[Senate Hearing 112-72, Part 9]
[From the U.S. Government Publishing Office]




                                                   S. Hrg. 112-4, Pt. 9
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                       
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                   SEPTEMBER 19 AND DECEMBER 12, 2012

                               ----------                              

                           Serial No. J-112-4

                               ----------                              

                                 PART 9

                               ----------                              

         Printed for the use of the Committee on the Judiciary

                                     ______
            
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                                                  S. Hrg. 112-72, Pt. 9

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                   SEPTEMBER 19 AND DECEMBER 12, 2012

                               __________

                           Serial No. J-112-4

                               __________

                                 PART 9

                               __________

         Printed for the use of the Committee on the Judiciary

                       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

                              ----------                              

                           SEPTEMBER 19, 2012
                           
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Schumer, Hon. Charles, a U.S. Senator from the State of New York.     1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   265

                               PRESENTERS

Nelson, Hon. Bill, a U.S. Senator from the State of Florida, 
  presenting Sheri Polster Chappell, Nominee to be U.S. District 
  Judge for the Middle District of Florida.......................     2
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, presenting Troy L. Nunley, Nominee to be U.S. 
  District Judge for the Eastern District of California..........     3

                       STATEMENTS OF THE NOMINEES

Failla, Katherine Polk, Nominee to be U.S. District Judge for the 
  Southern District of New York..................................     8
    Questionnaire................................................     9
Chen, Pamela Ki Mai, Nominee to be U.S. District Judge for the 
  Eastern District of New York...................................    57
    Questionnaire................................................    58
Nunley, Troy L., Nominee to be U.S. District Judge for the 
  Eastern District of California.................................   110
    Questionnaire................................................   111
Chappell, Sheri Polster, Nominee to be U.S. District Judge for 
  the Middle District of Florida.................................   151
    Questionnaire................................................   152
Barnett, Mark A., Nominee to be a Judge of the U.S. Court of 
  International Trade............................................   209
    Questionnaire................................................   210

                               QUESTIONS

Questions for Katherine Polk Failla submitted by Senator Grassley   274
Questions for Pamela Ki Mai Chen submitted by Senator Grassley...   276
Questions for Troy L. Nunley submitted by Senator Grassley.......   279
Questions for Sheri Polster Chappell submitted by Senator 
  Grassley.......................................................   282
Questions for Mark A. Barnett submitted by Senator Grassley......   285
Questions for all nominees submitted by Senator Klobuchar........   287

                                ANSWERS

Responses of Katherine Polk Failla to questions submitted by 
  Senators Grassley and Klobuchar................................   288
Responses of Pamela Ki Mai Chen to questions submitted by 
  Senators Grassley and Klobuchar................................   292
Responses of Troy L. Nunley to questions submitted by Senators 
  Grassley and Klobuchar.........................................   301
Responses of Sheri Polster Chappell to questions submitted by 
  Senators Grassley and Klobuchar................................   307
Responses of Mark A. Barnett to questions submitted by Senators 
  Grassley and Klobuchar.........................................   313

                       SUBMISSION FOR THE RECORD

American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Katherine P. Failla, June 26, 2012, letter.....................   318
Asian American Bar Association of New York, Linda S. Lin, New 
  York, New York: Pamela Ki Mai Chen, August 2, 2011, letter.....   319
McDowell Mountain Precinct, Maricopa County, Arizona, Daniel F. 
  Ryan: Pamela Ki Mai Chen, August 18, 2012, letter..............   322
Department of Homeland Security, New York Field Office, James T. 
  Hayes, Jr., New York: Pamela Ki Mai Chen, September 13, 2012, 
  letter.........................................................   323
New York City Bar, Elizabeth Donoghue, New York, New York: Pamela 
  Ki Mai Chen, September 15, 2012, letter........................   324
Holton, Dwight, former U.S. Attorney, District of Oregon; Leslie 
  R. Caldwell, Morgan, Lewis, and Bockius; Peter Grupe, former 
  FBI agent; Michael D. Harkins, Managing Director, Risk Control 
  Strategies; Eric Corngold, Partner, Friedman, Kaplan, Seiler & 
  Adelman LLP; Richard Donoghue, former Assistant States 
  Attorney, Eastern District of New York; Kelly Currie, Partner, 
  Crowell & Moring LLP; John Curran, Managing Director, Stroz 
  Friedberg; Mitra Hormozi, Partner, Kirkland & Ellis; Kelly A. 
  Moore, Partner, Morgan, Lewis, and Bockius; Lee Freedman, 
  former Assistant U.S. Attorney, Eastern District of New York; 
  Colleen Kavanagh, former Assistant U.S. Attorney, Eastern 
  District of New York; Andrew Genser, Partner, Kirkland & Ellis; 
  Steven Weiser, Deputy General Counsel, Silver Point Capital; 
  Lauren Resnick, former Assistant U.S. Attorney, Eastern 
  District of New York; Bernadette Miragliotta, former Assistant 
  U.S. Attorney, Eastern District of New York; Michael Beys, 
  Partner, Beys, Stein & Mobargh; Samantha L. Schreiber, former 
  Assistant U.S. Attorney, Eastern District of New York; Alphonso 
  Grant, former Assistant U.S. Attorney, Eastern District of New 
  York; Christopher Gunther, Partner, Skadden Arps; Andrew 
  Frisch, former Assistant U.S. Attorney, Eastern District of New 
  York; Michele Delong, former Assistant U.S. Attorney, Eastern 
  District of New York; Melissa Marus, former Assistant U.S. 
  Attorney, Eastern District of New York; Daniel Wenner, former 
  Assistant U.S. Attorney, Eastern District of New York; 
  September 17, 2012, joint letter...............................   325
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Pamela K. Chen, August 7, 2012, letter.........................   328
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Troy L. Nunley, June 26, 2012, letter..........................   329
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Sheri P. Chappell, June 26, 2012, letter.......................   330
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Mark A. Barnett, July 12, 2012, letter.........................   331
Prepared statement by Senator Nelson introducing Sheri Polster 
  Chappell.......................................................   332
Prepared statement by Senator Boxer introducing Troy L. Nunley...   337
Prepared statement by Senator Rubio introducing Sheri Polster 
  Chappell.......................................................   338
                              ----------                              

                           DECEMBER 12, 2012
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................   348
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   349
    prepared statement...........................................   699
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   706
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   709

                               PRESENTERS

Reid, Hon. Harry, a U.S. Senator from fhe State of Nevada, 
  presenting Andrew Patrick Gordon, Nominee to be District Judge 
  for the District of Nevada.....................................   341
Heller, Hon. Dean, a U.S. Senator from the State of Nevada, 
  presenting Andrew Patrick Gordon, Nominee to be District Judge 
  for the District of Nevada.....................................   343
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  presenting Beverly Reid O'Connell, Nominee to be District Judge 
  for the Central District of California.........................   344
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana, 
  presenting Shelly Deckert Dick, Nominee to be District Judge 
  for the Middle District of Louisiana...........................   345
Vitter, Hon. David, a U.S. Senator from the State of Louisiana, 
  presenting Shelly Deckert Dick, Nominee to be District Judge 
  for the Middle District of Louisiana...........................   346
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia, presenting Ketanji Brown Jackson, Nominee 
  to be District Judge for the District of Columbia..............   346
Ryan, Hon. Paul, a Representative in Congress from the State of 
  Wisconsin, presenting Ketanji Brown Jackson, Nominee to be 
  District Judge for the District of Columbia....................   347

                       STATEMENTS OF THE NOMINEES

Dick, Shelly Deckert, Nominee to be District Judge for the Middle 
  District of Louisiana..........................................   351
    Questionnaire................................................   353
Gordon, Andrew Patrick, Nominee to be District Judge for the 
  District of Nevada.............................................   443
    Questionnaire................................................   444
Jackson, Ketanji Brown, Nominee to be District Judge for the 
  District of Columbia...........................................   497
    Questionnaire................................................   498
O'Connell, Beverly Reed, Nominee to be District Judge for the 
  Central District of California.................................   601
    Questionnaire................................................   602

                               QUESTIONS

Questions for Shelly Deckert Dick submitted by Senator Coburn....   712
Questions for Andrew Patrick Gordon submitted by Senator Coburn..   713
Questions for Ketanji Brown Jackson submitted by Senator Coburn..   714
Questions for Beverly Reid O'Connell submitted by Senator Coburn.   715
Questions for all judicial nominees submitted by Senator Cruz....   716
Questions for Shelly Deckert Dick submitted by Senator Flake.....   717
Questions for Andrew Patrick Gordon submitted by Senator Flake...   718
Questions for Ketanji Brown Jackson submitted by Senator Flake...   719
Questions for Beverly Reid O'Connell submitted by Senator Flake..   720
Questions for Shelly Deckert Dick submitted by Senator Grassley..   721
Questions for Andrew Patrick Gordon submitted by Senator Grassley   723
Questions for Ketanji Brown Jackson submitted by Senator Grassley   725
Questions for Beverly Reid O'Connell submitted by Senator 
  Grassley.......................................................   728
Questions for all judicial nominees submitted by Senator 
  Klobuchar......................................................   730

                                ANSWERS

Responses of Shelly Deckert Dick to questions submitted by 
  Senator Coburn.................................................   731
Responses of Shelly Deckert Dick to questions submitted by 
  Senator Cruz...................................................   733
Responses of Shelly Deckert Dick to questions submitted by 
  Senator Flake..................................................   736
Responses of Shelly Deckert Dick to questions submitted by 
  Senator Grassley...............................................   739
Responses of Shelly Deckert Dick to questions submitted by 
  Senator Klobuchar..............................................   742
Responses of Andrew Patrick Gordon to questions submitted by 
  Senator Coburn.................................................   743
Responses of Andrew Patrick Gordon to questions submitted by 
  Senator Cruz...................................................   745
Responses of Andrew Patrick Gordon to questions submitted by 
  Senator Flake..................................................   748
Responses of Andrew Patrick Gordon to questions submitted by 
  Senator Grassley...............................................   752
Responses of Andrew Patrick Gordon to questions submitted by 
  Senator Klobuchar..............................................   757
Responses of Ketanji B. Jackson to questions submitted by Senator 
  Coburn.........................................................   758
Responses of Ketanji B. Jackson to questions submitted by Senator 
  Cruz...........................................................   760
Responses of Ketanji B. Jackson to questions submitted by Senator 
  Flake..........................................................   763
Responses of Ketanji B. Jackson to questions submitted by Senator 
  Grassley.......................................................   766
Responses of Ketanji B. Jackson to questions submitted by Senator 
  Klobuchar......................................................   774
Responses of Beverly Reid O'Connell to questions submitted by 
  Senator Coburn.................................................   775
Responses of Beverly Reid O'Connell to questions submitted by 
  Senator Cruz...................................................   777
Responses of Beverly Reid O'Connell to questions submitted by 
  Senator Flake..................................................   780
Responses of Beverly Reid O'Connell to questions submitted by 
  Senator Grassley...............................................   783
Responses of Beverly Reid O'Connell to questions submitted by 
  Senator Klobuchar..............................................   786

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Shelly D. Dick, April 26, 2012, letter.........................   787
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Andrew Patrick Gordon, September 20, 2012, letter..............   788
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Ketanji B. Jackson, September 21, 2012, letter.................   790
American Bar Association (ABA), Allan J. Joseph, Washington, DC: 
  Beverly Reid O'Connell, November 15, 2012, letter..............   792
Girardi/Keese Law Firm, Thomas V. Girardi, Los Angeles, 
  California: Beverly Reid O'Connell, December 10, 2012, letter..   794
Heller, Hon. Dean, a U.S. Senator from the State of Nevada, 
  December 12, 2012, prepared statement..........................   795
                              ----------                              

                     ALPHABETICAL LIST OF NOMINEES

Barnett, Mark A., Nominee to be a Judge of the U.S. Court of 
  International Trade............................................     7
Chappell, Sheri Polster, Nominee to be U.S. District Judge for 
  the Middle District of Florida.................................     2
Chen, Pamela Ki Mai, Nominee to be U.S. District Judge for the 
  Eastern District of New York...................................     5
Dick, Shelly Deckert, Nominee to be District Judge for the Middle 
  District of Louisiana..........................................   345
Failla, Katherine Polk, Nominee to be U.S. District Judge for the 
  Southern District of New York..................................     5
Gordon, Andrew Patrick, Nominee to be District Judge for the 
  District of Nevada.............................................   341
Jackson, Ketanji Brown, Nominee to be District Judge for the 
  District of Columbia...........................................   346
Nunley, Troy L., Nominee to be U.S. District Judge for the 
  Eastern District of California.................................     3
O'Connell, Beverly Reed, Nominee to be District Judge for the 
  Central District of California.................................   344


 NOMINATION OF KATHERINE POLK FAILLA, OF NEW YORK, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; PAMELA KI MAI 
 CHEN, OF NEW YORK, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN 
DISTRICT OF NEW YORK; HON. TROY L. NUNLEY, OF CALIFORNIA, NOMINEE TO BE 
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA; HON. SHERI 
POLSTER CHAPPELL, OF FLORIDA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
 MIDDLE DISTRICT OF FLORIDA; AND MARK A. BARNETT, OF VIRGINIA, NOMINEE 
         TO BE A JUDGE OF THE U.S. COURT OF INTERNATIONAL TRADE

                              ----------                              


                     WEDNESDAY, SEPTEMBER 19, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, presiding.
    Present: Senators Schumer, Feinstein, Franken, Blumenthal, 
Grassley, and Lee.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Schumer. The hearing will come to order, and I want 
to welcome all of our nominees as well as their families and 
friends. I want to thank Senator Grassley for his hard work on 
behalf of our nominees to the federal bench.
    And, first, I am going to introduce Senator Nelson, who is 
here, who will introduce Sheri Polster Chappell for the Middle 
District of Florida. Senator Nelson.

PRESENTATION OF HON. SHERI POLSTER CHAPPELL, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. BILL 
        NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson. Thank you, Mr. Chairman, and indeed it is a 
great privilege again to be here in front of the Committee on 
behalf of my colleague Senator Rubio. The two of us, as you 
know, we take the partisanship out of the selection of judges 
by having a judicial nominating commission that the two of us 
appoint. And over the course of years, it has extraordinarily 
worked to produce the highest-quality recommendations for 
judges. And that is because you have prominent members of the 
community all over Florida that Senator Rubio and I select, and 
they do all of the receiving of the applications, the 
interviewing, and the selections for a particular position that 
is vacant. They will give us three names. We have an agreement 
with the White House that the White House will select from 
among the names--usually three, although in some cases four--
that we send to them, and we will let the White House know if 
the Senators have an objection. And it is that process that, 
again, we come to you today with an excellent recommendation 
that the President then selected as the nominee, and we would 
encourage the Senate to confirm Judge Sheri Chappell.
    She is a magistrate judge. It is the Middle District of 
Florida, but it is a district that runs all the way from the 
south that covers Collier County, which is Naples on the west 
coast, all the way north to Nassau County on the Georgia line 
on the east coast. That is how big this Middle District is. And 
as a result of our State having this rich tradition of working 
on both sides of the aisle to put forth the strong candidates, 
that is how we come to you today.
    Judge Chappell is originally from Fort Myers, Florida. That 
is where the federal courthouse is in the southernmost 
southwest part of that Middle District. And if the Senate 
confirms her, it is my understanding that she wants to retain 
her residence there and be the resident federal judge in that 
courthouse.
    She is joined today--and if you all would just wave your 
hands--by her husband, Christopher; their sons, Michael and 
Zachary; her brother, Barry Polster; and then her law clerks, 
Douglas Kemp, Brigette Willauer, and Brigette's husband, Nick 
Mizell, who is a former law clerk of Judge Chappell's.
    She has served as the magistrate since 2003. Before that 
she was the lead county judge for the 12th Judicial Circuit in 
Florida. She began her career as an assistant States Attorney, 
and that goes all the way from 1987 to 2000.
    She is an active member of the community. She served on the 
Florida Prosecuting Attorneys Association, the Domestic 
Violence Task Force, and the Truancy Board. She has a bachelor 
of arts degree from the University of Wisconsin and a juris 
doctor at Nova Southeastern. And so you can see that we have an 
extremely well-qualified nominee. I would recommend her for 
consideration to the Judiciary Committee.
    Senator Schumer. Well, thank you, Senator Nelson. The 
Committee knows that you and Senator Rubio are very careful 
about whose names you send forward to the President, and we 
very much appreciate your testimony. I know you have a busy 
schedule, so do not feel that you have to stay here and listen 
to everything else.
    Senator Nelson. Thank you, Mr. Chairman.
    Senator Schumer. Okay. Senator Grassley has--I mentioned 
the cooperation we have had from his staff before he came in. 
He has an opening statement. In the interest of time, he will 
submit it for the record. Without objection.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Schumer. So next I am going to call on Senator 
Feinstein, who will introduce her nominee, Troy L. Nunley, for 
the United States District Court for the Eastern District of 
California.

