[Senate Hearing 112-72, Part 8]
[From the U.S. Government Publishing Office]




                                                  S. Hrg. 112-72, Pt. 8

 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                   JUNE 6, JUNE 27, AND JULY 11, 2012

                               ----------                              

                           Serial No. J-112-4

                               ----------                              

                                 PART 8

                               ----------                              

         Printed for the use of the Committee on the Judiciary



                                                  S. Hrg. 112-72, Pt. 8

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                   JUNE 6, JUNE 27, AND JULY 11, 2012

                               __________

                           Serial No. J-112-4

                               __________

                                 PART 8

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

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


                            C O N T E N T S

                              ----------                              

                              JUNE 6, 2012
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     1
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   263
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     5
    prepared statement...........................................   269
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, June 6, 2012, letter.....................................   274

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Jesus G. Bernal, Nominee to be U.S. District Judge 
  for the Central District of California and Grande Lum, Nominee 
  to be Director, Community Relations Service, Department of 
  Justice........................................................     2
Levin, Hon. Carl, a U.S. Senator from the State of Michigan 
  presenting Terrence G. Berg, Nominee to be U.S. District Judge 
  for the Eastern District of Michigan...........................     3

                       STATEMENT OF THE NOMINEES

Berg, Terrence G., Nominee to be U.S. District Judge for the 
  Eastern District of Michigan...................................     7
    Questionnaire................................................     8
Bernal, Jesus G., Nominee to be U.S. District Judge for the 
  Central District of California.................................    91
    Questionnaire................................................    92
Lum, Grande, Nominee to be Director, Community Relations Service, 
  Department of Justice..........................................   177
    Questionnaire................................................   178
Schofield, Lorna G., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   118
    Questionnaire................................................   119

                         QUESTIONS AND ANSWERS

Responses of Terrence G. Berg to questions submitted by Senators 
  Grassley, Coburn and Klobuchar.................................   216
Responses of Jesus G. Bernal to questions submitted by Senators 
  Grassley, Coburn and Klobuchar.................................   235
Responses of Grande Lum to questions submitted by Senators 
  Grassley and Klobuchar.........................................   241
Responses of Lorna G. Schofield to questions submitted by 
  Senators Grassley and Klobuchar................................   247

                       SUBMISSIONS FOR THE RECORD

American Bar Association (ABA), Allan J. Joseph, Chair, 
  Washington, DC:
    Terrence G. Berg, April 26, 2012, letter.....................   253
    Jesus G. Bernal, April 26, 2012, letter......................   254
    Lorna G. Schofield, April 26, 2012, letter...................   255
Dispute Resolution Practitioners, May 1, 2012, joint letter......   256
Gillibrand, Kirsten E., a U.S. Senator from the State of New 
  York, prepared statement.......................................   268
National Asian Pacific American Bar Association (NAPABA), Tina R. 
  Matsuoka, Executive Director, Washington, DC, June 5, 2012, 
  letter.........................................................   275
Peninsula Conflict Resolution Center, Jennifer Bullock, Former 
  Executive Director, San Mateo, California, March 21, 2012, 
  joint letter...................................................   277
Professional Legal Scholars, April 9, 2012, joint letter.........   279
                              ----------                              

                        WEDNESDAY, JUNE 27, 2012
                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   285
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   615

                               PRESENTERS

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania presenting Malachy Edward Mannion, Nominee to be 
  U.S. District Judge for the Middle District of Pennsylvania and 
  Matthew W. Brann Nominee to be U.S. District Judge for the 
  Middle District of Pennsylvania................................   291
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Frank Paul Geraci, Jr., Nominee to be U.S. 
  District Judge for the Western District of New York............   287
Toomey, Hon. Patrick J., a U.S. Senator from the State of 
  Pennsylvania presenting Malachy Edward Mannion, Nominee to be 
  U.S. District Judge for the Middle District of Pennsylvania and 
  Matthew W. Brann, Nominee to be U.S. District Judge for the 
  Middle District of Pennsylvania................................   286

                       STATEMENTS OF THE NOMINEES

Brann, Matthew W., Nominee to be U.S. District Judge for the 
  Middle District of Pennsylvania................................   486
    Questionnaire................................................   487
Breyer, Charles R., Nominee to be a Member of the U.S. Sentencing 
  Commission.....................................................   528
    Questionnaire................................................   529
Geraci, Frank Paul, Jr., Nominee to be U.S. District Judge for 
  the Western District of New York...............................   292
    Questionnaire................................................   294
Mannion, Malachy Edward, Nominee to be U.S. District Judge for 
  the Middle District of Pennsylvania............................   411
    Questionnaire................................................   412
Olguin, Fernando M., Nominee to be U.S. District Judge for the 
  Central District of California.................................   361
    Questionnaire................................................   362

                         QUESTIONS AND ANSWERS

Responses of Matthew W. Brann to questions submitted by Senators 
  Grassley and Klobuchar.........................................   585
Responses of Charles R. Breyer to questions submitted by Senators 
  Grassley and Klobuchar.........................................   589
Responses of Frank Paul Geraci, Jr., to questions submitted by 
  Senators Grassley and Klobuchar................................   592
Responses of Malachy Edward Mannion to questions submitted by 
  Senators Grassley and Klobuchar................................   597
Responses of Fernando M. Olguin to questions submitted by 
  Senators Grassley and Klobuchar................................   601

                       SUBMISSION FOR THE RECORD

American Bar Association (ABA), Allan J. Joseph, Chair, 
  Washington, DC:
    Matthew W. Brann, May 17, 2012, letter.......................   608
    Frank P. Geraci, May 15, 2012, letter........................   609
    Malachy E. Mannion, May 17, 2012, letter.....................   610
    Fernando M. Olguin, May 15, 2012, letter.....................   611
Baca, Leroy D., Sheriff, County of Los Angeles, Monterey Park, 
  California, June 20, 2012, letter..............................   612
Beck, Charlie, Chief of Police, Los Angeles Police Department, 
  Los Angeles, California, June 11, 2012, letter.................   613
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  statement......................................................   614
Los Angeles Police Protective League, Tyler Izen, President, Los 
  Angeles, California, June 6, 2012, letter......................   625
Olquin, Fernando M., Los Angeles, California, statement..........   626
                              ----------                              

                        WEDNESDAY, JULY 11, 2012
                    STATEMENTS OF COMMITTEE MEMBERS

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................   627
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois, 
  prepared statement.............................................   863
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   628
    prepared statement...........................................   864

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Jon S. Tigar, Nominee to be U.S. District Judge for 
  the Northern District of California and William H. Orrick III, 
  Nominee to be U.S. District Judge for the Northern District of 
  California.....................................................   628
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Jon S. Tigar, Nominee to be U.S. District 
  Judge for the Northern District of California and William H. 
  Orrick III, Nominee to be U.S. District Judge for the Northern 
  District of California.........................................   630

                       STATEMENTS OF THE NOMINEES

Durkin, Thomas M., Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................   633
    Questionnaire................................................   634
Orrick, William H. III, Nominee to be U.S. District Judge for the 
  Northern District of California................................   741
    Questionnaire................................................   742
Tigar, Jon S., Nominee to be U.S. District Judge for the Northern 
  District of California.........................................   682
    Questionnaire................................................   683

                         QUESTIONS AND ANSWERS

Responses of Thomas M. Durkin to questions submitted by Senators 
  Grassley, Klobuchar, Lee and Sessions..........................   800
Responses of William H. Orrick III to questions submitted by 
  Senators Grassley, Klobuchar, Lee and Sessions.................   807
Responses of Jon S. Tigar to questions submitted by Senators 
  Grassley, Klobuchar, and Lee...................................   846

                       SUBMISSION FOR THE RECORD

Ahern, Gregory J., Sheriff-Coroner, Oakland, California, June 15, 
  2011, letter...................................................   855
American Bar Association (ABA), Allan J. Joseph, Chair, 
  Washington, DC:
    Thomas M. Durkin, May 21, 2012, letter.......................   856
    William H. Orrick, III, June 12, 2012, letter................   857
    Jon S. Tigar, June 17, 2012, letter..........................   858
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  statement......................................................   859
Kirk, Hon. Mark, a U.S. Senator from the State of Illinois, 
  statement......................................................   870
Meehan, Michael K., Chief of Police, Berkeley, California, 
  February 23, 2011, letter......................................   872

                     ALPHABETICAL LIST OF NOMINEES

Berg, Terrence G., Nominee to be U.S. District Judge for the 
  Eastern District of Michigan...................................     7
Bernal, Jesus G., Nominee to be U.S. District Judge for the 
  Central District of California.................................    91
Brann, Matthew W., Nominee to be U.S. District Judge for the 
  Middle District of Pennsylvania................................   486
Breyer, Charles R., Nominee to be a Member of the U.S. Sentencing 
  Commission.....................................................   528
Durkin, Thomas M., Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................   633
Geraci, Frank Paul, Jr., Nominee to be U.S. District Judge for 
  the Western District of New York...............................   292
Lum, Grande, Nominee to be Director, Community Relations Service, 
  Department of Justice..........................................   177
Mannion, Malachy Edward, Nominee to be U.S. District Judge for 
  the Middle District of Pennsylvania............................   411
Olguin, Fernando M., Nominee to be U.S. District Judge for the 
  Central District of California.................................   361
Orrick, William H. III, Nominee to be U.S. District Judge for the 
  Northern District of California................................   741
Schofield, Lorna G., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   118
Tigar, Jon S., Nominee to be U.S. District Judge for the Northern 
  District of California.........................................   682


    NOMINATION OF TERRENCE G. BERG, OF MICHIGAN, NOMINEE TO BE U.S. 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; JESUS G. BERNAL, 
   OF CALIFORNIA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL 
DISTRICT OF CALIFORNIA; LORNA G. SCHOFIELD, OF NEW YORK, NOMINEE TO BE 
 U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; AND GRANDE 
    LUM, OF CALIFORNIA, TO BE DIRECTOR, COMMUNITY RELATIONS SERVICE

                              ----------                              


                        WEDNESDAY, JUNE 6, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, presiding.
    Present: Senators Blumenthal, Grassley, and Lee.

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

    Senator Blumenthal. I am very pleased to call this hearing 
to order and to welcome Senators Levin and Boxer to introduce 
nominees from their States.
    I am grateful to the Judiciary Committee and to Chairman 
Leahy, who could not be here today, for the opportunity to 
chair this meeting. I regard it as a privilege and an honor to 
preside at a hearing that has such a consequential role in our 
justice system. Nothing is more important than the face and 
voice of justice in the person of district court judges and 
other nominees whom we have today, and my hope is that it will 
be truly a bipartisan process for you and for all the nominees 
to these very, very profoundly significant positions. My hope 
is that Republicans and Democrats will work together, vote 
together, and assess together the merits of each of the 
nominees as dispassionately and objectively as possible.
    I want to welcome each of the nominees today and 
particularly their families. They probably know what is in 
store better than you do, than they have told you, but your 
being here, your families, means a tremendous amount to you and 
to the Committee for this historic hearing.
    I would also like to welcome Senate colleagues who are here 
and others who may be arriving. I know Senator Grassley, the 
Ranking Minority Member, may well be here shortly.
    And with that, I would like to ask first, Senator Boxer, if 
you would introduce the nominee from California.

 PRESENTATION OF JESUS G. BERNAL, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, AND GRANDE LUM, 
 NOMINEE TO BE DIRECTOR, COMMUNITY RELATIONS SERVICE, BY HON. 
   BARBARA BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman, and it is 
very nice to see you up there. It suits you very well.
    Senator Blumenthal. Thank you.
    Senator Boxer. I am honored to be here today to welcome and 
introduce Jesus Bernal, who has been nominated to the Central 
District Court of California. Mr. Bernal is very well respected 
by colleagues in the Riverside legal community and will make an 
outstanding addition to the Federal bench. He also has the 
support of my colleague and your colleague on the Committee, 
Senator Feinstein, who could not be here today, and I would ask 
unanimous consent to submit her statement for the record.
    Senator Blumenthal. Without objection.
    Senator Boxer. Thank you.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Senator Boxer. I would also like to welcome Mr. Bernal's 
wife, Patricia, who is here with us today.
    I would also like to welcome another Californian who is 
coming before the Committee, Professor Grande Lum, from the 
University of California, Hastings, who has been nominated as 
Director of the Justice Department's Office of Community 
Relations. He is currently a clinical professor of law and 
director of the Center for Negotiations and Dispute Resolution. 
His wife, Nan Santiago, is here with him.
    Back to Mr. Bernal, because this is a story. He was born 
the eldest son of two humble factory workers, Gilberto and 
Martha, who aspired for their sons and daughters to attend 
college and not to have to work in a factory. Gilberto and 
Martha would tell young Jesus and his siblings, ``You study. We 
work.''
    Their aspirations were realized as all five of their 
children attended college, and today Mr. Bernal stands on the 
edge of writing another chapter in his family's history as he 
seeks to become a Federal district court judge.
    To his mother, Martha, and his brothers and sisters who are 
watching today via Webcast, I share in your pride on this 
momentous day.
    Mr. Bernal is a graduate of Yale University with honors and 
Stanford Law School. After law school, he clerked for Judge 
David Kenyon on the same court to which he has been nominated, 
the Central District of California. Mr. Bernal began his 
practice and career as an associate with the Heller Ehrman law 
firm, where he worked on complex commercial litigation cases. 
In 1996, he joined the Los Angeles office of the Federal Public 
Defender for the Central District of California, where he began 
handling Federal criminal cases representing indigent 
defendants.
    In 2006, he became the directing attorney for the Riverside 
branch office, where he supervises a team of attorneys, 
investigators, paralegals, and administrative staff.
    In addition to his work in court, Mr. Bernal has served on 
the Board of Directors for the Federal Bar Association Inland 
Empire chapter since 2006. The Federal Bar Association is a 
group that works toward improving the education skills for 
lawyers practicing in Federal courts. He has also dedicated his 
time to working with at-risk Latino youth.
    It is important that we confirm Mr. Bernal to the bench in 
Riverside as soon as possible. Riverside County has 23 percent 
of the Central District's population; however, out of the 25 
active judges in the Central District, there is only one judge 
currently sitting in Riverside. We need to send the people of 
Riverside another judge, and quickly. And what a fine nominee 
we have here.
    I close by congratulating Mr. Bernal and his family on this 
very important day. He is an excellent candidate who brings 
diverse experience in the Federal courts, having handled 
criminal and civil cases there. And I urge my colleagues in the 
Senate to move swiftly to confirm these nominees to the Federal 
bench.
    I thank you so very much, and it is nice to see Senator 
Grassley arriving. Thank you very much.
    Senator Blumenthal. Thank you, Senator Boxer.
    We have been joined by Senator Grassley, the Ranking Member 
of the Judiciary Committee. I am going to ask him to make some 
opening remarks, but first if I may turn to Senator Levin, and 
knowing how busy both of you are, both Senators Boxer and 
Levin, you should feel free at any point--and people should 
understand that you have full schedules, and the Committee 
certainly will understand if you decide to leave before the end 
of these proceedings.
    Senator Levin, if you would make some introductory remarks, 
please.

 PRESENTATION OF TERRENCE G. BERG, 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. Well, first let me thank you, Senator 
Blumenthal and Senator Grassley. Thank you both and the entire 
Committee for calling the hearing and for the consideration of 
these nominees.
    Today I am delighted to be introducing Terry Berg, whom the 
President has nominated to the Federal bench for the Eastern 
District Court in Michigan. He is here today with his wife, 
Anita; his daughters, Helen Marie and Colette; his son, Teddy; 
and his sister, Mary Helen. He has had quite a week, this 
family, not just him but his whole family, because apparently 
each of the children is a graduate this week. Now, if they were 
a little older, that would be a great relief in terms of no 
additional costs of college, but only one of them has graduated 
college. The other two are high school and middle school. Helen 
Marie has graduated, I believe, Catholic University in May; 
Colette has graduated Mercy High School; and Teddy has, I 
believe, graduated middle school. So it has been an exciting 
week, and I know this will add a little bit of excitement to 
it.
    Mr. Berg has a truly impressive legal career. He is a truly 
superb candidate for the Eastern District Court, and I say that 
with some real feeling because my uncle was a chief judge of 
this court, and so I have a very keen sense of the qualities 
that are required of not just judges but judges that in this 
particular district--all districts have judges that are 
required to do justice, but each district also has some 
differences in terms of the background and culture of the 
people who live there, and he is very sensitive to that, and he 
will make a terrific judge.
    He graduated from Georgetown University Law Center, went to 
work then for a district judge. Since 2003, he has been an 
Assistant United States Attorney in the Eastern District of 
Michigan. He has worked on various issues, including cyber 
crime, which I know is of particular interest to this panel. He 
has supervised criminal, civil, and administrative divisions. 
He has handled a full fraud case docket, including the theft of 
trade secrets, mortgage fraud, health care fraud, corporate 
fraud, and other white-collar crime cases. And during this 
time, he received the Assistant Attorney General's Award for 
Distinguished Service and the Director's Award for Superior 
Performance in a Managerial or Supervisory Role.
    Prior to that service, Mr. Berg worked for the Attorney 
General of Michigan where he established and supervised the 
State's first computer crime prosecution unit. He has also 
served here in Washington with the Department of Justice as a 
computer crime fellow. He has also taught at the University of 
Detroit-Mercy School of Law and the Wayne State University of 
Law. He is on the State Bar of Michigan's Committee on Judicial 
and Professional Ethics. He has published numerous articles on 
cyber crime. He has served on the Catholic Lawyers Society 
Board of Directors. He really has a distinguished legal career, 
and I would not only ask that this Committee not just have a 
hearing, which we are grateful for, but speedily recommend his 
confirmation.
    I know that Senator Stabenow was trying to get here and 
could not, and she will have a statement for the record, which 
I would ask be made part of the record.
    Senator Blumenthal. Without objection. I know that Senator 
Stabenow is very busy with the farm bill on the floor, so we 
certainly understand her absence.
    Thank you very much, Senator Levin.
    Senator Levin. Thank you both.
    Senator Blumenthal. Thank you. I would ask Senator Grassley 
if he has any opening remarks.
    Senator Levin. Could I interrupt you just for 1 second? 
There is another judge who is here to support Mr. Berg, an 
Eastern District judge, Judge Murphy, who is here, whom I 
should have introduced as well. He has been confirmed by this 
body, and I know him well. So the fact that he has come from 
Detroit to support Mr. Berg is quite a tribute to Mr. Berg.
    Senator Blumenthal. Well, we welcome him and thank him for 
making the trip. Thank you very much, Senator Levin.
    Senator Grassley.

