[Senate Hearing 113-515, Part 5]
[From the U.S. Government Publishing Office]








                                                 S. Hrg. 113-515, Pt. 5
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

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             SEPTEMBER 25, OCTOBER 30, and NOVEMBER 6, 2013

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                           Serial No. J-113-1

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                                 PART 5

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         Printed for the use of the Committee on the Judiciary




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





























                                                 S. Hrg. 113-515, Pt. 5

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

             SEPTEMBER 25, OCTOBER 30, and NOVEMBER 6, 2013

                               __________

                           Serial No. J-113-1

                               __________

                                 PART 5

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
         [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         
         
         
         
         
         
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, 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 25, 2013, 2:30 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     2
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......     7

                               PRESENTERS

Boozman, Hon. John, a U.S. Senator from the State of Arkansas 
  presenting James Maxwell Moody, Jr., Nominee to be District 
  Judge for the Eastern District of Arkansas.....................     4
Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Vince Girdhari Chhabria, Nominee to be District 
  Judge for the Northern District of California..................     3
Pryor, Hon. Mark L., a U.S. Senator from the State of Arkansas 
  presenting James Maxwell Moody, Jr., Nominee to be District 
  Judge for the Eastern District of Arkansas.....................     5

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................    21
Chhabria, Vince Girdhari, Nominee to be U.S. District Judge for 
  the Northern District of California............................    15
    biographical information.....................................   153
McHugh, Hon. Carolyn B., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................     8
    biographical information.....................................    22
Moody, Hon. James Maxwell, Jr., Nominee to be U.S. District Judge 
  for the Eastern District of Arkansas...........................    15
    biographical information.....................................   202
Reeves, Pamela L., Nominee to be U.S. District Judge for the 
  Eastern District of Tennessee..................................    14
    biographical information.....................................    86

                               QUESTIONS

Questions submitted to all Nominees by Senator Cruz..............   252
Questions submitted to Vince Girdhari Chhabria by Senator 
  Grassley.......................................................   258
Questions submitted to Hon. Carolyn B. McHugh by Senator Grassley   253
Questions submitted to Hon. James Maxwell Moody, Jr., by Senator 
  Grassley.......................................................   262
Questions submitted to Pamela L. Reeves by Senator Grassley......   256

                                ANSWERS

Responses of Vince Girdhari Chhabria to questions submitted by:
    Senator Cruz.................................................   285
    Senator Grassley.............................................   288
Responses of Hon. Carolyn B. McHugh to questions submitted by:
    Senator Cruz.................................................   264
    Senator Grassley.............................................   268

Responses of Hon. James Maxwell Moody, Jr., to questions 
  submitted by:
    Senator Cruz.................................................   297
    Senator Grassley.............................................   300
Responses of Pamela L. Reeves to questions submitted by:
    Senator Cruz.................................................   277
    Senator Grassley.............................................   280

        LETTERS RECEIVED WITH REGARD TO VINCE GIRDHARI CHHABRIA

American Bar Association, July 26, 2013, letter..................   306
Berry, Matthew B., et al., September 24, 2013, letter............   316
City and County of San Francisco, CA, Police Department, 
  September 9, 2013, letter......................................   308
National Asian Pacific American Bar Association (NAPABA), 
  September 25, 2013, letter.....................................   309
North American South Asian Bar Association (NASABA), September 
  20, 2013, letter...............................................   313
San Francisco, CA, Chamber of Commerce, August 19, 2013, letter..   320
South Asian Bar Association of Northern California (SABA-NC),
  September 20, 2013, letter.....................................   311

      LETTER RECEIVED WITH REGARD TO HON. JAMES MAXWELL MOODY, JR.

American Bar Association, July 26, 2013, letter..................   321

            LETTER RECEIVED WITH REGARD TO PAMELA L. REEVES

American Bar Association, May 17, 2013, letter...................   304

                MISCELLANEOUS SUBMISSION FOR THE RECORD

Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee,
  September 26, 2013, letter with regard to Pamela L. Reeves, 
  Nominee to be U.S. District Judge for the Eastern District of 
  Tennessee......................................................   323







                            C O N T E N T S

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                      OCTOBER 30, 2013, 2:30 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   328
    prepared statement...........................................   686
    statement on the Ninth Circuit Seat vacated by Judge Stephen 
      Trott......................................................   885
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   329
    prepared statement...........................................   679

                               PRESENTER

Levin, Hon. Carl, a U.S. Senator from the State of Michigan 
  presenting Matthew Frederick Leitman, Nominee to be District 
  Judge for the Eastern District of Michigan; Judith Ellen Levy, 
  Nominee to be District Judge for the Eastern District of 
  Michigan; Hon. Laurie J. Michelson, Nominee to be District 
  Judge for the Eastern District of Michigan; and Hon. Linda 
  Vivienne Parker, Nominee to be District Judge for the Eastern 
  District of Michigan...........................................   326

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................   357
Kadzik, Peter Joseph, Nominee to be Assistant Attorney General, 
  U.S. Department of Justice.....................................   346
    biographical information.....................................   628
    prepared statement...........................................   884
Leitman, Matthew Frederick, Nominee to be U.S. District Judge for 
  the Eastern District of Michigan...............................   338
    biographical information.....................................   399
Levy, Judith Ellen, Nominee to be U.S. District Judge for the 
  Eastern District of Michigan...................................   338
    biographical information.....................................   444
Michelson, Hon. Laurie J., Nominee to be U.S. District Judge for 
  the Eastern District of Michigan...............................   339
    biographical information.....................................   492
Owens, John B., Nominee to be U.S. Circuit Judge for the Ninth 
  Circuit........................................................   335
    biographical information.....................................   358
Parker, Hon. Linda Vivienne, Nominee to be U.S. District Judge 
  for the Eastern District of Michigan...........................   340
    biographical information.....................................   559

                               QUESTIONS

Questions submitted to Nominees Matthew Frederick Leitman, Judith 
  Ellen Levy, Hon. Laurie J. Michelson, John B. Owens, and Hon. 
  Linda Vivienne Parker by Senator Cruz..........................   693
Questions submitted to Peter Joseph Kadzik by Senator Grassley...   694
    Follow-up questions submitted by Senator Grassley............   715
Questions submitted to Matthew Frederick Leitman by Senator 
  Grassley.......................................................   703
Questions submitted to Judith Ellen Levy by Senator Grassley.....   705
Questions submitted to Hon. Laurie J. Michelson by Senator 
  Grassley.......................................................   707
Questions submitted to John B. Owens by Senator Grassley.........   709
Questions submitted to Hon. Linda Vivienne Parker by Senator 
  Grassley.......................................................   713

                                ANSWERS

Responses of Peter Joseph Kadzik to questions submitted by 
  Senator Grassley                                                  725
    Responses to follow-up questions submitted by Senator 
      Grassley...................................................   796
Responses of Matthew Frederick Leitman to questions submitted by:
    Senator Cruz.................................................   815
    Senator Grassley.............................................   817

Responses of Judith Ellen Levy to questions submitted by:
    Senator Cruz.................................................   822
    Senator Grassley.............................................   825
Responses of Hon. Laurie J. Michelson to questions submitted by:
    Senator Cruz.................................................   829
    Senator Grassley.............................................   832
Responses of John B. Owens to questions submitted by:
    Senator Cruz.................................................   837
    Senator Grassley.............................................   840
Responses of Hon. Linda Vivienne Parker to questions submitted 
  by:
    Senator Cruz.................................................   849
    Senator Grassley.............................................   851

          LETTERS RECEIVED WITH REGARD TO PETER JOSEPH KADZIK

Hastert, Hon. J. Dennis, former Speaker of the U.S. House of 
  Representatives, and a Representative from the State of 
  Illinois, et al., September 23, 2013, letter...................   883
Bryant, Dan, et al., October 22, 2013, letter....................   881

        LETTER RECEIVED WITH REGARD TO MATTHEW FREDERICK LEITMAN

American Bar Association, July 26, 2013, letter..................   873

            LETTER RECEIVED WITH REGARD TO JUDITH ELLEN LEVY

American Bar Association, July 26, 2013, letter..................   875

        LETTER RECEIVED WITH REGARD TO HON. LAURIE J. MICHELSON

American Bar Association, July 26, 2013, letter..................   877

             LETTERS RECEIVED WITH REGARD TO JOHN B. OWENS

American Bar Association, August 2, 2013, letter.................   856
Bagenstos, Samuel R., et al., September 20, 2013, letter.........   858
Charlton, Paul K., October 3, 2013, letter.......................   871
Francisco, Noel J., September 26, 2013, letter...................   867
Gordon, John S., et al., September 24, 2013, letter..............   869
Raphaelson, Ira H., et al., September 3, 2013, letter............   863
Weissmann, Henry, September 3, 2013, letter......................   865

