the appeals that--from cases that
I handle.
So I had that experience for 12 years in Federal court. And
then as a State court judge, I handled criminal cases and civil
cases. I handled criminal cases for about 13 years in the
Recorder's Court and Wayne Circuit Court, and during that time
I handled all manner of crimes: murder, rape, robbery,
assaults, drugs, weapons violations, the whole gamut. I did
that for, again, 13 years.
And then in 2000 I moved to the Civil Division, and there I
started handling civil cases, the personal injury cases,
malpractice, legal and medical, contracts, employment cases,
discrimination cases, just the whole gamut of civil matters.
And the challenge I see in moving to a Federal position, if
I am fortunate enough to be confirmed, would be to start
looking at Federal statutes and the Federal Constitution, the
U.S. Constitution, whereas in the past I've been dealing with
State statutes and the Michigan constitution.
They also have e-filing in Federal court. In our State
court we really haven't gotten that advanced yet, so that would
be a challenge also. But I would look forward to being
confirmed with great excitement, and look forward to any other
challenges that may surface.
Senator Franken. Thank you.
Judge Rosenbaum.
Judge Rosenbaum. As a Magistrate Judge I have been
fortunate to have had the experience to handle exactly the same
types of cases as District Judges handle on a daily basis, and
I've been fortunate to be able to handle all different kinds of
motions that get filed in Federal District Court. So I would be
prepared to hit the ground running as a District Court judge,
having worked on the same types of matters as a Magistrate
Judge, if I am fortunate enough to be confirmed.
As far as challenges go, the one area in which a Magistrate
Judge does not have authority to preside, by law, is over
felony criminal trials and so that would be a new challenge for
me. But I would feel confident that I would be able to address
that accordingly because, first of all, I have presided over
both Federal jury--Federal civil jury and Federal civil bench
trials, and I spent 9 years as a Federal prosecutor. Five of
those years I served as the Chief of the Economic Crimes
Division. So, I would feel well prepared to preside over
criminal trials as well.
[The biographic information follows.]
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Senator Franken. Okay. Well, you both sound tremendously
qualified. I still have about 50 seconds left, but I'm going to
reserve that time in case I feel I need it. I know that Senator
Lee has impending responsibilities, so, Senator?
Senator Lee. Thank you, Mr. Chairman.
I've got just a couple of questions for Judge Drain, if
that's okay. The first thing I'd like to ask you about is an
article you wrote in March 1994 that appeared in The Michigan
Chronicle. In that article, or that column I should say, you
wrote that you ``look forward to the time when a person with a
gun will be viewed as a coward or a chicken with an unfair
advantage, a cheater in a fight''. Does that, and if so how
does that, reflect in any way of your view of the Second
Amendment?
Judge Drain. You know, I handled a lot of cases in the
Criminal Division and I have looked at the Second Amendment and
it does ensure that persons have the right to own, possess, and
carry firearms, and the Supreme Court has made that clear in
the Heller case and in McDonald. I have no problems with
abiding by and following those precedents because the second
amendment, the right to keep and bear firearms is an important
constitutional right, and so I am prepared to follow that
precedent.
Senator Lee. Okay. Thank you.
In an article that you authored in the Detroit News you
wrote that the death penalty is ``primitive punishment that is
brutal and barbaric''. Would that statement affect--having made
that statement, would that or the sentiments underlying it
affect your ability to apply the law as an Article 3 judge?
Judge Drain. It would not, Senator Lee. That was an article
I wrote about 27 years ago and I no longer hold to that
position. My views about the death penalty have been evolving
and changing and I no longer believe that. I was a pretty
young, zealous defense lawyer back in those days and I feel a
lot older and more mature now, and I again don't subscribe to
that position anymore.
Senator Lee. Your views on that issue have evolved, you
could say?
Judge Drain. Pardon me?
Senator Lee. They have evolved? Your views have evolved?
Judge Drain. Yes, they have. Yes, sir.
Senator Lee. Then in 1998, you wrote a Michigan Chronicle
article honoring a former Michigan State judge, a Judge Damon
Keith. In that you wrote that Supreme Court Justice Clarence
Thomas, who you should know I regard as one of the greatest
jurists of our era and one of the greatest legal minds ever in
the United States, had taken positions ``diametrically opposed
to those of Judge Keith and other legal giants'' and that
``Thomas has opposed almost every civil rights issue involving
poor people, minorities, voting rights, the criminal justice
system, and affirmative action''.