    PRESENTATION OF HON. TROY L. NUNLEY, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA, BY HON. 
 DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman, 
Senator Grassley. I would like to offer my strong support for 
Judge Troy Nunley, whom I recommended to the President for the 
Eastern District of California after my bipartisan judicial 
advisory committee gave him a strong recommendation. I hope my 
colleagues will support his nomination.
    Judge Nunley currently sits on the Sacramento Superior 
Court, and he lives in Sacramento with his wife, Susan 
Lawrence, who is here today. They have four children--Simone, 
Celeste, Dominic, and Dylan--two of whom are out of college and 
working and two who are younger and still in school. Also 
joining Judge Nunley today are his mother, Gennie Nunley 
Thompson, and his brother-in-law, Thomas Anthony, and I would 
like to welcome Judge Nunley's family to the Judiciary 
Committee today. If you would stand, we will just give you a 
little bit of applause, and it is great to have you here, so 
thank you very much.
    [Applause.]
    Senator Feinstein. Judge Nunley was raised in the Hunters 
Point Housing Project of San Francisco, a place I know well. 
His father left home when he was two years old. His mother, 
then 21, raised the family of four children herself. She worked 
two jobs, attended college, and taught her children the value 
of hard work, integrity, and setting goals.
    Judge Nunley went to high school at Sacred Heart Cathedral 
Preparatory. He was also a honor student. Early in his life, he 
witnessed the horrors of crime being committed against his own 
family as well as others in the community, and this motivated 
him to go into public service as a prosecutor.
    He earned his bachelor's degree from Saint Mary's College 
in Moraga in 1986 and his law degree from the University of 
California, Hastings College of the Law in 1990.
    Following law school, he became a deputy D.A. in the 
Alameda County D.A.'s office where he served from 1990 to 1994. 
As deputy D.A., he managed and prosecuted a large volume of 
criminal cases, including adult felony and misdemeanor cases. 
He has also worked on arraignments, bail hearings, and 
sentencing reports.
    After two years in private practice as a solo practitioner, 
Mr. Nunley joined that Sacramento D.A.'s office, serving as 
deputy D.A. from 1996 to 1999. And during his prosecutorial 
career, he tried approximately 150 criminal cases. He joined 
the California Department of Justice in 1999, serving as Deputy 
Attorney General in the Appeals, Writs, and Trials Section of 
the office, as well as on the department's Hate Crimes Task 
Force.
    Judge Nunley has handled numerous habeas petitions by State 
prisoners, experience that will serve him well on a court that 
is heavily burdened with habeas petitions and prisoner cases.
    In 2002, he was appointed to serve as a superior court 
judge in Sacramento. In his 10 years on the bench, he has 
served with distinction, presiding over 414 cases, including 
felony and misdemeanor trials, civil trials, juvenile 
delinquency, and dependency cases.
    While his background is that of a prosecutor, he has earned 
the respect of the criminal defense bar as well. In fact, the 
Sacramento Indigent Criminal Defense Panel name him Judge of 
the Year in 2009.
    Despite his busy docket, Judge Nunley finds time to make 
meaningful contributions to the community. He frequently speaks 
to underprivileged youth on topics like juvenile justice and 
education. He has also served on parents' boards at numerous 
Sacramento area schools, and he continues to coach basketball 
and Little League baseball teams.
    Before I close, Mr. Chairman, I would like to say a few 
words about the caseload in the Eastern District. While every 
judicial district in California is a judicial emergency, the 
court to which Judge Nunley has been nominated, the Eastern 
District of California, has the most dire situation. Its 
caseload is 1,100 weighted filings per authorized judgeship--
the highest in the Nation and over twice the Nation's average. 
It also has nearly 1.3 million people per judgeship--the 
highest number in the Nation by almost 500,000.
    These figures, inconsequential as they may seem to people 
who do not understand them, mean that justice is severely 
delayed for the eight million people who live in the Eastern 
District, including the Central Valley and the cities of 
Sacramento, Fresno, and Bakersfield. So moving Judge Nunley's 
nomination quickly, which I hope we can do, would help address 
this backlog. He is well qualified, he is dedicated. He will 
bring a lifetime of overcoming adversity, an impressive work 
ethic, a career as a prosecutor, 10 years of judicial 
experience, and sorely needed judicial resources to the federal 
bench in the Eastern District.
    I am very happy to support him. I hope my colleagues will 
also, and thank you for this courtesy.
    Senator Schumer. Well, thank you, Senator Feinstein. Again, 
like Senator Nelson, we know the care with which you nominate 
people or send people to the President to be nominated, and so 
that will matter a lot to the Committee.
    Senator Feinstein. Thank you.
    Senator Schumer. Okay. Now, I am chairing the hearing today 
because we have two New Yorkers who are nominated to the bench. 
Both are truly outstanding, and so I would like to introduce 
both of them with the Committee's permission.
    It is first my honor to introduce Pamela Chen, a nominee 
for the bench in the Eastern District of New York. First, I 
would like to acknowledge her guests: her partner, Amy Chester. 
Will you please raise your hand or stand up? The partner's 
sister, Sara Glasser; and numerous friends. The friends do not 
have to stand up. Just wave your hands, numerous friends. Oh, 
there are numerous friends. Okay.
    Ms. Chen was born in Chicago, Illinois, where she grew up 
with her parents and brother. Her parents came here from China 
in the 1940s and built lives for themselves in this country. 
She came by her zeal for public service honestly. Her father 
worked for the Federal Government, for the IRS, for over 30 
years. Her mother was a professor of political science and 
sociology.
    When I first met Ms. Chen, I do not think it took more than 
five minutes before she talked about how proud she was of her 
parents, how grateful she was for the sacrifices they made so 
that she and her brother could not just thrive but excel in 
their studies and their professions.
    Ms. Chen graduated from the University of Michigan and then 
Georgetown University. As a young lawyer, she first worked in 
two different litigation firms here in Washington, and then 
began her really illustrious career in service to our 
government by joining the Special Litigation Section of the 
Civil Rights Division of the Department of Justice. There she 
specialized in cases involving the rights of individuals 
confined to State and local facilities, such as nursing homes 
and facilities for the mentally ill.
    Luckily for the people of New York, she came to the Office 
of the U.S. Attorney for the Eastern District in 1998, and she 
has been there ever since. It is one of the outstanding U.S. 
District Attorney's Offices in the country. She has been the 
chief of the Civil Rights Litigation Unit and is now chief of 
the Civil Rights Section for the office. She has prosecuted all 
manner of public corruption, gang, narcotics, and terrorism 
cases--the latter, of course, is one of the most active 
antiterrorism offices in the country.
    Recently, she became internationally renowned for her tough 
and important prosecutions of human-trafficking cases. Along 
the way she has won nearly every aware given by DOJ, and at the 
end of this month, she will receive the Partnership in Public 
Safety Award from the International Association of the Chiefs 
of Police for her work with the ICE on human trafficking.
    So Ms. Chen is, all in all, not just a career prosecutor, 
although that in itself is a high calling, but a person whose 
lifelong dedication to justice and to simply doing the right 
thing bespeaks a perfect temperament for the bench. Anyone you 
talk to in New York will attest to this quality--or anyone who 
knows her. There are 19 million people. I do not think she 
knows every one of them. But anyone who knows her who you talk 
to in New York will attest to this quality, and I look forward 
to many more years of Ms. Chen's public service.
    Our second nominee is equally outstanding. Katherine Failla 
is the President's nominee for the district court in the 
Southern District, and she is currently an Assistant U.S. 
Attorney with the office of the Southern District. She is one 
of those highly intelligent, analytical individuals who was 
probably born to be a lawyer and, once a lawyer, almost 
certainly destined to be a judge.
    Born in Edison, New Jersey, she earned a B.A. cum laude 
from William and Mary, her law degree from Harvard. After 
clerking for the federal court in New Jersey, she practices in 
New York City with the law firm of Morgan, Lewis & Bockius, and 
six years later joined the U.S. Attorney's Office, and she has 
practiced there for 12 years. She is now head of that office's 
Criminal Appeals Unit--that is one of the most important 
criminal appeals units in the country--and she defends some of 
the most important criminal cases in the Nation, including 
terrorism cases such as the East African bombing case against 
bin Laden and his associates, complex white-collar cases, and 
RICO cases.
    Her colleagues report to a person that her advice on legal 
arguments and matters of judgment is the most sought after in 
the whole office, and it has hundreds of very qualified 
employees there.
    While they may regret on occasion that her advice will soon 
be binding, when she becomes a judge, God willing, it is much 
to the benefit of the people of New York that Ms. Failla's 
formidable talents will soon be put to service on the bench.
    Ms. Failla also frequently speaks of her parents with great 
pride and gratitude. Both of her parents went to college by 
dint of scholarships and extra jobs and instilled in their 
three children the importance of giving back to one's 
community. Today their children, grown, serve as a teacher's 
aide, a submarine commander, and, of course, a nominee to the 
federal bench. And I believe in diversity on the bench, and 
your family should add a little more even to that diversity. 
They are all here today, so let me introduce them. We have her 
husband, John Failla; her father, Thomas Polk; her mom, Mary 
Polk; her sister, Rosemary Polk Bullock; her brother, Commander 
Christopher Polk. Stand up so we can see you in uniform, and 
thank you for your service, Commander. And her sister-in-law, 
niece, and nephew. Would you like to stand up, sister-in-law, 
niece, and nephew? It is nice to see the sister-in-law, but it 
is really the niece and nephew we want to see.
    [Laughter.]
    Senator Schumer. They are too little to stand up. They are 
busy engaging in friendly and non-obstructive chatter as we 
read these lovely biographies.
    [Laughter.]
    Senator Schumer. Now, the last time that I had the pleasure 
of introducing a judicial nominee, I recounted some of the 
history of the United States District Court for the Western 
District of New York, and I promised at the request of every 
one of my colleagues on the Judiciary Committee that I would be 
back with more historical insights.
    That was a joke.
    Ms. Failla is being nominated to the court that is the 
oldest court in the Nation, even older than the Supreme Court, 
because it was organized just a few weeks before the Supreme 
Court pursuant to the Judiciary Act of 1789. One of the first 
members of the bar of the court was Aaron Burr, who later 
killed Alexander Hamilton very close to where the federal 
courthouse now stands on Pearl Street. It was originally a 
maritime court, and its first judge, James Duane, complained 
bitterly that he had ``nothing to do.''
    That is hardly the case anymore. The Southern District is 
one of the busiest courts in the country. Ms. Failla's devotion 
to New York and its bar is a much needed addition to that 
bench.
    So, with that, let me call our first nominees--oh, I am 
sorry.
    We have an introduction of Mark Allen Barnett, nominee for 
the Court of International Trade, and I am pleased to introduce 
him. He has been nominated by the President for that position. 
He currently serves as the Deputy Chief Counsel for the U.S. 
Department of Commerce, Office of the Chief Counsel for Import 
Administration. He has worked there since 1995. He was born in 
Reading, Pennsylvania, attended Dickinson College as an 
undergraduate, later receiving his law degree from the 
University of Michigan. Before beginning his long career in 
public serve, Mr. Barnett worked as an associate in private 
practice here in Washington with the well-known firm of Steptoe 
& Johnson.
    His experience in trade matters makes him one of the most 
qualified lawyers to be nominated to this important court. Mr. 
Barnett led negotiations and resolution of, among other issues, 
the comprehensive steel agreement with Russia, in order to stop 
that country from violating antidumping agreements, and the 
Doha Rules, which govern the way antidumping investigations are 
conducted and the way rules in this area are followed. Mr. 
Barnett has also written respected articles on Court of 
International Trade decisions, other trade issues, and 
sovereign immunity cases.
    As a New Yorker, I look forward to having him join our city 
because the International Court of Trade sits in New York, and 
it is one of the most crucial courts in our country, and he 
would be a welcome addition.
    Now, with that, let me call our five nominees to the table: 
Ms. Failla, Ms. Chen, Mr. Nunley, Ms. Chappell, and Mr. 
Barnett.
    Oh, excuse me. I will do this in a minute. Okay. Will you 
please stand to be sworn? Do you affirm that the testimony you 
are about to give before the Committee will be the whole 
truth--sorry. I have done this so many times.
    Do you affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Ms. Failla. I do.
    Ms. Chen. I do.
    Judge Nunley. I do.
    Judge Chappell. I do.
    Mr. Barnett. I do.
    Senator Schumer. You may be seated.
    I made one little omission. We love introducing the 
families of the nominees here. It is always fun and nice, and I 
neglected to introduce Mr. Barnett's guests, and so they may 
stand: his wife, Sara Franko; his son, Jasper Barnett. Hi, 
Jasper. Proud of your Dad, hmm? Good. His mother. Thank you. I 
am sure you are proud of your son. Two aunts and friends. You 
may wave. Aunts and friends, wave. Thank you. Okay.
    And now we are ready to hear from each of our nominees. So 
each of you is entitled to give a very brief statement, and we 
will go from my left to right, so first, Ms. Failla.

STATEMENT OF KATHERINE POLK FAILLA, NOMINEE TO BE U.S. DISTRICT 
          JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

    Ms. Failla. Thank you, Senator, and first of all, I would 
like to thank you, Senator, for recommending me to the 
President and for your very kind words this morning. I would 
also like to thank the President for the honor of the 
nomination, and I would like to thank the Committee for this 
opportunity to speak before you today.
    I would like to again just say thanks and mention some of 
the names again of the family and friends who are here joining 
me today: my husband, John, who has been my rock for the last 
15-plus years; my parents, Thomas and Mary Polk, who have just 
been extraordinary role models for their children; my sister, 
Rose Bullock, and her husband, Dave; my brother, Commander 
Christopher Polk; and my sister-in-law, Kelly; my very, very, 
cute nieces, Abigail, Emily, Chloe, and Alexis; and my nephew, 
Tommy.
    There are also several people watching by the Webcast 
today, including Joseph Irenas, the Honorable Joseph Irenas, 
the judge for whom I clerked and whom I still revere; the 
Criminal Appeals Unit of the Southern District of New York U.S. 
Attorney's office, I believe one member of which has snuck in 
today because I think I saw Iris in the back; the other members 
of the United States Attorney's Office past and present; and 
partners at my former law firm of Morgan, Lewis & Bockius.
    Thank you.
    [The biographical information follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Schumer. Thank you, Ms. Failla.
    Ms. Chen.

 STATEMENT OF PAMELA KI MAI CHEN, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

    Ms. Chen. First, Senator, I would like to thank you for 
your kind introduction and for recommending me for this 
incredible honor. I would also like to thank President Obama 
for nominating me. I am deeply humbled by the nomination.
    With me today, as you mentioned, Senator, are my partner, 
Amy Chester, and her sister, Sara Glasser, who came here from 
New York. Also watching by Webcast in Vermont, New York, and 
California are our families: the Chesters, the Chens, the 
Marcuses, and the Glassers.
    I also want to thank the many dear friends and colleagues 
who have come here today to support me, as well as the many 
others who have supported me throughout this process.
    Last, I would like to thank you for chairing this hearing 
and also to the entire Committee for allowing me the privilege 
to appear before you.
    I look forward to answering your questions.
    [The biographical information follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Schumer. Thank you.
    Mr. Nunley.