       LETTER RECEIVED WITH REGARD TO HON. LINDA VIVIENNE PARKER

American Bar Association, July 26, 2013, letter..................   879

















                            C O N T E N T S

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                      NOVEMBER 6, 2013, 2:34 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
    prepared statement...........................................  1202
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii,
    prepared statement...........................................  1206

                               PRESENTERS

McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri 
  presenting M. Douglas Harpool, Nominee to be District Judge for 
  the Western District of Missouri...............................   890
Toomey, Hon. Patrick J., a U.S. Senator from the State of 
  Pennsylvania presenting Gerald Austin McHugh, Jr., Nominee to 
  be District Judge for the Eastern District of Pennsylvania, and 
  Edward G. Smith, Nominee to be District Judge for the Eastern 
  District of Pennsylvania.......................................   891

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................   907
Cooper, Christopher Reid, Nominee to be U.S. District Judge for 
  the District of Columbia.......................................   899
    biographical information.....................................   963
Friedland, Michelle T., Nominee to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................   893
    biographical information.....................................   908
Harpool, M. Douglas, Nominee to be U.S. District Judge for the 
  Western District of Missouri...................................   900
    biographical information.....................................  1082
McHugh, Gerald Austin, Jr., Nominee to be U.S. District Judge for 
  the Eastern District of Pennsylvania...........................   900
    biographical information.....................................  1019
Smith, Hon. Edward G., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   901
    biographical information.....................................  1139

                               QUESTIONS

Questions submitted to all Nominees by Senator Cruz..............  1207
Questions submitted to Christopher Reid Cooper by Senator 
  Grassley.......................................................  1208
Questions submitted to Michelle T. Friedland by Senator Grassley.  1211
Questions submitted to M. Douglas Harpool by Senator Grassley....  1216
Questions submitted to Gerald Austin McHugh, Jr., by Senator 
  Grassley.......................................................  1218
Questions submitted to Hon. Edward G. Smith by Senator Grassley..  1221

                                ANSWERS

Responses of Christopher Reid Cooper to questions submitted by:
    Senator Cruz.................................................  1240
    Senator Grassley.............................................  1243
Responses of Michelle T. Friedland to questions submitted by:
    Senator Cruz.................................................  1223
    Senator Grassley.............................................  1226
Responses of M. Douglas Harpool to questions submitted by:
    Senator Cruz.................................................  1256
    Senator Grassley.............................................  1259
Responses of Gerald Austin McHugh, Jr., to questions submitted 
  by:
    Senator Cruz.................................................  1249
    Senator Grassley.............................................  1251
Responses of Hon. Edward G. Smith to questions submitted by:
    Senator Cruz.................................................  1264
    Senator Grassley.............................................  1267

         LETTER RECEIVED WITH REGARD TO CHRISTOPHER REID COOPER

American Bar Association, August 2, 2013, letter.................  1296

         LETTERS RECEIVED WITH REGARD TO MICHELLE T. FRIEDLAND

Abate, Mike, et al., October 24, 2013, letter....................  1288
American Bar Association, August 2, 2013, letter.................  1271
Berry, Matthew, et al., October 2, 2013, letter..................  1285
Bierschbach, Richard, et al., November 4, 2013, letter...........  1290
Engel, Steven A., et al., July 26, 2013, letter..................  1273
Haun, Kathryn, September 12, 2013, letter........................  1281
Knauss, Robert B., et al., August 26, 2013, letter...............  1275
Magill, M. Elizabeth, et al., August 27, 2013, letter............  1294
Malani, Anup, September 9, 2013, letter..........................  1292
Morrison, Edward R., September 9, 2013, letter...................  1280
Schumacher, Laura J., et al., September 23, 2013, letter.........  1283
Volokh, Eugene, August 26, 2013, letter..........................  1278

           LETTER RECEIVED WITH REGARD TO M. DOUGLAS HARPOOL

American Bar Association, August 2, 2013, letter.................  1309

       LETTERS RECEIVED WITH REGARD TO GERALD AUSTIN McHUGH, JR.

Ainslie, Elizabeth K., et al., February 6, 2012, letter..........  1305
American Bar Association, August 2, 2013, letter.................  1298
Bergholtz, Norbet, et al., February 8, 2012, letter..............  1303
Feldman, Alan M., et al., February 6, 2012, letter...............  1300

          LETTER RECEIVED WITH REGARD TO HON. EDWARD G. SMITH

American Bar Association, August 2, 2013, letter.................  1311

                MISCELLANEOUS SUBMISSION FOR THE RECORD

Bennet, Hon. Michael F., a U.S. Senator from the State of 
  Colorado,
    prepared statement with regard to Christopher Reid Cooper, 
      Nominee to be U.S. District Judge for the District of 
      Columbia...................................................  1313

                     ALPHABETICAL LIST OF NOMINEES

Chhabria, Vince Girdhari, Nominee to be U.S. District Judge for 
  the Northern District of California............................    15
Cooper, Christopher Reid, Nominee to be U.S. District Judge for 
  the District of Columbia.......................................   899
Friedland, Michelle T., Nominee to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................   893
Harpool, M. Douglas, Nominee to be U.S. District Judge for the 
  Western District of Missouri...................................   900
Kadzik, Peter Joseph, Nominee to be Assistant Attorney General, 
  U.S. Department of Justice.....................................   346
Leitman, Matthew Frederick, Nominee to be U.S. District Judge for 
  the Eastern District of Michigan...............................   338
Levy, Judith Ellen, Nominee to be U.S. District Judge for the 
  Eastern District of Michigan...................................   338
McHugh, Hon. Carolyn B., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................     8
McHugh, Gerald Austin, Jr., Nominee to be U.S. District Judge for 
  the Eastern District of Pennsylvania...........................   900
Michelson, Hon. Laurie J., Nominee to be U.S. District Judge for 
  the Eastern District of Michigan...............................   339
Moody, Hon. James Maxwell, Jr., Nominee to be U.S. District Judge 
  for the Eastern District of Arkansas...........................    15
Owens, John B., Nominee to be U.S. Circuit Judge for the Ninth 
  Circuit........................................................   335
Parker, Hon. Linda Vivienne, Nominee to be U.S. District Judge 
  for the Eastern District of Michigan...........................   340
Reeves, Pamela L., Nominee to be U.S. District Judge for the 
  Eastern District of Tennessee..................................    14
Smith, Hon. Edward G., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   901








NOMINATIONS OF HON. CAROLYN B. McHUGH, NOMINEE TO BE CIRCUIT JUDGE FOR 
 THE TENTH CIRCUIT; PAMELA L. REEVES, NOMINEE TO BE DISTRICT JUDGE FOR 
THE EASTERN DISTRICT OF TENNESSEE; VINCE GIRDHARI CHHABRIA, NOMINEE TO 
                                   BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA; AND HON. JAMES 
    MAXWELL MOODY, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
                          DISTRICT OF ARKANSAS

                              ----------                              


                     WEDNESDAY, SEPTEMBER 25, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Al Franken, 
presiding.
    Present: Senators Franken, Hatch, and Lee.

             OPENING STATEMENT OF HON. AL FRANKEN,
           A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Franken. Welcome, everyone. We will hear from four 
nominees today, each of whom has received the highest possible 
rating from the American Bar Association, from their Standing 
Committee on the Federal Judiciary; each of whom has the 
support of his or her home State Senators, U.S. Senators; and 
each of whom has had a very impressive legal career.
    Judge McHugh has been the presiding judge on the Utah Court 
of Appeals since 2005. Judge Moody has heard well over a 
thousand cases in the Arkansas State court system. Vince 
Chhabria is a well-respected litigator, handling complex cases 
for the city of San Francisco. And Pamela Reeves, a managing 
partner at Reeves, Herbert and Anderson, P.A., has been 
recognized as one of Tennessee's most effective attorneys.
    We are going to have some Senators testify on behalf of the 
nominees, and, Ms. Reeves, I understand that Senator Alexander 
plans to submit a statement for the record commending you.
    [The prepared statement of Senator Alexander appears as a 
submission for the record.]
    Senator Franken. These are qualified nominees, and I hope 
that we can act quickly and in a bipartisan manner to give them 
up-or-down votes. I look forward to hearing from each of them 
today.
    Now, Ranking Member Hatch, would you like to give any 
opening remarks, and also introduce Judge McHugh?