Is it appropriate for a sitting judge to criticize a
sitting member of the U.S. Supreme Court using such terms?
Judge Drain. I think that was probably inappropriate for me
to say and to write about Judge Thomas, because I do have a lot
of respect for him. I personally met him some time after that.
In fact, he was a justice who came to Detroit and he actually
presented Judge Keith with the David Award.
I don't know how familiar you are with the David Award, but
that's an award that is given annually to an outstanding
Federal jurist, the most outstanding Federal jurist in the
country. So I went to that and I met him and it was a very
pleasant meeting, and I guess ultimately I don't think it was
appropriate for me to be that critical of him.
Senator Lee. Okay. Okay. Thank you very much. I appreciate
that.
Judge Drain. All right. Thank you.
Senator Franken. Thank you, Senator Lee.
Judge Thomas hadn't read the article, I assume?
Judge Drain. Oh, I guess not.
[Laughter.]
Judge Drain. I don't know.
Senator Franken. Well, it was a pleasant meeting. That says
a lot for him if he had.
Senator Grassley Thank you, Senator Lee, by the way.
Senator Grassley. Before I go to questions, Judge Drain, I
want to ask Judge Rosenbaum some questions. By the way, he
covered several areas I was going to cover with you, so it
won't take as long as I thought.
Judge Drain. Okay. That's Okay.
Senator Grassley. For you in Christ Covenant Church v. Town
of Southwest Ranches, you ordered the church to disclose its
membership information to the town, even though doing so would
place a potentially significant burden on the First Amendment
rights of the church and its members. I have three subquestions
here: do you feel that churches should be treated as any other
organization for purposes of discovery disputes?
Judge Rosenbaum. No. Churches actually have--and as I
believe I wrote in the Christ Covenant case, churches have
special considerations that the court must consider. For
example, we have to be concerned about the First Amendment
rights as far as freedom of religion, the free exercise clause,
and as far as the associational rights go.
And that's why, when I wrote the Christ Covenant case, I
drafted it as narrowly as I think I possibly could have. In
that particular case, what happened was, the church was suing
the city to allow for an expansion of its church facilities,
and the church was alleging in its complaint that it did not
have enough room to be able to conduct weddings, for example,
funerals, other life cycle activities, classes, things of that
nature.
And under RLUIPA, the Religious Land Use and
Institutionalized Persons Act, they were suing in order to be
able to go forward with their expansion plans. But in order to
win on that there was a factual issue, and the factual issue
was whether in fact they were having their religious events,
their life cycle events, their community classes, interfered
with. It was a purely factual issue.
And so with respect to that one specific and narrow
question, I authorized the defendant to go ahead and depose the
individuals who were not able to have life cycle events, such
as a wedding, if their wedding was not able to go forward, that
type of thing, to have those depositions only to the extent
that they could be asked questions about not being able to have
the event.
They were not allowed to go into anyone's individual
religious beliefs or anything beyond the actual factual issue
there. I also required it to be disclosed only to the attorneys
for the city. There was no disclosure allowed beyond the
attorneys for the city, and I subjected it to a Protective Act.
So I think that--or Protective Order, I guess I should say.
I think that that was the best way to accommodate both the
concerns for allowing the defendant city to be able to test the
allegations which were at the heart of the issue and the
lawsuit, while still protecting the associational and free
exercise rights of the individual members of the church.
Senator Grassley. Recently this administration--I should
say President Obama's administration, in my view, has shown a
disregard for the rights of religious liberties and exercise of
conscience protected by the First Amendment.
What is your understanding of the current state of law with
regard to the interplay between establishment and free exercise
clause of the First Amendment, and how would you approach a
case where the First Amendment religious rights were an issue?
Judge Rosenbaum. Well, with respect to--again, I'll go back
to the Christ Covenant case. I think the law is actually pretty
clear, what the Supreme Court has said in that. Those are
fundamental rights under the First Amendment. Those are rights
that are entitled to protection, obviously, and those are
rights that there's a heightened standard for disclosure, for
example, in those types of cases. There has to be a heightened
showing of need.
There is a balancing test, which includes five different
factors. All of them need to be examined very carefully, and in
order to evaluate any particular claim the court would have to
evaluate the balancing tests, whatever was appropriate for the
particular issue in that case and apply them as the Supreme
Court has required.