 STATEMENT OF HON. TROY L. NUNLEY, NOMINEE TO BE U.S. DISTRICT 
          JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA

    Judge Nunley. Thank you. Senator Schumer, thank you for 
chairing this hearing. I would also like to thank Ranking 
Member Grassley for organizing this hearing. I would like to 
thank Senator Feinstein for her kind and generous words. And I 
would also like to thank the other Senators who are 
participating in today's hearing.
    I would also like to thank President Barack Obama for 
nominating me for this position, and I would like to thank my 
fellow judges on the Sacramento County Superior Court.
    There are several people here today that I would like to 
acknowledge and thank: first of all, my soul mate, my life 
partner, my best friend, my wife, Susan. I would also like to 
thank my mother, who has served as my primary source of 
informa--of inspiration throughout my life. She certainly is 
the most important person of my young adulthood.
    I would also like to----
    Senator Schumer. Mr. Nunley, my mother tries to serve as my 
prime source of information.
    [Laughter.]
    Senator Schumer. You said it right. To this day.
    Judge Nunley. I would also like to thank my brother-in-law, 
who is more brother than in-law. He has been very supportive of 
me throughout my career.
    I would also like to acknowledge and thank several 
individuals who are not here today, including my mother-in-law 
and my father-in-law, Stan and Michelle Lawrence. I would also 
like to thank and appreciate my kids, my two daughters, my two 
princesses, who could not be here today. They are both starting 
new jobs, and they felt it was important to stay at work today 
throughout this process, but they are supportive. I imagine 
they are watching these proceedings, although with California 
time three hours behind, but I imagine they are trying to catch 
it somewhere.
    I would also like to acknowledge my two sons, my 11-year-
old son, Dominic, my 7-year-old son, Dylan, and if they are up 
watching this, they have an issue.
    [Laughter.]
    Judge Nunley. I would also like to thank my work family: my 
bailiff from the Sacramento County Sheriff's Department, Stacy 
Hill. I would also like to thank my court reporter, Kimberly 
Hayes. And I would also like to thank my court clerk, Deanna 
Morrison. They are certainly the most important people during 
the course of my day from eight o'clock until five o'clock.
    Thank you for giving me this opportunity to acknowledge 
those individuals who are most important in my life. Thank you.
    [The biographical information follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Schumer. Thank you, Judge Nunley.
    Now we have Judge Chappell.

 STATEMENT OF HON. SHERI POLSTER CHAPPELL, NOMINEE TO BE U.S. 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Chappell. Thank you. Thank you, Senators, for 
convening this hearing. I would like to thank President Obama 
for the honor that he has bestowed on me in nominating me for 
this very important position.
    I would like to thank Senator Nelson for the kind remarks 
and the introduction and Senator Rubio for his support of my 
nomination as well.
    I would like to thank the Middle District of Florida 
Judicial Nominating Commission for their support in sending my 
name to the Senators for their consideration.
    Senator Nelson introduced my family members, and I would 
just like to reiterate. My husband of 21 years, Christopher, is 
here. My son, Michael, who is a first-year college student, is 
here from Tallahassee. His plane was canceled, but he was able 
to make his way here in the weather. My son, Zachary, who is a 
junior at Bishop Verot Catholic High School in Fort Myers, 
Florida, is here. My only brother, Barry, is here from 
Wisconsin. And I am very blessed to have a very supportive 
staff: Douglas Kemp, my law clerk of nine years is here. 
Brigette Willauer, my second law clerk, is here; and a former 
law clerk, her husband, Nick Mizell, who is now with the law 
firm of Cheffy, Passidomo, and Naples, is here.
    I am hoping that my parents, Henry and Joyce Polster, who 
are in their 80s and were unable to travel here, are watching 
this wonderful Webcast, and I believe they are at my Uncle Jim 
and Aunt Louanne's house in Wisconsin watching the Webcast. And 
other friends and family members of my husband and myself, 
family members in Pennsylvania and Wisconsin, and colleagues 
across the country who I have taught with through the Federal 
Judicial Center and the Administrative Office of the Courts.
    I also would like to thank and welcome the colleagues that 
I have in the Middle District of Florida, and specifically my 
court family from Fort Myers, who, I am sure, are watching on 
the projection screen in my courtroom. My courtroom deputy, 
Leslie Friedman, has promised to have the Webcast shown to them 
for their support and consideration.
    Thank you for giving me the opportunity to introduce again 
everyone, and I stand ready to answer any questions that you 
have.
    [The biographical information follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Schumer. Thank you, Judge Chappell.
    And last but not least, Mr. Barnett.