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

    Senator Grassley. Like the Chairman and the Committee as a 
whole, we welcome all of the nominees, their families and 
friends. I know it is a very important day for each of you.
    After today, we will have had a hearing on 34 nominees so 
far just this year, and I also note that we will have a vote 
this afternoon on the Senate floor on a district court nominee. 
If the nominee is confirmed--and I presume he will be--he will 
be the 148th judicial nominee confirmed during President 
Obama's term so far. This is very good progress.
    Again, I welcome the nominees, and for each of you, I have 
the rest of the statement, biographical, professional, and 
academic information, and I will not go through reading that, 
but I have got it and it will be in the record for each one of 
you.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Blumenthal. Thank you, Senator Grassley.
    I am going to introduce Lorna Schofield. I am really 
honored and pleased to introduce her to the Committee. She has 
been nominated to serve as a district court judge on the 
District Court for the Southern District of New York. Ms. 
Schofield is currently Of Counsel at the New York firm of 
Debevoise & Plimpton. She was born in Fort Wayne, Indiana, and 
received a B.A. magna cum laude from Indiana University and 
received a J.D. from New York University School of Law, where 
she was staff editor and note and comment editor on the NYU Law 
Review.
    Ms. Schofield has been a litigator for nearly 30 years, 
spending the balance of her career at two major law firms, the 
first as an associate at Cleary, Gottlieb, Steen & Hamilton, 
and later at Debevoise & Plimpton, where she served both as an 
associate and as a partner. She has extensive civil practice 
experience, having worked on complex commercial disputes, 
including class actions, corporate bankruptcies, business 
fraud, contract disputes, and other commercial matters. She 
also has extensive criminal law experience in the white-collar 
practice at Debevoise & Plimpton. She worked on the defense of 
companies and individuals in regulatory and white-collar 
criminal investigations as well as internal and independent 
investigations.
    In between her stints at the law firms, Ms. Schofield spent 
4 years working as an Assistant United States Attorney in the 
Southern District of New York, handling a variety of cases 
ranging from domestic terrorism to arms smuggling to tax fraud. 
She began in the General Crimes Unit and subsequently worked in 
the Major Crimes Unit. Ms. Schofield is a member of the 
American Bar Association where she has held numerous prominent 
positions, including chair of the Special Litigation Section.
    If confirmed, Ms. Schofield will be the first Filipino 
American in the history of the United States to serve as a 
Federal judge. She is extremely well qualified, and I look 
forward to her swift confirmation.
    Finally, I am pleased to introduce Grande Lum, a renowned 
expert in conflict mediation, who has been nominated to serve 
as Director of the Community Relations Service of the 
Department of Justice. This office is the only Federal agency 
dedicated to assisting State and local governments, private and 
public organizations, and community groups with preventing and 
resolving racial and ethnic tensions, incidents, and civil 
disorders, and in restoring stability and harmony. This office 
also works to prevent and respond to alleged violent hate 
crimes committed on the basis of actual or perceived race, 
national origin, gender, sexual orientation, religion, or 
disability.
    Mr. Lum was born in San Francisco and earned his B.A. from 
the University of California at Berkeley and his J.D. from the 
Harvard Law School. He has served as an adjunct lecturer at the 
Dominican University School of Business, co-manager of the 
Alternative Dispute Resolution Externship Program at Stanford 
Law School, and adjunct law professor at UC-Berkeley, an 
adjunct professor at Stanford University, and a clinical 
professor at the UC-Hastings College of Law and Director of its 
Center of Negotiation and Dispute Resolution.
    In 2005, Mr. Lum formed Accordence, Inc., a dispute 
resolution training firm focused on the corporate sector. He 
currently serves as a managing director of Accordence where he 
recently returned from a 2-year stint as director of the 
Historically Underutilized Business Zone Program with the Small 
Business Administration. At the SBA he oversaw a Federal 
Government contracting program that assists small businesses in 
distressed areas.
    Mr. Lum is experienced in consulting on complex 
transactions, equipping individuals, teams, and institutions 
with negotiating methods and skills. His clients included 
private sector entities such as the American Express Company, 
HP, Eli Lilly, and also public entities like the San Diego 
Public Schools. His broad experience in conflict resolution 
makes him an ideal nominee for this position.
    I would like to ask all the nominees to please take your 
places at the witness table, and I am going to ask you to 
please stand and be sworn. If you would come forward, please.
    If you would please, raise your right hand. Do you solemnly 
swear that the testimony you are about to give to the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Berg. I do.
    Mr. Bernal. I do.
    Ms. Schofield. I do.
    Mr. Lum. I do.
    Senator Blumenthal. Thank you. Please be seated.
    Before we begin the questioning, I am going to give each of 
you an opportunity to make a brief opening statement, if you 
wish to do so. You should feel free to acknowledge anyone who 
is with you today or state any points that you would wish the 
Committee to know that may not be included in the papers that 
have already been filed, which are extensive. So anything you 
would like to say, please go forward. Why don't we go from Mr. 
Berg down the table.

 STATEMENT OF TERRENCE BERG, NOMINEE TO BE U.S. DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF MICHIGAN

    Mr. Berg. Thank you very much, Senator. And I would like to 
thank Senator Leahy and also Ranking Member Grassley for 
scheduling this hearing, giving us the opportunity to be heard.
    I would like to also thank Senator Levin for his kind 
remarks and especially for his support in recommending me to 
the President, as well as Senator Stabenow.
    I also wish to thank the President, President Obama, for 
showing me the confidence in this high honor of this 
nomination.
    I do have some family members that I would like to 
introduce at this time. My wife, Anita Sevier, is here. She is 
a constant inspiration of my life. Helen Marie Berg is here as 
well. She is one of the graduates that Senator Levin referred 
to, and she will be going on a Fulbright next year. I am very 
proud of her. My other daughter, Colette, is also here. She 
will be going on to Fordham University next fall. My son, 
Teddy, who is 13, getting out of eighth grade, is happy that he 
was able to get excused from his exams today.
    [Laughter.]
    Mr. Berg. My sister, Mary Helen, is here from California, 
Mary Helen Berg. My sister-in-law, Loretta Sevier, is here. 
Some friends that I have from the Justice Department, I have 
Mona Sedkey from the Computer Crime and Intellectual Property 
Section. And then also, as the Senator mentioned, U.S. District 
Judge Stephen Murphy is also here.
    I have no other opening statement. Thank you.
    [The biographical information follows:]

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    Senator Blumenthal. Thank you, Mr. Berg, and 
congratulations to the graduates.
    Mr. Bernal.

 STATEMENT OF JESUS BERNAL, NOMINEE TO BE U.S. DISTRICT JUDGE 
             FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Mr. Bernal. Yes, thank you, Your Honor--I mean, thank you, 
Senator. I would like to acknowledge the presence of my lovely 
wife, Patricia, my wife of 13 years, who is present with me 
here today. And even though she is the only one here physically 
present, I do have a lot of support back home in California. 
Watching by Webcast are my family members, including my son, 
Jesus, and a recent graduate, Natalia, who graduated from 
kindergarten yesterday.
    [Laughter.]
    Mr. Bernal. She might have a few words for us for missing 
that graduation when we get back to California.
    Also watching by Webcast is my brothers and sisters, my two 
brothers and my two sisters, and my in-laws, and my mother, 
who, given Senator Boxer's words, is probably already beaming 
and enjoying what I am sure is her first Webcast.
    I would like to, of course, thank the Committee for 
convening this hearing and Senator Boxer, of course, for her 
kind words in introducing me, for the statement provided by 
Senator Feinstein, and, of course, to President Obama for 
granting me the honor of being nominated.
    Thank you.
    [The biographical information follows:]

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    Senator Blumenthal. Thank you.
    Ms. Schofield.

 STATEMENT OF LORNA G. SCHOFIELD, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE SOUTHERN DISTRICT OF NEW YORK

    Ms. Schofield. Thank you. I do not have any formal 
statement, but I, too, have many thanks. I want to thank 
President Obama for the great honor and privilege of the 
nomination and for being here. I want to thank Senator Schumer 
for the recommendation and Senator Gillibrand for her support.
    Thank you, Senator Blumenthal, for the introduction and for 
presiding here, and Senator Grassley for participating and 
conducting this hearing, and thank you to all the members of 
the Committee.
    I also have a few introductions to make. I have here 
wonderful friends and family. First of all, the person who came 
the longest distance I have to introduce first, Patricia Refo, 
another former Chair of the Litigation Section who has come 
from Arizona for this.
    Also, Robert Rothman from Atlanta, another former Chair of 
the ABA Litigation Section.
    Two of my colleagues from Debevoise & Plimpton, Anne Cohen 
and Gary Kubek, my assistant of many years who makes my 
professional possible.
    And then also my significant other, Stephan Landsman, and 
my daughter Sarah Zatlin, both of whom are right behind me 
offering their support, as they always do.
    Thank you.
    [The biographical information follows:]

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    Senator Blumenthal. Thank you, Ms. Schofield.
    Mr. Lum.

STATEMENT OF GRANDE LUM, NOMINEE TO BE U.S. DIRECTOR, COMMUNITY 
                       RELATIONS SERVICE

    Mr. Lum. I would like to thank the members of the Committee 
for holding this hearing. I would certainly like to thank 
Senator Boxer for her generous introduction and for Senator 
Blumenthal's introduction as well.
    I would like to introduce a few family members who are here 
today. Behind me is my wife, Nan Santiago, and I very much 
appreciate her presence. And behind her are my parents, Hampson 
and Evangeline Lum. And behind them is my friend, Eric Collins.
    My children, Gianna and Garen, could not make it today, but 
they were my hearing prep coaches, so they did help out there. 
My son is graduating from elementary school this year as well.
    I would like to thank--convey my deepest thanks to the 
President and to the Attorney General for their confidence in 
me in nominating me to this position. I would like to express 
my gratitude to my colleagues at the University of California, 
Hastings College of Law. And I would like to acknowledge my 
brother, Jordan Lum, and other family and friends who are 
watching the Committee Webcast from the San Francisco Bay area. 
And I look forward to the Committee's questions. Thank you.
    [The biographical information follows:]

