[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
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Serial No. J-112-4
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PART 9
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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
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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
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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
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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.]
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