  STATEMENT OF MARK A. BARNETT, NOMINEE TO BE A JUDGE FOR THE 
               U.S. COURT OF INTERNATIONAL TRADE

    Mr. Barnett. Thank you, Mr. Chairman. I would like to thank 
both Senator Leahy and Senator Grassley for arranging this 
hearing. I would like to thank you, Senator Schumer, for 
presiding and for the kind words of introduction. I would also 
like to thank President Obama for the honor and privilege of 
this nomination.
    I am joined here today by several family and friends, 
including my wife of almost 20 years, Sara Franko; my oldest 
son, Jasper, who is getting his civics lessons firsthand today. 
He is an eighth grader in the Fairfax County Public Schools. I 
have a younger son, Robson, who is a kindergartner, and he is a 
very active one, and so he is getting his kindergarten lessons 
directly from his teacher today.
    [Laughter.]
    Mr. Barnett. I would also like to acknowledge my mother, 
Bonnie Barnett, who is here with me today, as well as two of 
her sisters, Pat Kimball and Peg Gill. And I would like to 
recognize two people who were very important in my upbringing 
but who are no longer with us, and that is my grandparents, and 
their parents, Gene and Wahu Wadsworth.
    I do have two brothers, Eric and David, and they and their 
families were unable to join us today, but they will be 
watching on the Webcast, I am sure, along with several cousins. 
I would not be here today without the support of all of my 
family.
    I would like to also acknowledge friends and colleagues at 
the Department of Commerce, both current and former colleagues 
there. Many of them are watching on the Web. Two current 
colleagues were able to join me, that is, Michele Lynch and 
Shana Hofstetter. And we have one former colleague who is here 
because she is on your staff, and that is Ms. Stacy Ettinger, 
and I would like to thank them for their support.
    Thank you, Senator.
    [The biographical information follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Schumer. Thank you.
    Okay, we will begin with questions, and I guess as Chair I 
will take that prerogative. This is a two-part question for all 
of the nominees.
    First, tell us a little bit about why you want to be a 
judge, how you believe your experiences up to this point will 
help you do the job.
    And, second, moderation and judicial modesty are two 
qualities that I certainly value in a potential judge. I think 
many of my colleagues do as well. What do these concepts mean 
to you?
    We will start with Ms. Failla.
    Ms. Failla. Thank you for the question, Senator. I have 
been blessed to have a number of experiences in both the 
criminal and civil sides of the law and in seeing really the 
full flavor of the judicial system. And after spending many 
years defending private clients, I found that my calling was in 
public service, and so after 12 wonderful years at the U.S. 
Attorney's Office, I have looked to the possibility of becoming 
a judge to continue this career of public service and helping 
others.
    My experiences as a lawyer for a law firm and as a 
prosecutor have taught me, again, all sides of the judicial 
system. In particular, as a criminal prosecutor, I have learned 
the importance to individual litigants of the cases that they 
have, and especially for criminal defendants, of the dignity of 
criminal defendants and the importance to them of getting their 
case right. And I believe those are the experiences that I 
would bring to bear if I were fortunate enough to be confirmed.
    With respect to judicial modesty and moderation, I think 
that comprises several elements. I think critical to it is the 
concept of stare decisis, the idea that we are bound by 
precedents, because it is that consistency and predictability 
that gives trust in the judicial system.
    Additionally, I think another component of modesty is the 
notion that you are deciding only the case in controversy 
before you and that a judge would not go out of his or her way 
to decide other issues.
    Thank you.
    Senator Schumer. Thank you.
    Ms. Chen.
    Ms. Chen. Thank you, Senator. As a career public servant 
and prosecutor and as someone who values and believes in the 
ideals of our justice system, I cannot think of any greater 
honor or better way to continue serving the public than to be a 
federal district court judge.
    I believe that my entire career, which has been both in 
civil litigation and criminal prosecution, has prepared me for 
this role and has taught me what the qualities of a good judge 
are, which include fidelity to the rule of law, even 
temperament, fairness, impartiality, decisiveness, and the 
qualities that you mentioned, Senator, judicial modesty and 
moderation, which mean, to me, understanding the limited role 
of the judiciary in our constitutional system of government, as 
well as what Ms. Failla said, which is following stare decisis 
and precedent.
    Senator Schumer. Thank you.
    Judge Nunley.
    Judge Nunley. Well, I am a judge, and before I became 
judge, I served as a prosecutor, I have served as a general 
practitioner, I have served as an appellate attorney. I was 
very fortunate in that when I served as a prosecutor, I was 
approached by several judges who felt that I had the demeanor, 
the impartiality to serve on the bench, and they requested that 
I submit my name.
    Becoming a judge was a natural progression for me after 
being a prosecutor and an appellate attorney. As a State 
superior court judge, once again I was approached by several 
federal judges who felt that I had the qualities to be a 
federal judge. And I might add that some of those qualities, a 
lot of those qualities between a federal judge and a State 
court judge, they are very similar qualities. Judges at all 
levels are required to operate impartially, listen to the 
litigants, be fair to both sides, and issue rulings without 
regard to their personal beliefs. And I feel I have done those 
things. I think those experiences have helped me be not only a 
State court judge, but if I am lucky enough to be confirmed, I 
think they will help me be a federal judge as well.
    The question about moderation and judicial modesty, I will 
split those questions up, because I think judicial modesty has 
a lot to do with issues surrounding precedent, following 
precedent, the ability to follow precedent and stare decisis. 
Obviously, I have done those things. I have been a State 
superior court judge. I am bound by the highest court, State 
court in California, and that is the California Supreme Court. 
My appellate district is the Third Appellate District, so I am 
also bound by those precedents from those two bodies.
    On moderation, my belief is moderation is what we show to 
the public in terms of being impartial, listening to the 
litigants, being active listeners, not only listening to what 
the litigants have to say but also being transparent and 
letting the litigants know why we are ruling in the manner 
which we are ruling, for example, not considering issues such 
as pity, bias, compassion, and those issues. It is incumbent 
upon judges--and I think I have done that throughout my 
judicial career--to let the litigants know that we are not 
dictated to by those notions.
    Thank you very much for the question.
    Senator Schumer. Thank you, Judge.
    Judge Chappell. Thank you. When I first decided that I 
wanted to become a judge, it was really because of my love for 
the law and my love of the courtroom. Having been a judge now 
for 12 years, I can tell you that my love of the law and love 
of the courtroom has not diminished in any respect. I believe 
that I have brought forward the appropriate demeanor to the 
bench. I believe that a jurist has to be calm in the courtroom, 
act with integrity, and respect the individuals that come 
before them, whether that be the litigants, the attorneys, or 
the court personnel. And a judge can lead from the bench in 
that respect and to show those particular qualities, as well 
as, obviously, looking at the precedent that is set by the 
Supreme Court, ruling appropriately to that, and in my case the 
11th Circuit Court of Appeals.
    Thank you, Senator.
    Senator Schumer. Mr. Barnett.
    Mr. Barnett. Thank you, Senator. I think we all know and 
appreciate the importance of international trade, and I think 
with my over 20 years of experience in the international trade 
field, I would be able to make important contributions to the 
critical work of this court in the area of international trade.
    In the area of modesty and moderation, I would agree with 
the comments that some of my other panelists made with regard 
to the importance of precedent. I think what I would add in 
terms of the specifics of the Court of International Trade is 
that much of their work involves the review of agency 
determinations, and in that area it is critical to follow the 
appropriate standard of review. We are reviewing determinations 
to ensure that they are made in accordance with law and based 
on substantial evidence. And it would be my role, if I am 
fortunate enough to be confirmed, to ensure that I am not 
substituting my judgment for the judgment of the agency and 
apply the appropriate standard of review to those cases.
    Thank you.
    Senator Schumer. Thank you, Mr. Barnett.
    I will call on my colleague and Ranking Member, Senator 
Grassley.
    Senator Grassley. I have different questions for different 
nominees, and I do not do ``gotcha'' questions, so do not feel 
defensive. And the shorter the answer, the better.
    For Mr. Barnett, you have in your questionnaire said about 
appearing in court a couple times. Could you elaborate on your 
courtroom experience, whether in U.S. courts or international 
trade tribunals? And if so, indicate how many times you 
appeared before one of these bodies as either lead counsel or 
co-counsel.
    Mr. Barnett. Thank you for the question, Senator. In terms 
of specifically domestic courts, I participated in two court 
proceedings when I was in private practice, and during my time 
at the Department of Commerce, I appeared in more than a dozen 
cases before the Court of International Trade.
    In addition to that work, I have also--sorry, let me add, 
in that role at the Department of Commerce, the chief 
representative for the executive branch is the Department of 
Justice, so I would appear there as counsel. It would be the 
Department of Justice who would argue the case, but the 
attorneys at the Department of Commerce are very involved in 
preparing the briefs and preparing the Justice attorneys for 
the argument.
    In terms of international tribunals, I argued before, I 
believe it was, at least three NAFTA panels and probably more 
than a dozen World Trade Organizations panels and appellate 
body proceedings. In those cases, before NAFTA panels, our 
office has prime litigating authority, and I argued a number of 
issues before each of those panels. With regard to the World 
Trade Organization, technically the U.S. Trade Representative's 
Office has the primary, the lead role before them; however, we 
are also very active in arguing the cases before those panels 
and before the appellate body. And as I said, I participated in 
well over a dozen cases before panels and the appellate body.
    Thank you.
    Senator Grassley. What judicial philosophy would guide your 
judicial decision making?
    Mr. Barnett. Thank you, Senator. I think my judicial 
philosophy would involve both fairness--fairness to the 
parties, maintaining an open mind with regard to the arguments 
being made, and then ensuring that my decisions are based on 
the statute, are based on applicable precedent, and that, as I 
mentioned earlier, involve me very much applying the 
appropriate standard of review to my review of any agency 
determinations.
    Thank you.
    Senator Grassley. For Ms. Chappell, you gave a presentation 
at Canterbury School entitled ``Open Doors to the Federal 
Courts.'' In one of the slides you used during a presentation, 
you indicated that one of the goals of a fair court is to have 
diversity on the bench. So kind of a short definition of 
diversity from your point of view, and could you explain how 
diversity on the bench relates to the words you used, ``fair 
court'' ?
    Judge Chappell. All right. Thank you, Senator. That was a 
presentation that I made to a group of school children, many of 
which I had during the course of being a judge.
    In regard to diversity on the bench, I think it is 
important we all bring our experiences to the bench. It is very 
important to have different individuals on the bench, whether 
they--and coming from different backgrounds.
    In regard to diversity, I think it is important that you 
have diversity also and the ability to have individuals who 
come into your courtroom so that you are fair to them, you are 
impartial to them, and you base your decisions on the law and 
the precedent before you.
    Senator Grassley. You made a statement in lectures to 
judges, ``Judges have a tremendous unwillingness to admit what 
they do not know.'' How do you approach this problem when you 
find that it relates to you?
    Judge Chappell. Thank you, Senator. That particular quote 
came from teaching judges computers, and I go across the 
country and teach judges computers and how to use computers to 
make their jobs more efficient.
    Senator Grassley. I do not think you have got to go any 
further.
    [Laughter.]
    Senator Grassley. Ms. Chen, during some of your career, you 
have been involved in party politics, and there is nothing 
wrong with that, so do not get defensive about it. But should 
you be confirmed, your political history might concern future 
litigants. Can you assure the Committee that, if confirmed, 
your decisions will remain grounded in the precedent that you 
have already referred to and the text of the law rather than 
underlying political ideology? And what further assurances or 
evidence can you give the Committee and future litigants that 
you will be fair in all who appear before you? That is the only 
question I have for you.
    Ms. Chen. Thank you, Senator. Absolutely I can assure you 
that politics would play no role in my decision making, were I 
fortunate enough to be confirmed, and the assurances I can give 
are based on my career as a public servant and working for the 
Department of Justice. No one could accuse me ever of making a 
decision based on any kind of political ideology, and I think 
my record speaks for itself over the last 20 years.
    Senator Grassley. I may submit a question for answer in 
writing that I do not want to take time now to ask.
    Let me go on to Ms. Failla. In the past, the President has 
stated that judges must base their rulings on ``one's deepest 
values, one's core concerns, one's broader perspectives on how 
the world works, and the depth and breadth of one's empathy.'' 
My concern is that when someone suggests a judge should have 
empathy, they are really suggesting that judges should place 
their thumb on the scales of justice to tilt in favor of one 
party or the other--and I do not mean political party.
    As a panelist on the topic of white-collar crime, you were 
asked to comment on the humanizing factors relevant to 
sentencing and how such factors could contribute to judicial 
departures from the Sentencing Guidelines. You responded, ``I 
think from our perspective that we do not often get involved in 
humanizing the defendant. It is our place to humanize the 
victims of the offense.''
    To what extent does empathy have a place in the judicial 
process?
    Ms. Failla. Your Honor, as--I am sorry, Senator. That was 
nice.
    [Laughter.]
    Ms. Failla. Senator, as you have defined empathy in this 
question, which is suggesting putting a finger or thumb on the 
scales of justice, it has no place in making decisions. My job, 
were I fortunate enough to be confirmed, would be to decide the 
case before me on the facts before me and on the law, 
principally as decided by the Supreme Court and the Second 
Circuit, for where I would be sitting.
    Certainly people's factors and characteristics may come 
into play, but the point of our judicial system is that the 
decisions should be consistent, they should be decided based on 
law and not based on any personal feelings for any of the 
litigants.
    Senator Grassley. A follow-up. Not a follow-up on that, but 
another question. As a panelist on ethics and litigation, you 
have commented on how joint defense agreements are viewed by 
prosecutors generally. If confirmed as a federal judge, how 
will you address this issue if it comes before you?
    Ms. Failla. I will address it based on the law, Your Honor. 
I will address--I keep calling you ``Your Honor.'' I hope you 
appreciate that, Senator.
    Senator Grassley. Any farmer would appreciate that.
    [Laughter.]
    Ms. Failla. I will follow the law, the Supreme Court, and 
the Second Circuit.
    Senator Grassley. And, Mr. Nunley, you will be my last 
question. I am concerned about your lack of federal court 
experience even though I know you have a lot of experience in 
State court. In your questionnaire, you have very little 
federal court experience in your legal career. As a State 
judge, you do not have the opportunity to review federal 
issues.
    What steps will you take to be prepared to assume the 
duties of a federal judge if confirmed? And what assurances can 
you provide to this Committee and to future litigants that your 
judgment on federal law and procedure will be sound and firm?
    Judge Nunley. Well, I am aware that there are a number of 
resources available to federal court judges, and if I am 
fortunate enough to be confirmed, I intend to avail myself of 
those resources. For example, the Administrative Office, I know 
they provide various resources for incoming federal judges in 
terms of materials, training sessions. I think it is also 
important that I review and study federal procedural law, 
federal evidentiary law. And I also think it is important that 
I talk to my fellow federal judges and get my cue from them.
    And I might add, Senator Grassley, I was a prosecutor with 
the State Attorney General's Office of the Department of 
Justice. As a member of the State Department of Justice, I did 
appear in federal court on a number of occasions in habeas 
petitions. Right now, California has the highest filings, as 
you well know, and most of those filings are habeas petitions. 
I have vast experience with habeas petitions in working for the 
State Department of Justice, so I have practices in federal 
court. Obviously, while I was a private practitioner, I did 
several federal civil rights cases in federal court. And I 
might add there are a lot of parallels between being a judge in 
a State court and being a judge in federal court. I mentioned 
some of those issues, and I am prepared to hit the ground 
running. And I have always had a tremendous work ethic, and 
that will not stop now.
    Senator Grassley. Okay. In my statement I did not give 
because I put it in the record to save time, I complimented you 
folks and honored you for your appointment and I welcome you. 
Thank you.
    Ms. Failla. Thank you.
    Ms. Chen. Thank you, Senator.
    Judge Nunley. Thank you.
    Judge Chappell. Thank you.
    Mr. Barnett. Thank you.
    Senator Franken [presiding]. Thank you, Senator Grassley. 
Senator Schumer has asked me to take over the gavel. I will be 
here through the end, so if Senator Lee would like to ask 
questions now, why don't you go ahead, Senator?
    Senator Lee. Thank you very much, Mr. Chairman. Thanks to 
all of you for being here and congratulations on being 
nominated.
    Why don't we start with you, Ms. Failla. You are at the far 
end. We will start there. I want to get back to the question a 
minute ago that Senator Grassley was discussing with you just 
about the comment that you made about humanizing the defendant 
versus humanizing the victims. I assume that in making that 
comment you were referring in part to the fact that you were an 
AUSA at the time you were making the statement.
    Ms. Failla. Not only was I an AUSA, I was brought into that 
panel as the chief of the office's Appeals Unit. This was a 
panel on post-Booker trends in sentencing, and I believe the 
point was that there was discussion among the panelists and for 
those in the room regarding when it was appropriate or when it 
was available to bring to bear factors about the defendant. It 
is not--it was not my place as a prosecutor to be speaking 
about humanizing the defendant. I believe someone else may have 
mentioned that. What we were talking about was the fact that in 
deciding--in presenting information to a sentencing judge, the 
prosecutor and the defense have an obligation to present all 
the facts regarding the individuals affected by the crime in 
question.
    Senator Lee. Okay. So the discussion was really more about 
crime victims than it was the rights of the defendant, and you 
were directing the conversation where you felt the question 
before you naturally went, in other words.
    Ms. Failla. I can speak better to the issue of victims than 
I can to the defendant.
    Senator Lee. Yes, particularly as a prosecutor, and 
particularly on appeal. Normally, you are not getting into the 
humanizing of the defendant on appeal as a prosecutor defending 
the conviction and the sentence of a criminally convicted 
person.
    Ms. Failla. That is correct.
    Senator Lee. That leads into my next question, though, and 
it is good to know that this was in the context of a Booker, 
Blakely type of a discussion, because that was going to be my 
next line of questioning. Do you think any of that has changed 
in the post-Blakely, Booker world? That is to say, let us step 
away from that conversation, that statement, that panel 
discussion for a minute and just ask the question in the 
abstract, since if confirmed as a district judge you will be 
involved in sentencing decisions probably every day you are on 
the bench. I am sure you will have that change of plea script 
that you probably already know from your years as a prosecutor. 
You will be saying that in your sleep incessantly.
    But in the post-Blakely, Booker world, is there more of an 
opportunity for district judges to humanize the defendant?
    Ms. Failla. I suppose there is an opportunity, but I think 
what is important is that what has been made clear since 
Blakely and Booker--it is on. I will try and speak closer to 
it. Excuse me. What I think is important about post-Booker and 
post-Blakely is that circuit courts, including the Second 
Circuit in which I practice, have again confirmed the 
importance and significance of the guidelines. I think the 
guidelines are often referred to as the starting point or the 
benchmark for sentencing, and I think it is very important for 
judges to recognize that role, because to the extent there are 
differences among sentences, it should be because of the facts 
of a particular case and not because of the judge before whom 
the defendant is sentenced.
    So while I do think that there are efforts made post-Booker 
and Blakely, and perhaps even beforehand, to bring to bear or 
to bring to the court's attention facts concerning the 
defendant, I think, again, the guidelines remain critically 
important to the sentencing process.
    Senator Lee. So, in other words whether or not the facts 
and circumstances of a case are such that they might take the 
case outside the heartland such that you would depart from the 
guideline recommendation at that point are not necessarily 
described anyway as factors that bear on the humanization of a 
defendant; they are factors that bear on the nature of the 
offense, rather.
    Ms. Failla. That is correct, Your Honor.
    Senator Lee. That is okay.
    Ms. Failla. I keep doing it.
    Senator Lee. It is not as if ``Your Honor'' is a bad thing.
    [Laughter.]
    Senator Lee. You have elevated me in some respects.
    Ms. Chen, why don't we go to you next? You are next closest 
to the table. On matters of interpretation, when you are 
looking at a statute, if confirmed as a federal judge, you will 
be called upon to interpret statutes all the time, probably 
every day. And by the smile on your face, I can tell that you 
are excited about that, and that is good. That speaks well of 
your enthusiasm for the task.
    When you do that, sort of the judicial modesty that we 
talked about earlier that my friend Senator Schumer referred 
to, I think that is a good question, and it is one that bears 
significantly on the task of statutory construction and 
interpretation.
    Now, in your answer, I thought your answer was good. I 
liked what you said about judicial modesty. In your answer, you 
referred--in the nub of your answer, you got right to the point 
of precedent, following precedent, the effect of stare decisis 
and so forth.
    Neither of those, of course, deals specifically with 
statutory interpretation. What will guide you when you 
interpret a statute? And if I can add another layer to that 
question, how do you--when you look at a statute, are you more 
likely to be trying to discern and be guided by the words 
themselves or by your own perception of the subjective intent 
of the legislative body that passed the law?
    Ms. Chen. Thank you, Senator, for that question. Certainly 
the former rather than the latter, meaning the plain text of 
the statute is what is the first thing and the primary source 
of interpretation. And if the meaning is plain on the face of 
the statute, then the interpretation process stops there.
    If there is any ambiguity about the meaning of the plain 
language or the statute itself, then I would refer to precedent 
and interpretations of the statute that are controlling in my 
district, which would be the Second Circuit, and the Supreme 
Court. If there was no directly controlling precedent, I would 
look for interpretations of analogous statutes or precedent in 
other circuits that would be guiding in some way or at least 
helpful. And then, last, if all else failed, looking again also 
to the legislative history would be another source of divining 
the meaning of the statute as Congress intended it.
    Senator Lee. Assuming you cannot get there using the canons 
of statutory construction. Without that, then you look 
extraneously. And yet the body of case law has developed, oddly 
enough, that we have these vestigial remains of old cases such 
that you will still find language on the books from a lot of 
the cases talking about statutory interpretation where they 
will say, ``We are guided by the intent of the legislature,'' 
or ``Our effort here is to discern the intent of Congress.'' 
And yet there is also language in there that should usually be 
added, if not replacing the language I just quoted, which says, 
``The way you discern the intent of the legislature is by the 
language that they use.'' And I always wish that that would 
come first and actually replace the intent, because if you 
start by saying we are trying to figure out what they intended, 
it might lead you astray.
    That is my soap box. Do you have any reaction to that?
    Ms. Chen. I believe that the process, the canons of 
construction that you referred to earlier eliminate that issue 
to a large extent and address the concern that you raised about 
judges overstepping their bounds and trying to interpret what 
Congress meant without looking at the plain language first and 
going through all the other steps first.
    Senator Lee. Excellent. Thank you very much.
    Thank you, Chairman.
    Senator Franken. Thank you, Senator.
    Why don't I send it off to Senator Blumenthal. Go ahead.
    Senator Blumenthal. Thank you, Senator Franken.
    Thank you to you all for your willingness to serve. I am 
sure that others have told you, you know yourselves, that 
service on the district court is crucially important to our 
justice system. You are the voice and the face of justice to 
countless people who will never have recourse to an appeal, 
either because they cannot afford it or because the odds of 
succeeding are so great given the strength of either a jury 
verdict or your decision on the law. Whether it is immigration 
ceremonies that I attend regularly or sentencing or many other 
public events and private chambers conference, you will impact 
the lives, I would dare say, of more people directly than a lot 
of people in this body do, which is a very sobering thought.
    And so I want to ask you, maybe each of you, what values 
you think are most important to a judge, and you can do the row 
beginning with Ms. Failla.
    Ms. Failla. Thank you, Senator, for that question. I think 
in addition to having just fundamentally a deep and abiding 
sense of fairness, I think that it is important to listen to 
the litigants, to make sure not only that they are heard but 
that they understand that they are heard by the judge, to steep 
oneself in the factual record, to make sure you understand all 
of the facts that come to play in the resolution of the 
dispute, to look at the law seriously and fairly and 
impartially, and then to give a decision that is both fair and 
understandable to all and transparent. And I think if you do 
that, you can communicate to the litigants and to the broader 
public the fairness of the judicial system.
    Senator Blumenthal. Good answer.
    Ms. Chen.
    Ms. Chen. It is hard to improve on that answer, Senator. 
However, I would add in addition to everything that Ms. Failla 
said, which I wholeheartedly agree with, that respect and 
fidelity for the rule of law is paramount as well as 
impartiality and fairness and even temperament; also being 
decisive and ruling decisively, and as Ms. Failla said, being 
transparent about the basis of the decision, which, I should 
add, would address the concern that I think Senator Grassley 
raised with me about concerns of any political motivations, 
that that would eliminate any concern if you rule transparently 
and explain to people the basis that it is based on law.
    And, last, I would add also that the willingness to be 
open-minded to all points of view is important.
    Senator Blumenthal. Very good.
    Mr. Nunley.
    Judge Nunley. All right. I have been a judge for a little 
over 10 years, and on a daily basis the values that I think are 
important are--and I think my colleagues have said the same 
thing--is fairness, and being fair to both sides, and realizing 
that any decision I make on a given day, someone is going to 
walk out that door disappointed. It is a 50/50 chance that I 
might rule in your favor. However, the one thing that the 
litigants should be able to say, regardless of whether they win 
or lose, they should be able to walk out that door and said, 
``I had a fair shot. I was heard. He understood my argument, 
and I understood why he reached that decision.''
    I also think it is important to have a proper judicial 
temperament. I think it is important to be fair to both sides, 
to be an active listener, not only to listen to the litigants 
but also to question the litigants about their arguments so 
that they know that you understand their arguments. That is a 
part of active listening that most judges throughout this 
country engage in.
    But I think the most important, the scales of justice have 
to mean something, and I think it is important that when those 
litigants walk in the court they have a notion that this judge 
has a reputation of being fair, and when they walk outside that 
court, they have a notion that this judge was fair. And I think 
those are important elements.
    Senator Blumenthal. Good.
    Judge Chappell. Thank you, Senator. I think I like your 
characterization that we are the face of justice as being 
judges, and having been a judge now for 12 years, I like to 
live by example. I like to lead by example. I think that a 
judge has to have the integrity and the ability to sit in the 
courtroom and listen very carefully to all of the litigants and 
the attorneys and, as I mentioned earlier, the courtroom staff. 
If you lead by example, I think people will follow. You have to 
be a good listener, and you have to impart that each litigant 
that comes before you, their case is just as important to you 
as it is to them, and I like to live by those principles.
    Senator Blumenthal. I think those are all really excellent 
answers and will stand you in good stead. I think, you know, 
personal qualities are in many ways more important than, you 
know, the place you went to school or where you practiced law 
or the kinds of cases you handled, because judging is such a 
different activity than anything else in life. I think that you 
have identified listening, fairness, patience, leading by 
example--excellent answers.
    I have just one more question, if I may, Mr. Chairman, to 
Mr. Barnett. Do you have issues--and I apologize if I am 
repeating a question that you have already answered--that you 
feel are predominantly important on the docket of the U.S. 
Court of International Trade that you would either like to see 
addressed or you believe will be addressed?
    Mr. Barnett. Thank you, Senator. I would not separate out 
any individual issue that is on the docket of the Court of 
International Trade right now. There are a number of issues 
that the court is facing. There are a number of important 
aspects of international trade that are moving forward.
    One of the areas where I have done a bit of writing over 
the past couple of years has been on the intersection of 
domestic law with international law and the fact that we often 
have parallel dispute settlements--dispute settlement in the 
international context, domestic litigation in that context--on 
the same issue. And I think the one thing that has come out to 
me through some of that research and writing is the importance 
of timely decision making by the domestic courts so as not to 
become in a sense a holding tank for other governments while 
they pursue their international disputes. So that is one area 
that has been of particular interest to me lately.
    Thank you.
    Senator Blumenthal. Thank you. Thank you very much for each 
of your service in the past and your service in the future, and 
I hope that the Senate and the Congress can be as supportive as 
possible to our federal judiciary at every level. Thank you 
very, very much.
    Ms. Failla. Thank you.
    Ms. Chen. Thank you, Senator.
    Judge Nunley. Thank you, Senator.
    Judge Chappell. Thank you.
    Mr. Barnett. Thank you.
    Senator Franken. Well, thank you, Senator, and thank you 
all, and congratulations to you all for your nominations.
    Several of you have worked on domestic violence and sex-
trafficking cases. Ms. Failla--and you can call me ``Your 
Honor'' if you wish.
    [Laughter.]
    Senator Franken. When you were in private practice, you 
handled a pro bono matter through the Battered Women's Legal 
Services Project. Judge Nunley, when you were Deputy Attorney 
General in California, you did a lot of work on domestic 
violence and stalking, among other issues. And, Ms. Chen, as an 
Assistant U.S. Attorney, you successfully prosecuted several 
sex-trafficking cases.
    In April, the Senate passed a bipartisan Violence Against 
Women Reauthorization Act. Unfortunately, we have not been able 
to enact this bill into law yet, and I really hope we can get 
that done soon.
    Based on your own experiences in the field, could each of 
you explain why it is so important that local law enforcement 
and local advocacy organizations have resources devoted 
specifically to addressing domestic violence, sexual assault, 
and trafficking? We will start with Ms. Failla.
    Ms. Failla. Well, I feel like that that is sort of outside 
of my bailiwick because I have not dealt with it in so long. 
But I certainly understand the policies behind funding of local 
law enforcement agencies to assist with domestic violence 
because I have seen through my practice and in the 
representation that I had the havoc that it wreaked on not only 
the woman in question but her family. So to the extent that 
funding could remediate that or, better yet, prevent that from 
happening, I certainly think that would be a good thing.
    Senator Franken. Ms. Chen.
    Ms. Chen. Thank you, Senator. I am very happy that you 
asked this question. As you mentioned, I have worked 
extensively in the area of sex trafficking, and I have been 
extremely fortunate and proud to work with federal law 
enforcement, local law enforcement, and local advocacy groups 
in both rescuing victims of sex trafficking and also 
prosecuting cases involving heinous crimes against trafficking 
victims.
    The importance of local law enforcement and local advocacy 
agencies in this process I can attest to personally because of 
the nature of the crime being so hidden. And, therefore, it is 
essential that first responders and people in these communities 
are able to help identify victims of trafficking, help provide 
support to them, and help bring them to the attention of the 
federal authorities. And we have done that in countless cases.
    Senator Franken. Thank you. I appreciate that answer. I 
think that some people do not understand the Violence Against 
Women Act and that it is about getting resources to 
organizations like that and to law enforcement and to other 
advocacy organizations to help the victims and survivors.
    Judge Nunley.
    Judge Nunley. I think the reason why local agencies devote 
such vast resources is very simple: That is very much of what 
they do, respond to domestic violence cases, sex-trafficking 
cases where they are dealing with the most vulnerable members 
of society. They are dealing with young girls on a lot of 
occasions. But many cases that they deal with on a daily basis 
and, quite frankly, on a nightly basis involve domestic 
violence. We also serve as magistrate judges, so during any 
given month, we are required to help law enforcement facilitate 
emergency protective orders, and most of those emergency 
protective orders involve domestic violence cases. The law 
enforcement officers are overwhelmed. That is why in Sacramento 
County we started a dedicated court. It is a domestic violence 
court that is dedicated solely to domestic violence. We have 
some very dedicated judges who preside over those cases. They 
have a very good scheme for dealing with batterers. And as a 
prosecutor, I was also instrumental in helping set up that very 
same domestic violence court years ago. When I was working in 
the district attorney's office in Sacramento County, we helped 
set up that court and helped get that whole thing running. So 
it is very important in terms of the resources because law 
enforcement, quite frankly, they deal with those issues on a 
daily basis and they deal with it quite a bit.
    Senator Franken. Thank you. And those resources are part of 
what the Violence Against Women Act is about. I sometimes would 
read comments about VAWA and see people would not understand 
that, and they would say, ``Well, isn't violence against women 
already illegal? '' And they do not understand what the Act was 
about. Judge Chappell.
    Judge Chappell. Yes, I have had the opportunity through 
different walks of life to deal with the problems that domestic 
violence victims have. As a prosecutor, I prosecuted crimes 
involving domestic violence. I sat on a domestic violence task 
force, and I was instrumental in training many of the first 
responders in the types of evidence that they needed to collect 
to ensure that there was evidence to use later on if a 
prosecution became necessary.
    As a State court judge, I was involved in hearing domestic 
violence cases that came before me, the individuals who were 
charged with the crime of domestic violence. And now as a 
federal judge, as a federal magistrate judge, I do have the 
opportunity as well to hear cases and listen to issues of human 
trafficking that come before me. And I would say that education 
is key. It is very important that people understand the nuances 
of the crime of domestic violence or human trafficking and they 
can respond to that based on their knowledge.
    Senator Franken. Thank you all. I understand that Senator 
Lee has a couple more questions, so I will yield to him.
    Senator Lee. Thank you very much, Mr. Chairman. I just had 
a couple more questions.
    First, Judge Nunley, I admired your resume as I looked 
through it and discovered that in 1994 you broke off and formed 
your own practice, and you did that for a couple of years 
before going on to your next government assignment. That speaks 
well for your courage.
    [Laughter.]
    Senator Lee. I always wanted to do that when I was in 
private practice and never quite had the courage to do so. How 
does courage play a role in judging?
    Judge Nunley. Well, I think as a judge you are making very 
important decisions. You have to have the courage to make those 
decisions, irrespective of media, the public outcry. In some 
cases the victim may not be satisfied with the particular 
sentence that you are handing down. You have to be able to 
withstand that, and you have to be able to go into that with 
the notion that those outside factors are not going to dictate 
how you act as a judge.
    I have been a judge for over 11 years--or over 10 years, 
and going on 11 years--and during the course of my career, I 
have had to withstand that scrutiny. And, quite frankly, the 
only thing we have to fall back on is our courage, our 
conviction to make the decision according to the law, according 
to precedent, and I have never shirked that responsibility.
    Senator Lee. Even when it is unpopular?
    Judge Nunley. Even when it is unpopular. That is absolutely 
correct.
    Senator Lee. I think that is why we have judges wear those 
big black robes.
    [Laughter.]
    Senator Lee. It makes you look bigger and, therefore, more 
intimidating and gives you a greater sense of courage. That is 
right. I hope you will stick with that same sense of courage 
that helped you feel comfortable forming your own practice. It 
will and I am sure already has helped you as a judge.
    Judge Nunley. Thank you.
    Senator Lee. Judge Chappell, you have been a federal 
magistrate now for about a decade or so. Prior to that time, 
your practice had been overwhelmingly in the State court system 
and overwhelmingly criminal. You have now had a chance over the 
last decade as a federal magistrate judge to be involved both 
in civil and in criminal matters in federal court. And I am 
sure you have seen the importance of your dispositive motions 
aspect of your docket and the fact that your dispositive 
motions, particularly in civil cases, can end up consuming a 
lot of time and certainly is part of what either keeps the 
federal litigation system moving or can quickly clog it up.
    So my question relates to dispositive motions, particularly 
in the context of civil litigation. There are two competing 
schools of thought. One school of thought is that when you have 
got a dispositive motion, if it is a close case, always err on 
the side of denying the dispositive motion--in other words, in 
order to allow the case to proceed to trial. After all, let the 
parties have their day in court, let them go to a trial, if you 
have the least bit of doubt as to whether or not dispositive 
relief is in order. The other school of thought is, no, find 
the right answer because to deny a dispositive motion is every 
bit as bad as granting one where one is not warranted.
    I also fear judges sometimes have a built-in incentive to 
deny when in doubt because it is easier to deny the dispositive 
motion. After all, that is normally not going to be appealable, 
at least not at the moment, and then you do not have to write 
an opinion. You just issue a short statement denying it.
    So how do you balance that? Which school of thought do you 
cling to when it comes to dispositive motions?
    Judge Chappell. Thank you, Senator. I think it kind of 
dovetails back into what you asked Judge Nunley. Making the 
hard decisions sometimes is not popular. You are not always 
popular being a judge and having to make those hard decisions.
    I try to look at every case that comes before me, whether 
that be for report and recommendation to the district court or 
whether that be something that I am working on that will, as 
you said, be dispositive and look at the facts involved.
    I think that I tend to look at the facts and make that hard 
decision. If the decision is that the case should move forward 
to trial, then that to me is the right decision because I have 
given a well-reasoned, thought-out opinion on that, whether it 
be by R&R, report and recommendation, or actually writing an 
order myself.
    If it is that the summary judgment, for example, should be 
granted and that means that the case would not move forward 
based on that, that is the hard decision that a court is called 
on to make. I have made those decisions for the past 12 years 
now of being a judge, three in the State system and now nine as 
a federal magistrate judge. And if I am confirmed as a United 
States district court judge, I would continue to make those 
hard decisions.
    Senator Lee. Thank you very much. Thanks to all of you for 
your testimony and for your willingness to serve.
    Thank you, Chairman.
    Senator Franken. Thank you, Senator Lee. And I do take 
issue with Senator Lee on why judges wear those big black 
robes. But I have nothing to base that on.
    [Laughter.]
    Senator Franken. Congratulations again to each of you and 
to your families, and thanks for your testimony today. We will 
hold the record open for one week to allow Senators to submit 
questions and materials.
    In addition, I would like to submit the following materials 
for the record: a statement from Senator Boxer in support of 
Judge Nunley; four letters in support of Pamela Chen's 
nomination. Those letters are from James Hayes of the 
Department of Homeland Security, the National Association of 
Asian Pacific American Prosecutors, the Constable of Maricopa 
County, and a group of AUSAs, which is what you are, in New 
York.
    [The information appears as a submission for the record.]
    Senator Franken. This hearing is adjourned.
    Ms. Failla. Thank you.
    Ms. Chen. Thank you.
    Judge Nunley. Thank you.
    Judge Chappell. Thank you.
    Mr. Barnett. Thank you.
    [Whereupon, at 11:22 a.m., the Committee was adjourned.]
    