           OPENING STATEMENT OF HON. ORRIN G. HATCH,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I am pleased 
to assist the Ranking Member, Senator Grassley, by filling in 
today, especially with the group of such highly qualified 
nominees. If my numbers are correct, with these nominees the 
Committee has held a hearing on 38 judicial nominees so far 
this year. That is about 60 percent ahead of the average 
hearing pace at the beginning of the second term for Presidents 
Bush, Clinton, and Reagan. And with yesterday's confirmation, 
the full Senate is about 45 percent ahead of the average 
confirmation pace per year.
    We have got to do better here. The district court vacancies 
to which the nominees before us today have been named are all 
very recent. In fact, one of them opened up only a month ago. 
So I would say that the judicial confirmation process is moving 
along. I will have more to say about Judge Carolyn McHugh in 
just a second, who has been nominated to the Tenth Circuit 
Court of Appeals, and I will introduce her shortly to the 
Committee.
    I just want to note that each of the nominees before us 
today has received the American Bar Association's highest well 
qualified rating. This looks like a very distinguished group of 
nominees. Mr. Chairman, I am very pleased to be here as part of 
this hearing because of these excellent nominees.
    Now, Mr. Chairman and fellow Members of the Committee, I am 
very pleased to introduce Judge Carolyn B. McHugh, President 
Obama's nominee to the U.S. Court of Appeals for the Tenth 
Circuit. Judge McHugh received her undergraduate and law 
degrees from the University of Utah and has taught at both 
institutions. She is exactly the kind of outstanding nominee of 
varied legal experience that I set out to fill--that Senator 
Lee and I set out to find to fill this vacancy. She has both 
practiced and taught law. She has practiced in both State and 
Federal court. She has an extensive background both before and 
behind the bench. She has served both the State bar and the 
judiciary on committees and commissions. She has been widely 
recognized and awarded for her distinguished career in the law. 
And somehow along the way Judge McHugh has found time to serve 
her community with groups such as Big Brothers and Big Sisters, 
Voices for Utah Children, and Catholic Community Services of 
Utah. I have great respect for her.
    Judge McHugh's 22 years of litigation experience was almost 
evenly split between State and Federal courts. In her 8 years 
on the Utah Court of Appeals, currently as presiding judge, she 
has heard more than 1,100 appellate civil and criminal cases 
that actually reached judgment. When she is confirmed to the 
Tenth Circuit, I think Judge McHugh may have one of the 
shortest learning curves on record.
    When we have a judicial vacancy in Utah, both Senator Lee 
and I spend a lot of time talking to the lawyers and judges 
throughout our State's legal community. Judge McHugh received 
praise for many things, but perhaps the most common description 
was simply that she works harder than anyone else. She is a 
prodigious worker. Her former law partners said it, judges said 
it. Over and over, the same thing came up: ``She works 
incredibly hard.''
    Mr. Chairman, I have been doing this a long time and have 
participated in the nomination or confirmation of more than 
half of the judges who have ever served on the Tenth Circuit 
Court of Appeals. I know a first-rate nominee when I see one. I 
commend the President for this nomination. Judge McHugh's 
varied experience, her personal character and intelligence, and 
her work ethic make her one of the best.
    I want to thank Senator Mike Lee, who certainly is my 
partner in this process. So, Mr. Chairman, I am very pleased to 
introduce Carolyn McHugh to the Committee, and I hope my 
colleagues will support her nomination.
    Senator Franken. Thank you, Senator Hatch. And Senator Lee 
is here. I am sure he would also like to say something on 
behalf of Judge McHugh, but since we have some colleagues who 
are not on our Committee and I know have busy schedules, I am 
very pleased that they are here, Senators Boxer and Pryor and 
Boozman, to introduce nominees from their home States. So I 
would like to give each of them an opportunity to go ahead with 
their remarks.
    Senator Boxer.

PRESENTATION OF VINCE GIRDHARI CHHABRIA, NOMINEE TO BE DISTRICT 
JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA, BY HON. BARBARA 
       BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman, Senator 
Franken, Senator Hatch, Senator Lee. I am so honored to 
introduce to you Vince Chhabria, who has been nominated to the 
Northern District Court of California. Mr. Chhabria has 
distinguished himself as a very well respected attorney in 
California. He is a lawyer dedicated to public service with 
extensive civil and criminal law experience. He will be a 
tremendous addition to the Northern District.
    Mr. Chhabria is here with his wife, Amy Krause, and their 
three children: Max 5, and twins, Brooke and Leo, 3. His 
parents, Joe and Camille; and his mother-in-law, Susan, are 
here with us today, and I wonder if they could all stand up, 
including Mr. Chhabria. Would you stand up with your family? 
And we welcome you all here. I know with those little kids, so 
far, so good.
    [Laughter.]
    Senator Boxer. After graduating from the University of 
California in Santa Cruz, Mr. Chhabria came to Washington, 
D.C., and he worked for a colleague of ours, Lynn Woolsey. 
After leaving Capitol Hill, he returned home to California. He 
attended Boalt Hall School of Law at UC-Berkeley, where he 
became the associate editor of the California Law Review.
    After law school, he clerked at all three levels of the 
Federal judiciary, first for Judge Charles Breyer at the 
Northern District in California, then for Judge James Browning 
of the Ninth Circuit Court of Appeals, and later for another 
Breyer, Justice Stephen Breyer of the Supreme Court. It was 
during his time as a clerk for Justice Breyer that Mr. Chhabria 
developed a strong appreciation of the importance of the 
district court in the uniform administration of justice.
    Our candidate has also spent time in the private sector 
doing criminal defense work for a very respected firm, Keker 
and Van Ness, and Covington and Burling.
    Since 2005, Mr. Chhabria has served as deputy city attorney 
for government litigation at the San Francisco City Attorney's 
Office, and in 2011, he took on the additional role of chief of 
appellate litigation.
    Throughout his career, Mr. Chhabria has earned bipartisan 
accolades for his conscientiousness and diligent 
representation. A former adversary of Mr. Chhabria, the San 
Francisco Chamber of Commerce, writes, and I quote: ``His deep 
respect for the boundaries of the law and for the parties on 
both sides of a dispute would make him an outstanding Federal 
judge.''
    And 25 of his fellow former Supreme Court clerks 
representing very differing viewpoints sent a letter to the 
Committee in support of Mr. Chhabria's nomination, and they 
write, in part, he is ``someone whose foremost loyalty is to 
the rule of law,'' who ``focuses on applicable precedent and 
the facts of each case,'' and ``is someone of the highest 
ethical standards who is eminently qualified to serve as a 
Federal district court judge.''
    The San Francisco police chief writes that Mr. Chhabria 
``has been a highly effective advocate for the department and 
its officers while handling cases objectively, fairly, and with 
an hope mind.''
    I would ask that all these letters, Mr. Chairman, be 
entered into the record.
    Senator Franken. Without objection.
    [The letters appear as submissions for the record.]
    Senator Boxer. In his free time--it is hard to imagine you 
have any, sir--Mr. Chhabria is an active member of both the 
South Asian and National Asian Pacific Bar Associations. In 
addition, he spends time mentoring young lawyers, and I note 
that if he is confirmed, he would be the very first South Asian 
Federal district court judge in California.
    In closing, let me say Mr. Chhabria would make a tremendous 
Federal judge, and I urge the Committee and the Senate to 
swiftly confirm him.
    Thank you very much.
    Senator Franken. Thank you, Senator Boxer.
    Now we will go to Senator Boozman from Arkansas to talk 
about Judge Moody.