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    Senator Blumenthal. Thank you very much.
    Let me begin the questioning and just state as a kind of 
prelude that I consider each of these nominees extraordinarily 
well qualified. I have reviewed all of the written material, 
and I want to thank each of you for your willingness to serve 
in each of these extraordinarily important roles. And I want to 
begin with the judicial nominees first and then come to you, 
Mr. Lum, if I may.
    Each of you has a record of advocacy in the private sector 
or as a prosecutor or as a public defender, and perhaps I can 
ask the first question of each of you in turn, whether you feel 
that your background as an advocate, whether as a prosecutor or 
as a public defender or in the private practice of law, has 
equipped you in a way to serve in the judicial role, which is a 
very different one. If I could begin with you, Mr. Berg.
    Mr. Berg. Thank you, Senator. I do think my experience has 
equipped me well. I have had the opportunity to conduct over 25 
felony jury trials as an Assistant U.S. Attorney. I have also 
had the good fortune to be able to be the manager of the U.S. 
Attorney's Office in the Eastern District of Michigan and also 
the first assistant, acting first assistant in the U.S. 
Attorney's Office in Macon, Georgia. And I think these 
experiences have taught me the importance of being a very good 
listener and the importance of pursuing justice. Both of these 
things I think will equip me well as a district judge.
    Senator Blumenthal. Thank you.
    Mr. Bernal.
    Mr. Bernal. Thank you, Senator. Yes, I believe that my work 
as an advocate has prepared me well to serve on the bench. I am 
very familiar with the Federal court. I spent most of my 
professional career litigating in Federal court, and I am 
keenly aware of the different roles and the importance of those 
roles that are played within the courtroom. Even though I play 
the role of an advocate, I realize that not all persons in the 
courtroom are advocates, and I realize the importance that each 
person play their own individual role to the best of their 
ability.
    So I am ready to transition from being an advocate to being 
a more objective, dispassionate decisionmaker, which I believe 
is the role of the judge.
    Senator Blumenthal. Ms. Schofield.
    Ms. Schofield. I, too, believe that I am qualified for this 
position that I am honored to have the opportunity to talk 
about. The background that I have I think gives me a unique and 
varied perspective because I have the viewpoint of both private 
practice and civil litigation, criminal practice--criminal 
practice both as a prosecutor but also on the defense side, 
civil litigation both on the plaintiff side and the defense 
side.
    I have also represented individuals as well as 
corporations, so I have many different perspectives. And I hope 
that those perspectives would help me as a judge be able to be 
as fair and dispassionate as one would want a judge to be and 
to see all sides of an issue.
    Senator Blumenthal. Each of you knows, as I do, that the 
role of a district court judge is essentially to follow the law 
as it has been adopted by the legislature and interpreted by a 
court that generally is above you or has ruled before you. 
There are some issues that will come before you of novel 
impression, but perhaps less than the public realizes, and you 
are bound to follow the law as it is given to you either by the 
legislature or the appellate courts.
    So my question to you is: Can you envision any situations 
when it would be difficult or impossible for you to follow the 
law as it has been interpreted or set by the legislature? Mr. 
Berg.
    Mr. Berg. No, Senator, I cannot. I think that fidelity to 
the rule of law is the hallmark of a good judge. It would 
certainly be the standard that I would set for myself. The role 
of a district judge is to apply the law as it is given by the 
appellate courts and by the Supreme Court, and that is exactly 
what I would do.
    Senator Blumenthal. Mr. Bernal.
    Mr. Bernal. Thank you, Senator. No, I do not imagine any 
area of law in which I will have difficulty applying if I were 
confirmed to be a district court judge. The law is what the law 
is, and as the Senator said, the role of the judge is to apply 
the law. And I am fully confident that I will do so, if 
confirmed.
    Senator Blumenthal. Ms. Schofield.
    Ms. Schofield. I have to agree with my colleagues. The 
short answer is no, I do not think there is any such area. And 
to avoid repetition, I will just agree with everything that 
they have said.
    Senator Blumenthal. Thank you.
    Mr. Lum, if I could ask you whether you have thought at all 
about what the priority areas of attention for the Community 
Relations Service should be given the vast array of challenges 
you will confront, whether it is racial tensions or hate 
crimes. Do you have any thoughts about that?
    Mr. Lum. Thank you for the question, Senator. It is a 
challenge to think about priorities given all those differences 
with limited budget, limited staffing. I think one needs to 
really think about--in my experience and what I have done is 
think about where can you get the best outcomes, where can you 
get the most return on investment, and where can you make the 
greatest impact, and that is often in areas like prevention. I 
think that is important.
    Senator Blumenthal. Thank you. I have some additional 
questions, but I am going to turn to Senator Grassley because 
my first time has expired. So why don't you go ahead, Senator?
    Senator Grassley. I have a long list of questions. If you 
would like to go ahead?
    Senator Lee. Sure, I would be happy to.
    Senator Blumenthal. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Thanks to all of you for coming and for your family members 
and loved ones who have joined you.
    Mr. Berg, I had a couple questions for you. In your current 
position in the Department of Justice's Professional Misconduct 
Review Unit, I believe you reviewed the OPR's findings in 
review of the prosecution team of Senator Ted Stevens. Is that 
correct?
    Mr. Berg. Yes, that is correct, Senator.
    Senator Lee. Based on what you saw in that review, do you 
think there were serious compliance issues with regard to Brady 
in that case?
    Mr. Berg. I do.
    Senator Lee. Is there a role for judges in ameliorating 
this kind of situation?
    Mr. Berg. Yes, there is, in my view.
    Senator Lee. How would you as a judge, if confirmed by this 
body, take what you learned from that review and apply it in 
your courtroom to make sure that the rights of defendants are 
adequately protected under Brady?
    Mr. Berg. I think that there are lots of lessons to be 
learned from the Stevens case. Narrowing it down to your 
question, I think a district judge needs to be very conscious 
of the role of the prosecutor in turning over evidence. The 
district judge should be--should not hesitate to inquire of the 
parties, of the defense, for example, Have you received 
everything that you think that you are entitled to?
    Normally through the process, of course, motions are made, 
motions to produce discovery, and sometimes they are rather 
routine, and a judge does not necessarily give them the focus 
that perhaps they deserve. That is one lesson I would take 
away, is to be--try to be somewhat of an enforcer, a strict 
enforcer of the Brady rule.
    Senator Lee. Now, in your review, I believe you concluded 
that the prosecutor's conduct amounted to poor judgment, and I 
think this was an assessment that was inconsistent with what 
OPR had found, which was that the prosecutors had engaged in 
reckless professional conduct. What led you to that conclusion 
that it was poor judgment rather than reckless professional 
conduct?
    Mr. Berg. What led me to that decision was the definition 
for reckless misconduct and the definition for poor judgment 
and the way that the OPR report applied those to the people 
that were involved in the case.
    In my view, the actions of the team as a whole and of the 
supervisor in particular were the actual causes of the 
discovery lapses that occurred; and yet the way the OPR applied 
those standards, they did not hold the supervisors to account. 
And in my view, because their actions were actually more 
significant in causing this, it was not appropriate for only 
the AUSAs to be held accountable. And under the applicable 
standards, the actual things that they did or failed to do fit 
within the definition of poor judgment.
    Senator Lee. Thank you. Thank you. That is helpful.
    In 1990, in an article in a local newspaper, I believe you 
wrote, ``In our brief time here in Detroit, we have already 
learned that until this city outgrows its childish love affair 
with firearms, or until city officials find the courage to 
outlaw them, many of our hopes will remain unrealized and our 
optimism unfounded''
    Do you believe that U.S. citizens have a constitutional 
right to bear arms?
    Mr. Berg. Yes, Senator, I do.
    Senator Lee. Is that statement consistent with that belief, 
the statement that you made in 1990?
    Mr. Berg. That statement was probably not as carefully 
phrased as it might have been. To give a little bit of context, 
it was New Year's Eve. My wife and I had just moved into our 
home in Detroit where we still live now, where we have lived 
for some 20 years now. And Detroiters, for whatever reason, 
fire off weapons on New Year's Eve, and so you hear gunfire.
    Senator Lee. Just randomly?
    Mr. Berg. Random gunfire.
    Senator Lee. Probably not a good idea.
    Mr. Berg. And it was worrisome to us. It was worrisome for 
our safety at the time. And, frankly, it was worrisome to me in 
terms of the city getting its violent crime problem under 
control.
    What I meant when I talked about outlawing them was really 
more outlawing this conduct of firing weapons and outlawing the 
unlawful possession of firearms.
    Senator Lee. Firing them randomly, indiscriminately in the 
air?
    Mr. Berg. In neighborhoods, yes.
    Senator Lee. OK. So this is not something that we should 
take as a signal that you do not believe in the Second 
Amendment right or that you think that all guns should be 
outlawed. The outlawing you were referring to was referring to 
this specific, fairly reckless conduct of----
    Mr. Berg. Yes, Senator.
    Senator Lee. OK.
    Mr. Berg. That is correct.
    Senator Lee. Thank you very much.
    Senator Blumenthal. Senator Grassley.
    Senator Grassley. The last question he asked I was going to 
ask later on, so I will toss that one out. I am talking about 
you, Mr. Berg. In your current capacity as an attorney with the 
Professional Misconduct Review Unit, you were asked to examine 
the findings of the Office of Professional Review regarding the 
prosecution of Alaska Senator Ted Stevens. OPR had found that 
two Alaska Assistant U.S. Attorneys had engaged in ``reckless 
professional misconduct.'' You disagreed with this finding and 
said that the prosecutors only exercised poor judgment. What 
factors did you look to in deciding that the prosecutors showed 
poor judgment rather than reckless professional misconduct?
    Mr. Berg. I applied the standards that were contained 
within the OPR report for the definition of reckless misconduct 
and for poor judgment. And, in addition, I tried to apply those 
standards fairly because, in my view, the causes of the 
discovery lapses were essentially actions by the supervisors 
and by the team as a whole, which I did conclude that both of 
those instances were appropriately described as misconduct in 
the report. But if you looked at the actual actions or the 
failures to act by the two line AUSAs, in my view their actions 
fell more within the definition of poor judgment--which is a 
form of misconduct, and I do not in any way mean to suggest 
that their actions were appropriate. They were not appropriate. 
But they fit within that definition.
    Senator Grassley. Your chief ultimately overrode your 
conclusions, recommending suspension without pay for both 
prosecutors. Given that fact, do you stand by your original 
conclusion? Do you disagree with your chief's decision?
    Mr. Berg. I stand by my report.
    Senator Grassley. In a speech on February 13, 2009, at the 
Catholic Lawyers Society, you made these remarks: ``You may 
recall U.S. v. Koubriti. That case was technically a victory. 
Most of the defendants were found guilty. After the fact, 
though, we learned that the prosecutor handling that case had 
failed to turn over important exculpatory evidence. We measure 
that as a serious failure. We undertook an internal 
investigation and then decided on our own that the errors were 
significant enough that the case should be dismissed.''
    Question: The prosecutor in this case was Mr. Convertino. 
The Department of Justice filed criminal indictments for 
obstruction of justice against Mr. Convertino in 2006. This is 
when you were First Assistant U.S. Attorney in Michigan. What 
role did you have in the decision to file charges or in 
prosecuting Mr. Convertino?
    Mr. Berg. I had no role, Senator. That decision was made by 
the Public Integrity Section here in Washington.
    Senator Grassley. Do you believe the charges were proper?
    Mr. Berg. I do not really feel comfortable offering an 
opinion as to that because I did not review the facts of that.
    Senator Grassley. What standard do you apply when deciding 
whether an attorney should face discipline for discovery errors 
as opposed to a criminal prosecution, as was the case with Mr. 
Convertino?
    Mr. Berg. You would need to have intentional misconduct 
that would rise to the level of obstruction of justice.
    Senator Grassley. What was your role in the decision to 
dismiss the case against Mr. Koubriti?
    Mr. Berg. The decision to dismiss the Koubriti case 
occurred before I was involved in the management of the office.
    Senator Grassley. OK. Mr. Convertino testified before the 
Senate Finance Committee regarding the Koubriti case after 
being subpoenaed by the Committee. Do you believe that any of 
the allegations leveled against him by the Department of 
Justice were made in retaliation for his testimony before the 
Committee?
    Mr. Berg. I do not have enough information to comment one 
way or the other on that, Senator.
    Senator Grassley. Would you be willing to research that and 
give us a written answer?
    Mr. Berg. I would be glad to respond to any question the 
Senator may have.
    Senator Grassley. OK. Ultimately the criminal indictment 
and State disciplinary measures were dropped against Mr. 
Convertino. Do you think that it was the correct decision to 
charge him criminally?
    Mr. Berg. I would hesitate to offer an opinion, Senator, 
without really knowing more about the underlying evidence. 
Normally, as I am sure the Senator knows, a great deal of 
attention and research and investigation goes into the decision 
to charge. And without knowing exactly what proof they had, I 
do not think I should comment.
    Senator Grassley. Do you believe that Mr. Convertino's 
supervisors had any responsibility for any misconduct that 
happened during the prosecution in the terror cases?
    Mr. Berg. No.
    Senator Grassley. You criticized OPR for focusing on only 
the line prosecutors in the Stevens case. In your view, what is 
the difference between the Koubriti case and the Stevens case? 
In your view, why are the supervisors partially responsible in 
one case but not the other?
    Mr. Berg. The key difference to me is only that I know a 
great deal about the Stevens prosecution from having read all 
the materials and the OPR report and all of the supporting 
materials as well and the original documents. I do not have 
that basis of knowledge with the Koubriti case.
    Senator Grassley. OK. In 2006, you participated in a panel 
decision to prosecute. With regard to Internet victims, the 
transcript states that the panel discussed characteristics of 
the victims that are considered when deciding to prosecute. One 
of these factors listed is ``politically connected victims.'' 
Who would be a politically connected victim?
    Mr. Berg. I do not really know. I have to admit, Senator, I 
am not sure what that quote was referring to.
    Senator Grassley. Let me ask my staff, do you think that is 
his quote?
    OK. I will pass over that. We will send you the material to 
answer what we made reference to.
    [The information referred to appears as a submission for 
the record.]
    Senator Grassley. Mr. Bernal, while a majority of the ABA 
Standing Committee on the Judiciary rated you as qualified, a 
minority found that you were unqualified, and the attachments 
you provided in response to questions in your Senate 
questionnaire provided very little in the way of examples of 
your legal writing and analytical abilities. Is there anything 
further that you could share with the Committee to ease any 
doubts that any Committee member might have that may exist 
about your qualifications?
    Mr. Bernal. I would just say that my experience has 
qualified me for a position on the bench. I have been an 
attorney for 23 years. The majority of my experience has been 
in Federal court, litigating in Federal court. I have both 
civil and criminal experience. During my 2-year judicial 
clerkship, I worked in the same district to which I am being 
nominated, and that experience was almost exclusively civil 
work. I believe that my work inside the courtroom and on the 
civil matters qualify me to be a district court judge.
    Senator Grassley. Before I ask the next two questions, I 
have this preliminary statement. Some have contended that a 
judge should have empathy for those who appear before them. My 
concern is that when someone suggests a judge should have 
empathy, they are really suggesting the judge should place 
their thumb on the scales of justice to tilt in favor of a 
proverbial ``little guy.''
    Justice Roberts addressed this issue at his hearing for the 
Supreme Court, saying that,``If the Constitution says that the 
little guy should win, the little guy is going to win''--let me 
start over again. His quote: ``If the Constitution says that 
the little guy should win, the little guy is going to win in 
court before me. But if the Constitution says that the big guy 
is going to win, well, then the big guy is going to win.''
    To what extent does empathy have a place in the judicial 
process? And in your view, what is determinative as to who wins 
or loses?
    Mr. Bernal. In my view, what is determinative as to who 
wins or loses is the law and the facts as applied to the law. 
If by empathy it is meant that somehow the playing field is--
the scales are somehow tipped in one favor or the other, I 
agree that empathy has no role in the judicial making process. 
There is no circumstance in which that kind of empathy should 
play a role in a judge's decision.
    If by empathy, on the other hand, it is meant that you 
treat people with dignity and respect, then that type of 
empathy I think is acceptable. But there is no--it is not 
acceptable to have the kind of empathy which would impair the 
fair, objective, and dispassionate application of the law.
    Senator Grassley. I am going to read two questions. You do 
not have to answer them because I think you just answered them, 
but I want you to know that I wanted to be a little more 
specific. Do you believe judges should ever base their 
decisions on a desire outcome or solely on the law and facts 
presented? I think you answered that.
    Do you believe a judge should consider his or her own 
values or policy preferences in determining what the law means? 
And if so, what circumstances? You might want to touch that 
last one a little bit more for us.
    Mr. Bernal. I think that the role of the judge is to apply 
the law as it is and to understand what the law is and apply it 
fairly to every litigant.
    Senator Grassley. OK. I will have just one question for 
you, Ms. Schofield. You have frequently written and spoken on 
issues affecting women in the legal world. In a couple of your 
writings, you have used the behavior of ``dominant male 
gorilla'' to describe male legal adversaries. Could you please 
elaborate on what your intent was in using the analysis? In 
your view, could the gorilla analysis apply to aggressive 
tactics used by anyone, including women?
    Ms. Schofield. Thank you, Senator, for the opportunity to 
explain that, and you will forgive me if I do it with a little 
bit of an anecdote.
    I wrote that as a young lawyer and I was still learning how 
to be a litigator, and I was a little bit frustrated about--my 
adversaries were usually men because there were not very many 
women at that time, but about the attempts to intimidate me by 
some of my adversaries. And I was reading a book by Dian Fossey 
called ``Gorillas in the Mist,'' and the book talked about 
tension between the lead gorilla and another gorilla, and if 
the lead gorilla was challenged, the behavior to challenge was 
shaking tree branches and beating on the chest. And the 
response was usually shaking tree branches and beating on the 
chest. And the light suddenly went on that what I was seeing 
was shaking tree branches and beating on the chest and that it 
was not really a personal attack.
    And so when I wrote my actual on the gorilla adversary and 
when I have given speeches, I always begin with that anecdote 
to explain that this is posturing and it is a way for a young 
lawyer to learn to deal with attempts to intimidate.
    Senator Grassley. I think I will defer to you. Go ahead.
    Senator Blumenthal. Thank you. I would like to--I am not 
going to follow on the gorilla story.
    [Laughter.]
    Ms. Schofield. Thank you.
    Senator Blumenthal. Having been a litigator for some four 
decades and having seen a fair amount of that kind of 
posturing, as you put it so well.
    Mr. Lum, I would like to sort of followup on what you will 
be doing, assuming you are confirmed, because I think it is so 
important to prevent, as you have just put it very well, the 
kinds of incidents that are so troubling when they reflect 
racial and religious tensions in what is increasingly a diverse 
society in the United States, and we welcome the diversity. It 
is part of who we are. I wonder if there are particular areas 
of prevention where you think that we should be devoting--
``we,'' meaning the Congress should be devoting--more 
attention?
    Mr. Lum. Thank you, Senator Blumenthal, for that question. 
In terms of prevention, I do think especially since 2009 when 
the Shepard Act expanded jurisdiction for CRS, that those are 
areas in which more resources can certainly be given. And 
certainly I think a lot of work can be done, especially by CRS, 
in terms of reaching out to all those different stakeholder 
groups, whether it is from gender identity, whether it is from 
sexual orientation, religion, all the issues that are covered.
    So that is my sense, that in all those issues it is useful 
to think through it. Again, the focus here is, since 1964, on 
preventing community conflict.
    Senator Blumenthal. And are there particular parts of the 
country where you think you would focus your attention?
    Mr. Lum. You know, I think that when we look at the entire 
country, it is really being aware of what is happening in those 
areas, whether it is in Florida, which clearly is where the 
Trayvon Martin situation happened or in other areas of the 
country, that is going to be important to see where there is 
tension, where there is community conflict, and if I were to 
have the good fortune of being confirmed for this position, to 
figure out the best ways of prevention.
    Senator Blumenthal. Well, I think that this position is one 
of profound importance, although perhaps little understood by 
the general public. But having served as a State official, as 
State Attorney General for some 20 years, and before that as a 
United States Attorney, I have worked with many of the staff 
that will be under your command, and I would welcome an 
opportunity and hope that other members of the Committee will 
be interested as well to talk to you more about the great 
potential for the work that you will be doing. So I thank you.
    I do not know whether Senator Grassley is--evidently, he is 
done with his questions, so I would give each of you an 
opportunity, if you wish to say anything more, if there is some 
part of your answer; otherwise--oh, I am sorry. Senator Lee, do 
you have another----
    Senator Lee. Yes, if I can take another round, that would 
be great.
    Senator Blumenthal. Sure.
    Senator Lee. Thank you, Mr. Chairman.
    I have presented several questions already to Mr. Berg. I 
will present my next question to Mr. Bernal and Ms. Schofield 
and Mr. Lum in that order.
    One of the things that you will be called upon to do, 
should you be confirmed as judges, is to review acts of 
Congress, taking into account the fact that Congress was always 
intended to be a legislative body with powers that James 
Madison described as few and defined. We are a limited-purpose, 
limited-power Government.
    Much, if not most, of the regulatory legislation that has 
come out of Congress in recent decades has, of course, been 
based on the Commerce Clause. I would like each of you to just 
take a moment and tell me what you think the limits of 
Congress' power under the Commerce Clause might be.
    Mr. Bernal. If I may, I think it is clear under the case 
law that the powers under the Commerce Clause are broad but 
limited. And there is a pending case before the Supreme Court 
which I think would further define what those powers are, the 
parameters and the limits of that power.
    Senator Lee. Right. And obviously we are not going to be 
talking in this context about a matter that is currently under 
review by the Supreme Court. Can you identify some powers that 
are outside of Congress' authority?
    Mr. Bernal. Without having more of a context, I cannot 
really give an example.
    Senator Lee. Thank you.
    Ms. Schofield. I agree with Mr. Bernal. The powers of 
Congress are broad but limited. I think the Morrison and Lopez 
cases make that clear, but I think the boundaries are not 
entirely clear, and hopefully in the upcoming decision they 
will become more clear. I confess I am not a scholar or a 
student in this area, so it is not something I am deeply 
familiar with.
    Senator Lee. Mr. Lum, I will give you a pass since you are 
not actually going to be a judge, but I will let Mr. Berg 
answer this one.
    Mr. Berg. I remember when the Lopez case was decided. It 
did affect our gun prosecutions. But it is very hard to make a 
judgment as to the scope of the Commerce Clause without an 
actual case in front of you.
    I agree with my colleague's comments that it is clearly 
limited. The Supreme Court has made that clear. And so defining 
the contours of that needs to be determined on a case-by-case 
basis.
    Senator Lee. It certainly does, and I will just comment in 
response to each of your answers. I understand this is a 
difficult question. It is a difficult question to answer in the 
abstract. I raise it because I think it is an often neglected 
issue. It is an issue that we are often too quick to gloss over 
in Congress, and I think in part because of the way the 
precedent has gone, at least since 1942 when the Court decided 
Wickard v. Filburn, that if anything--that when measured in the 
aggregate can be said substantially to affect interstate 
commerce, that if anything that does that is within Congress' 
power, it can be difficult to define what, if anything, is the 
limit on Congress' power. And this simply cannot stand, it 
cannot be the case--if, in fact, we are a Government with few 
and defined powers, it cannot be the case that we can regulate 
anything and everything. I do think the Supreme Court has given 
some guidance in recent years in Lopez and in Morrison, but I 
think we have got to do better as lawyers, we have got to do 
better within our Government in reviewing this power with an 
eye toward identifying outer limits. And certainly there are 
some things that Congress has yet to take over. Most issues 
involving family law, public education, inheritance, land 
ownership, and taxation and things like that have not been 
taken over by Congress. One could argue that, pushed to its 
logical limit, the substantial effects test could take us 
there. But I think we would all do better within our 
Government, within all three branches of our Government, if we 
looked at that with a more skeptical eye. I would encourage 
each of you to do that, assuming you are confirmed to these 
posts.
    Thank you.
    Senator Blumenthal. Thank you, Senator Lee, for your 
comments and your observations. Thank you all for being here 
today, and to your families and your guests who are here, and 
anyone who is listening. And I certainly hope for your speedy 
confirmation and will enlist my colleagues on both sides of the 
aisle in that effort.
    So thank you for being here. I am going to adjourn the 
hearing and keep the record open for 1 week for any additional 
questions that Senators may have or submissions that you wish 
to make or have agreed to make.
    Thank you very much for being here. This hearing is 
adjourned.
    [Whereupon, at 3:25 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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 NOMINATION OF FRANK PAUL GERACI, JR., OF NEW YORK, NOMINEE TO BE U.S. 
   DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW YORK; FERNANDO M. 
   OLGUIN, OF CALIFORNIA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
      CENTRAL DISTRICT OF CALIFORNIA; MALACHY EDWARD MANNION, OF 
PENNSYLVANIA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT 
OF PENNSYLVANIA; MATTHEW W. BRANN, OF PENNSYLVANIA, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; AND CHARLES R. 
    BREYER, NOMINEE TO BE A MEMBER OF THE U.S. SENTENCING COMMISSION

                              ----------                              


                        WEDNESDAY, JUNE 27, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, presiding.
    Present: Senators Feinstein, Schumer, and Grassley.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Feinstein. Senator Toomey walked in and dead 
silence in the room. What a tribute. We walked in and everybody 
just kept going.
    Senator Toomey. Madam Chairman, I am sure it is because 
people saw you pick up the gavel.
    Senator Feinstein. Oh, yes. Good morning, everyone. It is 
my privilege to preside at today's hearing at which the 
Judiciary Committee will hear testimony from two distinguished 
nominees from California as well as nominees from New York and 
Pennsylvania. So congratulations to all of the nominees, and I 
would like to welcome you and your families to Washington.
    Federal judges play an important role in interpreting the 
Constitution and Federal law, deciding actual disputes 
involving real people, businesses, and governments. And they 
serve for life once confirmed by the Senate. So it is vital 
that we do our due diligence ensuring that nominees have the 
qualifications, experience, and temperament to serve on the 
Federal bench.
    Before the Committee today are four nominees to the United 
States district courts. The nominees are Fernando M. Olguin, a 
nominee to the United States District Court for the Central 
District of California, whom I recommended to President Obama; 
Frank Paul Geraci, a nominee for the United States District 
Court for the Western District of New York; and Malachy E. 
Mannion and Matthew Brann, both nominees to the United States 
District Court for the Middle District of Pennsylvania.
    The Committee will also consider the nomination of a good 
friend of mine, actually, Judge Charles Breyer, known as Chuck 
Breyer, to serve on the United States Sentence Commission.
    I thank my colleagues, particularly Senator Grassley, who 
is religious and constant in being here. It is very much 
appreciated. I know their schedules are busy, so if I may, I 
would like to ask if you have some opening comments, and then I 
will turn to our witnesses.
    Senator Grassley. I am going to put my entire statement in 
the record.
    Senator Feinstein. OK.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Feinstein. Senator Schumer is not yet present, but 
I am sure he will be. And, Senator Toomey, you are present, so 
perhaps you would like to make your statement at this time.