    [GRAPHIC] [TIFF OMITTED] 
    


NOMINATION OF SHELLY DECKERT DICK, OF LOUISIANA, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA; ANDREW PATRICK GORDON, OF 
   NEVADA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA; 
   KETANJI BROWN JACKSON, OF THE DISTRICT OF COLUMBIA, NOMINEE TO BE 
     DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; AND BEVERLY REID 
O'CONNELL, OF CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL 
                         DISTRICT OF CALIFORNIA

                              ----------                              


                      WEDNESDAY, DECEMBER 12, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in Room 
SD-226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, presiding.
    Present: Senators Whitehouse, Blumenthal, Grassley, and 
Lee.
    Senator Whitehouse. Good morning, everyone. The hearing 
will come to order. We have several district judges who are 
having their nominations hearing today. One is from the 
Majority Leader's home State of Nevada. The Majority Leader has 
more pressing business than the average Senator on the floor, 
and so we will vary from the usual procedure for these hearings 
to allow the Majority Leader to make his remarks regarding 
Andrew Gordon, and then we will continue with a more regular 
order thereafter.
    The Majority Leader is recognized.

 PRESENTATION OF ANDREW PATRICK GORDON, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. 
                SENATOR FROM THE STATE OF NEVADA

    Senator Reid. Mr. Chairman, thank you very, very much. I 
appreciate the courtesy that you have shown me.
    It really is a pleasure to be here today to introduce 
Andrew Gordon to become a United States District Judge for 
Nevada. He is a fine lawyer. Mr. President, I look--I am sorry. 
Mr. Chairman, I look forward to opportunities to remind people 
that I was a trial lawyer. I am very proud of that and am very 
happy to introduce to you and the Senate Andrew Gordon.
    He is an outstanding judge--I am so sorry. I have got 
fiscal cliff on the brain because I have to go to some meetings 
as soon as I finish here to deal with that, so I am sorry. But 
he has had a lot of litigation experience. His peers in Nevada 
and, Mr. President, the members of the Nevada Federal 
judiciary, when I mentioned to them that I was considering 
Andrew, they were elated. He has a reputation that is 
unsurpassed. He has the respect of those who know him as a 
person and as an attorney. He is going to be a great judge.
    The law firm of McDonald Carano Wilson has been in 
existence for a long time. The man whose name is first on that, 
McDonald, was a long-time friend of mine. He was a protege, Mr. 
President, of Senator Pat McCarran. That is a very well-
established firm. I have great respect for the firm, and I 
recognize what a great law firm it is, and the last judge that 
we had approved for Nevada came from that same law firm.
    He grew up in Las Vegas. Andrew grew up in Las Vegas, law 
degree from Harvard, bachelor's from Claremont McKenna College, 
which is also called the ``Harvard of the West.'' Throughout 
his legal career, Andrew's practice has focused on civil 
litigation and alternative dispute resolution. His area of 
expertise is a lot, but he has been noted for his expertise in 
complex commercial disputes.
    Mr. President, I want to take just a minute and reflect 
again on my practice of the law. When I practiced law in 
Nevada, it was a much smaller bar. We all knew each other. And 
his good father I knew extremely well. Most all the time he 
practiced, his father practiced alone. He had the same kind of 
law practice that I had. People asked what kind of cases I 
took, and I said, ``Anything I could get.'' And that is what 
his father has always done. But Andrew has become certainly 
more focused than his father or me, but his dad must be 
extremely, extremely proud of Andrew, which I know he is.
    I want to just relate quickly to the Committee that Andrew 
has extensive experience with general business disputes, 
shareholder derivative actions, construction, real estate, and 
title disputes, landlord-tenant issues, employment disputes, 
and securities claims. He has served as an arbitrator and a 
mediator. And he is a commercial construction employment 
arbitrator for the American Arbitration Association.
    I am very impressed with his dedication to the State and to 
the legal community. I look forward to his being confirmed. He 
will be an outstanding judge for our country.
    Thank you very much, Mr. Chairman.
    Senator Whitehouse. I thank the Majority Leader for taking 
the trouble to come to this Committee hearing on behalf of his 
candidate, and on behalf of all of us, I wish you well in the 
fiscal cliff meetings you must attend.
    Chairman Boxer.
    Senator Boxer. Thank you so very much----
    Senator Reid. Mr. President, if I could just interrupt, I 
keep calling you ``Mr. President,'' but----
    Senator Whitehouse. It is a habit of the floor.
    Senator Reid. Yes, that's true. Dean was not here when I 
started, and he is kind of small. I did not see him come in.
    [Laughter.]
    Senator Reid. I appreciate his--we were involved in really 
a difficult election problem in Nevada when I gave the Senate 
Andrew's name, so we did not get the usual consultation we 
normally do. So I appreciate very much Dean supporting this 
good man.
    Senator Boxer. Mr. Chairman, I would be happy to yield to 
Senator Heller so you do not break up the testimony on behalf 
of their nominee.
    Senator Whitehouse. In that case, through the kindness of 
Chairman Boxer, Senator Heller.

 PRESENTATION OF ANDREW PATRICK GORDON, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF NEVADA, BY HON. DEAN HELLER, A U.S. 
                SENATOR FROM THE STATE OF NEVADA

    Senator Heller. Thank you very much, Senator, and to you, 
Chairman and Ranking Member. Thank you very much for taking 
time and allowing me to spend a few minutes with you. It is 
always an honor and a pleasure to be here with Senator Reid as 
we move forward on these important vacancies on the federal 
bench.
    Judicial nominations and subsequent confirmations for 
qualified individuals should be addressed in a timely manner, 
and I am pleased to say that we have accomplished this goal in 
the 112th Congress due to a bipartisan effort both on this 
Committee and myself and Senator Reid.
    In Nevada, where our delegation is certainly not one-sided, 
it is critical for us to work together to find qualified 
candidates who will uphold America's principles of impartiality 
under the law. And I believe Mr. Gordon is a perfect example of 
this and a clear indication with this bilateral effort we can 
find middle ground in instances where it is necessary.
    That being said, I believe Andrew Gordon will make a 
wonderful district court judge in the State of Nevada. Mr. 
Gordon earned his B.A. cum laude from Claremont McKenna College 
in 1984 and graduated from Harvard Law, as mentioned earlier, 
in 1987. And he is currently a partner in the law firm of 
McDonald Carano Wilson, where he began as an associate in 1994. 
I would also like to add that this is the same firm which Ms. 
Du, a nominee that was confirmed by this Committee earlier this 
year, came from. Mr. Gordon has focused on civil litigation, 
alternative dispute resolution, and a primary emphasis on 
complex commercial disputes.
    Mr. Gordon has been featured as one of the Best Lawyers of 
2012, Best Lawyers in America, as well as VEGAS INC Top Lawyer 
in 2012. Outside of his professional duties, he is a civic 
leader within his community, coaching his local high school 
lacrosse team as well as taking a leadership role in his 
church.
    So, again, thank you very much for the opportunity to 
introduce this outstanding Nevadan to the community. I look 
forward to his testimony as well as the Committee's 
consideration of Mr. Gordon's nomination. Thank you. Again, 
thank you for yielding.
    Senator Whitehouse. Thank you, Senator Heller. We 
appreciate your testimony today and your support for this 
nominee.
    Senator Heller. Thank you.
    Senator Whitehouse. Senator Boxer.