 PRESENTATION OF HON. JAMES MAXWELL MOODY, JR., NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. 
    JOHN BOOZMAN, A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Boozman. Thank you, Senator Franken and Senator 
Hatch, for allowing me to speak at this very important hearing 
today. I am proud to be here to support James J. Moody's 
nomination as United States District Judge for the Eastern 
District of Arkansas. His extensive experience and impressive 
background unanimously qualify him for the position of district 
judge.
    Born in El Dorado, Arkansas, Judge Moody graduated from the 
University of Arkansas with an undergraduate degree in 1986 and 
went on to receive his J.D. from the University of Arkansas 
School of Law where he has twice served as an adjunct 
professor, teaching workshops on trial advocacy and courtroom 
procedure.
    In 1989, he was retained by Wright, Lindsey and Jennings, 
LLP, where he litigated insurance defense claims and accrued 
significant courtroom experience.
    Judge Moody is currently serving as a circuit judge for the 
Third Division Circuit Court for the Sixth Judicial District of 
Arkansas, a position for which he was elected in 2003. This is 
a general jurisdiction trial court, including criminal, civil, 
domestic, juvenile, probate cases, a wide range of experience. 
In addition, Judge Moody has been assigned by the Arkansas 
Supreme Court to hear cases in other judicial districts within 
Arkansas.
    Judge Moody is a member of the Arkansas Bar Association, 
the Arkansas Supreme Court Civil Rules Committee, and the 
Pulaski County Bar Association and Board of Directors. He has 
received numerous awards and honors, including Pulaski County 
Judge of the Year, Pulaski County Bar Association President's 
Award, and Arkansas Business' 40 Under 40.
    In addition to his legal and judicial accomplishments, very 
importantly, Judge Moody teaches Sunday school classes and 
coaches his church basketball team.
    In the many letters on his behalf, I have read of Judge 
Moody's love for the law, even temperament, and his outstanding 
professionalism. He is a well-experienced and highly 
knowledgeable member of the legal community who I believe would 
make an excellent U.S. District Judge for the Eastern District 
of Arkansas.
    I believe and I know in talking to Senator Pryor, I think 
we both agree that one of the most important things that we do 
here is the process of selecting people with the right 
temperament and qualifications in confirming judges. I believe 
that Judge Jay Moody will do an excellent job and that we will 
all be proud of his future service on the bench. I congratulate 
him on his nomination and strongly support his confirmation.
    And with that, I yield back. Thank you.
    Senator Franken. Thank you, Senator Boozman, for being here 
today. I know you have other matters to attend to. You are 
certainly welcome to stay for the rest of the hearing, but I 
know you have got a busy schedule, like Senator Boxer.
    Now, Senator Pryor.

 PRESENTATION OF HON. JAMES MAXWELL MOODY, JR., NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. 
    MARK L. PRYOR, A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Pryor. Thank you. Thank you very much, Mr. 
Chairman, and I want to thank the entire Committee for being 
here today and holding this very important hearing. And it is 
my privilege to introduce James Maxwell Moody, Jr., of Little 
Rock, Arkansas. It is great to have Jay and his family and 
friends in town, here in Washington, D.C., and it is great to 
see him here on this very special day.
    You know, considering Federal judges is something that I do 
not take lightly. We all know it takes a qualified individual 
to do this job. They must have the proper judicial temperament 
and the ability to be fair and impartial.
    I am here today to tell you that Jay meets and exceeds all 
of those criteria. That is why I am so proud to nominate him 
today to be U.S. District Judge for the Eastern District of 
Arkansas.
    Since 2003, Jay Moody has served as a circuit judge, and 
that is a State trial court judge, for the Third Division of 
the Sixth Judicial District of Arkansas. He previously worked 
at the firm of Wright, Lindsey and Jennings. He started at the 
Wright firm in 1989 and became a partner there in 1994.
    During his time in private practice, he focused on civil 
litigation in both State and Federal courts, with a 
specialization in products liability and also in heavy trucking 
defense. He basically did what I think the lawyers in the room 
would understand to be as insurance defense.
    He also spent some of his time as an adjunct professor at 
his alma mater, the University of Arkansas at Little Rock 
School of Law, now called the Bowen School of Law, where he 
received his J.D. in 1989. He earned his bachelor of science in 
business administration from the University of Arkansas in 
1986, and I mentioned a few moments ago, Mr. Chairman, the term 
``insurance defense.'' So one might think that he might have 
quite a bit of opposition from the plaintiffs' bar, but the 
truth is it is quite the opposite. The plaintiffs' bar has been 
very supportive of this nomination. He has been on the other 
side of a lot of lawsuits with them, but they have immense 
respect for him, and they encouraged me to put forth this 
nomination.
    As I talk to a lot of judges and lawyers around Arkansas, 
and especially around the Eastern District of Arkansas, about 
what kind of Federal judge they would like to see, they 
basically describe Jay Moody. And when I talked to one of our 
old law partners at the Wright firm--I used to practice there 
myself. When I talked to one of our old partners at the Wright 
firm, I said, ``Tell me what you like in a judge,'' and he went 
through his criteria, and then I said, ``What would you think 
about Jay Moody? And how has he been as a State court judge?'' 
And he paused for a minute and said, ``You know what? Jay gets 
his work done.'' And I think that is a compliment for any 
Federal judge. He gets his work done. You go in there, you file 
your case, you get on the docket, you try the case. When you 
file motions, he may have a hearing; he deals with those. When 
you are in the middle of the trial, you have got evidentiary 
issues, he deals with that. And he moves the case forward, and 
he gets it done. The old thing about justice delayed is justice 
denied? Well, that is not the case in his court because it is 
not delayed.
    The other thing about Jay is even a casual observer in 
Arkansas, someone who reads the Arkansas Democrat Gazette, 
which is our statewide newspaper, like I do pretty much every 
day, they will notice that oftentimes when you are in Little 
Rock and there is a really sticky, difficult, controversial 
case, more often than not it is handled by Judge Jay Moody. The 
other judges there, if they do not want to deal with it, 
somehow or another it always ends up on Jay's docket, and he 
does an outstanding job. He has handled hundreds and hundreds 
of cases. I have been very fortunate to know Jay both on a 
personal and professional level for a long time, and I have 
always been impressed with his abilities. And I am not alone in 
that. He was voted the Pulaski County--Pulaski County, by the 
way, is Little Rock--Judge of the Year in 2004, 2008, 2009, and 
2011. In 2009, he won the Pulaski County Bar Association 
President's Award. In 2002, he was named to the Leadership of 
Greater Little Rock as well as Arkansas Business' 40 Under 40.
    He is a member of the Board of Directors of the Pulaski 
County Bar Association. He is also a member, of course, of the 
Arkansas Bar Association. And he is a graduate of the National 
Judicial College General Jurisdiction and the National 
Institute of Trial Advocacy.
    His accomplishments go on and on. All I can say, without 
any hesitation, is that Jay Moody is a man of strong character. 
He is prohibited from doing pro bono work right now because he 
is a judge, but he does continue to commit himself to helping 
folks in the community through his church and all kinds of 
other areas, and we are certainly proud to see that.
    To those of you who know him, you know that Jay has been an 
exceptional judge. He will be an exceptional judge. He is an 
outstanding individual, and I look forward to him serving in 
the Eastern District of Arkansas with distinction. I strongly 
support his nomination and hope we can move it forward.
    Thank you.
    Senator Franken. Thank you, Senator Pryor. Also, you are 
welcome to stay, but I know that you have other work to attend 
to. Thank you both for your great words for Judge Moody.
    Now I would like to recognize Senator Lee to talk about 
Judge McHugh.

           OPENING STATEMENT OF HON. MICHAEL S. LEE,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Lee. Thank you very much, Mr. Chairman, and I am 
very pleased to join Senator Hatch in welcoming Judge Carolyn 
McHugh to join us today. This is a judge who, throughout her 
life, since long before she was a judge, has demonstrated a 
profound commitment to excellence in everything that she has 
done.
    Her academic credentials have, of course, been mentioned, 
the fact that she graduated magna cum laude from the University 
of Utah, later graduated Order of the Coif from the University 
of Utah Law School, serving as an editor on the Law Review.
    It has also been mentioned that she was a distinguished 
litigator long before she became a judge. But that is when I 
met her. I met her when I was working for then-Governor Jon 
Huntsman as his general counsel at the time when he had his 
opportunity to make his first judicial nomination. It happened 
to be to the Utah Court of Appeals. And he told me in no 
uncertain terms that it was my job to make sure that I found 
the best possible candidate for that judgeship. I knew my job 
depended on it. I knew my life depended on it. The Governor was 
surrounded by heavily armed men. And we succeeded. I kept my 
job and I kept my life because I found Lynn McHugh. It was 
apparent to me from the very outset of the first interview that 
she was going to be an outstanding candidate, and with each 
question I asked her, she proved herself even more outstanding.
    She has confirmed the outstanding nature of her quality as 
a jurist with each passing year that she has been on the bench 
in Utah, and I feel grateful for the fact that I know her and 
feel grateful that she has been willing to stand for this 
position and to be nominated to this position. And if confirmed 
to this position, I am certain that she will serve in the 
Federal judiciary with great distinction.
    I will mention very briefly, before I close, one other 
factor that has not been brought up, which is that I am told, 
have it on very good authority, that Judge Lynn McHugh does 
have one real weakness, which is that she has a mean streak 
with a hockey stick, and she used that on her brother on one 
occasion. While Judge McHugh was in junior high, her brother 
played a nasty prank on her. Apparently she and her friend had 
just watched the movie ``The Exorcist'' against her parents' 
advice. Her brother hid under her bed later that night, and 
shaking the bed, bringing back memories from a scene from that 
movie, very unpleasant memories, Judge McHugh was, of course, 
alarmed. She immediately grabbed her field hockey stick, and it 
did not end well for her brother.
    [Laughter.]
    Senator Lee. This, too, speaks well to her tenacity and her 
fierceness that, when appropriately called upon, it will be 
brought out. And we hope that the hockey stick will be used 
only sparingly.
    Thank you.
    Senator Franken. Thank you, Senator Lee, for those kind 
words, although there seemed to be a lot of violence in them.
    [Laughter.]
    Senator Franken. Now I would like to ask Judge Carolyn 
McHugh to come forward, and as is customary in this Committee, 
I will administer the oath and swear in the witness. Will you 
raise your right hand? Carolyn McHugh, 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?
    Judge McHugh. I do.
    Senator Franken. Thank you. You may be seated. Welcome, 
Judge McHugh, and congratulations on your nomination. I would 
like to give you an opportunity to introduce your family that 
is here, or friends, and maybe say hi to anybody who might be 
watching at home, and if you would like to make an opening 
statement as well.