  PRESENTATION OF MALACHY EDWARD MANNION, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, AND 
  MATTHEW W. BRAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
 MIDDLE DISTRICT OF PENNSYLVANIA, BY HON. PATRICK J. TOOMEY, A 
          U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Toomey. Thank you, Madam Chairman. Good morning, 
Chairman Feinstein, Ranking Member Grassley, and other members 
of the Committee. Thank you very much for providing me with 
this opportunity to introduce Matthew Brann and Judge Mal 
Mannion before the Committee. Following my and Senator Casey's 
recommendation, President Obama nominated these two very 
qualified individuals for the Federal bench on May 17th, and I 
appreciate very much your timely scheduling of this hearing 
today.
    I want to take a brief moment to mention how pleased I am 
to be working closely with you colleague Senator Casey. He and 
I continue to work in a truly bipartisan fashion to fill the 
remaining Federal district vacancies in Pennsylvania. Last 
October, the Senate confirmed three nominees for the Western 
and Middle District of Pennsylvania who soon thereafter took 
their places on the Federal bench.
    Today's hearing marks yet another important step forward in 
our collaborative efforts to fill the seven remaining district 
court vacancies across the Commonwealth of Pennsylvania.
    Having extensively reviewed each of today's nominees' 
records and having spoken with each at length, I am very 
confident that they possess the crucial qualities necessary to 
be outstanding Federal judges: intelligence, wisdom, integrity, 
a commitment to public service, impartiality, justice, and 
respect for the limited role of the judiciary.
    Since my colleague Senator Casey will provide a more 
detailed background on the nominees, I will just take a moment 
to share a few additional thoughts.
    As you will hear, Mr. Brann is an accomplished and very 
well respected lawyer who possesses the requisite judicial 
acumen and the temperament for the judiciary. The American Bar 
Association has given Mr. Brann a unanimous qualified rating, 
and for good reason. Should he be confirmed, he would be an 
asset to the bench and a welcome and needed addition to the 
Federal court in Williamsport, Pennsylvania.
    Judge Mannion is an excellent Federal magistrate judge with 
a solid record as an attorney in both the public and private 
sectors. His record reflects a commitment to professionalism, 
diligence, and his community where he has served as a youth 
league basketball coach and a longstanding volunteer of Friends 
of the Poor in Scranton.
    Both Pennsylvania nominees before you today are highly 
accomplished in the field of law and exceedingly qualified for 
the Federal bench. They are well regarded members of their 
communities, and they possess an admirable sense of civic duty. 
Mr. Brann's and Judge Mannion's commitment to being impartial 
in upholding the law will serve both of them and, more 
importantly, the Commonwealth of Pennsylvania very well if they 
are confirmed to the bench. And I hope that the Committee 
favorably reports both nominees to the full Senate.
    Again, thank you very much for providing me the opportunity 
to say a few words as well as for giving Mr. Brann and Judge 
Mannion the opportunity to testify before you today.
    Senator Feinstein. Thanks very much, Senator Toomey.
    I know you have a busy schedule. Feel free to stay or leave 
as you wish.
    Senator Toomey. Thank you.
    Senator Feinstein. I would now like to ask the senior 
Senator from the great State of New York, Senator Schumer, to 
introduce Judge Geraci.

  PRESENTATION OF FRANK PAUL GERACI, JR., NOMINEE TO BE U.S. 
 DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW YORK, BY HON. 
 CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. Well, thank you, and thank you, Madam 
Chair, because I am so pleased to introduce to the Committee 
Judge Frank Geraci to serve on the United States District Court 
for the Western District of New York, which covers the Buffalo 
and Rochester areas, as well as many other areas.
    I also want to welcome people who I am confident he will 
credit with his being here: his wife, Carla; his two daughters, 
Kimberley and Pamela; his sons, Matthew and Michael; as well as 
his son-in-law, Adam; and his sister-in-law, Kristin. And I 
would just like them to stand so we can welcome you and 
everyone can see, Judge, what a nice family you have.
    Senator Feinstein. Good.
    [Applause.]
    Senator Schumer. Now, the Federal district court in New 
York State is among the oldest in the Nation, and in 1814, 
Congress divided our rapidly growing State into Northern and 
Southern Districts. In 1900, the Western District was broken 
off on its own from the other three, and at 112 years old, it 
is the youngest district in our State.
    The Federal judges who sit in Rochester and Buffalo no 
longer sit in the United States Post Office in Lockport, as 
they did--I am sure you will be glad to hear that you no longer 
have to sit there, should you be confirmed, Judge--in the early 
days of the last century. Rochester and Buffalo are large, 
vibrant centers of the commercial and legal community of the 
State, and Judge Geraci has been an important and respected 
part of this community his entire life.
    Judge Geraci was born in Rochester, graduated from McQuaid 
Jesuit High School, and left long enough to earn both his 
undergraduate and law degrees from the University of Dayton in 
Ohio--staying within the Jesuit fold, I might add. He returned 
to Rochester and immediately leapt into public service, working 
for 5 years in the Monroe County District Attorney's Office and 
rising to become chief of the Special Investigations Bureau. 
Judge Geraci then contributed another 4 years of distinguished 
service to Rochester as an Assistant U.S. Attorney in the 
Western District, serving in Rochester. In 1988, he left and 
formed his own law firm.
    Madam Chair, I was particularly impressed, as I got to know 
Judge Geraci, by the fact that while he was in private 
practice, he also served as a mediator and expert in 
alternative dispute resolution. I have come to believe, as a 
Senator from a State with among the heaviest caseloads in the 
country, that an important part of managing a docket is getting 
parties to talk to each other before they are starting at an 
imminent trial date. It is likely that few nominees know this 
truth better than Judge Geraci. Even besides his dispute 
resolution experience, he has been a judge in the city of 
Rochester, Monroe County, and the State Supreme Court for 20 
years. And that is our trial court in New York State, the 
Supreme Court. We named them backward. I do not know why. Maybe 
next time we will mention the history of that in our opening 
remarks, not just where the courthouses were.
    Taken together, the breadth and depth of his professional 
experience in both the State and Federal system, civil and 
criminal, makes him a perfect fit for the Federal bench in 
Rochester. But Judge Geraci's sterling qualifications do not 
stop there. His dedication to his community, it is no 
exaggeration to say, is legendary. When you mention his name, 
people say, ``Wow, what a great choice.'' I mean, they sort of 
take a breath because he is so well respected in Monroe County, 
and Monroe County is small enough that at least the people of 
the bar all know him, large enough that it is important and you 
get varied experience. It has about 800,000 people.
    He has worked for the bar and bench on issues such as 
criminal case management and jury diversification. He has 
served on boards and governing bodies of the diocese's Catholic 
schools. He even has conducted court tours, coached girls' 
basketball, and served as the President of the local Little 
League.
    Madam Chair, Judge Geraci has earned the admiration of the 
people of the Western District of New York, and in turn they 
deserve no less than an accomplished lawyer of his intelligence 
and magnanimity to serve on the Federal bench.
    So thanks for your time, thanks for the opportunity to 
introduce such a fine man, and I hope his nomination by the 
President will move quickly through this Committee and through 
the Senate.
    Senator Feinstein. Thanks very much, Senator Schumer, for 
those words. It is greatly appreciated.
    What we will do now is proceed and ask the judges to come 
forward, the nominees to come forward. And then when Senator 
Casey comes, we will interrupt the testimony and take his 
statement at that time.
    So if we can have the Honorable Frank Geraci on my far 
left, Honorable Fernando Olguin next, Judge Mannion, Mr. Brann, 
and Charlie Breyer, Chuck Breyer. Welcome. If you will sit, 
please, I would like to just introduce a couple of the--the two 
California people here.
    The first one is Judge Olguin, who has a long track record 
of success as a magistrate judge in the Central District of 
California.
    I have established a bipartisan judicial selection 
committee in California which reviews nominees for their skill 
and legal temperament. Judge Olguin earned a strong endorsement 
from this Committee, and I had the pleasure of interviewing him 
personally, and I recommended him to the President.
    He was born and raised in the Greater Los Angeles community 
of Azusa. He lives in the Los Angeles area today, and his wife, 
Heidi-Jane, and their children, Aurelia and Gabriel. I know 
Judge Olguin's family is here today, and I would like to 
welcome them to the Senate Judiciary Committee. And if you 
would stand, we will give you a little welcome, too.
    [Applause.]
    Senator Feinstein. We have some shyness in the family. That 
is all right. It is understandable.
    The judge earned his bachelor's degree from Harvard in 
1985, his law degree and master's degree from UC-Berkeley in 
1989. After serving 2 years as a law clerk to a Federal 
district judge in Arizona, he joined the United States 
Department of Justice through the Attorney General's Honors 
Program. From 1991 to 1994, he served as trial attorney in the 
Civil Rights Division, enforcing numerous Federal statutes, 
including the Fair Housing Act and the Public Accommodations 
Act.
    He left the Justice Department in 1994, joining the 
Mexican-American Legal Defense and Education Fund, or MALDEF, 
as it is known, serving as its national education program 
director for 1 year, from 1994 through 1995, in Washington, 
D.C.
    He then returned to Southern California as a partner in the 
law firm of Traber, Voorhees & Olguin, where he practiced civil 
litigation from 1995 to 2001. At that time he was appointed to 
serve as a magistrate judge in the Central District, the first 
Latino to be appointed to that position.
    In his 11 years as magistrate judge, Judge Olguin has built 
an impressive record, managing a docket of hundreds of civil 
cases at a time. He has issued hundreds of published opinions 
and nearly 2,000 decisions and orders.
    He has become intimately involved with issues of court 
governance, serving on numerous committees at the district 
court level and with the Administrative Office of the U.S. 
Courts in Washington. His success on the bench has led to broad 
praise for his record, especially from the law enforcement 
community, which strongly supports his appointment. And I would 
like to enter into the record letters of support from the chief 
of the Los Angeles Police Department, Charlie Beck, and the Los 
Angeles County sheriff, Lee Baca.
    I would also like to quickly introduce District Judge 
Charles Breyer, who is sitting second next to Senator Casey. He 
is a nominee to the United States Sentencing Commission. Judge 
Breyer is not only the brother of Supreme Court Justice Stephen 
Breyer, who, incidentally, was one of the first members of the 
Sentencing Commission; he is also a good friend of mine. So, 
Chuck, welcome to the Judiciary Committee.
    The Sentencing Commission establishes sentencing policies 
for the Federal courts, including the Sentencing Guidelines, 
which must be consulted before pronouncing sentence in nearly 
every Federal criminal case. Judge Breyer has had a 
distinguished legal career that has qualified him to serve on 
this Commission. He graduated cum laude from Harvard in 1963, 
earned his law degree from UC-Berkeley School of Law in 1966. 
He then served as law clerk to Chief Judge Oliver Carter in the 
Northern District of California, after which he served as an 
assistant district attorney in San Francisco, trying over 50 
felony trials from 1967 to 1973. He also served as a captain in 
the United States Army's Judge Advocate General Corps from 1969 
to 1973, prosecuting and defending military courts-martial.
    From August 1973 to November 1974, he served as Assistant 
Special Prosecutor to the Watergate Special Prosecution Force 
in Washington, D.C. He joined the firm now known as Coblentz, 
Patch, Duffy & Bass in 1974, becoming a partner in 1975 and 
serving until 1979, when he became chief assistant district 
attorney in San Francisco.
    In 1980, he rejoined the Coblentz law firm, working on 
complex litigation until his appointment to the bench by 
President Clinton and his confirmation by the Senate by voice 
vote in 1997.
    Over the course of his 15-year judicial career, Judge 
Breyer has imposed over 640 criminal sentences. He served on 
the front lines as a district judge during the time in which 
the Sentencing Guidelines have gone from being mandatory to 
being advisory. After the Supreme Court's decision in Blakely 
v. Washington and United States v. Booker, which essentially 
caused a big change in how district judges impose sentences and 
how the appellate courts review them.
    Judge Breyer's focus on sentencing issues extends beyond 
the courtroom. In 2009, he testified before the Sentencing 
Commission about the role of the guidelines and the Sentencing 
Commission, as well as sentencing process from a judge's 
perspective. In 2006, he served as Chair of the Ninth Circuit's 
Committee on Post Blakely Sentencing. He is also a member of 
the American College of Trial Lawyers, serving on its task 
force on sentencing and its Federal Rules of Criminal Procedure 
Committee.
    In short, he is eminently qualified to serve on the 
Sentencing Commission, and I have no doubt he will serve with 
distinction.
    I would like to close on a personal note. When I introduced 
Judge Breyer before this Committee 15 years ago, I said he was, 
and I quote myself, ``quite simply an outstanding man, a proven 
leader, and a person of integrity.'' I stand by that today.
    I would now like to turn to Senator Casey from the great 
State of Pennsylvania, and, Senator, if you would like to make 
your introductory comments now.

  PRESENTATION OF MALACHY EDWARD MANNION, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, AND 
  MATTHEW W. BRAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
MIDDLE DISTRICT OF PENNSYLVANIA, BY HON. ROBERT P. CASEY, JR., 
         A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Casey. Senator Feinstein, thank you very much, and, 
Senator Grassley, good to be with you. I am honored to appear 
before the Judiciary Committee. I do not have the chance to do 
this very often, and I am grateful. And I am also sorry that I 
am running late. I know that Senator Toomey, my colleague from 
Pennsylvania, was here earlier and said----
    Senator Feinstein. Nice things.
    Senator Casey. He said nice things about our nominees, and 
I am both honored and somewhat intimidated to be at this table 
with the brain power and the commitment to public service.
    I will say a little bit about both of our nominees, one of 
whom I know better than the second nominee, but I want to 
congratulate Malachy Mannion--I have known him for many years 
as ``Mal'' Mannion, if you would permit me that informality--
just for today maybe--and Matthew Brann. When you look at both 
of their biographies, their resumes, so to speak, I think you 
see in those resumes, first of all, a commitment to excellence, 
academic excellence, and excellence in terms of being advocates 
for those they represent, whether as a lawyer or as a 
prosecutor. And I think you also see in both of our nominees 
for the District Court for the Middle District of our State, 
you see also not just that commitment to excellence and that 
ability, but also integrity, which is so essential if someone 
is going to serve with honor and distinction as a judge. So I 
can say that about both of them, and I want to congratulate 
both of them for getting to this point. I know it is a long 
process, and they have been very committed and patient. I want 
to commend their families as well. And in a special way, in 
addition to highlighting Matthew Brann's record as a lawyer, as 
an advocate, and as someone who has been very active in his 
community, has handled a wide variety of cases, and has a great 
educational background, I want to thank Matthew for his 
commitment and for his willingness to put himself forward to be 
a Federal judge.
    I will provide a little more detail about Mal Mannion. I 
would say on a personal note I have known him for most of my 
life. I do not remember a point in my life when I did not know 
him. He was in school with my sister, who was a better student 
than I was, and I am not sure I should give Mal credit for 
getting her through school, but she did well.
    Let me just provide some brief highlights, and then I will 
turn over the microphone.
    Mal Mannion has been a magistrate judge for more than a 
decade, starting in 2001. He was an Assistant United States 
Attorney for two time periods, and if my math is right, that is 
about 11 years as an Assistant U.S. Attorney in the Middle 
District of Pennsylvania. As a prosecutor, he served as chief 
of the Organized Crime Drug Enforcement Task Force. He had 
spent some time in private practice as well, and we are very 
proud of his record, and we are also very proud to speak on 
behalf of both Mal Mannion and Matthew Brann.
    Senator Feinstein, thank you very much for this 
opportunity.
    Senator Feinstein. And I thank you, Senator Casey. You are 
welcome to remain with us if you wish, but I know we all have 
busy days. So if you would like to be excused, so be it. And 
thank you for chairman.
    We will now proceed with brief statements from each of the 
nominees who are present at the table, and, Judge Geraci, why 
don't we begin with you. Please make your comments. If you 
could keep them within 5 minutes, then we can have a question-
and-answer period.
    If you would all stand, please, I am going to swear you in. 
Do you affirm that the testimony you are about to give is the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Judge Geraci. I do.
    Judge Olguin. I do.
    Judge Mannion. I do.
    Mr. Brann. I do.
    Judge Breyer. I do.
    Senator Feinstein. Thank you.

  STATEMENT OF FRANK PAUL GERACI, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE WESTERN DISTRICT OF NEW YORK

    Judge Geraci. Thank you, Senator Feinstein, Senator 
Grassley, for convening this meeting. I want to thank Senator 
Schumer for his very nice remarks in the beginning of this 
session, and also thank him for the confidence he has shown by 
recommending me to the President.
    I certainly want to thank President Obama for the 
nomination and sending that to the U.S. Senate.
    I am not going to take time to introduce my family since 
Senator Schumer did so in his remarks, and I certainly 
appreciate that. But I do want to thank them for coming. My 
four children actually traveled 400 miles last night, arriving 
around midnight, and my son Matt spent his 18th birthday 6 
hours in a car, so I appreciate them doing that.
    In addition, I know that there are a number of friends and 
family that are watching this webcast, and I appreciate their 
support and their interest.
    Thank you.
    [The biographical information follows:]

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    Senator Feinstein. Thank you very much.
    Judge, please proceed.

 STATEMENT OF FERNANDO M. OLGUIN, NOMINEE TO BE U.S. DISTRICT 
          JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Olguin. Thank you, Senator. I want to thank you and 
Senator Grassley for convening this meeting here today, and I 
want to thank you especially for the kind words and for 
recommending me to the President. And I want to thank the 
President also for the nomination.
    I also want to thank a few people who have come today: of 
course, my wife, Heidi, and my daughter, Aurelia--she is 8 
years old--and my son, Gabriel. We will have to see if they are 
able to sit through the whole proceeding.
    Senator Feinstein. If they would stand, we will give them a 
round of applause.
    Judge Olguin. Yes, well, you could not see them, they are 
so short.
    [Laughter.]
    Senator Feinstein. All right. I see a little face back 
there.
    Judge Olguin. I also want to thank--I have a few friends, 
very close friends from college that are here today, and I have 
some of my former colleagues from the Department of Justice and 
a few friends from Arizona who are here, who actually now work 
in Washington. And I also want to recognize the people in Los 
Angeles, my family and friends who are watching this on the 
webcast. Maybe now it is a little early. Also I want to 
recognize my in-laws, Bill and Connie from New Hampshire, and 
my brother-in-law and sister-in-law. And I want to just thank 
you again.
    [The biographical information follows:]

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    Senator Feinstein. Welcome.
    Judge Mannion.