Senator Grassley. My next question would be, kind of, how
you approach deciding a statute. My research shows that you
give some weight to legislative history. I guess that makes me
feel good. You can't write the statute as perfectly as you want
to. What's your approach to determining the meaning of a
statute?
Judge Rosenbaum. Well, first, I would start--and I do
start--with the words of the statute. And if the words of the
statute are clear and unambiguous, then we not only start there
but we should end there as well. In addition, I think it's
important to look at the framework of the statute.
It's important to avoid interpreting a law so that other
parts of the statute would become either redundant or would
have to be ignored. So we take all of those things into
consideration, and if it's still not clear what the answer is,
only then do we look to the legislative purpose or intent.
Senator Grassley. Does the category of congressional
findings carry much weight with you?
Judge Rosenbaum. Congressional findings?
Senator Grassley. Yes. You know, like a preamble to a
statute or a bill that Congress is passing.
Judge Rosenbaum. Well, I would certainly take that into
consideration.
Senator Grassley. Okay. This would be the last question
along that line, and I guess my last question for you. Is it
very easy for a judge or advocate to select only those
statements--no, I'd better say--I want to make a statement. It
is very easy for a judge or advocate to select only those
statements in a report or legislative remarks that support a
particular judge's position. How will you avoid the appearance
of selectivity when using legislative history?
Judge Rosenbaum. Well, I think that's a very important
thing to avoid, obviously. One of the things about legislative
intent and legislative purposes that really doesn't--where the
court doesn't have to pick through particular statements is,
for example, if the Supreme Court has decided an issue a
particular way, and in response to a decision the Supreme Court
has issued the Congress then enacts a new statute.
In that case it can be very clear what legislative intent
is. I think that in order to avoid the type of problem that you
have identified, it's very important for a judge who does go
ahead and consider legislative purpose or legislative intent to
stick only with the legislative intent that is readily
discernible.
And as I said, we would get to the legislative intent only
if first we went through the language of the statute, found it
to be ambiguous, then we went through the statutory framework,
found that still to be ambiguous, and then only as a last
resort would we turn to the legislative intent or purpose.
Senator Grassley. I notice you have a friend of mine, a
lawyer in Des Moines, Iowa, by the name of Jeff Goodman who
is----
Judge Rosenbaum. Yes. He appeared before me in a case a few
years back. A great lawyer.
Senator Grassley. He seems to think you're qualified for
the job.
Judge Rosenbaum. Thank you. I appreciate that.
Senator Grassley. Now I'll go to you, Mr. Drain. You've
written ``one of my unpleasant tasks on occasion is to impose
mandatory sentences.'' You've been critical of so-called three
strike legislation, advocating for the passage of bills by the
legislature in your home State that would eliminate mandatory
sentencing. So, a very simple question: why do you oppose
mandatory sentences?
Judge Drain. Senator Grassley, having handled just hundreds
of criminal cases, they vary in scope and involvement. And when
you look at some of the principles that come into play, like
aiding and abetting and, you know, some conspiracy cases,
people who do very little toward the commission of a crime are
treated just as though they were the major offender or the
shooter, so to speak.
So, you know, when you start to see the big variety of
cases that come, to have mandatory sentences is difficult to
deal with and to handle cases in an equitable fashion. They
just present some, like I said, very difficult situations.
Really, judges who actually see cases and see people and
situations need a little more discretion in the area of
sentencing.
Senator Grassley. Well, since the Booker case and the
guidelines at the Federal level have been advisory rather than
mandatory, if confirmed, how much deference would you afford
the guidelines under the advisory-rather-than-mandatory
approach?
And maybe I should ask this simultaneous with that
question: what circumstances would you be willing to depart
from the guidelines if you--I guess, how much deference do you
give to guidelines, and then if you gave some deference to them
what would be your point of departure or reasons for departure?
Judge Drain. Senator Grassley, when I became a State court
judge the guidelines were extremely helpful to me because I
really didn't know what sentence to impose on what kind of
conduct. So, guidelines are very helpful. In the State system
that I was functioning in, when you decided to go outside of
the guidelines you had to give reasons that were not already
factored into the guidelines and you could depart either upward
or downward.
I left the Federal Defender's Office before the guidelines
came into existence, and in spite of Booker I would really give
great deference to the sentencing guidelines as a starting
point because, again, I've never sat as a judge in Federal
court. And again, if I was fortunate enough to become a Federal
judge, I would give the guidelines a lot of deference and
sentence in that fashion.