          STATEMENT OF HON. CAROLYN B. McHUGH, NOMINEE
           TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT

    Judge McHugh. Thank you, Senator Franken. Before I 
introduce my family, I would like to express my gratitude to 
Senator Hatch and to Senator Lee for those flattering 
comments--some of them were flattering.
    [Laughter.]
    Judge McHugh. And I would also like to thank the Committee 
for having the hearing today and you, Senator Franken, for 
chairing.
    And, of course, I would like to thank President Obama for 
nominating me to this important position.
    With me today I have my mother, Claire McHugh, who is 
behind me to the right.
    Senator Franken. Welcome.
    Judge McHugh. My father, George McHugh, is deceased, but I 
know he is with me in spirit.
    I also have with me my son, Bradley McCormack, who is in 
the second row behind me, and the only man in my group. His 
brother, Kevin McCormack, was unable to travel due to academic 
commitments.
    I also have with me three of my seven siblings: my sister 
Dr. Anastasia Chirnside, and I am not sure where she is 
sitting.
    Senator Franken. Why don't you stand?
    Judge McHugh. Maybe she can wave.
    My sister Elizabeth McHugh; my sister, Dr. Catherine Garay; 
and my niece is also here, Katie Lane Chirnside.
    With that, I am happy to answer whatever questions would 
assist you in assessing my fitness for this position.
    [The biographical information of Judge McHugh appears as a 
submission for the record.]
    Senator Franken. Well, thank you, and welcome to all 
members of your family--three of eight siblings, did you say?
    Judge McHugh. I am sorry?
    Senator Franken. How many siblings did you say you had?
    Judge McHugh. I have seven siblings.
    Senator Franken. Okay, so eight children. How many have you 
hit with a hockey stick?
    [Laughter.]
    Senator Franken. This speaks to temperament.
    [Laughter.]
    Judge McHugh. I am not sure. I caught my brother and 
actually hit him with the hockey stick, so it was more 
brandishing.
    Senator Franken. Okay. Well, I think that is a distinction 
that is important.
    [Laughter.]
    Senator Franken. I would just ask you a couple questions. 
You have already served as an appellate judge for about 8 
years. I imagine that experience will make for a relatively 
smooth transition to the Tenth Circuit.
    What are some of the lessons you have learned from your 
time on the Utah Court of Appeals that you will bring to the 
Federal bench?
    Judge McHugh. I think the lessons that I have learned is, 
number one, to be prepared, that you do not know the answer 
until you read the briefs, you do your homework, you read the 
statutes, you read the relevant precedents, and you listen to 
oral argument.
    And then I have also learned that when you are 
participating in a group decision, it is important to be open 
to the ideas of your colleagues and that oftentimes they will 
alert you to issues in the analysis that you did not pick up 
yourself. And so I think that I am committed to the idea that 
three heads is better than one.
    Senator Franken. Great. Are there any judges or Justices 
who you particularly admire, who you might consider a role 
model or just that you like the cut of their jib?
    Judge McHugh. Well, I will preface this question with an 
admission that I am not an expert on all of the legal decisions 
or the judicial philosophies of all of the Supreme Court 
Justices. But I was impressed with some of the attributes that 
were shown by John Marshall Harlan II, a Justice on the U.S. 
Supreme Court.
    Senator Franken. Great. And why?
    Judge McHugh. Justice Harlan, first of all, was known for 
the clarity and the analysis of his written decisions. He was 
also known for his patience and tolerance, his civility to 
different ideas and to his colleagues. In fact, although he and 
Justice Black were ideologically opposed, they were actually 
great personal friends.
    I also like about Justice Harlan that he was very concerned 
about operating within the limits of his role as a member of 
the judicial branch. He was protective of the powers of the 
other branches and avoided encroachment, and he also was 
protective of States rights and the rights reserved to the 
people.
    Senator Franken. It seems like from your answers that you 
have a real focus on working with your colleagues, and you have 
authored several unanimous opinions during your time on the 
bench. How important is it, do you believe, to find consensus 
among judges on a panel? And what strategies do you have for 
working with your colleagues to find common ground, if that is 
possible?
    Judge McHugh. One of the things that is very nice about the 
Utah Court of Appeals is that we are all on the same corridor 
of the building, and so if you get a comment from someone that 
they are going to dissent, it is very easy to discuss it with 
them, to be open-minded to it, and often you can avoid a 
plurality opinion or you can avoid a dissent because you can 
get to the same place maybe a little different way, that you do 
not necessarily need all parts of the analysis. And I look at 
it as if you can find a way go agreement without doing violence 
to your own convictions, that it is helpful to the people who 
are later going to rely on the opinion to have a unanimous 
opinion.
    So if it is not something that I have to have in the 
opinion, I am often willing to work with my colleagues to 
massage the opinion so that they are happy with it.
    Senator Franken. Well, thank you, Judge.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome to 
the Committee. A nomination hearing is important because it is 
likely the last time that Senators can hear directly from a 
judicial nominee.
    As I said in my introduction, you certainly have a wealth 
of legal experience, and it is not just on the bench. You had a 
lot of private sector experience, too, and I know a number of 
attorneys who think very highly of you, some of the best 
lawyers in Utah.
    Senators also want to know how you view your role and the 
power of a Federal appellate judge. Many people probably think, 
for example, that an appeal is simply a do-over, that the 
appeals court wipes the slate clean and does it over again from 
scratch. But as you know, the role of an appeals court judge is 
narrower than that. Lawyers refer, for example, to certain 
standards of review that limit how an appeals court looks at 
issues and reviews cases.
    Now, how important are such limitations on appellate 
courts? And please explain how you view the role of an appeals 
judge or appeals court--that the appeals court plays in our 
judicial system?
    Judge McHugh. Thank you, Senator. The first thing I would 
say is it is not a do-over when you come to the court of 
appeals or to any appellate court. An appellate judge has 
different standards of deference to what happened in the trial 
court, depending what the issue is. And with respect to issues 
of fact, we defer to the fact finder, the jury or the trial 
judge who was present and heard the testimony of the witnesses 
and was able to assess the credibility of those witnesses. So I 
feel very strongly that it is inappropriate for me as an 
appellate judge to second-guess the trier of fact based on a 
written record that may not pick up the nuances of the 
testimony.
    With respect to issues of law, questions of law, we have a 
different role, which is a role of correctness. So if a trial 
judge makes an error of law, it is our responsibility to 
correct that error and then assess from the record of the whole 
whether the error was harmful.
    Senator Hatch. Great. Judges interpret and apply the law to 
decide the various cases. Now, Federal law is written--the 
Constitution, statutes, or regulations are all Federal law that 
we have to comply with, and we can all read what the law says. 
But judges have to figure out what the law means in order to 
apply the law to decide a case.
    Judges can find the meaning of the Constitution or statutes 
in many places, and we have nominees before this Committee who 
are very creative in that regard. It sometimes sounds as if 
they are just making up what they want the law to mean in order 
to get the result that they want in certain kinds of cases. But 
I would like to hear your view on this. Where should judges 
look for the meaning of the Constitution or the statutes that 
are involved?
    Judge McHugh. Well, with respect to any written document 
that I have tried to interpret during my 8 years on the Utah 
Court of Appeals, I have always looked at the language of the 
document itself, and the hope is that that language will be 
clear, because I have a lot of cases and I can move on.
    In looking at that language, first you need to read it very 
carefully and consider the words that were used and give them 
the ordinary meanings that are applied to those words, unless, 
of course, the statute defines them differently.
    You can also look at the context of how that provision is 
placed in the document as a whole in order to try to assess 
what the words on that page mean.
    Senator Hatch. Great. I am very pleased to support your 
nomination, and you will make a great appeals court judge. And 
I think you will add greatly to the component of the Tenth 
Circuit Court of Appeals, and we would like to see that take 
place as soon as possible.
    Judge McHugh. Thank you, Senator.
    Senator Franken. Senator Lee.
    Senator Lee. Thank you very much, Mr. Chairman. And thanks 
again for joining us here today.
    A few minutes ago, Senator Franken asked you about the 
importance of achieving unanimity on panels whenever possible, 
and I do not think there is anyone who disputes that when there 
is agreement, it is best to try to memorialize the court's 
ruling in a single unanimous opinion. But sometimes that does 
not happen, and sometimes you end up with a dissent or a 
concurring opinion.
    What role do you think is played by the dissenting opinion 
in the appellate process?
    Judge McHugh. Thank you, Senator. I think the dissents play 
a very important role, particularly if you are a judge on an 
intermediate court of appeals, either in the State system or, 
if I were confirmed, in the Federal system, because to a large 
extent you are talking to the court that will possibly be 
reviewing that decision. And so I think dissents are very 
valuable in advancing an alternative view to the approach taken 
by the majority, and I think that it is also helpful because 
when the higher court gets it, hopefully you have written it in 
such a way that you have teed it up for them by putting in the 
cases and the citations and the analysis that will be helpful 
to that court in choosing between the majority approach and the 
approach of the dissent.
    Senator Lee. Yes, that is a good point. I suppose it also 
tends to sharpen the analysis for future cases that might be 
decided within your court as well, either in an en banc posture 
or perhaps in front of another panel, maybe something pointed 
out by a dissent might make something easier--might make it 
possible in a future case for people to see an aspect of the 
opinion that perhaps was not considered by the majority 
opinion. Would you agree with that?
    Judge McHugh. I would agree with that, Senator.
    Senator Lee. By the way, I like your choice in mentioning 
John Marshall Harlan II. He is an unsung hero in the last 
century or so, and I think a lot of people look to him these 
days as someone who had a strong commitment to finding the 
right answer in the law.
    Do you believe that in most cases as a judge, most cases 
that you are asked to decide, is there usually a right answer?
    Judge McHugh. I believe that there is if you apply the 
appropriate tools and apply them correctly, that you will get 
at the right answer.
    Senator Lee. What happens when judges, especially appellate 
judges, cease to believe that there is a right answer? Do you 
think that ends up having a negative impact on the kind of 
jurisprudence produced by an appellate panel if a judge does 
not believe that there is a right conclusion in a case?
    Judge McHugh. Well, I have been fortunate enough to have 
never served with any judges who take that view, so I really do 
not have an opinion.
    Senator Lee. Wonderful. Wonderful.
    There is some tension between two competing dynamics in 
appellate litigation. On the one hand, there is the necessarily 
deliberative pace of jurisprudence, especially appellate 
jurisprudence. In the Supreme Court, in the courtyards of the 
building, for example, you will see lampposts held up by 
turtles. It is said that the architect of the Supreme Court 
building, Cass Gilbert, put those in there to reflect the 
necessarily slow pace of the appellate process. It is something 
that cannot be rushed. If you rush it, you do damage.
    On the other hand, there does come a point at which justice 
delayed can become justice denied. My personal worst experience 
with the amount of time in an appellate case in front of a 
Federal court of appeals or case under advisement following 
oral argument was 27 months. I am not going to tell you which 
circuit it was in, but it had the number ten in it.
    [Laughter.]
    Senator Lee. I think most people would agree that that is 
too long.
    The Supreme Court handles that by having the Court dispose 
of its entire caseload every single year. I do not know that 
there is necessarily a reason for appellate courts to adopt 
that same rule, but what can you tell me about your thoughts 
about how to balance on the one hand the need to dispose of 
cases with sufficient speed that you do not deny justice, but 
on the other hand make sure that you are not rushing it?
    Judge McHugh. Well, I think if you look at my record on the 
Utah Court of Appeals that I get my work done in an efficient 
manner. But one of the things that is often difficult to 
predict or people cannot tell when they are looking from the 
outside in is you may have a decision that was written very 
quickly, circulated, someone wrote a dissent, the person who 
had originally joined the majority switched to the dissent, the 
dissent had to be rewritten as the majority, and then you maybe 
even have a situation where the person who is now in the 
dissent changes his or her mind, and you end up with a 
unanimous decision. So sometimes people are working very hard 
behind the scenes, but it is just not apparent.
    That said, it is very important to issue decisions that are 
well written and reasoned as quickly and efficiently as 
possible.
    Senator Lee. Although my time has expired, could I ask one 
short additional question, Mr. Chairman? If I promise to do it 
nicely and with a smile?
    Senator Franken. Okay.
    Senator Lee. He is a very benevolent Chairman, and I 
appreciate Senator Franken in that regard.
    When you sit in three-judge panels, which you will be 
doing--which you have been doing on the Utah Court of Appeals, 
which you will be doing most of the time on the Tenth Circuit, 
I would imagine--never having been a judge, I can only imagine 
how it works. But I can imagine that there is sometimes a 
temptation on the part of some judges to sort of wait and see 
how their colleagues might go on an issue rather than speak 
their mind, rather than make sure that they identify what they 
see as the proper resolution of the case and making sure that 
they exercise some degree of leadership.
    What could you do as a Federal appellate judge, if 
confirmed, to make sure that you are always exercising what one 
might loosely call ``judicial leadership'' on each panel that 
you serve on?
    Judge McHugh. Well, in the court that I am on now--and I do 
not know, if I were confirmed, what the rules are internally 
that govern the members of the court, but we have deadlines by 
which we have to respond to someone else's work. So the 
attempt, as I call it, to ``play chicken,'' to make the other 
person in the equation act first, you only have a few days, you 
do not have much time to do it before you are late. So you are 
going to have to announce your view of the issue within a very 
short time.
    Senator Lee. All right. Thank you very much, Judge McHugh.
    Thank you, Mr. Chairman.
    Judge McHugh. Thank you.
    Senator Franken. Thank you, Judge McHugh. You are a great 
nominee, and you have, I think, the support of everyone here in 
this hearing. Thank you very much.
    Judge McHugh. Well, thank you. I appreciate it.
    Senator Franken. Okay. I would like now to ask Judge Moody, 
Mr. Chhabria, and Ms. Reeves to come to the witness table, and 
I would ask you all--I am going to administer the oath and 
swear you in, so please raise your right hand. Do you affirm 
that the testimony you are about to give before the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Ms. Reeves. I do.
    Mr. Chhabria. I do.
    Judge Moody. I do.
    Senator Franken. Thank you. You may be seated.
    Welcome and congratulations on your nominations. I would 
like to give you each an opportunity to make an opening 
statement and to acknowledge the friends and family that are 
here.
    Ms. Reeves, why don't we start with you, introduce friends 
and family that are here or maybe watching.