    STATEMENT OF MALACHY EDWARD MANNION, NOMINEE TO BE U.S. 
     DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

    Judge Mannion. Thank you, Senator Feinstein.
    Senator Feinstein. Could you press your microphone button?
    Judge Mannion. Sorry. Senator Feinstein, Senator Grassley, 
thank you very much. I want to first thank Senators Casey and 
Toomey for their warm and kind remarks this morning, as well as 
their recommendation of me to the President. I certainly want 
to thank the President for nominating me, and I want to thank 
you for the privilege of appearing before this Committee today.
    With me in the audience are a number of loved ones. My 
wife, Peg, and my mom are both here. Three of my four 
children--my son, Chris; my son, Jason; and my daughter, Cara--
are here. My brother and sister-in-law, Glenn and Renee 
Druckenbrode, and my nephew, Matthew, are here. My cousin John 
and Teresa Devereaux and my nephew Jonathan is here. My good 
friend, Dr. Marianne McDonald, has made the trip, along with my 
staff who left at 4 o'clock this morning to be here. And I 
cannot tell you how warm that feeling is when they are here: 
Barbe Sempa, Krista Ammenhauser, John Fuller, and our intern 
actually came down, Alex Perry.
    In addition to that, my son Chris' fiancee is here, and I 
am so happy that Jen Diorio is here as well.
    My second son could not be here. He is away on business in 
Salt Lake City--Ryan--but he is watching, and I thank you for 
the live webcast. He is up early, and he told me he would be 
watching.
    Aside from that, back in the Middle District of 
Pennsylvania, I want to thank what we call the court family 
there, and I know a number of them are watching as well as many 
friends from around the country. I appreciate their support, 
and I thank you very much for this opportunity.
    [The biographical information follows:]

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    Senator Feinstein. Thank you very much.
    Mr. Brann.

  STATEMENT OF MATTHEW W. BRANN, NOMINEE TO BE U.S. DISTRICT 
         JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

    Mr. Brann. Madam Chairman, thank you. First I would like to 
thank the President for the honor of forwarding my nomination 
to this Committee for consideration.
    Second, it is a tremendous privilege to be introduced to 
the Committee today by Senator Toomey and by Senator Casey, and 
I thank them for their courtesy, their support, and their 
recommendation to the President of this nomination.
    Senator Feinstein, I thank you for presiding at this 
hearing, and I thank Senator Grassley for his attendance today 
as well.
    I would like to briefly introduce to the Committee my wife, 
Laura, who has been extraordinarily supportive of this 
endeavor; my father and law partner, Gerald Brann; my father-
in-law, Robert J. Murphy; my uncle, Neil Nelsen; and John 
Romano, who is the eldest son of one of my closest friends from 
Notre Dame who was not able to be here today, and so his son is 
here as a surrogate, you might say. My mother, brother, sister, 
uncles and aunts, my partners and friends are, I am advised, 
watching this by webcast. I thank them for that.
    With that said, I will attempt to answer any questions the 
Committee may have for me.
    [The biographical information follows:]

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    Senator Feinstein. Thank you very much.
    Judge Breyer.

 STATEMENT OF CHARLES R. BREYER, NOMINEE TO BE A MEMBER OF THE 
              UNITED STATES SENTENCING COMMISSION

    Judge Breyer. Senator Feinstein, thank you so much. I 
would, of course, express my appreciation to the President for 
nominating me and to you, Senator Feinstein, for presiding at 
the hearing as well as Senator Grassley, and I look forward to 
your questions.
    Most of my family actually is not here today. Some are 
otherwise occupied. However, I have a number of family members 
who are in San Francisco. I expressed some concern that perhaps 
the webcast would be blocked out in San Francisco because this 
is not quite sold out here. But, in fact, I have been told that 
under the Supremacy Clause, it will be shown in San Francisco, 
so I am pleased with that.
    And, of course, I stand ready to answer any questions that 
you may have. Thank you.
    [The biographical information follows:]

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    Senator Feinstein. Thank you very much.
    Why don't we begin our questions. I am going to begin with 
a softball, and they will get more difficult. And if each one 
of you would give a brief answer, I would appreciate it.
    The Federal courts have a special responsibility to make 
sure that every person is treated fairly under the law, that 
our disputes are resolved according to the law, and that all 
our rights are protected.
    Please describe briefly your view of the role of the 
courts, particularly the Federal courts, in our system and how 
you will strive to provide fair and impartial treatment to 
litigants who come before you as a district court judge if you 
are confirmed by the Senate. Judge Geraci, if we might begin 
with you.
    Judge Geraci. Thank you, Senator, for that question. As my 
approach has been throughout my 20 years as a judge, it is very 
important to create in the courtroom an atmosphere under which 
all the litigants, the attorneys, and even the spectators 
understand that they are getting their day in court, which 
means that a judge has to be a good listener. You have to make 
good inquiry so you understand the issues before the court. You 
have to be deliberate in your decisions, be decisive. But then 
the most important thing I think a judge does is explain the 
rationale for their decision. That approach I believe is what 
gives confidence to the public, and that is what I would do as 
a Federal district court judge if I am so confirmed.
    Senator Feinstein. Thank you very much.
    Judge Olguin.
    Judge Olguin. Thank you, Senator. If I am fortunate enough 
to be confirmed as a district judge, I would continue what I 
have done for nearly 11 years as a magistrate judge, which is 
strictly follow the rule of law, treat all the litigants with 
respect and dignity, be transparent in the decisionmaking 
process, and be timely in the decisionmaking process.
    Senator Feinstein. Thank you.
    Judge Mannion.
    Judge Mannion. Yes, Senator, I agree with my colleagues. I 
think that one of the most important things is respect for 
everyone--the litigants, the attorneys, and everyone who comes 
before the court.
    Second, I believe timeliness is very important, that we 
decide cases and move them as quickly as reasonably possible 
under the circumstances.
    Third, and maybe most importantly, that we decide cases 
based upon the law and only upon the law.
    And, finally, I believe that the written decisions that we 
enter should be those that are understood by the litigant. I 
think that simple is better. I do not think we have to write in 
legalese. We should write so that the litigants themselves can 
understand what we did and why we did it.
    Senator Feinstein. Thank you. I especially appreciate it. 
Thank you.
    Mr. Brann.
    Mr. Brann. Senator Feinstein, I think the public has a 
right to expect that when they appear before the court, that 
the court most importantly is going to possess integrity, that 
the court is going to be impartial, that the court is going to 
hear their case in a courteous fashion, and that the court is 
going to render a decision in a diligent fashion, that there 
will be no great delay.
    I agree with my colleagues' statements that rendering 
decisions in a manner that is understandable by the public is 
also paramount. The public needs to understand that ultimately 
to have confidence in the judiciary, and I would hope that if I 
were confirmed that I would display those traits as a Federal 
district judge.
    Senator Feinstein. Thank you very much.
    Judge Breyer, you have been through this once before, so I 
am going to change the question for you slightly. How do you 
see your experience relating to the Sentencing Commission?
    Judge Breyer. Well, I have actually for nearly 45 years 
been involved in the sentencing process, first as district 
attorney, as a Federal prosecutor, as a defense lawyer, and 
finally 15 years as a judge. And I think the real experience of 
sentencing individuals, or corporations, depending on what the 
case is about, is probably one of the most difficult tasks for 
Federal judges. And I think that the Sentencing Guidelines have 
provided not just a reference point but a rock, an anchor from 
which individuals, individual judges can evaluate sentences, 
and that has been extraordinarily important.
    What I would hope to do, if I am confirmed, is to ensure 
that judges do follow the guidelines, that the guidelines 
become very meaningful in the sentencing process, and I would 
hope to contribute to that effort.
    Senator Feinstein. Thank you.
    Senator Grassley, would you like to--maybe we should just 
alternate questions since it is just the two of us. Is that all 
right?
    Senator Grassley. Why don't you just go ahead and finish 
yours. Then I will ask mine.
    Senator Feinstein. All right. Well, I have several 
questions. They get tougher as I go along.
    Senator Grassley. Then since mine do not get tougher as 
they go along, why don't you let me do all mine now and then 
back to you. Is that OK?
    Senator Feinstein. OK.
    Senator Grassley. I have a first question for Mr. Brann and 
Judge Geraci. For much of your career, you have been actively 
involved in party politics. Now, there is certainly nothing 
wrong with that, but should you be confirmed, your political 
history might concern future litigants. Can you assure this 
Committee that, if confirmed, your decisions will remain 
grounded in the precedent and the text of the law rather than 
any underlying political ideology or motivation?
    Mr. Brann. Would you like me to proceed first, Senator?
    Senator Grassley. You can, yes.
    Mr. Brann. Well, I think that is right, I have certainly 
been involved in politics, and I found that to be rewarding and 
interesting. But if I am confirmed as a Federal district judge, 
my role is to sit as a judge and to interpret the law, look at 
the text of the statute, look at the text of the Constitution, 
and apply it to the facts at hand. Partisan politics has no 
role whatsoever in the judiciary, and the public should be 
confident of that.
    Senator Grassley. OK. Thank you.
    Now, Mr. Geraci.
    Judge Geraci. Yes, Senator, I have actually not been 
involved in politics over most of my career. As an assistant 
district attorney, I was prohibited from participating in 
politics. As an Assistant United States Attorney, I was 
prohibited from participating in politics. And certainly as a 
judge over the last 20 years, except for my own campaigns.
    During the time period when I was in private practice 
between 1987 and 1991, I did get involved with some local races 
because I think it is important to be involved with the 
political system. So I have not been actively involved 
throughout most of my career, and certainly politics has no 
role whatsoever in the role as a judge.
    Senator Grassley. OK. I am going to ask Judge Olguin: In a 
speech introducing California Supreme Court Justice Carlos 
Moreno, you praised his lone dissenting opinion in Strauss v. 
Horton, the decision by the California Supreme Court that 
upheld the validity of Proposition 8. You said that, ``It was 
decency and compassion along with a great intellect that 
brought him to do what will no doubt be considered one of his 
most famous and courageous decisions.''
    You go on to conclude that, ``The Proposition 8 decision 
was just one of a string of opinions in which Justice Moreno 
was guided as much by compassion as by legal talent.''
    So my question to you, I would like to give you the 
opportunity to comment on this remark, but more generally, from 
each of you--so this would apply to each of you--what role does 
compassion play in the judicial decisionmaking process? And I 
will start with Judge Olguin.
    Judge Olguin. Thank you, Senator. I have known Justice 
Moreno for 15 years, and it was in part--the speech was in part 
because of my personal relationship with him. But having said 
that, having looked at the speech and reread it, I think some 
of the words I used, some of the wording was inappropriate. And 
I did not mean to suggest that compassion should be involved in 
the decisionmaking process, and I think my record as a 
magistrate judge for nearly 11 years demonstrates that I have 
strictly adhered to the rule of law.
    Senator Grassley. Could the other three of you, starting 
with Judge Geraci, comment as well?
    Judge Geraci. Certainly, Senator----
    Senator Grassley. Not on his statement, but on----
    [Laughter.]
    Judge Geraci. Senator, as to the role of a judge, we have 
to understand that we affect people in our decisions, no matter 
if it is a civil or criminal decision. With that in mind, we 
have to understand that people come, there are certain feelings 
and sentiments in a legal proceeding. However, sympathy or 
compassion has no role in the ultimate decision. The decision 
has to be based upon the facts and the laws of that case. The 
only way that would come in is in explaining, and I think as I 
said in my opening remarks, as a judge we are obligated to 
explain the basis for our decision. But compassion or sympathy 
has no role in the ultimate decision of the court.
    Senator Grassley. Judge Mannion.
    Judge Mannion. Senator, it has no role. It is based upon 
the law, period.
    Senator Grassley. Mr. Brann.
    Mr. Brann. Senator Grassley, I would agree with that, and I 
think that while you may choose to be personally sympathetic in 
some way, you have to compartmentalize that. The role of a 
judge is to apply the law to the facts of the case, and that is 
it.
    Senator Grassley. I would ask each of the four of you to 
comment on this issue I am going to bring up that I term a 
``judicial temperament.'' For each of you, I would note that an 
appointment to the Federal bench is a position of public trust. 
In some cases, judges forget that they are public servants. A 
former member of this Committee, Senator Strom Thurmond, 
frequently reminded nominees that the more power one has, the 
more an office holder has--let me say that again. He reminded 
the nominees that the more power one has as an office holder, 
the more courteous one should be.
    Would each of you share your views on the proper 
temperament of a Federal judge and how you are prepared to deal 
with colleagues, court staff, attorneys, parties appearing 
before you, and the general public? We will go left to right 
here.
    Judge Geraci. Senator, raising four children and having 
three grandchildren help that in the first instance, but 
obviously it is important that you treat everybody with 
respect, and that includes the staff, the attorneys, the 
litigants, anybody that appears in your courtroom.
    When I first became a judge, a friend of mine, another 
judge, told me that that is what recesses are for. When 
sometimes the crunch or the volume of the case or the tension 
in the courtroom gets too strong, then you get off the bench 
and you relax for a while.
    I believe my temperament has always been very sound, and 
the reaction of the attorneys has indicated that through the 
various ratings by the bar association.
    Senator Grassley. Go ahead.
    Judge Olguin. Thank you, Senator. I will continue to do 
what I have done for my time as a magistrate judge. I believe I 
have the appropriate temperament. I believe it is important for 
a judge to respect all the parties, the litigants, and the 
witnesses, and treat everybody with dignity and respect.
    Senator Grassley. OK.
    Judge Mannion. Senator, I agree with that. I believe that 
respect of litigants--they come to Federal court. This may be a 
first experience for them. It may be a very unusual experience 
for them, and I think respect is exceptionally important. 
Counsel often have positions they have to take, and we should 
be respectful to counsel all the time, and I certainly believe 
that I always have been in my 11 years.
    In addition to that, I have got a small yellow ``sticky'' 
that I look at every time I go on to the bench, and it says, 
``Remember that you''--meaning me--``are the public servant.'' 
I am there to serve the public. They are not there to serve me. 
And I always believe that is the case, and I have tried to do 
that in my 11 years on the bench.
    Senator Grassley. Thank you.
    Mr. Brann.
    Mr. Brann. Thank you, Senator. I am not a judge. The others 
have the advantage of having sat as judges, and they have 
developed those traits. I aspire to that, as I aspire to sit as 
a judge. And it seems to me the judges that I have appeared 
before that I have been most impressed by are those who are 
just very courteous to the litigants, very courteous to the 
attorneys, and they get their work done on time. They are 
diligent. They appreciate that the public has a right to expect 
that that is going to be done, and those are traits that I 
would hope to emulate if I am fortunate enough to be confirmed.
    Senator Grassley. OK. Then my last question would come 
under the title of what I call ``judicial philosophy.'' There 
are a number of different theories explaining how judges should 
interpret the Constitution. Some theories emphasize original 
understanding. Some emphasize literal meaning, and some focus 
on general principles underlying the Constitution and applying 
a contemporary meaning to those principles. While all nominees 
recite the mantra that they will apply the law to the facts, in 
this particular question I am looking for an answer with a 
little bit more thought behind it.
    What constitutional interpretation model would guide you 
when faced with constitutional questions? And, again, we will 
go from left to right.
    Judge Geraci. Thank you, Senator. I believe that you have 
to look at the precedent from the Supreme Court in order to 
determine the meaning of the Constitution. It does not change 
over history. The words in the Constitution are what they were 
meant to be as originally written.
    Judge Olguin. I agree with Judge Geraci, and I think stare 
decisis is the cornerstone of precedent and applying the rule 
of law. And that has been my judicial philosophy, and I will 
continue to do that.
    Senator Grassley. Judge Mannion.
    Judge Mannion. Senator, I agree with that. The Supreme 
Court is, of course, precedential. It must be followed. The 
Third Circuit in my case is precedential. It must be followed. 
And I have done that and would do that.
    Senator Grassley. Mr. Brann.
    Mr. Brann. Senator Grassley, first I believe the 
Constitution is law, and I think you look to that first. You 
look to the text of the Constitution, and you interpret it 
accordingly, particularly if it is a matter of first 
impression. Certainly I am going to be bound by the decisions 
of the U.S. Supreme Court in my particular part of the State--
or, excuse me, my particular part of the country, the United 
States Court of Appeals for the Third Circuit. But it seems to 
me that you should be looking as a district judge to the text 
of the Constitution or the text of the particular Federal 
statute that needs that level of interpretation.
    Senator Grassley. Mr. Breyer, I have just a couple 
questions for you. Given the discretionary nature of the 
Sentencing Guidelines, how would you define the function of the 
Sentencing Commission in general? And would you describe your 
role on the Commission, should you be confirmed?
    Judge Breyer. I think the Sentencing Commission has several 
roles.
    First, I think it is to gather information based upon 
facts, based upon experiences, digest that information, and 
publish that information so that judges and so that Congress 
has that type of information through the sentencing process and 
the experience of judges.
    Second, I think its role is to consult with Congress and to 
work with Congress in a way that the sentencing laws become 
rational and universally applied throughout the Federal system.
    The whole point of the Sentencing Guidelines 1984 and 
forward was to introduce some type of uniformity with respect 
to sentencing so that judges' personal views do not control a 
sentence but, rather, the experience of judges over time 
controls what is rational in the sentencing process. That is 
one thing.
    The second thing--or maybe it is the third. The next thing 
is that I think it is very, very important to have transparency 
in sentencing. We do the public's business. We are an 
independent branch. We do the public's business. And it is 
important that we explain to the public our reasons for doing 
it and that this information is provided to Congress. That is 
my view of it.
    Senator Grassley. As a sitting district judge, you had 
extensive experience with guidelines. Could you share some of 
your thoughts on the guidelines and give us some insight as to 
when you think it is appropriate to depart downward?
    Judge Breyer. I think that the--first of all, an area of 
concern that I have is that judges, because the Sentencing 
Guidelines are advisory, have a tendency to depart from the 
Sentencing Guidelines. And I think that departures, which are 
set forth in the Sentencing Guideline Manual, should be viewed 
in the language of those departures and not created by virtue 
of a judge's personal views.
    In terms of departures, I think that one has to look at the 
reasons and set forth the reasons with clarity because these 
reasons and the sentence that a judge gives in a district court 
should be reviewed by a court of appeals, and that the court of 
appeals should look at the reasons and determine whether or not 
those were valid reasons for any departure.
    Senator Grassley. I think you have answered my other two 
questions, so I will yield the floor.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you, Senator Grassley.
    I think I have four questions here, and the first one is 
the issue of precedent. I have been on this Committee now for 
19 years, going on 20, and have sat on the hearings of many 
Supreme Court Justices. And one of the big issues of concern 
has been the principle of stare decisis, precedent, and 
virtually everybody says to us, ``Oh, yes, we will observe 
precedent.'' They even say, ``Well, that is super-precedent. I 
will observe it.'' And then, of course, they turn around and do 
exactly the opposite.
    So I have kind of reached the point where I am not going to 
vote for someone anymore if I believe they are not going to 
carry out precedent. So I would like to begin with a question 
in this area.
    Nominees from both sides of the aisle are confronted with 
precedent, and precedent with which they might disagree. The 
question is: Will the nominee be able to follow the law 
notwithstanding his or her personal or political preference? So 
here is the first question, and I will begin with you, Mr. 
Brann. Are you committed to following precedent of the Supreme 
Court and the Third Circuit even though you may disagree with 
it?
    Mr. Brann. Absolutely. I mean, I think that is going to be 
my role. It is my job as a Federal district judge, and if I did 
not believe that I was able to undertake that, I would not have 
signed up for this nomination, I do not think. I mean, that is 
what I have to do.
    Senator Feinstein. OK. For example, in Planned Parenthood 
v. Casey in 1992, the Supreme Court reaffirmed that the 
Constitution affords a woman the right to choose. Are you 
committed to following that precedent?
    Mr. Brann. Yes. I must do so.
    Senator Feinstein. If the Supreme Court upholds the First 
Circuit's decision striking down Section 3 of the Defense of 
Marriage Act, or DOMA, would you faithfully follow the Supreme 
Court's decision?
    Mr. Brann. Yes, I would have no choice but to do so, 
Senator.
    Senator Feinstein. OK. Good.
    Senator Grassley pointed out that you have been a member of 
the leadership of the Pennsylvania Republican Party, and I 
think that is just fine. You were a member of the party's 
Judicial Evaluation Panel, its Judicial Selection and Review 
Committee. You are a member of the Federalist Society--and I 
have voted for judges that are members of the Federalist 
Society--and the National Rifle Association. So you are a very 
active Republican, probably the most Republican judicial 
nominee from the Obama White House, I think.
    Could you please describe the nature of your work in the 
Pennsylvania Republican Party and Republican political 
campaigns and describe your work on the Judicial Evaluation 
Panel and how you believe--and you answered this question of 
Senator Grassley I thought to some extent. Can you, in fact, 
separate what has been strong political views and activism from 
your role as an impartial decisionmaker?
    Mr. Brann. Yes, well, let me try to answer those questions 
in order, Senator Feinstein, if I may.
    I became involved and interested in Republican politics 
when I came out of law school, and I was interested even then, 
even in college. And my views are basically conservative views, 
I think. And when I came back to my rural county, I was invited 
to be involved in Republican politics, served on the county 
committee, and then that eventually evolved into being involved 
in the State committee roles and activities. And I just enjoyed 
it. I enjoyed meeting people there.
    My particular interest in that was interest in judicial 
candidates. I was interested in finding, selecting, and 
promoting good candidates, whether they were lower-court judges 
or attorneys, who were interested in running--in Pennsylvania, 
all judges are elected, as you may be aware, and those 
interested, parties interested in running for the appellate 
judiciary. And I come from a rural area which does not 
frequently have a lot of candidates for the appellate 
judiciary. Those candidates frequently come from the two large 
urban areas, Philadelphia and Pittsburgh. So I was interested 
in promoting competent attorneys and competent judges from the 
rural or the small-city areas to sit on the bench at the 
appellate level, and I think I did that with some level of 
success. You know, you never know what you are going to get, of 
course, as a judge, and that is your concern here, I think. 
What are you ultimately going to get? Anybody can make 
commitments to the committee, but how is it ultimately going to 
play out?
    I am very appreciative of that because I was very 
interested in that particular role, and I tried to select 
people that I thought had the right temperament, good 
educational backgrounds, had experience, and that I thought 
would be interested--people that I would want to appear before 
myself, because I am an active advocate at local trial courts 
and, of course, in the appellate judiciary.
    I am moving into, potentially moving into a different role 
entirely, and that is a role not as an advocate. I am an 
advocate for clients, and I have been an advocate for others 
seeking judicial office and other political office. That is 
done, or will be done shortly, I hope. And my role, I think, as 
a judge is to simply compartmentalize and say, yes, I have, I 
think, fairly firm political views on a variety of issues, 
including some of the matters that you have referenced in your 
earlier question. My job is to factor that out, and I think 
that is actually the most difficult role as a judge, frankly, 
to not bring your own personal views to bear, because, frankly, 
what confidence would the public have ultimately if you did 
that? I mean, they would think this person should not really be 
a judge, they do not have the temperament, they do not have the 
wisdom to be a judge.
    I hope that I would ultimately have those traits on the 
bench, and I give you as much assurance as I can that that is 
what I would seek to do. Otherwise, I simply would not have 
made application for this position.
    You had a number of questions in there, and I hope I have 
answered those in the right order.
    Senator Feinstein. I think you did. I actually find you 
believable, too.
    [Laughter.]
    Mr. Brann. Well, thank you, Senator. I appreciate that.
    Senator Feinstein. So I take you at your word. And I 
actually believe people can do this. I think it is hard, but I 
think they can do it. I think, though, once you get there, the 
temptation is very strong not to do it. And I see that in 
judges who are active today on major courts. And, you know, 
after awhile, you kind of feel like a fool spending a lot of 
time, particularly on Supreme Court nominees, because we spend 
days, hour after hour after hour, and you get a view, and then 
you find that view is just smashed by performance. And so I do 
not want that to happen with you, and I listened very carefully 
not only to your words but also to your body language, and I 
think you are sincere. And I want you to know that is important 
to me.
    Mr. Brann. Well, my goal, Senator, is to be a good judge. 
And when I am done with my career, I want people to look back 
on that and say this person was a good judge. The best judges 
that I have appeared before are individuals you would have 
really no sense of where they were politically. You might know 
that their background is a Democrat or is a Republican. You 
would have no sense of that. You have no sense of that in there 
in the decisions or in the manner that you were treated or that 
you see other parties treated. And that is my goal.
    Senator Feinstein. Thank you very much.
    I would like to go down the aisle on the question of stare 
decisis. Now, of course, you are district court, but, 
nonetheless, you are going to look at the law. Comment on what 
your feelings are on precedent. Judge Mannion, I will go to you 
next.
    Judge Mannion. Thank you, Senator. Well, precedent 
obviously is how our system works. In other words, in order for 
the United States court system to work in a way that people can 
understand and expect certain rulings, we must follow 
precedent. As a magistrate judge for the last 11 years, I have 
judiciously followed precedent of the Supreme Court and the 
Third Circuit. I would continue to do that on the district 
court without fail.
    Senator Feinstein. Thank you.
    Judge Olguin.
    Judge Olguin. I do not really have anything to add to Judge 
Mannion's answer. I completely agree. We even have the same 
number of years of experience.
    [Laughter.]
    Senator Feinstein. Thank you.
    Judge Geraci. Senator, precedent is the foundation of the 
rule of law. It is very important there be consistency. And 
when we--if fortunate enough to be sworn in as a district court 
judge, we take an oath to uphold the laws of the United States, 
and that includes the precedent from the Supreme Court and in 
my case from the Second Circuit.
    Senator Feinstein. Thank you very much. And, of course, you 
know you are all under oath, and that oath means something. So 
I am going to watch your careers.
    In any event, let us see. Let me talk a moment about 
judicial ethics because we are very proud of our Federal 
courts. They are the highest courts of our land. They should 
be. And if a judge's impartiality can reasonably be questioned, 
it is really essential that the judge recuse himself or 
herself.
    Now, Federal judges have great discretion in determining 
when they will recuse themselves. I think this is an important 
question to consider, so here is the question: How do you 
interpret the recusal standard for Federal judges? And in what 
situations do you expect you will have to recuse yourself? 
Judge Geraci.
    Judge Geraci. Yes, thank you, Senator. You need to consider 
the parties before you. If there is any relationship between 
the parties, you have to make a determination whether or not 
that in any way is going to affect the court's impartiality, 
even the appearance of impartiality. That is very critical. The 
parties must be examined to determine whether or not they feel 
for some reason there appears to be any type of a conflict of 
interest, and if there is, I think you err on the side of being 
careful and recuse in that particular case.
    Senator Feinstein. Thank you.
    Judge Olguin.
    Judge Olguin. Thank you, Senator. I will continue to follow 
the practice that I have been for the last 11 years and comply 
and follow the canons of judicial conduct as well as 28 U.S.C. 
455.
    Senator Feinstein. So what is your practice?
    Judge Olguin. I interpret them very--I am very careful, and 
if there is any doubt, I recuse myself.
    Senator Feinstein. Have you recused yourself?
    Judge Olguin. In many, many cases. Many cases over the 
years.
    Senator Feinstein. Do you have a number?
    Judge Olguin. I do not have a number.
    Senator Feinstein. OK. Thank you.
    Judge Mannion. Senator, I agree that you look at the canons 
of judicial conduct and, of course, 455. In addition to that, 
in the Middle District of Pennsylvania, we have an automated 
system that allows us to put in any conflicts of interest. Once 
a month, I judiciously review that system, add anybody or any 
corporate entity, anything that I have a financial investment 
in, a financial interest in, a personal relationship with to 
that list, then automatically if those cases would be assigned 
to me, they would run through the conflict list and not be 
assigned to me.
    The ones that do get through, which occasionally has 
happened, if it was a personal relationship, I would notify 
counsel of that. If it was a financial relationship, I would 
notify counsel and recuse myself and have done that on a number 
of occasions. I will not say it is a great number, but on every 
occasion where it was required, I have.
    Senator Feinstein. Thank you.
    Mr. Brann.
    Mr. Brann. Senator Feinstein, I am aware of that automated 
system. I obviously have not participated in that, but I think 
that is very helpful, having talked to the Federal judges in my 
district about that. And, again, I am going to be bound by the 
judicial canons. I am going to interpret those, I think, very 
carefully and, you know, certainly recuse myself as needed if 
those issues come up, whether it is a person I have had some 
affiliation with or a financial investment. Again, I want to be 
mindful of the fact that the public needs to have confidence in 
the judiciary, and they need to have confidence in the 
impartiality of the judiciary.
    Senator Feinstein. Thank you.
    Judge Breyer, what did you do? I am curious.
    Judge Breyer. Well, two things. First, when I served on the 
Executive Committee of the Judicial Conference, we implemented 
an automated system for judges to be alerted to conflicts for 
any securities or even individuals who we had put on a conflict 
list. This was extraordinarily helpful because--I do not know 
whether you have observed it or not, but I have found a number 
of judges not to be very good in terms of money managing and 
knowing what they have and what they do not have. And so when 
the system was developed, the Executive Committee dictated that 
it be not only available but mandatory in every judicial 
district so that judges would know, because the judge does not 
want to find out about that share of stock that he or she owns 
on the front page of a newspaper. And that is one thing that at 
least I was a participant in.
    Secondly, there is always the issue of the appearance of an 
impropriety, not that impropriety exists but that there is an 
appearance of bias or an impropriety. And the canon of ethics 
requires that where there is a reasonable appearance of an 
impropriety that a judge recuses himself.
    So the first question you have is if any judge starts to 
think about it, that is a problem. That is an indication right 
there that the judge may have a problem. And what I have 
followed in my practice is disclosure--not just a question of 
whether I think I can be fair, but will the litigants think I 
am fair. And so my practice has been to disclose any potential 
conflict that I may have, and indeed, I think that that is a 
fairly good practice. I do not think any of my hopefully soon 
to be colleagues will find that there is a shortage of 
business. If, in fact, you recuse yourself in a case under the 
system of case assignments, you will get another case. And it 
may be more interesting, it may be less interesting.
    But in any event, that is not the test. The test is not 
whether you are working hard or whether it is a matter that you 
should consider. The question is: When you decide a case, will 
the public and the litigants believe, and rightly so, that it 
was decided by an impartial decider.
    Senator Feinstein. Thank you very much. I think on those 
words it is time to close this hearing. I want to thank you all 
very much. You were very straightforward and direct, and it is 
very much appreciated.
    At the end of the hearing, the record will be held open for 
1 week plus an extra day. That is until July 5th because of the 
holiday. So all comments and letters should be in by that time.
    Let me thank you very much, let me thank your families. It 
is a good day to be in Washington, so I hope you all take your 
families out to a nice dinner tonight.
    Thank you, and the hearing is adjourned.
    [Whereupon, at 11:04 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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    NOMINATION OF THOMAS M. DURKIN, OF ILLINOIS, NOMINEE TO BE U.S. 
   DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; HON. JON S. 
   TIGAR, OF CALIFORNIA, TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN 
DISTRICT OF CALIFORNIA; AND WILLIAM H. ORRICK III, OF CALIFORNIA, TO BE 
      U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