Senator Grassley. Okay. A little bit along the same line,
but do you agree that the sentence a defendant receives for a
particular crime should not depend on the judge he or she
happens to draw?
Judge Drain. I agree totally with that, 100 percent. In
fact, that's one of the whole purposes of the guidelines. I
think that's extremely important.
Senator Grassley. Are you willing to sentence an elderly
person to the same amount of time as a young person for a
similar crime?
Judge Drain. Probably. And I would--you know, there's a lot
of factors to look at when you impose sentence. But the
guidelines, at least the State guidelines, were not--age wasn't
a factor. And I'm not sure how much of a difference I'd make in
sentencing an elderly person versus a younger person.
Senator Grassley. My question would be--I think it's the
last one on this point--would be this: you've written articles
that indicate that you believe that when an individual is no
longer a threat to society they should be released from prison,
even if they have not served the whole sentence mandated by
law. Just a simple explanation of why you--what you mean by
that.
Judge Drain. Senator Grassley, in my experience and in some
of the things that I've read, crime--I should say age is a big
factor in crime. The crime-committing years are usually between
17 and 25. As people get older, in their 30's, 40's, 50's, then
that crime-committing period usually has passed. People become
more mature, they become more settled, less violent, and those
kind of things. I just--I think that's really what I was
talking about. The older a person gets, I think the less likely
they are to commit crime.
Senator Grassley. Before I ask the next question, I want to
preface it with the fact that there's nothing wrong with you
being politically active, but I'd like to ask you some
questions because, you know, the public records show your
contributions. Well, I guess, just leave it at that.
What is your view of the role of politics in the judicial
decision-making process?
Judge Drain. Senator Grassley, I don't think that politics
should have any role in the decision-making process. Cases
should be decided solely on the facts and the evidence and the
testimony and the law that applies in the case. I don't think
politics should play any part. I would commit to not treating
anyone differently, whether they're Republican or Democrat,
labor, management, individual versus corporation. None of those
things really would make a difference in decision-making.
Senator Grassley. I think you've answered my second and
third subparts of that issue.
Let's go to criminal law. I would like to have some
understanding of your view on constitutional criminal law. In
People v. Thomas, you granted the defendant's motion to
suppress evidence of cocaine possession because of a defective
search warrant. Your decision was overturned, as a higher court
found that there was an obvious exception to the search warrant
requirement in the case.
In People v. Adams, you dismissed charges against a
defendant for assault with intent to commit murder because a
witness who testified in the preliminary hearing did not
testify at trial. The Court of Appeals held that the rules of
evidence for your State clearly say that when a witness is
unavailable, testimony from another hearing is inadmissible.
Considering these reversals and some others that I didn't go
into, do you consider yourself, or would others characterize
you, as a pro-defendant judge?
Judge Drain. I don't think so, Senator Grassley. Even
though I practiced criminal defense work when I was a lawyer
and practicing law, once you become a judge you become pretty
neutral, or you learn to become neutral pretty quickly. So I
have every intention of being objective and impartial with both
defendants and the prosecution and I don't think I would be
labeled a pro-defense judge.
Senator Grassley. I believe you've answered the second
subpart of that question, so let's go on to deal with the
authority that a judge has. These are the last two questions.
In one article you wrote about a time where you had to
apply a sentence that you thought was inappropriate. You said,
``I imposed the sentence and it was very, very unfair. But as a
new judge in the Recorder's Court, I'd been there for not even
4 years yet, I felt that it was my obligation to follow the law
and I went ahead and imposed the sentences in cases where I
just knew in my heart that they were unfair and unjust''. Do
you mean by this statement that judges who have been on the
bench longer would have had the authority to not impose the
sentences?
Judge Drain. Senator, in dealing with mandatory sentences
sometimes I do say that, you know, I would rather do something
different. But the law says that you impose the sentence. A lot
of times when I imposed a mandatory sentence I didn't do it
with any type of joy or happiness. It was something that was
hard to do.
But I believe that the commitment of following the law and
imposing the appropriate sentence that's been given by the
legislature, I believe that that's my obligation, to follow the
law and so that's what I did. The fact that I wrote some side
comments about it, about my personal feelings, which really,
really shouldn't have anything to do with my decision-making,
is really kind of irrelevant or unimportant to me.