PRESENTATION OF BEVERLY REID O'CONNELL, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA 
       BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so very much, Mr. Chairman and 
Senator Grassley. I am very honored today to introduce to you 
Judge Beverly Reid O'Connell, who has been nominated to the 
Central District Court of California. Will you stand?
    Judge Reid O'Connell has had a diverse legal career, 
including more than seven years as an exemplary superior court 
justice in Los Angeles. She is here today with her spouse, 
Daniel, Daniel O'Connell, a deputy district attorney in Los 
Angeles. Also here is her sister, Linda Reid, and Linda's 
spouse, Sherry Burns.
    A lifelong Southern Californian, Judge Reid O'Connell grew 
up in Northridge, where she was valedictorian of her high 
school, attending UCLA and Pepperdine Law School, where she was 
managing editor of the Law Review, and graduated magna cum 
laude.
    She spent five years as an associate at Morrison & 
Foerster, and in 1995 joined the Department of Justice as an 
Assistant U.S. Attorney, where she spent 10 years gaining 
critical criminal law and trial experience.
    Judge O'Connell excelled as an Assistant U.S. Attorney, and 
she was the lead attorney on a case, Mr. Chairman, that led to 
the indictment of the highest-ranking member of a major drug-
trafficking organization on U.S. soil. For her work on this 
case, she was awarded the DEA Administrator's Award for 
Exceptional Service, and she has received numerous other awards 
from the DEA, the FBI, and local governments.
    Judge Reid O'Connell is uniquely qualified to take on the 
challenge of serving one of the Nation's busiest courts. 
California's Central District has 655 weighted filings per 
judgeship, nearly 30 percent above the national average. 
Appointed superior court judge in Los Angeles in 2005 by then-
Governor Schwarzenegger, Judge Reid O'Connell is the assistant 
supervising judge of the North Valley Judicial District, where 
she is responsible for supervising three courthouses and 22 
bench officers. An expert in criminal law, she presides over 
all aspects of felony criminal cases before that court.
    In addition to being well respected for her demeanor on the 
bench and her stellar legal intellect, she is known by her 
colleagues as a great manager and supervisor, attributes which 
will serve her well at the busy Central District. She is also 
very active in the Southern California legal community. She 
teaches continuing education courses to California judges on 
criminal law. She is an adjunct professor at the law schools of 
Pepperdine and Loyola.
    The judge was inspired to become a lawyer during an eighth 
grade field trip to the California Supreme Court, and, Mr. 
Chairman and Senator Grassley, I think this is another great 
example that shows the importance of teaching our children the 
possibilities for them if they work hard. So as a result of 
this experiences as a youngster, she created a program that 
brings inner-city students to the superior court to educate 
them about the legal process and to spend time with judges and 
lawyers.
    Senator Feinstein is unable to join us here today due to a 
scheduling conflict, but she has personally shared with me how 
highly she thinks of Judge Reid O'Connell.
    Judge Reid O'Connell will be a tremendous addition to the 
Central District. I am finishing now. I want to say I actually 
cut out about two pages of more experience that she has had, 
but I just want to say to both of you and for you to relay to 
your colleagues that this is one great nominee, and I hope we 
can move her quickly because we are so short of judges in this 
district.
    Thank you very much.
    Senator Whitehouse. Thank you very much, Senator Boxer.
    Senator Landrieu and Senator Vitter for the Louisiana 
candidate. Senator Landrieu.

  PRESENTATION OF SHELLY DECKERT DICK, NOMINEE TO BE DISTRICT 
   JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, BY HON. MARY 
      LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Landrieu. Thank you, Mr. Chairman and Ranking 
Member, for taking your time to conduct this hearing so late in 
our session, but so important to the nominees that are still 
pending action.
    It is our privilege to be here, and I will keep my remarks 
short, and Senator Vitter will add to these, but we are both 
here in support of Mrs. Shelly Deckert Dick as a nominee for 
judge of the U.S. Middle District. And, Shelly, if you would 
stand with your husband, please, as well? Welcome to both of 
you.
    She is also joined by her parents, Ray and Myrna; her 
husband, Kelley, who has been introduced; and her two children, 
Barrett and Austin. And if they would stand, please? Wonderful. 
Thank you all for being with your mom for this very special 
day. She also has two proud colleagues with her: Amy Newsom and 
Carole Ellender.
    Shelly Dick comes equipped, Mr. Chairman, with decades of 
federal court litigation experience, which I think is very 
important when I look for nominees to suggest to the 
administration. She brings to this Committee a very thorough 
understanding of federal law, an unquestionably fair and even-
handed temperament, and a wonderful attitude generally.
    She is a current resident of Baton Rouge. However, she was 
born in El Paso, Texas. I do not know how she got by the 
screening on that count, but she did. She earned a bachelor's 
degree from the University of Texas in Austin and graduated 
with honors. She brings a tremendous amount of experience both 
from the private and public sector. She went on to earn her 
degree from Louisiana State University where she was a member 
of the Louisiana Law Review.
    Early in her service, she clerked with one of our most 
outstanding judges who actually went on to be our Supreme Court 
Justice, Catherine ``Kitty'' Kimball, when she was in the 18th 
district court.
    Following law school, she became an associate attorney with 
one of our local firms, Gary, Field, Landry & Bradford, before 
becoming a founding partner in her own firm. She has 
represented both plaintiffs and defendants. I think she brings 
a lot of common sense and common ground to the bench, which is 
very important, and a true understanding of the law and its 
ramifications.
    She is well established and well respected in the legal 
community, and the only thing that I would add, Mr. Chairman, 
is that I am very, very impressed with her work, not only 
domestically in the aftermath of Katrina and Rita and being 
very engaged in the rebuilding of our community, but she has 
also volunteered dozens of times for international trips to 
Cambodia, South Africa, and Kenya with her service to mission 
work abroad as well as at home.
    So it is my great honor to present Shelly Dick to you, and 
I am sure that you will find her credentials in order.
    Senator Whitehouse. Thank you, Senator Landrieu.
    Senator Vitter.

  PRESENTATION OF SHELLY DECKERT DICK, NOMINEE TO BE DISTRICT 
   JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, BY HON. DAVID 
       VITTER, A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman and Members, and I 
am honored to join Mary here in strong support of this 
nomination and urge your positive consideration. I will not go 
through all of Shelly's background. Mary has outlined that very 
well. But I think the summary of it is it is a terrifically 
solid legal background, a lot of good qualifications, and it is 
real-world practice experience, which is invaluable, 
particularly for the district court position. And so I think 
she will bring that practitioner's real-world experience to 
bear in the district court in a very positive and valuable way.
    So, again, I strongly comment to you Shelly Dick and urge 
and look forward to her confirmation. Thank you.
    Senator Whitehouse. Thank you very much, Senator Vitter.
    Congresswoman Norton, thank you so much for being here on 
behalf of your nominee. Please proceed.

 PRESENTATION OF KETANJI BROWN JACKSON, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES 
  NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. Thank you, Mr. Chairman and Mr. Grassley.
    This Committee and, I believe, the Senate will have an 
opportunity to confirm an unusually outstanding candidate for 
the United States District Court for the District of Columbia, 
and I speak to more than her stellar paper credentials when I 
speak of the qualifications of Ketanji Brown Jackson. I speak 
of more than her present position as Vice Chair and 
Commissioner of the United States Sentencing Commission, her 
work with major law firms in Washington and Boston, her work 
with mass tort mediations in the Feinberg Group here, her 
judicial clerkships on the Supreme Court of the United States 
with Justice Stephen Breyer, on the United States Court of 
Appeals for the First Circuit with Judge Bruce Selya, and 
before that her clerkship on the United States District Court 
for the District of Massachusetts with Judge Patti Saris, and, 
of course, of her education at Harvard Law School where she 
graduated cum laude, having been supervising editor of Harvard 
Law Review, and her undergraduate education at Harvard, 
Radcliffe College, where she graduated magna cum laude.
    Mr. Chairman, Ms. Jackson brings the entire package, if you 
will forgive me, in one candidate: top-of-the-mark academic 
background, practice in the criminal law, the civil law, and 
mediation, and in the directly relevant and important skill of 
sentencing.
    Mr. Chairman, the competition for federal judgeships here 
in the District of Columbia is particularly tough because this 
is one of the most talented bars in the country, many federal 
and Supreme Court clerks in practice and many others equally 
well qualified.
    Therefore, when the President gave me senatorial courtesy, 
I established a Nominating Commission of highly qualified 
lawyers and lay people in order to engage in a careful, 
deliberative process.
    The citizens of my district, as you know, are denied many 
of the ordinary rights enjoyed by other Americans. We are 
pleased that the President has given us the right to 
participate in the selection of judges whose jurisdiction over 
criminal and civil matters will directly affect the citizens of 
the District of Columbia. This Commission is chaired by a past 
president of the D.C. bar, Pauline Schneider, and the 
Commission has done an excellent job of vetting and 
investigating all the candidates they recommend to me. They 
recommend three, and then I am left with the unenviable task of 
selecting one from among a constellation of legal stars to 
recommend to the President.
    Mr. Chairman, the best evidence in personnel selection of 
any kind is how those who have worked with the candidate or 
observed her view her. I will not amaze you or bore you with 
the consistent superlatives used to describe her work and Ms. 
Jackson's personal disposition. I will leave you with one. The 
Chair of the Commission spoke to Justice Breyer, and I am 
quoting her now. The first words out of his mouth when he 
picked up the phone were, ``Hire her.'' He went on to say, and 
she is quoting: ``She is great, she is brilliant. She is a mix 
of common sense, thoughtfulness. She is decent. She is very 
smart and has the mix of skills and experience we need on the 
bench.'' He endorsed her enthusiastically.
    Mr. Chairman, there are words that go like these: ``Enough 
said.'' Those words come to mind. And thank you very much.
    Senator Whitehouse. Thank you very much, Congresswoman 
Norton.
    And our other witness, I gather also on her behalf, is 
Congressman Ryan. Welcome. Thank you for coming over to this 
side of the Capitol.

 PRESENTATION OF KETANJI BROWN JACKSON, NOMINEE TO BE DISTRICT 
   JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. PAUL RYAN, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

    Representative Ryan. Chairman, thank you. It is nice to be 
with you. And, Ranking Member Grassley, it is great to see you 
again. We spent a lot of time together over the prior few 
months.
    I appreciate the opportunity to share my favorable 
recommendation for Ketanji Brown Jackson. I know she is clearly 
qualified. But it bears repeating just how qualified she is.
    Ketanji currently serves as the Vice Chairman and 
Commissioner of the U.S. Sentencing Commission. She served as 
counsel at Morrison & Foerster, focusing on criminal and civil 
appellate litigation in State and federal courts. She was an 
assistant federal public defender in the Appeals Division of 
the Office of the Federal Public Defender in the District of 
Columbia. She has completed three judicial clerkships--at the 
district court level, at the appeals court level, and at the 
Supreme Court. She is a graduate of Harvard Law School. She was 
supervising editor of Harvard Law Review. She took an active 
role in Black Law Students Association. She is an undergraduate 
and graduate of Harvard.
    I am here to serve as a character witness. I know her. We 
are family by marriage. I would like to introduce her family 
because they are here with us today, and we are all extremely 
proud of her. Her husband, Patrick Jackson, is here with us, if 
he could stand. Her daughters, Talia and Leila, are here with 
us as well today. Her parents, Johnny and Ellery Brown, are 
here with us today. Her brother, Lieutenant Ketajh Brown is 
here with us today. Her in-laws, Gardner and Pamela Jackson, 
are here with us today. And her brother and sister-in-law, who 
are my brother-and sister-in-law, William and Dana Jackson, are 
here with us as well today.
    Now, our politics may differ, but my praise for Ketanji's 
intellect, for her character, for her integrity, it is 
unequivocal. She is an amazing person, and I favorably 
recommend your consideration.
    Thank you.
    Senator Whitehouse. Thank you very much, Congressman Ryan. 
We are delighted to have both you and Congresswoman Norton in 
support of this candidate. That speaks volumes, and we hope 
that she, along with the others, can achieve rapid 
confirmation.
    Let me take a brief moment while we call the candidates to 
come forward and take their seats, then I will have some very 
brief remarks, as I believe the Ranking Member will, and in the 
meantime, without objection, I will put into the record the 
statement of Chairman Leahy on behalf of these candidates.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]

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

    Senator Whitehouse. Actually, before everybody sits down, 
let me get you sworn. If I could ask you all to raise your 
right hand. Do you affirm that the testimony you are about to 
give before this Committee will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Ms. Dick. I do.
    Mr. Gordon. I do.
    Ms. Jackson. I do.
    Judge O'Connell. I do.
    Senator Whitehouse. Thank you very much. Please be seated. 
We are delighted that you are all here. In a moment, you will 
have an opportunity to introduce yourself, and to the extent 
they have not already been introduced and you wish to make 
introductions or make further introductions to introduce your 
family and friends who are here and then to take whatever 
questions we may have of you.
    This is a significant hearing. Voting to confirm an 
individual to the federal bench is one of the most important 
and lasting decisions that a Senator can make. Every day 
federal judges make decisions that affect the lives of ordinary 
Americans across this country.
    In doing so, judges must respect several things: first, the 
role of Congress as the elected representatives of the American 
people; second, that cases should be decided based on the law 
and the facts; third, a duty not to prejudge any case, but to 
listen to every party that comes before them, whether of high 
or low station, with equal respect; to respect precedent; and 
also to confine themselves to the issues that the court must 
properly decide. I hope that each judicial nominee we hear from 
today understands the importance of those elemental principles.
    Judicial nominees also must have the requisite legal skill 
to serve as a federal judge, and each of today's nominees has a 
very impressive record of achievement. As a result, I believe 
that each of these nominees deserves prompt consideration. We 
need good judges and we need them in adequate number for our 
system of justice to function. And, of course, our system of 
justice, it goes without saying, is one of the badges of 
American democracy that we are proud of and that we display to 
the rest of the world.
    Too often, over the past four years, judicial nominees have 
been approved by this Committee with bipartisan support. I want 
to express my appreciation to the Ranking Member and to his 
predecessors for the, I think, sensible and smooth way in which 
nominees have moved through the Judiciary Committee. 
Unfortunately, they then turn up on the executive calendar and 
can be held up there for months and months on the Senate floor. 
It is my hope that moving forward we can come together and 
return the Senate to its best traditions of holding timely up-
or-down votes on nominees who have been approved by the 
Committee. Certainly confirming the 13 judicial nominees who 
are currently sitting on the executive calendar and who have 
been pending since before the August recess would be an 
important step in the right direction.
    There is, I can assure the nominees, not much of a turnout 
at this point today. Do not be discouraged by that. It is 
actually a good thing. It is a sign of non-controversialness, 
which is a very good thing in a judicial nominee.
    With that, I will turn to our Ranking Member, Senator 
Grassley.

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

    Senator Grassley. First of all, I welcome all of you, and I 
will spend most of my time asking each one of you a couple 
questions, and then probably submit some questions for the 
record for you to answer, and I hope that you will answer; and 
if we have some follow-up to your written answers, that you 
will also answer them speedily.
    With today's hearing during this Congress, we have held 29 
nomination hearings for 116 judicial nominees. In total, the 
Senate has confirmed 164 district and circuit nominees. The 
Committee has made good and steady progress in confirming these 
judicial nominees. This year alone, we have confirmed 42 
district and circuit judges, which is significantly higher than 
were confirmed in the last Presidential election year.
    During this Congress, we have confirmed 104 judges. That 
matches the highest number of confirmations done by this 
Committee during a Congress when President Bush was in office. 
That took place in the 108th Congress when Republicans were in 
the majority. So I think by any objective measure, one would 
have to conclude that we are treating this President and his 
nominees quite fairly.
    I have also spoken about the President getting nominees up 
here faster than he has as well because we cannot consider you 
folks until you are actually nominated.
    I am going to put in the record a brief description of each 
of your qualifications, but I will not go into them now because 
they are repetitive of what other Senators have said about you. 
But, obviously, you all have very solid backgrounds.
    I will put the rest of the statement in the record.
    Senator Whitehouse. Without objection.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Whitehouse. Senator Blumenthal, do you wish to make 
some brief remarks?
    Senator Blumenthal. Very briefly. Thank you, Senator 
Whitehouse. Thank you to Senator Leahy, the Chairman of the 
Judiciary Committee, who could not be here today, for moving 
these nominations along, which I think are very important to 
the integrity and efficacy of our judicial process. And thank 
you to the Ranking Member, Senator Grassley, for his devotion 
and dedication and civility in this process.
    I would agree with Senator Whitehouse that the turnout here 
is a good thing for you. Even better for you is the turnout 
from your families, and I want to thank them for the sacrifices 
that they will be making for the long hours that you have 
devoted in your careers and will be devoting even more as you 
assume this very, very important role. As a lawyer who engaged 
in litigation for most of my career very actively in the 
federal as well as our State courts in Connecticut, I know 
firsthand how profoundly significant you will be in 
exemplifying the voice and the face of justice to the majority 
of Americans who come into your courtrooms. You will be the 
last stop for many of them, although they may have the 
opportunity to go to the court of appeals. For those who are 
sentenced, for the civil trials that you do, and for the 
criminal defendants whose futures you adjudicate, you will be a 
pivotal and profoundly important force for good in their lives 
and in the lives of many, many others whose lives you will 
touch.
    So I want to thank you for the fairness and dedication and 
just join finally in seconding Representative Ryan. Our 
politics may differ. I do not even know what your politics are. 
But you are profoundly impressive candidates, and I look 
forward to your service on the bench and our judicial system.
    Thank you.
    Senator Whitehouse. Thank you, Senator Blumenthal.
    It is a delight when Senator Blumenthal attends these 
hearings because he is one of the most accomplished lawyers in 
the Senate. We were Attorneys General together, but he had been 
there a long time before I got there, and he stayed on as 
Attorney General after I left. He was working on becoming the 
senior Attorney General in the country, but he ran for this 
office, happily. We call that person the ``Eternal General'' 
and he never quite got that characteristic. But I believe he 
has argued more cases in the Supreme Court than any Member of 
the Senate, and so he knows something about judging, and I am 
delighted that he is here.
    Ms. Dick, if you would like to provide whatever opening 
statement you would care to and make whatever recognitions you 
would care to, you are welcome here and you are recognized.