                              ----------                              


                        WEDNESDAY, JULY 11, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:06 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Christopher 
Coons, presiding.
    Present: Senators Coons, Feinstein, and Grassley.

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

    Senator Coons. Good afternoon. I am pleased to call this 
nominations hearing of the Senate Judiciary Committee to order.
    I would like to welcome each of the nominees, their 
families, their friends, to the U.S. Senate and congratulate 
them on their nomination to serve in the Federal judiciary.
    I would also like to welcome Senator Boxer of California, 
who is here to introduce the district court nominees for the 
Northern District.
    Today there are 76 vacancies in our Federal judiciary, 
which is nearly 3 times the number of vacancies at a comparable 
period in the previous administration. Most of these vacancies 
are in district courts, which are the courts Americans most 
need to be fully staffed so they can receive their day in 
court. Nearly half these vacancies are considered by the 
nonpartisan Judicial Conference to be judicial emergencies, 
where vacancies are doing the most harm to the regular and 
reliable administration of justice.
    Today's nominees are all district court nominees to 
judicial emergency districts, and so I am eager to hear from 
the nominees and look forward to the Senate's swift action on 
the President's nominations.
    Before we turn to introductions and witness statements and 
questions, I would like to first invite Senator Grassley to 
make an opening statement. Senator Grassley.

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

    Senator Grassley. Well, of course, just like the Chairman, 
I welcome all the nominees and congratulate them. I want to 
talk about the timetable that we have had in the past and our 
record.
    I would note that the nominations of Mr. Orrick and Mr. 
Tigar were delivered to the Senate just 1 month ago, on June 
11, 2012, with their nomination materials coming in after that 
date, so that we have had about 13 legislative days to review 
the nominations. We have had a little more time to review Mr. 
Durkin's file.
    By contrast, President Bush's district nominees waited an 
average of about 120 days from nomination to having a hearing 
like we are having right now, so I think that this is a good 
example of the fair treatment that we are giving President 
Obama's nominees.
    Having said that, I do not want anyone to think that these 
nominees are on some sort of fast-track process. We will give 
close scrutiny to the record of the nominees. This hearing is 
an important part of that record formation. This Committee 
continues to make good and steady progress in confirming 
judicial nominees. After today, we will have had a hearing on 
42 nominees this year alone. Yesterday we confirmed the 152nd 
district or circuit nominee during President Obama's term so 
far. Good progress.
    Again, I welcome the nominees and look forward to the 
hearing, and I will place 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.
    Now we turn to the introduction of our needs, beginning 
with Senator Boxer, who will introduce Mr. Orrick and Judge 
Tigar from her home State of California.
    Senator Boxer, I know your schedule is pressing, so please 
feel free to excuse yourself after giving these introductions. 
Senator Boxer.

PRESENTATION OF HON. JON S. TIGAR, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND WILLIAM H. 
ORRICK III, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN 
 DISTRICT OF CALIFORNIA, BY HON. BARBARA BOXER, A U.S. SENATOR 
                  FROM THE STATE OF CALIFORNIA

    Senator Boxer. Well, I want to thank both Senators Coons 
and Grassley, and I think you are going to be very pleased with 
these nominees as I introduce them to you.
    Bill Orrick is here with his wife, Caroline, and two of 
their daughters: Sarah, a second-year law student at UC-
Berkeley--I hope Sarah would stand--and Libby--and I hope that 
Caroline, his wife, will stand. And Libby is a senior at the 
University of Puget Sound. A third daughter, Catherine, is in 
South Africa doing conservation biology studies.
    Judge Tigar is joined by his wife, Carrie, who I hope will 
stand, Carrie Avery, and he is joined by his father, Michael. I 
hope he will stand. And he is also joined by Judge Jeb 
Boasberg, of the District of Columbia, and William King, who 
clerked with Jon in the 11th Circuit.
    So I will start with Mr. Orrick. Mr. Orrick brings a depth 
of legal experience in both the private and public sectors 
which will make him a tremendous asset to the Northern District 
Court. He received his bachelor's from Yale. He earned his law 
degree from Boston College Law School, graduating cum laude 
from both schools.
    After law school, he spent 5 years providing pro bono legal 
services for low-income clients in Georgia. Then Mr. Orrick 
returned home to the San Francisco Bay Area, and he joined the 
firm of Coblentz, Patch, Duffy & Bass, where he spent 25 years 
as an associate, a partner, and then head of the firm's 
employment litigation practice. He rose to the top of the firm.
    Since 2009, Mr. Orrick has worked at the Justice Department 
where he currently is Deputy Assistant Attorney General in the 
Civil Division. Bill considers service to the community to be a 
hallmark of his legal career. He spent 11 years as chancellor 
and legal adviser to the Episcopal Diocese of California and 13 
years working with the Good Samaritan Family Resource Center, a 
low-income housing nonprofit in San Francisco.
    At his law firm, he supervised much of the firm's pro bono 
work for which he received the San Francisco Bar Association's 
Outstanding Lawyer in Public Service Award.
    If confirmed, Bill would not be the first of his family--
and, Senators, this is really wonderful. He will not be the 
first of his family to serve in the Northern District. His 
father, William Orrick II, sat for more than 25 years in the 
same seat his son is nominated to today. What an honor it would 
be for him and his family to follow his father to the very same 
Federal bench.
    Now I want to introduce Judge Jon Tigar. He has had a 
diverse legal career, including more than 9 years as an 
exemplary superior court judge and will be an excellent 
addition to the bench. He received his bachelor's degree from 
Williams College, and he earned his law degree from the 
University of California-Berkeley Boalt Hall School of Law.
    Following law school, Judge Tigar clerked for Judge Robert 
Vance of the 11th Circuit Court of Appeals in Birmingham, 
Alabama. In 1989, Judge Vance was killed by a mail bomb that 
was sent to his home. Judge Tigar assisted FBI agents with 
their investigation at the field office that very evening. This 
nightmare experience has had a lasting effect on Judge Tigar's 
commitment to justice. He remembers Judge Vance for his fealty 
to the rule of law, for his work ethic, for his judicial 
temperament, his humanity, and his common sense--qualities he 
will bring to the Federal district court. After his clerkship, 
Judge Tigar spent a number of years as a civil and criminal 
litigator in private practice and 2 years as a trial attorney 
in the public defender's office.
    Since 2002, Judge Tigar has served on the Alameda County 
Superior Court with great distinction, presiding over civil, 
criminal, and family law cases. In his current assignment, he 
manages 570 cases. Before he joined the State court bench, 
Judge Tigar received an award from the State Bar of California 
for his pro bono services. He is a member of the California 
Judicial Council Advisory Committee on Civil Jury Instructions. 
He is an adviser to the American Law Institute's forthcoming 
restatement of torts. He has lectured at UC-Berkeley Law 
School, and he sits on the Board of Directors of the Alameda 
County Bar Association's Volunteer Legal Services Corporation.
    His nomination has the very strong support of law 
enforcement officials. The Berkeley chief of police writes that 
Judge Tigar ``meets with our officers in his home or wherever 
he happens to be when he receives a phone call for a meeting. 
He has even reviewed facts warrants while on vacation.''
    The Alameda County sheriff writes that Judge Tigar ``is a 
man of integrity who will bring wisdom and experience to this 
position.''
    I would like to submit for the record letters of 
recommendation I have received in his support, if that is all 
right with you, Mr. Chairman.
    Senator Coons. I ask unanimous consent they be entered for 
the record.
    [The letters appears as a submission for the record.]
    Senator Boxer. So, in closing, I am so proud to be here 
with these two amazing nominees, Mr. Orrick and Judge Tigar, 
who both received a well qualified rating from the American Bar 
Association. I am honored that they would continue their life 
in public service, and I know that Senator Feinstein will have 
comments to add to these. But I could not be happier or more 
proud to introduce these two Californians to you, and I thank 
you both for convening this, and I thank Senator Feinstein for 
coming here just at the right moment.
    Senator Coons. Thank you, Senator Boxer.
    I yield to Senator Feinstein for the introductions of Mr. 
Orrick and Judge Tigar.