STATEMENT OF PAMELA L. REEVES, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE EASTERN DISTRICT OF TENNESSEE

    Ms. Reeves. Thank you, Senator. First, I just want to say 
that I am very honored to be here today, and I really 
appreciate all of you all taking your time to let us come 
before you today.
    I am also very honored today to have with me my husband, 
Charles Swanson; our son and daughter, Reedy and Amanda 
Swanson; three of my four sisters; and a dear friend from law 
school, Suellen Wideman.
    Senator Franken. Welcome and congratulations to you for 
having the wife and mom and sister and friend who has been 
nominated.
    Ms. Reeves. Oh, and I just realized another friend that 
slipped in, and that is Meredith Whitfield from Knoxville.
    Senator Franken. Welcome. Thank you.
    [The biographical information of Ms. Reeves appears as a 
submission for the record.]
    Senator Franken. Mr. Chhabria. Introduce your family again 
and would you all stand, please? I am sorry I did not have you 
guys stand, but could your family stand?

        STATEMENT OF VINCE GIRDHARI CHHABRIA, NOMINEE TO
          BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT
                         OF CALIFORNIA

    Mr. Chhabria. Thank you, Mr. Chairman.
    First of all, briefly, I want to thank you, Mr. Chairman 
and Mr. Ranking Member, for having this hearing. I very much 
want to thank Senator Feinstein for her guidance and support 
through this process, to Senator Boxer for the excellent 
introduction, and to--and for recommending me, and to President 
Obama for accepting that recommendation.
    I do have, as you said, my family here. First is my wife, 
Amy Krause. We met on the first day of law school. She spent 11 
years as a prosecutor for the Santa Clara County district 
attorney's office and made the choice a little while ago to 
stay home with the kids. Most people would say that is a 
sacrifice. I think she would say it is a privilege because of 
how wonderfully well behaved they have been here today.
    Senator Franken. I have noticed.
    [Laughter.]
    Senator Franken. By the way, I will not tolerate any 
outbursts from the children.
    [Laughter.]
    Mr. Chhabria. Those children are Max Chhabria, age 5\1/2\; 
Leo Chhabria, age 3\1/2\; and Brooke Chhabria, age 3\1/2\ also.
    Also here is my dad, Joe Chhabria, directly behind me. My 
dad came to this country from India in the early 1960s. We also 
have my mom, Camille Chhabria. Her side of the family has been 
a little bit ignored in this nomination. She came from Quebec, 
Canada, in the 1960s to this country.
    My mother-in-law, Susan Krause, is also here, so we do have 
one grandparent per child.
    Also here is Kiran Jain. Kiran is a deputy city attorney in 
the city of Oakland and former president of the South Asian Bar 
Association. Kiran more than anybody else gave me the courage 
and the confidence to believe that I might actually be able to 
do this job.
    And, finally, just very briefly, I would like to thank 
anybody who might be watching back home, and in particular, I 
would like to thank Ethan Sheiner and Matt Brown for not 
showing up at this hearing.
    [Laughter.]
    [The biographical information of Vince Chhabria appears as 
a submission for the record.]
    Senator Franken. Okay. I hope they take that the right way.
    [Laughter.]
    Senator Franken. And, Judge Moody, please introduce your--
--

   STATEMENT OF HON. JAMES MAXWELL MOODY, JR., NOMINEE TO BE 
            DISTRICT JUDGE FOR THE EASTERN DISTRICT
                          OF ARKANSAS

    Judge Moody. Thank you both, Senators, for this hearing. I 
am not unmindful that you all have things on your plate of very 
much importance, so I will be brief.
    I would like to thank the President for nominating me. I 
would like to thank both Senator Boozman and Senator Pryor for 
their remarks. They were flattering and amazing.
    I would like to thank the Justice Department staff that has 
helped us. They work hard and they do a really good job.
    Behind me is my fiancee, Melinda Carelock.
    Senator Franken. Welcome.
    Judge Moody. Behind them, my father, Judge James Moody, and 
Lisa Moody. Behind them, my soon-to-be in-laws, Jimmy and 
Marjorie Carelock; my lifelong friend, Steve Kohler, who is 
also here over from Baltimore.
    Unable to be here today, I would like to acknowledge both 
my daughters, Madison and Hannah, who have school commitments. 
I hope they are there instead of watching this.
    And I would also like to acknowledge my staff back in 
Little Rock: Debra Bliss, Tammy Foreman, Casey Glenn, Kirby 
Moralia, and Rusty Watson, whose hard work has allowed me to 
turn out a good product and help the people of Arkansas.
    With that, I thank you.
    [The biographical information of Judge Moody appears as a 
submission for the record.]
    Senator Franken. Thank you, Judge Moody, and welcome to all 
of you.
    It is somewhat customary for this Committee to ask nominees 
to describe their judicial philosophies. I take this to mean 
the approach you will take when deciding close cases, cases 
where the law is not quite clear or where the evidentiary 
record is disputed. I would like to ask each of you to address 
that issue and to tell the Committee a bit about your approach 
to judging. What can we expect of you, what can litigants 
expect of you when you are confirmed to the bench? So we will 
start with Ms. Reeves.
    Ms. Reeves. Thank you, Senator Franken. Obviously not 
having been an active judge, I can only predict how I hope I 
will respond in this situation. But I think that my first goal 
is to be patient and to share respect to the people who appear 
before me, and I believe that I have done that in the practice 
of law with opposing parties, with my co-counsel, and with the 
people that I have dealt with in the years before coming here.
    I think it is also extremely important to be able to listen 
carefully to the facts and then to apply the law, and the only 
way you can do that is to be willing to work hard. So that will 
be my guiding philosophy.
    Senator Franken. Mr. Chhabria.
    Mr. Chhabria. Thank you, Senator. My approach would be to 
be objective, to be open-minded, as Ms. Reeves said, to try not 
to prejudge cases and make sure to take in fully the 
presentations of both parties before coming to a decision, to 
apply the law to the facts of the case as narrowly as possible, 
and not to opine on anything that does not need to be opined on 
in a judicial decision.
    Senator Franken. Now, Judge Moody, you presided over a lot 
of cases. How many?
    Judge Moody. A lot of cases. Yes, you are right, a lot of 
cases. Fortunately, I have been at it for 11 years, so I have 
not had to do them all last year, but we do have a fairly heavy 
case assignment in Arkansas. My judicial philosophy essentially 
as a trial judge, most importantly, is a commitment to the rule 
of law. I do not get to make policy. I follow precedent.
    Second of all, my most important part of my job is to 
dispense justice with civility to the litigants and counsel. 
They need to be respected, and they need to be given time to be 
heard, and they need to come away from the process feeling like 
they may not have gotten what they wanted but they got heard 
and they got some justice.
    Finally, it is probably as important as the other two that 
I be prepared and that I know what the law is and that I know 
the arguments of counsel.
    And with those three things taken care of, most of the rest 
of the stuff follows and takes care of itself.
    Senator Franken. Thank you. This is another question for 
each of you. I understand that each of you is involved in pro 
bono work or has been involved in volunteering in your 
communities.
    I know, Judge Moody, that you are not allowed to actively 
be involved in pro bono work as a judge, but that you are 
actively involved in your church.
    Mr. Chhabria, when you worked at Covington and Burling, you 
developed pro bono relationships between the firm and the 
Lawyers Committee for Civil Rights and the Marin County public 
defender's office.
    Ms. Reeves, you have handled unemployment hearings on a pro 
bono basis during your career.
    Being an attorney is a privilege, and I think that it is 
really important that attorneys give back to their communities 
and provide legal representation to those who otherwise might 
not have it.
    Could you each talk a little bit about what you have 
learned from your pro bono work and the role of pro bono 
representation in the legal system? Ms. Reeves.
    Ms. Reeves. I think that without access to justice for all 
people, then our system fails. So there are too many people who 
do not have a regular access to be in the courts and to help 
get assistance with their problems. There are many, many ways 
that lawyers can contribute to that. It can be as simple as 
going to court representing somebody at a hearing, or it can be 
doing other things, such as providing educational 
opportunities.
    So I think it is the role of anybody who is an officer of 
the court to do what they can in their own way to help others 
have access to justice.
    Senator Franken. Mr. Chhabria.
    Mr. Chhabria. Thank you, Senator. I agree with Ms. Reeves. 
Access to justice is a critical issue, and some of the most 
gratifying cases that I have worked on are cases in which I 
represented people who did not have enough money to afford 
their own lawyer so that their case could be heard in court and 