STATEMENT OF SHELLY DECKERT DICK, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE MIDDLE DISTRICT OF LOUISIANA

    Ms. Dick. Thank you. Thank you, Mr. Chairman. I will waive 
an opening statement and instead defer to the questions of the 
Members of the Committee. But I would like to make a few 
acknowledgments.
    First, I would like to thank Senator Landrieu for her very 
kind and gracious words and for her confidence in recommending 
me to President Obama for consideration.
    I would also like to thank Senator Vitter for his presence 
and his support of my nomination. I am truly humbled and feel 
very privileged by the bipartisan support of my two home 
Senators.
    I would, of course, like to thank President Obama for his 
confidence in making the nomination that we are here for today.
    I would like to acknowledge and thank the Members of the 
Committee: Chairperson Whitehouse for presiding; Ranking Member 
Grassley for your commitment to this very important process; 
Senator Blumenthal, thank you very much for being here; and, 
finally, I would like to thank Chairperson Leahy and the 
Committee for scheduling this hearing so late in the session 
and with such very important pressing matters before our 
country, and continuing to show your commitment to maintaining 
a very strong and independent judiciary, my deepest gratitude 
for that.
    By way of recognition, there are some people here with me 
that I would like to acknowledge. First are my parents. Myrna 
and Ray Deckert are here from El Paso, Texas, and they have 
been an inspiration to me my entire life, and I am so grateful 
that they could make this trip and be here with me.
    My husband of 29 years, he is the wind beneath my wings, my 
husband, Kelley.
    Two of my three sons are here: Barrett and Austin. I am 
very proud of them and I am very glad that they could be here. 
My oldest son was not able to be here, but he will be watching 
on Webcast. He is undertaking an examination of a different 
sort today. He is a first-year law student and taking his 
contracts exam. And so he will be doing that and watching this 
on the Webcast.
    I would also like to acknowledge my law partner, Amy 
Newsom, who traveled with me from Baton Rouge to be supportive; 
and watching on Webcast, all the members of my law firm, 
Forrester, Dick & Clark, without whose support I would not be 
here, and I would not have been able to be the kind of lawyer 
that I have always aspired to be.
    Thank you.
    [The biographical information of Ms. Dick follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Whitehouse. Thank you very much, Ms. Dick.
    Mr. Gordon, you are recognized for any statement, 
recognitions, or acknowledgments you would care to make.

  STATEMENT OF ANDREW PATRICK GORDON, NOMINEE TO BE DISTRICT 
                JUDGE FOR THE DISTRICT OF NEVADA

    Mr. Gordon. Thank you, Chairman, and let me thank the 
Committee entirely for having us here today. Ranking Member 
Senator Grassley and Senator Blumenthal, thank you for coming 
and allowing us to meet with you today.
    I would like to thank the President for making this 
nomination. I would like to thank Senator Reid for his 
recommendation and his very kind words today, and thank you to 
Senator Heller for his kind words and supporting this 
nomination.
    I would like to recognize my wife and inspirator, Sue 
Gordon. She is at home in Las Vegas with our daughter, Allison, 
who is a seventh grader at Faith Lutheran Middle School. My 
oldest son, Dan Gordon, is a sophomore at the University of 
Colorado at Boulder, who is studying for finals right now, so 
we figured that was a little more important. My other son, Matt 
Gordon, is a freshman at the University of San Diego. He, too, 
is studying for finals and could not make it out here as well.
    I would like thank my parents: my mother, Lillius Gordon, 
who is in Las Vegas watching this on the Webcast. My father, 
Hank Gordon, and his wife, my second mom, Marti Gordon, they 
are also watching this on the Webcast from Las Vegas.
    My brother, Scott, who is here with me from Albuquerque, 
was able to attend. I have two other brothers, John and Jeff. 
They are also watching this from Las Vegas. And my sister, 
Sandy, who is an attorney practicing in San Diego, is watching 
this as well. I thank them for their support.
    With me today is my cousin, Allison Gordon, and her two 
children--I am sorry, Allison Cox, and her two children, Trey 
and Lauren, and I thank them for coming down and supporting us.
    And, finally, with me today also is the managing partner of 
my law firm, McDonald Carano Wilson. His name is John 
Frankovich. He flew out from Reno to be here, and I thank him 
for his efforts to come out and support us.
    I would also like to thank all the lawyers and staff at my 
law firm, McDonald Carano, in Las Vegas and Reno, who without 
their support I would not be able to get this far.
    Thank you very much for your time.
    [The biographical information of Mr. Gordon follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Whitehouse. Thank you very much, Mr. Gordon.
    Commissioner Jackson, welcome, and you are recognized for 
any statement or acknowledgments you would care to make.

  STATEMENT OF KETANJI BROWN JACKSON, NOMINEE TO BE DISTRICT 
               JUDGE FOR THE DISTRICT OF COLUMBIA

    Ms. Jackson. Thank you, Mr. Chairman, and thank you, 
Members of the Committee, for your time this morning. I would 
also like to thank the Chair of the Senate Judiciary Committee 
and the Ranking Member for scheduling this hearing and the 
President of the United States for having confidence in me and 
for giving me this great honor.
    My thanks also extends to Congresswoman Norton who honored 
me with those very kind words of introduction and who also 
selected me for recommendation to the President. And thanks as 
well to Representative Ryan. I am so grateful that he was able 
to take time out of his busy schedule to come here and provide 
his personal endorsement.
    I do have a number of family members and friends who have 
come here today and many who are watching by Webcast, and I 
appreciate this opportunity to acknowledge them.
    First is my husband of 16 years, Dr. Patrick Jackson. 
Patrick is a terrific surgeon, and he is my best friend and my 
biggest fan, and without his love and support, I do not think I 
would have had the courage to pursue this dream.
    Patrick is here with our two daughters, Talia and Leila, 
who are getting quite the civics lesson this morning; and my 
parents, Johnny and Ellery Brown. They have been with me from 
the beginning, and they have always been there when I need 
them, and they have flown here from Miami to be with me today.
    Also here is my brother, First Lieutenant Ketajh Brown, and 
I am particularly happy that he was able to be with us, because 
not too long ago he was stationed in the Sinai Peninsula and in 
Mosul, Iraq; before that he was an infantry officer in the 
Maryland Army National Guard.
    Also here are my in-laws, Pamela and Gardner Jackson, who 
have flown here from Boston, Massachusetts; and my wonderful 
and supportive brother-in-law and sister-in-law, William and 
Dana Jackson.
    To the many friends and family members who are watching by 
Webcast and the other friends who are here and watching, I 
appreciate your words of encouragement.
    And, finally, I would just like to give a special word of 
gratitude to the three federal judges for whom I clerked: Judge 
Patti Saris, Judge Bruce Selya, and Justice Stephen Breyer. 
They have been my inspiration through this journey, and I am 
grateful every day for their continued mentorship and support.
    Thank you.
    [The biographical information of Ms. Jackson follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Whitehouse. Thank you, Commissioner Jackson.
    Our final nominee, Judge Beverly O'Connell, welcome. Please 
proceed with whatever statement or acknowledgments you would 
care to make.