PRESENTATION OF HON. JON S. TIGAR, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND WILLIAM H. 
ORRICK III, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN 
   DISTRICT OF CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman and 
Senator Grassley and my colleague Senator Boxer.
    I do not want to repeat everything Senator Boxer said, but 
I am just here to indicate my support for these two nominees to 
what are essential judicial emergency vacancies on the District 
Court of Northern California. We have Alameda County Judge Jon 
Tigar and Deputy Assistant Attorney General William Orrick. As 
you know, both nominees were recommended by Senator Boxer's 
judicial screening committee and both have my strong support. 
Let me just say a few words about each.
    You probably know this. Judge Tigar earned his bachelor's 
degree from Williams in 1984 and his law degree from the 
University of California at Berkeley in 1989. He began a 
clerkship with Judge Robert Vance in the United States Court of 
Appeals for the 11th Circuit.
    Four months later, in December, Judge Vance opened a 
package in his kitchen in Birmingham, Alabama. The package 
contained pipe bombs and nails, and it exploded, and Judge 
Vance was killed. His wife, Helen, was injured. The murderer, a 
convicted felon, was upset that the 11th Circuit had previously 
denied his appeal. Judge Tigar was the first to receive a call 
from the FBI after the murder, and he had to close up Judge 
Vance's chambers. And it is my understanding that to this day 
he keeps a photograph of Judge Vance in his own chambers.
    So after that, he spent 2 years at Morrison & Foerster, a 
year and a half in the office of the public defender in San 
Francisco, 8 years at Keker & Van Nest, and there he focused on 
complex commercial litigation.
    In 2002, he was appointed to the Alameda County Superior 
Court, and he has presided over 175 trials and written over 
1,000 decisions. He has been rated well qualified, as you know, 
by the Bar and was named Judge of the Year by the Alameda 
Contra Costa Trial Lawyers Association. And it kind of goes on 
and on with all good things, needless to say.
    Now let me turn to Mr. Orrick, whose name is familiar to 
anyone in the San Francisco legal community. And in the 
interest of full disclosure, his family was a neighbor of my 
family. His father was an extraordinary bond counsel for the 
city and county of San Francisco, so I obviously knew him in my 
days as supervisor and mayor.
    His grandfather founded the international law firm of 
Orrick, Harrington & Sutcliffe, and his father was a district 
court judge on the court to which Mr. Orrick has been 
nominated. He earned his bachelor's at Yale, law degree from 
Boston School of Law, and both degrees with honors.
    He worked for Georgia Legal Services, returned to San 
Francisco, joined the distinguished firm of Coblentz, Patch, 
Duffy & Bass that I also know well. And for the next 25 years, 
he maintained a successful commercial litigation practice, 
became partner, and led the firm's employment litigation 
practice.
    It goes on and on and on, all with good things, and I know 
time is a-wasting, but you have before you, Mr. Chairman and my 
friend and colleague Senator Grassley, two very well qualified 
nominees, and I am very proud to support them both, and I thank 
you.
    Senator Coons. Thank you very much, Senator Feinstein.
    As I invite the nominees to come forward, it is my honor to 
also join in the introduction of Thomas Durkin. If all three 
nominees would come forward.
    To Thomas Durkin, I just wanted to note at the outset, if I 
could, Senator Durbin called me personally before we began here 
today to ask me to express his personal regret at not being 
able to chair this hearing today. But for having been called to 
a meeting at the White House now, he would be here, and he 
wanted me to convey his best wishes to you, to your entire 
extended family, and his gratitude to Senator Grassley and to 
the Committee for the opportunity to have this hearing here 
today.
    I would like to ask unanimous consent that the record 
include both the written statements of Senator Durbin in 
introduction of Mr. Durkin and a comparable letter of 
introduction from Senator Kirk. I note the continued absence of 
Senator Kirk, a friend and colleague who continues to recover 
at home in Illinois from a stroke that he suffered earlier this 
year. Senator Kirk is as strong, if not more, a supporter of 
Mr. Durkin as is Senator Durbin. You have the benefit of both 
of your home State Senators having expressed strong support, 
and I look forward to the day when Senator Kirk, in the very 
near future, I hope, is able to resume his work here in 
Washington, as he has already resumed from Chicago.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]
    [The prepared statement of Senator Kirk appears as a 
submission for the record.]
    Senator Coons. Tom Durkin has been nominated to the 
Chicago-based seat that was formerly occupied by Judge Wayne 
Andersen. Mr. Durkin is a partner at the law firm of Mayer 
Brown LLP where his practice concentrates on complex commercial 
litigation and criminal defense. He received his bachelor's 
with honors from the University of Illinois at Urbana-
Champaign--I thought it was Champaign-Urbana. What do I know?--
and received his J.D. with honors from DePaul University 
College of Law. After graduating from law school, he served for 
2 years as a law clerk to the Honorable Stanley Roszkowski of 
the District Court of the Northern District.
    Following his clerkship, Mr. Durkin joined the United 
States Attorney's Office for the Northern District and worked 
there for 13 years and served in many leadership positions, 
including Chief of Special Prosecutions, Chief of Criminal 
Receiving and Appellate Division, and First Assistant U.S. 
Attorney. He received the U.S. Attorney General's John Marshall 
Award for Participation in Litigation. He then joined Mayer 
Brown as a partner in 1993 and has worked there until the 
present day. His practice ranges from patent litigation to 
internal investigations to securities litigation to white-
collar criminal defense.
    Mr. Durkin also has a broad record of community service, 
has served for 9 years on the Board of the Legal Assistance 
Foundation of Chicago, and taught as an adjunct professor of 
law at DePaul and at the John Marshall Law School. For nearly a 
decade, he was also the Chair of Mayer Brown's pro bono 
committee. Welcome, Mr. Durkin.
    At this point I would ask that all three of the nominees 
stand and raise your right hand as I administer the oath. 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?
    Mr. Durkin. I do.
    Judge Tigar. I do.
    Mr. Orrick. I do.
    Senator Coons. Thank you. Please be seated, each of the 
witnesses having been sworn.
    I would now like to invite the nominees to give an opening 
statement and to recognize your loved ones, family, and 
supporters who might be present. Thank you, and I would like to 
invite Mr. Durkin to begin.

  STATEMENT OF THOMAS M. DURKIN, NOMINEE TO BE U.S. DISTRICT 
          JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

    Mr. Durkin. Thank you, Senator. I would first like to thank 
the President for nominating me and thank both you and Senator 
Grassley and Senator Feinstein for convening this meeting and 
giving me the honor of appearing here today.
    I would also like to thank Senators Durbin and Kirk for 
both of them sending my name to the President, and 
congratulating them on having merit selection committees which 
participate in the process of selecting nominees from the 
Northern District of Illinois. The Chair of Senator Kirk's 
Committee, Peter Baugher, is here, and I would like to 
acknowledge him.
    Present here from my family is my wife, Gail, who is seated 
behind me; my son, Chris, who is a fireman and paramedic in 
Portland, Oregon, who came in from Portland; his fiancee, 
Chrissy, could not, but he is here. My son, Colin, and his 
wife, Meaghan. Colin works for the Department of Defense here 
in D.C., and Meaghan also works here for the Government in D.C. 
My son, Connor, and his wife, Lindsay, who are here. They are 
both educators in the Chicago area. My daughter, Jessica, who 
is here, is a recent graduate of the University of Iowa.
    Three of my seven brothers--Jim, Bob, and Bill--are here, 
and my brother-in-law, Dave, is here.
    Finally, I would like to acknowledge my parents, Tom and 
Collette, who are back in Chicago, could not make the trip, but 
hopefully with the help of one of their 27 grandchildren they 
have been able to dial into the Web and are watching this live.
    [Laughter.]
    Mr. Durkin. So thank you very much.
    [The biographical information of Mr. Durkin follows:]

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    Senator Coons. Judge Tigar.

  STATEMENT OF HON. JON S. TIGAR, NOMINEE TO BE U.S. DISTRICT 
         JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

    Judge Tigar. Thank you, Senator. I would like to start by 
thanking you and Ranking Member Grassley for conducting this 
hearing today, also Senator Feinstein. I would like to thank 
Senator Leahy and the Ranking Member for scheduling this 
hearing and thank each of the Senators on the Committee for 
their participation in this process. I feel privileged to be 
here today, and I am looking forward to answering any questions 
that you have about my application.
    I would like to thank President Obama for the honor of this 
nomination and Senator Boxer for her confidence in recommending 
me to the White House and both Senators Boxer and Feinstein for 
their very generous remarks of introduction.
    I am fortunate to be joined here today by a few family and 
friends. With me today is my wife of 20 years, Carrie Avery. 
Since we met 25 years ago in law school, Carrie has been my 
constant friend, companion, and adviser in all of my life's 
endeavors, and I am very privileged to have her here today.
    My two sons were not able to be here today, but they are 
watching these proceedings on the Webcast. Will is a history 
major at Williamette University in Salem, Oregon, and Adam is a 
high school junior.
    Also joining me here today are my father, Professor Michael 
Tigar; my friend William King from Birmingham, Alabama, whom I 
first met 23 years ago when we were both clerking for Judge 
Vance; and my friend Judge Jeb Boasberg of the Federal District 
Court for the District of Columbia, whom some of the Committee 
members may remember from prior proceedings. I have known Jeb 
ever since we practiced law together in San Francisco.
    I would also like to acknowledge the many family and 
friends who could not be here in person but who are watching on 
the Webcast, including my mother and stepfather, Pam and George 
Wagner; my grandmother, Elizabeth Tigar, who turned 95 years 
old last May; and too many others--excuse me, and many others 
too numerous to mention.
    Senators, I thank you for allowing me to make these 
introductions and for the opportunity to address you this 
afternoon. I have no opening statement, and I look forward to 
your questions.
    [The biographical information of Judge Tigar follows:]

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    Senator Coons. Thank you, Judge Tigar.
    Mr. Orrick.

  STATEMENT OF WILLIAM H. ORRICK III, NOMINEE TO BE DISTRICT 
         JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

    Mr. Orrick. Senator Coons, Senator Grassley, Senator 
Feinstein, thank you so much for convening this hearing. I want 
to express my appreciation to Senator Boxer----
    Senator Feinstein. Do you want to use your mic? Thank you.
    Mr. Orrick. I want to thank you all----
    Senator Grassley. It was on, and you just now turned it 
off.
    [Laughter.]
    Mr. Orrick. Well, I thought--it looked on to me.
    So I want to express my appreciation to all of you. I want 
to express my appreciation to Senator Boxer for her kind 
remarks today and for her role in my nomination, to Senator 
Feinstein for her kind remarks, and especially to the President 
of the United States for nominating me. This is a great honor, 
and I will do my best to fulfill the trust placed in me if I am 
confirmed.
    I want to introduce my family, most of my wonderful family 
that is here today: my wife, Caroline; my daughters, Sarah and 
Libby; my daughter, Kaggie, is in South Africa, but she will be 
watching on the Webcast, along with many other relatives and 
friends, and I appreciate very much their support.
    Thank you very much.
    [The biographical information of Mr. Orrick follows:]