presented effectively in court. And if I were fortunate enough 
to be confirmed, of course, as a judge you cannot do pro bono 
work, but I would certainly try to take a leadership role in 
encouraging members of the bar to carry that torch.
    Senator Franken. Thank you. And, Judge Moody.
    Judge Moody. Yes, sir. Likewise, Senator, I think it is 
extremely important, and while I am limited to actively 
representing and taking care of pro bono people, I do the best 
I can to mentor those who have the ability to do so. And so if 
I can help young lawyers or encourage other lawyers to--``Hey, 
why don't you get involved in this? You said you had some extra 
time,'' I am able to do things on the fringe.
    Also, with pretrial hearings and things, individuals who 
are pro se otherwise because they cannot hire lawyers to 
represent them, we often encourage them to try their cases to 
the court instead of a jury because I have a little more leeway 
in explaining the process of law rather than being in front of 
a jury where I cannot get involved and pretend--or appear that 
I favor one side or the other. And it is important that those 
people again feel like they have not been cheated by the 
system. And while I cannot take an active part in that, we do 
what we can to encourage other lawyers to take care of those 
people or encourage them to try their case in a forum where 
they can be helped some.
    Senator Franken. Thank you, and thanks to all of you.
    Senator Hatch.
    Senator Hatch. Well, thank you. I am pleased to have all of 
you before us today, and, Ms. Reeves, much of your recent legal 
experience has taken place in the field of alternative dispute 
resolution, commonly acting as a mediator. In other words, you 
have been helping people stay out of court. Now, should you be 
confirmed, you will be dealing with cases and individuals who 
must be in court. So that is an important distinction.
    In what ways, if any, can you see your mediation experience 
informing your approach as a judge?
    Ms. Reeves. Thank you, Senator, and thank you for being 
here today as presiding--as ranking Senator.
    One of the great things about being a mediator and 
arbitrator over the last 12 years is that it has given me a 
great deal of experience in hearing both sides of a case or 
both sides of a dispute. And I have really come to appreciate 
much more than when I was an advocate that it is important to 
hear both sides and to let both sides express what their 
position is before you start making any decisions. And I think 
the experience I have had as a mediator will translate to the 
bench because I will understand that no matter how hard one 
side or the other is advocating, I cannot make a decision until 
I have heard all the evidence.
    Senator Hatch. Thank you.
    Judge Moody, you come well recommended as well. As a State 
circuit court judge, you presided over some mental health 
cases. The tragic events last week at the Navy Yard here in 
Washington raised once again whether individuals who need 
mental health services are getting what they need.
    Now, many of these people at some point may end up in front 
of a judge. In your opinion, is the judicial system properly 
equipped to deal with these and steer these people toward the 
help that they need?
    Judge Moody. Senator Hatch, I am not sure I have an opinion 
about that. I have to deal with a case on a case-by-case basis 
with the tools I am provided with. And I have a small mental 
health assignment where I deal with civil commitments. And I 
deal with those people as they come before me, and we have a 
very strict statutory scheme that we deal with because it is a 
liberty interest essentially that we have to determine that 
they are a danger to themselves or others before we have them 
involuntarily committed.
    I am not sure I can translate my experience in that court 
to your question, and I do not mean to dodge it. It is just I 
am not sure I have an opinion so much as a framework within 
which I work, and I am not allowed to go beyond that.
    Senator Hatch. All right. As I understand it, you are 
involved in a number of small businesses, including some that 
appear to be family owned. Am I wrong on that?
    Judge Moody. Yes, sir, I have a business with my uncle, 
businesses in the sense that we have some property that grows 
pine trees. So I guess that is business, yes, sir.
    Senator Hatch. Has that personal experience changed the way 
you approach cases and issues involving small businesses or 
business owners?
    Judge Moody. No, sir.
    Senator Hatch. Okay. Now, Mr.--Chhabria, is it? Am I 
pronouncing that right?
    Mr. Chhabria. Yes, Senator.
    Senator Hatch. Knowing that you are a city attorney in San 
Francisco, I just want to raise a couple of issues, including 
those you may face as a Federal district judge. We have had 
some nominees before this Committee who question whether judges 
can or even should try to set aside their personal views, 
whether judges should try to be impartial. Now, I agree with 
that, and I believe that all judges have this duty, whatever 
their personal views may be.
    When you take the oath of judicial office, you are pledging 
to do equal justice without regard to the identity of the 
parties before you. Now, would you please describe your view of 
judicial impartiality and how you plan to shift from the role 
of an advocate with strongly held personal views to the other 
side of the bench?
    Mr. Chhabria. Yes, thank you, Senator. First of all, I 
agree with everything you just said. I believe that it is 
critical for judges to set aside any personal views they may 
have on a case and any views they may have developed in the 
course of prior advocacy and decide cases purely on the facts 
presented to them in the case and the law and binding 
precedent--in my case as a prospective judge on the Northern 
District, binding precedent from the Supreme Court and from the 
Ninth Circuit.
    I also believe--you mentioned the point about transitioning 
from advocacy to judging. I believe that one of the biggest 
strengths of a good advocate is to keep an open mind and to be 
willing and able to recognize the strengths of the arguments on 
the other side and to treat those arguments and the people who 
make them with respect. And I believe that that has 
characterized my career as an advocate, so although absolutely 
personal views have no role in the judicial-making process, I 
believe that I carry with me the kinds of skills that will help 
me decide cases impartially.
    Senator Hatch. Good. In my legal career before I came here, 
both in Pittsburgh where I was a partner in the oldest law 
firm, and then also in my own law firm in Salt Lake City, I 
tried cases before some of the Federal judges who are anything 
but impartial. I happened to like them, and they liked me. But 
I really have difficulties when judges inject their own 
personal views into these cases.
    We had a very interesting judge, a brilliant guy, named 
Judge Willis Ritter in Salt Lake City, and he was kind of 
renowned all over the country for being a curmudgeon on the 
bench. Now, I got along very well with him. He liked me and 
respected my ability to try those cases. But there were times 
when I felt like he leaned over backward for certain attorneys 
and even certain clients. And I was not alone in that feeling. 
A lot of people knew that.
    So what we are suggesting here is that it is important that 
you be--people who have an open mind, have open minds and treat 
everybody the same, let them try their cases, and, of course, 
not allow your own personal views to cloud the issues that are 
before you in the courthouse. And these are things that 
naturally some of us are very concerned about, especially those 
of us who tried cases in Federal court, because these are very 
important courts, as you know.
    I commend all three of you for your nominations. I think it 
is a real tribute to you, and it is a tribute to your work that 
you have done. All three of you are very intelligent people. 
All three of you have high ratings from the American Bar 
Association. And I personally intend to support each and every 
one of you. So that is in spite of my colleague here on the 
bench. See how grouchy he gets when you----
    [Laughter.]
    Senator Franken. No, I was just offended for Judge Ritter's 
family.
    [Laughter.]
    Senator Hatch. Well, his family knew he was a curmudgeon, 
too.
    Senator Franken. Okay.
    Senator Hatch. Maybe better than anybody else.
    Senator Franken. Well, in that case----
    Senator Hatch. Except me, maybe. No, he was a great judge 
in many ways. I mean, he was brilliant. But he also injected 
himself in cases in ways that I felt judges should not. But I 
had a lot of respect for him in many ways, as I do for you 
having this opportunity to serve on the Federal bench. All 
three of you have excellent qualifications. Judge Moody, you 
come highly recommended by both Senators. I thought that was 
very interesting. And each of you is recommended by your 
individual Senators, and I personally appreciate that.
    Thank you, Mr. Chairman.
    Senator Franken. Thank you, Senator Hatch.
    I would like to once again congratulate all the nominees. 
We will hold the record open for 1 week for submission of 
questions for the witnesses and other materials.
    This hearing is adjourned.
    [Whereupon, at 3:32 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