  STATEMENT OF BEVERLY REED O'CONNELL, NOMINEE TO BE DISTRICT 
          JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge O'Connell. Thank you, Mr. Chairman.
    First, I, too, would like to thank the President for 
nominating me for this honor; Senator Boxer for her kind words; 
Senator Feinstein for her support of my application; to you, 
Chairman Whitehouse, Ranking Member Grassley, for scheduling 
this hearing. And I would like to introduce to you some of the 
family that I have with me today.
    We are a family of public servants, and I would like to 
introduce my husband, who is a deputy district attorney in Los 
Angeles; my sister, Linda Reid, formerly of the Central 
Intelligence Agency; her wife, Sherry Burns, retired from the 
Central Intelligence Agency; our niece, Kaelin, the only one 
who is in the private sector in our family; her friend, Whitney 
Welsh, who has become an adopted member of our family; and 
Presiding Justice Tricia Bigelow from Division 8, Second 
District Court of Appeal in Los Angeles.
    I would be remiss without thanking my court staff: my court 
reporter, Mary Lou Murphy; and my courtroom deputy clerk, 
Martha Cabrera, whose professionalism and commitment to justice 
makes my courtroom a place where everybody has a fair chance to 
be heard.
    I would also like to recognize all my friends and family in 
California who could not be here, but are probably going to 
watch a delayed recording since it is very early on the west 
coast.
    Thank you.
    [The biographical information of Judge O'Connell follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Senator Whitehouse. Thank you very much, Judge O'Connell.
    As the Chairman of this particular hearing, I am going to 
be here through the bitter end of it, so I am going to yield my 
time right now to the Honorable Ranking Member, Senator 
Grassley, and then recognize Senator Blumenthal, then recognize 
Senator Lee, and reserve my questioning until the end. So 
without further ado, Ranking Member Grassley.
    Senator Grassley. And that is quite a courtesy for us 
minority people here.
    Senator Whitehouse. Not to have to listen to me.
    [Laughter.]
    Senator Grassley. Thank you very much, and I appreciate 
everything I have learned about you, although it has just been 
lately that I have learned it, but as other people have said, 
qualified to do this.
    I am going to start with you, Ms. Dick, a couple questions. 
I understand that last year there was a significant class 
action settlement in favor of Louisiana health care providers 
in relationship to the Louisiana PPO Act. As a member of the 
Louisiana Workforce Commission, you heard cases involving 
disputed claims by health care providers, so I would like to 
have you explain your work there as it relates to the class 
action settlement. And, specifically, were any of your 
decisions overturned by that settlement?
    Ms. Dick. Thank you, Ranking Member Grassley, for the 
question. Yes, I was hired by the Louisiana Workforce 
Commission, which is the agency that would be akin to a 
Department of Labor. We just happen to call it the ``Workforce 
Commission.'' They have jurisdiction over both workers' 
compensation and unemployment compensation. And there were 
approximately 4,000 to 5,000 lawsuits filed in the Office of 
Workers' Compensation that challenged whether or not physicians 
who treated injured workers could be compensated with PPO 
discounts if they had signed a PPO provider agreement.
    As you might imagine, that volume of litigation literally 
flooded those administrative courts, and so the Louisiana 
Workforce Commission determined that they needed some help. And 
so I was engaged, really, to preside specifically over those 
cases.
    There ultimately was a class settlement. I did not 
participate in that class settlement in any way. I simply 
presided over the cases that were assigned to my docket, set 
them for trial, set them for hearings, moved them along. 
Ultimately, I concluded that the physicians, if they had 
entered into a contract, that they could be compensated under 
the terms of that contract, and that decision in a different 
case was affirmed by the Louisiana Supreme Court.
    Senator Grassley. Okay. A second question for you. There 
are a number of different theories explaining how judges should 
interpret the Constitution. We often hear nominees recite the 
mantra that they will apply the law to the facts, and I do not 
argue with that, but I am looking for an answer with a little 
bit more thought behind it. What constitutional interpretation 
models will guide you when you are faced with constitutional 
questions?
    Ms. Dick. Senator, it is my very firm belief that it will 
be my job as a district court judge, which is, you know, kind 
of the grassroots foot soldier, and I am very cognizant of the 
fact that that will be my role, a foot soldier, and I will 
follow the precedent which is enunciated by the United States 
Fifth Circuit Court of Appeal and foremost by the U.S. Supreme 
Court. Whether like it or not, that is of no moment. It is how 
does the U.S. Supreme Court interpret whatever congressional 
statute is at issue or the provisions of the Constitution, and 
that is what I would follow.
    Senator Grassley. Mr. Gordon, I bet you are just going to 
love to be asked a question about something you wrote 30 years 
ago, but we do not do it because of--we kind of want to know 
what the situation is today. This dealt with the 
decriminalization of prostitution. At one point in the article, 
you discuss the 1908 Supreme Court case, Bitty. In that case, 
the Court upheld federal statute noting prostitution was 
hostile to ``the idea of the family.'' You criticized the Court 
for their view, stating that criminalization of prostitution 
``is an ineffective way to preserve marriage and the family.''
    I recognize that this paper was written 30 years ago and 
you were in college at the time, so the first question is: Have 
your views of this topic changed since you wrote that article 
so many years ago?
    Mr. Gordon. Yes, Senator, they have changed somewhat. Like 
you pointed out, that was an article that was a condensed 
version of my honors senior thesis out of Claremont McKenna 
College that was more of a policy analysis of prostitution, 
comparing the Nevada model to the German model, and looking at 
various issues related to the policies behind criminalization 
of prostitution.
    That policy analysis really is the area for Congress and 
the State legislatures to make decisions. It is not for judges 
to make policy decisions like that. That is the legislative 
body. I recognize that judges have a separate function. The 
Founders set up three branches of our government, and the 
judicial power is very limited. And it is up to the elected 
officials like Senators, Congress folks, and State legislators 
to pass those kinds of policy decisions.
    Senator Grassley. Prostitution is largely, if it is a 
criminal activity, left to individual States. There is a 
federal interest. Congress has lawfully established anti-
prostitution laws based on powers delegated in the 
Constitution: immigration, regulating interstate commerce, and 
establishing foreign trade. The statute at issue in Bitty is 
one example, so a broad question: When reviewing a federal 
statute, is it ever permissible for a court to refer to State 
laws in order to assist in its ruling? If so, when and under 
what circumstances?
    Mr. Gordon. Senator, if the answer is obvious from the 
plain language of the statute, that ends the inquiry. If it is 
not, then I believe judges look to the precedent from the U.S. 
Supreme Court or the courts of appeals from that jurisdiction, 
and that should end the inquiry as well.
    Senator Grassley. Okay. For all of you, I will have some 
written questions as well.
    I want to go to Ms. Jackson. I thought after Ryan got done 
speaking about you we could just vote you out right away.
    Ms. Jackson. That would be my hope, Senator.
    [Laughter.]
    Senator Grassley. Anyway, and that does not denigrate what 
your Congresswoman said about you, but I want to ask you about 
some terrorism cases. In looking at the arguments you have made 
in court representing terrorists and the notes you provided the 
Committee last week from a December 2007 presentation, I have 
questions about your views on the rights of detainees, and that 
in turn causes some concern about how you will handle terrorism 
cases that may come before you if you are confirmed.
    Do you believe that terrorists pose a danger to America?
    Ms. Jackson. Yes, Senator, I do.
    Senator Grassley. Okay. Do you believe that the United 
States is at war against terrorists?
    Ms. Jackson. Yes, Senator, I do.
    Senator Grassley. What is your understanding of the current 
state of law regarding those detainees as a result of the 
United States Global War on Terrorism? How will you approach 
these issues, if confirmed?
    Ms. Jackson. Senator, I have not looked at the issue in 
terms of the current state of the law in many years. The time 
that I worked on the terrorism cases that you referred to, I 
was an assistant federal public defender. That was several 
years ago. And then I worked on a few amicus briefs when I was 
at Morrison & Foerster. In all of those situations, the views 
that were expressed were the views of my clients that I 
represented them in that capacity and the briefs did not 
necessarily represent my personal views with regard to the war 
on terror or anything else.
    Senator Grassley. Okay. I will accept your answer for now. 
I might, on reflection, follow up, maybe, to ask you to look at 
it a little more definitively and give me a written answer.
    Ms. Jackson. Yes, sir.
    Senator Grassley. But do not do that until I submit it to 
you, because I want to think about that.
    Since you are on the Sentencing Commission, I am going to 
ask you three questions.
    Ms. Jackson. Okay.
    Senator Grassley. But just one on sentencing, and then I 
have got two that I will submit in writing.
    It is my understanding that sentences handed down by the 
D.C. district judges frequently are departures from the 
Sentencing Guidelines. Have you studied this since being 
appointed to the Commission? And do you have any observations 
to share with us on that topic?
    Ms. Jackson. Well, the Commission is working on a report 
right now that gathers data and information not only about the 
D.C. District Court but also courts nationwide with respect to 
their sentencing practices. We are in the process of analyzing 
the information and issuing this report, which we hope will be 
out early next year.
    I can say that, as the Chairman of the Commission testified 
to the House Judiciary Committee, the Commission is concerned 
about trends that we are seeing in the data with regard to 
increasing disparity in sentencing and that a number of courts 
have been in the position of having judges sentence outside the 
guidelines with respect to certain offenses, and we are 
analyzing that, and we hope to have a report shortly.
    Senator Grassley. Ms. O'Connell, as a State judge in 
California, have you ever imposed a death sentence?
    Judge O'Connell. No, I have not, Senator. In order to have 
a death case, I am under the California Rules of Court trained 
and eligible to handle such a case. The district attorney must 
seek the death penalty. The jury must return such a verdict 
before it would be appropriate for me to hand down a sentence 
like that, and no such case has yet come before me.
    Senator Grassley. If confirmed, would you be able to impose 
the death penalty where it was appropriate as a federal judge?
    Judge O'Connell. Yes, Senator, I would.
    Senator Grassley. Okay. You co-authored a chapter on 
electronic evidence decisionmaking. In it, you wrote, ``An 
effective advocate is one who develops empathetic ties to 
decisionmakers, be they judge or jury, and exploits them to 
their clients' advantage.''
    What role does empathy have in the role that a judge plays?
    Judge O'Connell. Certainly, Senator, and to the extent 
empathy is defined as ``respect for the litigants,'' in my 
courtroom, all litigants who appear in front of me are treated 
with respect. To the extent empathy means ``feeling sorry for 
someone'' or ``being guided by passion or prejudice,'' that has 
no place in judicial decisionmaking and has, over my seven 
years on the bench, played no role in my decisions from the 
bench.
    Senator Grassley. I am going to read one question, but I 
think you just answered it, so you do not have to say any more. 
But I was going to follow up. Do you believe that the sentence 
a defendant receives for a particular crime should depend on 
the judge he or she happens to draw? Maybe I will ask you to 
speak to that.
    Judge O'Connell. Okay. No.
    Senator Grassley. Okay.
    [Laughter.]
    Senator Whitehouse. Short and sweet.
    Senator Grassley. Thanks to all of you.
    Judge O'Connell. Thank you.
    Senator Whitehouse. Thank you very much, Senator Grassley.
    Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman.
    Let me begin by asking a question of Ms. Dick and Mr. 
Gordon. I note from my review of your records that your 
respective practices have been primarily in the civil area, and 
I wonder whether you feel qualified to do the kind of criminal 
work that a federal district judge inevitably has to do. Ms. 
Dick, maybe you can begin by answering.
    Ms. Dick. Yes, thank you, Senator Blumenthal. I do not feel 
qualified right now, but I will be qualified, and the way that 
I will come about that knowledge will be work ethic, work 
ethic, work ethic.
    Senator Blumenthal. Thank you.
    Mr. Gordon.
    Mr. Gordon. Senator, I agree with Ms. Dick's comment. I 
recognize the need to roll up my sleeves and dig in and work, 
to study the applicable Rules of Criminal Procedure, case law, 
and Supreme Court precedent and will do so.
    Senator Blumenthal. Thank you.
    Commissioner Jackson, I want to ask you a couple of 
questions about the Sentencing Commission.
    Ms. Jackson. Yes.
    Senator Blumenthal. And, in particular, give you an 
opportunity to answer--it may not have been your decision, but 
the decision to apply retroactively some of the guidelines that 
the Sentencing Commission promulgated. Would you care to 
comment?
    Ms. Jackson. Yes, Senator. It was in part my decision 
because the Commission unanimously determined that the 
standards that apply when the Commission decides retroactivity 
applied in the crack cocaine context. And I would say that the 
Sentencing Reform Act, which is the Commission's organic 
statute, as the Commission read it and as it states, requires 
that the Commission undertake retroactivity determinations 
whenever penalties are reduced, and the Commission reduced the 
crack cocaine penalties pursuant to Congress' direction when 
Congress enacted the Fair Sentencing Act. And so then we 
undertook the retroactivity analysis, and the bipartisan 
commission unanimously determined that the factors that apply, 
apply to the crack cocaine context, a decision that the Justice 
Department also agreed with, and so did nearly every party that 
appeared before us at the hearing.
    Senator Blumenthal. And I think there is, for my own part, 
substantial persuasive basis for that decision, and I just 
wanted to give you an opportunity to address any concerns that 
may be raised.
    Let me ask you, do you have a view as a prospective member 
of the bench as to when departures from the Sentencing 
Guidelines are justified, what reasons there ought to be for 
departing from the guidelines?
    Ms. Jackson. Well, Senator, the guidelines themselves have 
various departure criteria. The guidelines state that when 
there is a situation in which a factor is not taken into 
account by the guidelines or the degree to which the factor 
exists is unusual and takes the case out of the heartland of 
cases, that would be an appropriate circumstance to depart.
    The Supreme Court in Booker also held that the guidelines 
themselves are no longer mandatory, that a court also needs to 
take into account, in addition to the guidelines, the factors 
that are listed under 3553(a), things like the nature and 
circumstances of the offense and the characteristics of the 
offender, and all of those factors are things that courts need 
to look at in determining whether or not to apply a guideline 
sentence.
    So in my role as a district judge, if confirmed, I would 
follow the Supreme Court's precedents and give significant 
weight to the guidelines in that analysis.
    Senator Blumenthal. Maybe I should have phrased it 
differently. Do you think there are some reasons that are more 
persuasive than others for departing from the guidelines, such 
as, for example, individual circumstances versus the policy of 
the sentencing statutes and so forth?
    Ms. Jackson. Senator, I do not have a particular view on 
that. I think it would depend on the case, that the judge would 
need to look at the circumstances that exist in the case in 
deciding what factors to either stay within the guidelines as a 
result of or depart from the guidelines as a result of.
    Senator Blumenthal. Judge O'Connell, do you have any views 
on the Sentencing Guidelines? I know you have not dealt with 
them directly as a State court judge, and I must confess I do 
not think California has sentencing guidelines, but----
    Judge O'Connell. We do not, but you should know that with 
me is the author of the California sentencing, federal--excuse 
me, felony sentencing, so I have the expert in California law 
right behind me. But we do not have the guidelines in 
California. But as an Assistant United States Attorney, before 
the guidelines became advisory, they were mandatory. So I am 
certainly familiar with their application, and I believe that 
they provide a wonderful starting point to ensure uniformity of 
sentences.
    Senator Blumenthal. I know that as an Assistant United 
States Attorney, you not only tried cases but also served in a 
supervisory role in, I think it was, the General Crimes 
Section. And I wonder whether you found yourself sometimes 
differing with what the guidelines provided.
    Judge O'Connell. I have not been involved--that was quite 
some time ago, and I do not have any specific recollections. 
But the guidelines were mandatory, so we followed the 
guidelines.
    Senator Blumenthal. Thank you.
    Thank you, Mr. Chairman, and I thank each of you again for 
your willingness to serve in this very, very important 
capacity. Thank you.
    Senator Whitehouse. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Thanks to all of you 
for coming and for your family members and friends who have 
joined us.
    I wanted to start with Judge O'Connell. You have written 
that ``an effective advocate is one who develops empathetic 
ties to decisionmakers, be they judge or jury, and exploits 
them to their clients' advantage.'' Let us talk about that 
statement for a minute. I do not doubt you have got to persuade 
as an advocate, but how should judges respond when they feel an 
empathetic pull on the part of one of the parties or one of the 
advocates?
    Judge O'Connell. Empathy as far as feeling sorry or 
closeness for a party should not govern judicial 
decisionmaking. The sentence of a criminal defendant should not 
differ based upon the judge. I can respect that as effective 
advocacy. The fact that I recognize that is important because 
then I can disregard it.
    Senator Lee. Good. So you think having written that and 
identified the fact, you would be able to identify it more 
quickly and say that is an empathetic factor, let us move on to 
the law?
    Judge O'Connell. Absolutely, Senator. For example, 
apparently I have become much funnier after having been a judge 
than I ever was as an advocate, so I understand the pulls that, 
as a judge, advocates attempt to persuade me.
    Senator Lee. And do they laugh more at your jokes while you 
are wearing the robe and in the courtroom?
    [Laughter.]
    Judge O'Connell. Probably.
    Senator Lee. There was something else that you wrote that 
caught my attention because I come from a State with a lot of 
snow. You said that each judge's approach to electronic 
discovery and to the admission of certain types of evidence can 
differ as much as a snowflake might differ. Tell us what you 
mean by that.
    Judge O'Connell. The admission of electronic evidence is an 
evolving area in California, and it depends on the purpose for 
admitting the evidence, whether it is for the truth of the 
matter asserted or whether it is for a different purpose, 
demonstrative evidence. The purpose of that comment was to say 
that the type of evidence and the uniqueness of the type of 
evidence must be analyzed.
    Electronic evidence is also very dangerous because it is 
subject to manipulation, and judges need to be aware of how the 
technology works in order to adequately assess foundation and 
admissibility.
    Senator Lee. In California, have you been able to--has a 
body of case law evolved to the point where parties know what 
to expect going into it?
    Judge O'Connell. It has not yet evolved. In fact, in 
several areas, there are cases currently pending before the 
California Supreme Court which will give us guidance at the 
trial court level as to the admissibility of, for example, red 
light camera photographs, Facebook/MySpace pages, those types 
of things.
    Senator Lee. Right. And as a federal judge, I guess you 
will have a different set of standards to abide by, but you 
will know what to ask.
    Judge O'Connell. I will know the questions to ask, yes, 
Senator.
    Senator Lee. Thank you.
    And, Commissioner Jackson, I wanted to turn to you. First 
of all, I developed great empathy for you when I read that you 
were an attorney at the Sentencing Commission at the time 
Booker came down.
    Ms. Jackson. Yes, I was.
    Senator Whitehouse. How did that empathy work out for you?
    [Laughter.]
    Senator Lee. See, I am allowed to have empathy because I am 
a politician.
    I was an Assistant U.S. Attorney at the time that came 
down. I was on a flight on my way to a wedding, and I read the 
clip about it, and all of a sudden I thought my world was about 
to change, and it did.
    Ms. Jackson. And it did.
    Senator Lee. Tell us how you went about digesting that and 
writing up guidance materials for the Commission.
    Ms. Jackson. Well, as you know, the Commission had a little 
bit of foreshadowing that something might happen in Booker 
because the previous year the Supreme Court handed down the 
Blakely decision.
    Senator Lee. Right. I am sorry, yes, Blakely.
    Ms. Jackson. Blakely.
    Senator Lee. Yes, Blakely was the one that I read on the 
way to the wedding.
    Ms. Jackson. Yes. So I was at the Commission as a staff 
member between Blakely and Booker, and it was a very 
interesting time.
    Senator Lee. And we were not yet sure whether and to what 
extent it was going to apply to the federal----
    Ms. Jackson. That is correct. And I was in the Drafting 
Division of the Sentencing Commission, and a lot of thought 
went into what might happen and what sorts of things the 
Commission could do in order to respond to a Supreme Court 
decision. So it was quite an interesting time for me.
    Senator Lee. I suppose that there is not a direct analog to 
being a district judge and that that was our Nation's highest 
court, but it certainly is indicative of the ripple effect that 
a single court decision can have on the entire profession when 
it issues a ruling like that. But that is the case. There is 
not much we can do about that.
    I also wanted to ask you, do you intend to follow Justice 
Breyer's very awesome style of questioning an oral argument in 
your court?
    [Laughter.]
    Ms. Jackson. I do not think anybody could match Justice 
Breyer in his questioning, and I do not know that I would even 
attempt to try.
    Senator Lee. Thank you. I see my time has expired.
    Thank you, Chairman.
    Senator Whitehouse. Thank you very much, Senator Lee.
    First of all, let me thank each of you for the decision 
that you have made to take this step into this particular kind 
of public service. I am sure that for many of you there would 
be more remunerative paths you could take, and there are also 
times when the role that you will be assuming, if confirmed, is 
a very lonely one. And my question for each of you is: In the 
event that the law requires--your reading of the facts and the 
law in the case before you requires that you make a decision 
that will be unpopular in your community, are you willing to 
take that step to cross public opinion and do what you believe 
is right? As you know, federal judges have a long and proud 
history of doing exactly that, particularly in the South 
through the civil rights era, but it is a very difficult 
position to be in to take a position that those around you 
disagree with. Ms. Dick.
    Ms. Dick. Without question, Senator Whitehouse, I would be 
willing to cross public opinion in order to follow the rule of 
law.
    Senator Whitehouse. Mr. Gordon.
    Mr. Gordon. I agree, Senator. Without the courage to make 
such decisions, the very foundations of our government fall 
apart, and judges have to have the courage to make unpopular 
decisions at times.
    Senator Whitehouse. Well said.
    Commissioner Jackson.
    Ms. Jackson. Yes, Senator, I certainly would. I would see 
that as my duty and obligation as a federal judge.
    Senator Whitehouse. Judge O'Connell.
    Judge O'Connell. Thank you, Senator. I believe it has been 
my practice and will continue to be my practice to follow the 
law, regardless of public opinion.
    Senator Whitehouse. Good. Well, my final questions are 
going to be for Commissioner Jackson. We are going to have a 
Rhode Island moment now, Commissioner Jackson.
    Ms. Jackson. Oh, goodness.
    [Laughter.]
    Senator Whitehouse. And let me remind you you are under 
oath as you answer these important questions.
    Bruce Selya is a Rhode Islander. He is a person I am very 
proud of and admiring of. I am also impressed with his 
vocabulary. And I have always wondered, now that I have got a 
clerk of his before me, where do those words come from? Does he 
give you a thesaurus to find good ones? Does he simply have an 
amazing vocabulary in his mind? Can we confirm this important 
issue right now in this hearing?
    Ms. Jackson. Yes, sir, and the latter is the case. It is 
quite amazing to work for him because one of the things you 
learn early on is that you as a clerk are not supposed to be 
the one to provide the words. That is his job, and so you write 
the opinion or draft the opinion, and it comes back with these 
wonderful words in them that come from his head. So he is truly 
amazing, as you said.
    Senator Whitehouse. Well, Judge Selya is a very 
distinguished Rhode Island jurist. He was legal counsel to 
Senator John Chafee before he was Senator, when he was Governor 
of Rhode Island. Senator Chafee served with great distinction 
here in this body. Judge Selya went on to the First Circuit, 
and I think he recently passed a milestone of having written 
now more majority and court opinions than any judge in the 
history of the First Circuit, if I am not mistaken.
    Ms. Jackson. I was not aware of that, but I would not be 
surprised.
    Senator Whitehouse. Yes, very, very impressive.
    Well, equally, each of you is very, very impressive, and we 
look forward to pushing for a prompt confirmation, and if this 
should wash into the following year, we hope very much that our 
colleagues will allow this hearing to stand so we do not have 
to replicate it and that we can quickly move you back into the 
queue and toward nomination. And with any luck, we will be able 
to slow down the logjam that occurs on the executive calendar 
on the Senate floor. Or, I guess, speed things up through the 
logjam would be the better way to say that.
    So, once again, congratulations on the great honor of 
having been nominated by the President. Congratulations on the 
personal decision you made to go forward, and best wishes in 
the confirmation process and in your careers ahead.
    The hearing record will remain open for another week for 
any further questions that the minority or the majority may 
have and for any materials that anybody may wish to add to the 
record. But subject to that, the hearing is adjourned.
    [Whereupon, at 11:11 a.m., the Committee was adjourned.]
    [GRAPHIC] [TIFF OMITTED] T3596.647

                                    
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