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    Senator Coons. Thank you, Mr. Orrick.
    The Committee will now proceed with 5-minute rounds of 
questioning, and if I might just to open our questions, I would 
like to ask each of you in order, if you would, to just briefly 
for the Committee describe your judicial philosophy and your 
approach to the use of precedent in making decisions, were you 
to be confirmed to the Federal bench. Mr. Durkin.
    Mr. Durkin. Thank you, Senator. I believe my judicial 
philosophy would be one of being as fair as possible, treating 
litigants the way they should be treated, following precedent 
because I think it is the obligation of district court judges 
to follow precedent, in my case of the Seventh Circuit and of 
the Supreme Court, and ultimately treating litigants fairly and 
being patient with attorneys who appear in front of me.
    Senator Coons. Thank you, Mr. Durkin.
    Judge Tigar.
    Judge Tigar. Thank you, Senator. My judicial philosophy 
over the last decade has been and would continue to be to 
listen carefully and respectfully to the parties who appear in 
the court and to treat them with respect; to apply the law 
conscientiously to the facts in the dispute before me; and to 
decide every case promptly so that the litigants can have the 
dispute behind them and move on with their lives.
    In terms of the role of precedent, we live in a common law 
system, and precedent and stare decisis is the foundation of 
our system of justice, and I apply controlling precedent in 
every case, and I would like to think that my record over the 
last 10 years demonstrates that.
    Thank you.
    Senator Coons. Thank you, Your Honor.
    Mr. Orrick.
    Mr. Orrick. Senator, I am not sure that I have a judicial 
philosophy. I revere the rule of law, and I believe it is my 
role to understand the facts and then apply the law to them. I 
would follow precedent directly. I think it is important to 
provide just and speedy administration of justice, as Rule 1 of 
the Federal Rules requires, and be respectful to the people who 
come into my court.
    Senator Coons. Thank you.
    I would appreciate it if, again, all three of you would 
just answer two more questions. As a district judge, how would 
you see your role in ensuring fair access to our legal system? 
And what are your views on the role of the court in 
interpreting laws written and passed by legislative bodies? If 
you would, Mr. Durkin.
    Mr. Durkin. Thank you, Senator. As to the first question, 
ensuring access to the courts, obviously for criminal 
defendants there are Sixth Amendment guarantees of the right to 
counsel, and there is a very strong Federal defender program in 
the Northern District of Illinois consisting of many panel 
attorneys and staff attorneys. I am one of those panel 
attorneys. And we are often appointed to represent people who 
have both the right to counsel and a need for counsel.
    In the civil context, the Northern District of Illinois 
also has a program where judges appoint members of the Northern 
District Bar to represent individuals who are in need of 
counsel in civil matters.
    As to the question of interpreting laws of the United 
States, I believe that our obligation as district court judges, 
if I am lucky enough and fortunate enough to be confirmed, our 
obligation is to read the statute and interpret it according to 
the plain language of the statute itself and to follow 
controlling precedent, whether it be circuit court, the Seventh 
Circuit, or the Supreme Court.
    Senator Coons. Thank you, Mr. Durkin.
    Judge Tigar.
    Judge Tigar. Thank you, Senator. I think your question with 
respect to ensuring fair access to the courts for me really has 
two parts.
    One is making sure that the litigants can get into court. 
And when I was in private practice, I was the Chair of my 
firm's pro bono committee. I did a lot of pro bono work myself. 
And as you heard earlier, I currently am on the Board of 
Directors of our county bar association's Volunteer Legal 
Services Corporation, which facilitates pro bono and connects 
lawyers in private practice who are willing to provide those 
services to needy clients in our county.
    I think the second part--and this really is unique to the 
role of the judge--is to make sure that litigants in each 
proceeding understand what is happening in the proceeding and 
are treated respectfully and fairly so that they can know that 
the courtroom belongs to them just as much as it belongs to 
everybody else.
    I like to tell litigants, whether they are self-represented 
or not, who appear in my courtroom, ``You know, this room 
belongs to you, and I work for you. So you really need to feel 
comfortable. And one side is going to win and one side is going 
to lose, and there is nothing I can do about that.'' But 
everybody who appears in court should feel that they have a 
place there.
    With respect to interpreting rules passed by a legislative 
body, I really think my fellow nominee hit the nail on the 
head. I really think the plain language of the statute is the 
place that the analysis starts, and usually that is where it 
ends. And if that is insufficient, then I would look to 
controlling precedent, as Mr. Durkin described.
    Thank you.
    Senator Coons. Thank you, Judge Tigar, for that refreshing 
and insightful restatement of what equal access to justice can 
and should mean.
    Mr. Orrick.
    Mr. Orrick. Well, I do not have much to add to what my 
colleagues have said. I do believe that access to justice has 
two roles for a judge, and one is to exhort the bar to increase 
its efforts to do pro bono work. I did a substantial amount. I 
think it is a very important obligation of a lawyer.
    Second, when people are in my courtroom, they do need to 
understand what is going on, and I think I have a duty to 
ensure that they do.
    And then, finally, with respect to interpretation, you 
start with the statute, you apply controlling precedent.
    Senator Coons. Thank you, Mr. Orrick, Judge Tigar, Mr. 
Durkin.
    Senator Grassley.
    Senator Grassley. Thank you. I will start with Mr. Durkin.
    You have been involved with the ABA's Death Penalty 
Representation Project. I have a couple questions in regard to 
that. If before you answer my questions you would like to 
describe your role there, I would be glad to listen. But my two 
questions involve: Is there any doubt in your mind that the 
death penalty is constitutional? And, second, if confirmed, 
would you be able to impose the death penalty where 
appropriate?
    Mr. Durkin. Thank you, Senator. I do believe the death 
penalty statute is constitutional. The Supreme Court has so 
held, and I certainly would be willing to impose it if the 
crime that I presided over made it an appropriate sentence.
    My involvement with the ABA death penalty policy was--death 
penalty group was very limited. I simply went over to a meeting 
1 day as Chair of the Mayer Brown pro bono committee and 
encouraged lawyers to participate and help assist unrepresented 
defendants.
    Senator Grassley. OK. On another issue dealing with school 
choice, you ran for a position on the school board in 1993. You 
indicated that you were opposed to the use of school vouchers. 
What are your opinions on the constitutionality of school 
choice considering the 2006 Supreme Court decision in the 
Zelman case?
    Mr. Durkin. I am not familiar with that, although I have a 
general knowledge that certainly vouchers are permissible. My 
comment at the time when I ran for school board back in 1993 
related more to an issue of funding where I believe that the 
funding being supplied to our public school district was 
inadequate, and I was fearful that the use of vouchers would 
further diminish that funding. But I have no quarrel with the 
idea of vouchers being used, especially in light of the fact, I 
believe, that the Supreme Court has allowed it.
    Senator Grassley. Mr. Tigar, your questionnaire indicates 
that you were a member of the American Constitution Society for 
Law and Policy. Now, there is nothing wrong with membership in 
groups like that, but I have a question about goals of the 
organization, how they might affect your judgment.
    Peter Edelman, as Chair of the American Constitution 
Society Board of Directors, indicated a goal of the 
organization was ``countering right-wing distortions of the 
Constitution.'' He also has stated, ``What we want to do is 
promote a conversation, the idea of what a progressive 
perspective of the Constitution is and what it means to the 
country.''
    So please identify what right-wing distortions of the 
Constitution you are concerned about or feel need to be 
countered?
    Judge Tigar. Senator, the short answer is I do not have 
any. I was not familiar with Mr. Edelman's comment, and I 
simply am not aware of anything that would be an answer to that 
question.
    Senator Grassley. OK. In your view on another question, if 
you have an opinion on this, what is the progressive 
perspective of the Constitution?
    Judge Tigar. I am afraid I do not know the answer to that 
question. I do not know.
    Senator Grassley. Well, then----
    Judge Tigar. Perhaps I could expand a little, Senator. My 
role with the American Constitution Society has been 
occasionally to speak at events where I have been invited by 
them to speak. I take very seriously the obligation of a judge 
to be involved in his community, and I have spoken at many, 
many, many events. My American Constitution Society appearances 
have been only a small fraction of those, and if I had 
addressed either of the topics that you have mentioned in any 
of my speeches, then, of course, I would be happy to discuss 
those further now. But those just have not been part of my 
participation, and that is why I am not able to provide further 
information.
    Senator Grassley. And that is OK. Let me move on.
    In regard to the lectures you have given, you have been 
critical of Supreme Court cases limiting punitive damage awards 
based on due process concerns. Could you name three Supreme 
Court decisions in which you disagree with the holding of the 
majority?
    Judge Tigar. I cannot think--first of all, I think in my 
speeches what I have tried to indicate is that since the 
Supreme Court has started to issue opinions that place 
numerical limits on punitive damages, it is important for State 
legislatures to clarify those limits further, as some 
legislatures in the country have done. Off the top of my head, 
I am not a student of the Supreme Court, and I cannot think of 
three Supreme Court opinions where I disagree with the 
majority.
    Senator Grassley. Let me move on then, and I will end with 
this question, because my time is up. Specific cases you have 
mentioned previously include BMW v. Gore, State Farm v. 
Campbell, Philip Morris v. Williams, and Exxon Shipping v. 
Baker as among Supreme Court cases with which you disagree. 
Given your statements on these cases, what might we expect 
should you be confirmed and assigned a case dealing with 
punitive damages? And would you feel any obligation to recuse 
yourself?
    Judge Tigar. Senator, I believe that my remarks indicate 
that I am not opposed to the idea of limitation on the award of 
punitive damages, and I hope that whatever materials have been 
reviewed by the Senate do not indicate that, because it is not 
the case.
    Second, I can assure this Committee that in this matter, as 
with any matter that would come before me, that I would apply 
controlling precedent without exception and without resort at 
any time to my personal opinion on the issue.
    Senator Grassley. Thank you.
    Go ahead, Mr. Chairman.
    Senator Coons. Thank you very much, Senator Grassley.
    Senator Feinstein.
    Senator Feinstein. One of the reasons that I think the 
question on stare decisis or precedent is always asked is 
because we see so much of it being broken, and particularly for 
me, in the area of women's rights and women's reproductive 
systems. I would just like to ask this question of each of you. 
How do you view the precedent controlling Roe v. Wade?
    Mr. Durkin. Thank you, Senator. I believe the precedent 
controlling Roe v. Wade is--basically I think the Casey case is 
the controlling case at this point that Justice O'Connor 
authored, and that is the law of the land. And I would, of 
course, follow the law of the land because it is Supreme Court 
precedent, and as a district court judge, I am obligated to 
follow that precedent.
    Judge Tigar. Senator, I think Mr. Durkin did a very good 
job of stating my own view, and that is that Casey is 
controlling law on this issue, and I would apply that law.
    Thank you.
    Mr. Orrick. I have nothing more to add than that. It is 
absolutely the case that Casey is controlling.
    Senator Feinstein. Let me ask one other question. 
Particularly in California, the caseloads are very high. Let me 
ask the two judges, how do you view your talents vis-a-vis 
settlement of cases, the organization of your docket, how you 
would proceed in a very high caseload manner?
    Judge Tigar. Thank you, Senator. I live in a high-caseload 
environment now. As you heard earlier, my current docket is 
about 570 cases, and at various times I had very high 
caseloads. At one point I was the only family law judge in 
northern Alameda County, and I think my understanding is that 
the role in settlement is more restricted in Federal court than 
in State court. Obviously, I will not know that for sure unless 
I am fortunate enough to be confirmed.
    In my current job, though, I do have a role to play in 
settlement. Although I do not settle my own cases, I think 
judges participating in settlement conferences can help reduce 
their colleagues' caseloads.
    I also think that good case management plays a huge role in 
keeping the cases moving and in managing the size of the 
document, and that means usually in a civil department being 
available to the parties whenever they need you to resolve 
discovery disputes, to discuss case management issues, and to 
make sure that you are knowledgeable about every case that 
comes before you whenever that case is on your calendar. And I 
have tried to do those things, and hopefully I have had some 
success.
    Senator Feinstein. Thank you.
    Mr. Orrick.
    Mr. Orrick. You referenced my father earlier, Senator 
Feinstein.
    Senator Feinstein. Yes.
    Mr. Orrick. I would hope to manage my docket the way that 
he did, with dispatch, with firm deadlines, to encourage people 
to move their cases along and exhort people to settle using the 
different alternative dispute resolution mechanisms the court 
has available to them at the earliest time.
    Senator Feinstein. Thank you.
    Mr. Durkin, would you like to comment on that?
    Mr. Durkin. Thank you, Senator. I have been fortunate in my 
career to be an attorney for both plaintiffs and defendants. I 
have been a prosecutor and a criminal defense attorney, so I 
think I have a good appreciation for the motivations behind a 
lot of litigation, and I think that would serve me well in 
attempting to settle cases, which I think is a very, very 
important part of any judge's role.
    Senator Feinstein. Thank you. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Feinstein.
    If I could, each of you has made reference in some of your 
answers and in the introductions to your previous service, 
either as criminal prosecutor or defense attorney, as a public 
interest attorney, as a State court judge. I would be 
interested in hearing each of you in turn just describe for the 
panel for a moment, if you would, what are the most important 
lessons that you have learned in your various legal positions 
to date? And how would you then apply them as a Federal 
district court judge in what is a somewhat different role than 
any of you have previously held? Mr. Durkin.
    Mr. Durkin. Thank you, Senator. I think what I have 
learned, especially in my role as a Federal prosecutor, there 
is a fair amount of power that is part of that job, being an 
Assistant U.S. Attorney and in the end being First Assistant 
U.S. Attorney. And I think it is a necessary part of any power 
you have to recognize that it can be abused if you do not 
exercise it carefully. And that goes for prosecutors and it 
especially goes for lifetime-appointed judges. And I think I 
have learned that lesson by being a prosecutor, by being a 
defense attorney and observing other prosecutors, and appearing 
in front of many, many judges who have exercised, I believe, a 
fair amount of discretion and humility even though they have a 
position where they could abuse it if they wanted to. I have 
learned from appearing in front of all people, all judges like 
that.
    Senator Coons. Thank you, Mr. Durkin.
    Judge Tigar.
    Judge Tigar. Thank you for the question. I would say in the 
last 10 years the two lessons I have learned best in terms of 
good judicial practice are the need to have a good judicial 
temperament and the need to be decisive. Probably in my 
experience, the most important thing to litigants is not only 
being heard but feeling heard. We know at least half the people 
who come into court are not going to win. They are going to go 
away empty-handed, or they are going to go away with a loss. It 
is very important to everybody to know that the court heard 
what they had to say and considered it carefully before making 
a decision. And so that means never coming to a case with any 
prejudgment or bias, making sure that you have heard all the 
facts and heard all the arguments before you begin as a judge 
to make up your mind, treating everybody with respect, never 
using the power of your office to talk down to anybody or to 
use your authority in a way that would make anybody 
uncomfortable, so that when people leave the courtroom, they 
can know that the court carefully considered whatever it is 
they had to say in making this important decision in their 
lives.
    I think decisiveness also, though, is very important 
because every lawyer I have talked to, plaintiff's lawyer or 
defense lawyer, will say, ``For my clients, the most important 
thing about the litigation is not being in litigation, and 
being able to have this dispute behind him and just kind of 
move on with their lives.'' So I think it is important for 
judges to be fair, but it is also important to be prompt.
    Thank you.
    Senator Coons. Thank you, Judge.
    Mr. Orrick.
    Mr. Orrick. Senator, I have represented low-income people 
in Georgia for 25 years. I represented corporations and people 
with more power in society in my private practice and in the 
last 3 years have represented the United States. I think the 
thing that I have learned from all of that is that nobody has 
got a monopoly on the truth or on justice, and that is why I 
believe so strongly in the rule of law. It is important for a 
judge to understand the facts and then follow the law that is 
in front of them because that is the best way to create and 
maintain a good system of justice.
    Senator Coons. Thank you.
    Senator Grassley.
    Senator Grassley. Yes, I have one question for all three of 
you, and then I have some questions I want to ask Mr. Orrick. I 
and other members of this Committee have previously emphasized 
the importance of a nominee being able to follow precedent, so 
my first question is very general, but I will follow it with a 
more specific question. Are each of you committed to following 
precedent of the circuit and Supreme Court even though you may 
disagree with it? And I want to bring up specifically whether 
you are committed to following precedent in the gun cases like 
Heller and McDonald that have been before the Supreme Court 
affording the individual right to possess arms. Mr. Durkin.
    Mr. Durkin. Thank you, Senator. I am committed to following 
precedent generally and regarding the Heller case.
    Senator Grassley. OK.
    Judge Tigar. Senator, yes, I am. Thank you.
    Senator Grassley. Thank you.
    Mr. Orrick. Senator, absolutely.
    Senator Grassley. OK. Mr. Orrick, you have told the 
Committee that you were involved in the Justice Department's 
preemption law concerning immigration of Arizona, Alabama, 
South Carolina, Utah. Two weeks ago, you know about the Arizona 
case addressing Senate bill 1070. And the Justice Department 
sued Arizona and sought to preempt.
    Section B, a central provision in the statute, requires 
officers conducting a stop, detention, or arrest to make 
reasonable efforts to verify the person's immigration status 
with the Federal Government. The Court unanimously rejected the 
Justice Department's preemption argument on Section 2(B). In 
his concurring dissenting opinion, Justice Alito analyzed the 
meritless and extreme nature of the argument of this 
administration. Alito explained, ``The United States' argument 
that Section 2(B) is pre-empted, not by any Federal statute or 
regulation, but simply by the Executive's current enforcement 
policy is''--and it emphasizes--``an astounding assertion of 
Federal executive power that the Court rightly rejects.''
    Alito also recognized the damage that could be done to our 
system of Government if the Obama administration argument were 
adopted by the Court. He thusly explained, ``If accepted, the 
United States' preemption argument would give the Executive 
unprecedented power to invalidate State laws that do not meet 
with its approval even if the State laws are otherwise 
consistent with Federal statute and duly promulgated 
regulations. This argument, to say the least, is fundamentally 
at odds with our Federal system.''
    Hence, I have two questions. First, Justice Alito argued 
that the United States' preemption argument would give the 
Executive unprecedented power. In your view, if the Court had 
accepted the administration's argument, what limits, if any, 
would be on the Executive's power to invalidate State laws that 
it did not agree with?
    Mr. Orrick. Thank you for that question, Senator. I think 
that the opinion of Justice Kennedy on Section 2(B) laid out 
the lines of the appropriate argument. Justice Kennedy 
indicated that the line was different than where the Federal 
Government had. The burden on the Government was something that 
was significant but not proven, and that racial profiling was 
an issue that was significant but not proven.
    And so I think the issue is--of the question that you asked 
is--was a very case-specific, statute-specific analysis. The 
Supreme Court drew the line differently than the Department did 
on that issue. It did agree with us on the other issues. But I 
do not see it as some sort of unlimited reach for the Federal 
Government. That was not the position that we intended to take.
    Senator Grassley. Second, Alito argued that the 
administration's argument was meritless because under the 
framework presented by the administration, what was or was not 
preempted would shift and change merely because the Executive's 
priority changed from one administration to the next, possibly 
even during the same administration. Do you agree? And if not, 
why not?
    Mr. Orrick. I do not agree that that was the position that 
we took, Senator. We tried to tie the arguments that we made to 
the INA and to the Constitution. The Supreme Court did not 
agree with the line that we drew.
    We pointed out for conflict preemption that there was 
burden that was placed on the Department of Homeland Security. 
That was the Ninth Circuit agreed and the district court 
agreed, but obviously the Supreme Court did not.
    Senator Grassley. OK. On a question of your involvement 
with DOMA--and is this case called Liu v. Holder? Is that how 
that is pronounced?
    Mr. Orrick. Yes.
    Senator Grassley. The Department of Justice submitted a 
brief opposing the motion to dismiss. In that document, you 
summarized a key case from 1982, Adams v. Howerton, stating, 
``The Ninth Circuit Court of Appeals assumed that plaintiffs 
were parties to a valid same-sex marriage under State law.'' 
That misinterprets the Adams case. The Ninth Circuit actually 
said, ``It is not clear whether Colorado would recognize a 
homosexual marriage. While we might well make an educated guess 
as to how Colorado courts would decide this case, it is 
unnecessary for us to do so. We decide this case solely upon 
the second step in our two-step analysis.''
    Moreover, the Court seemed to indicate that the Colorado 
State law and the Colorado State court system would likely 
decide the opposite, that a homosexual marriage would not be 
valid under existing Colorado State law. So I have two 
questions, and I will ask them separately.
    Why did you and the Justice Department assert the Adams 
opinion ``assumed that plaintiffs were parties to a valid same-
sex marriage'' in your memorandum when that clearly is not what 
the opinion says?
    Mr. Orrick. Well, Senator, I am not specifically aware of 
that. I believe----
    Senator Grassley. Then I will ask you to respond in 
writing.
    Mr. Orrick. That would be fine. Thank you.
    [The information referred to appears as a submissions for 
the record.]
    Senator Grassley. Secondly, I recognize that as you sit 
here today you may not be able to recall the specifics of that 
brief, but assuming what I say is true, do you believe that it 
is appropriate to misrepresent a binding case law in this way?
    Mr. Orrick. Well, it is absolutely not appropriate under 
any circumstance to mis-cite a case.
    Senator Grassley. OK. Let me follow up with a question, and 
if you do not think you can answer it, I will take your answer 
in writing.
    The district court in Liu upheld the prior precedent set by 
Adams, thus Adams is still binding precedent in the Ninth 
Circuit. If confirmed, would you follow the Adams precedent?
    Mr. Orrick. I will follow controlling precedent wherever it 
exists.
    Senator Grassley. OK. Given your prior representation of 
the Department of Justice, what would you do if you were given 
a similar case to preside over? Would you recuse yourself? And 
if not, how would you approach the case?
    Mr. Orrick. Senator, I would recuse myself from any case 
which had started under my watch because I think the appearance 
of impropriety would exist. But, otherwise, I would approach 
the case the same way that I approach any other case. I have 
spent my career handling lots of different cases and separating 
out my personal views from the views that--my duties as a 
lawyer, and I would do that as a judge.
    Senator Grassley. Can I proceed? I am getting close to the 
end here.
    In a speech you gave to the U.S. Immigration and Customs 
Enforcement Office of the Principal Legal Advisers Conference 
in Chicago last year, you stated, ``At the end of the day, the 
prosecutorial discretion decision is about doing justice and 
maintaining the credibility and integrity of the immigration 
system, and the better you know the implications of your 
decision from the perspective of others, the more likely that 
you will make the most informed best choice.''
    Do you believe that judges have a similar duty to evaluate 
the effects that their decisions will have in order to maintain 
the credibility and integrity of the judicial system? Or should 
judges apply the law without passion or bias, deferring to the 
legislature and binding precedents regardless of outcome?
    Mr. Orrick. The latter, Senator. The role of a judge is to 
apply the law to the facts without those other considerations.
    Senator Grassley. Lastly--and I only ask you this question 
because you have been politically active, and I do not find any 
fault with your being politically active, and I have got some 
information here that I am not going to bother to read because 
it does not really matter. But you are a big political 
operative as compared to most judges that come before us. What 
assurances can you offer this Committee and prospective parties 
that you will be a fair judge who will not use the Federal 
bench to achieve political or philosophical goals? What can you 
tell us to give us confidence that you will be able to set 
aside your political views and separate those from the role of 
being an impartial adjudicator?
    Mr. Orrick. Senator, I really believe that ideology, 
politics, has no role in the courtroom, and for 25 years in 
private practice, I represented people who were wealthy, who 
were taking positions that I was perfectly comfortable to 
represent. Four years before that, I was representing poor 
people who were taking positions that I was perfectly 
comfortable to present. I have represented people on both sides 
of issues over time. I will not have a problem in separating 
that out if I am lucky enough to be confirmed as a judge.
    Senator Grassley. Thank you all very much.
    Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Grassley. I want to say 
to our three nominees and to their families and friends and 
supporters, I am grateful for your willingness to serve our 
great Nation. An Article III judgeship is a great honor, but 
also an opportunity, an opportunity to serve and to administer 
justice, and I think it is important that this Committee ask 
questions that are searching and thorough.
    Again, I just want to give Senator Durbin's regret for at 
the last moment really not being able to be with us today and 
his gratitude to Mr. Durkin for your willingness to serve, and 
my appreciation to all three of you for what you are bringing 
to the potential of service in the Federal judiciary.
    With that, we will hold the record of this hearing open for 
a week if there are other members of the Committee who wish to 
submit questions in writing but who were not here with us 
today. And, again, I want to thank the nominees for being here 
and congratulate them on their nominations.
    We stand in recess.
    [Whereupon, at 3:01 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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