Senator Grassley. We have people that argue that a judge
should have empathy for those who appear before them. My
concern is that when someone suggests that a judge should have
empathy they're really suggesting that the judge should place
their thumb on the scales of justice to tilt in favor of the
proverbial little guy, or some other noun you might want to use
there. In your personal opinion, is it ever the role of a judge
to favor, for instance, the little guy over the big guy?
Judge Drain. No, Senator Grassley. I think the little guy
shouldn't be given any more fairness than the big guy. They
need to be treated equally and impartially. I am committed to
doing that.
Senator Grassley. Thank you very much.
Senator Franken. Thank you, Senator Grassley.
I did retain a little bit of time so I'm really interested
in this issue of sentencing and what the Ranking Member said
about, should someone get different sentences for the same
crime depending on what judge they're before. And it seems to
me that either you have mandatory sentences or you have
guidelines, and if you have guidelines there's going to be a
difference between what judge you're before.
The question is, how--you know, how each judge sees the
sentencing process. And obviously you have written about this.
You believe that the sentencing law should be flexible enough
to account for a wide range of circumstances presented in
different cases, and that seems to make a tremendous amount of
sense to me.
So how do you--how do you negotiate that difference, the
difference of being able to--for a judge to use his or her
discretion? And I'll ask you this, too, Judge Rosenbaum. Being
able to use his or her discretion when there are a wide range
of circumstances in any different case, and at the same time,
you know, hold up the principle that a prisoner before one
judge shouldn't get a wildly different sentence than he or she
gets before another judge.
Why don't we go with Judge Rosenbaum, because Doctor--
Doctor--Judge Drain has been--give him a break for a second.
Judge Rosenbaum. No problem. What I would say is we, of
course, start with the guidelines. Under Booker, that's the
starting point. The guidelines have a number of considerations
that we take into account, and then of course we also have to
look at the factors under 18 USC 3553.
The reason that there are these factors laid out is to
allow for the court to look at each case individually while
still applying and remembering that we're trying to achieve
sentencing parity. So I think what I would do, if I were
fortunate enough to be confirmed of course, is to start, as I
said, with the guidelines and then look to the 3553 factors and
apply them to each case before me individually, while of course
still keeping in mind that it's important to apply the
guidelines as much as possible. That's basically what the
Supreme Court has said.
The Eleventh Circuit has also--in cases where judges have
not done that and have not been true to the guidelines, have
sent those cases back to be resentenced in accordance with the
guidelines and the 3553 factors. So, that's how I would do
that.
Senator Franken. Judge Drain, from that description it
sounds as if they're--within the law there is enough guidance
and that it's almost slightly mechanical, but it feels to me
that when you're dealing with a human life and you're dealing
with a crime and you're dealing with all sorts of different
factors, that--and you've been involved in a lot, that it just
isn't quite that easy.
Judge Drain. No. Let me just say, first, that I would much
rather deal with guidelines than mandatory sentences. Frankly
speaking, I actually really liked the guidelines in Michigan.
That's primarily because the guidelines, as they were formed in
Michigan, were the result of taking all of the sentences all
across the State and finding out what the averages were. And
the guidelines in Michigan had a graph, and part of the graph
dealt with the offender's criminal history, the other part
dealt with the severity of the offense, and then you plot the
guidelines and you figure out what they are.
Then, after you've done that, if there are some factors
kind of unique to the case that aren't already figured into the
guidelines, you can use those factors to go up or down, and
I've done both in the past. There have been situations where
there were some very aggregated facts--aggravating facts, I
should say, where I went above the guidelines for one reason or
another, and then there were some mitigating circumstances
where I went below the guidelines. That really gave us, in
Michigan, the flexibility to impose a fair sentence.
So I--I thought the guidelines were pretty effective
because no matter where you are in the State of Michigan,
whether you're in some very rural county or you're in an urban
area, you're going to be treated pretty much the same based on
the guidelines. If anybody wants to be harder or softer,
they've got to give some good reasons. If you don't give those
good reasons then the Court of Appeals will reverse. So, I felt
pretty comfortable with them and I've never really dealt with
the Federal guidelines so I really, really can't speak to them.
Senator Franken. Well, thank you both. Thank you, your
Honor--both your Honors. I want to again congratulate all of
the nominees, including Mr. Taranto. Thanks to each of you for
your testimony today.
We will hold the record open for 1 week for submission of
questions for the witnesses and other materials.
This hearing is adjourned.
[Whereupon, at 3:50 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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