NOMINATIONS OF JOHN B. OWENS, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH 
  CIRCUIT; MATTHEW FREDERICK LEITMAN, NOMINEE TO BE DISTRICT JUDGE FOR
                   THE EASTERN DISTRICT OF MICHIGAN;
                    JUDITH ELLEN LEVY, NOMINEE TO BE
                     DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF MICHIGAN; HON. LAURIE J. MICHELSON, NOMINEE TO BE DISTRICT 
JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; HON. LINDA VIVIENNE PARKER, 
  NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; 
  PETER JOSEPH KADZIK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, U.S. 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                      WEDNESDAY, OCTOBER 30, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, presiding.
    Present: Senators Feinstein and Grassley.
    Senator Feinstein. This nominations hearing of the 
Judiciary Committee will come to order, and Senator Grassley, 
who is the Ranking Member of the full Committee, just said to 
me that he would be very happy to hear from Senator Levin right 
up front, and I would as well, if that helps you. I know you 
are very busy.
    Senator Levin, for those of you who do not know, is 
Chairman of the Armed Services Committee, which is a very big 
Committee in this body, and he also has a number of Michigan 
nominees up. So, Senator Levin, would you like to go now before 
we make our opening comments?
    Senator Levin. Madam Chair, that would be a really great 
gift.
    Senator Feinstein. We give gifts to you.
    [Laughter.]
    Senator Levin. I appreciate both of you doing that.
    Senator Feinstein. Thank you. Please proceed.

   PRESENTATION OF MATTHEW FREDERICK LEITMAN, NOMINEE TO BE 
  DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; JUDITH 
   ELLEN LEVY, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN 
 DISTRICT OF MICHIGAN; HON. LAURIE J. MICHELSON, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; AND HON. 
  LINDA VIVIENNE PARKER, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                 EASTERN DISTRICT OF MICHIGAN,
       BY HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE
                          OF MICHIGAN

    Senator Levin. I know how busy you are, too, so we are 
going to--even though I have four nominees that Senator 
Stabenow and I are introducing to the Committee, we are going 
to be very brief in this introduction, and there will be a 
longer statement that we would appreciate being part of the 
record, if you could.
    Senator Feinstein. Absolutely.
    Senator Levin. Madam Chairman and Senator Grassley, first 
of all, thank you for holding this hearing to consider four 
nominations which are important not just to the people of 
Michigan but to the Nation.
    There are four nominees to serve in the Eastern District of 
Michigan. My home town of Detroit is the location of that 
district. In alphabetical order they are: Matthew Leitman, 
Judith Ellen Levy, Laurie Michelson, and Linda Parker. Each of 
these nominees received a recommendation from a panel of legal 
experts that Senator Stabenow and I ask to advise us on 
judicial nominations. They are here today with family and 
friends, and that will be up to this Committee and to them when 
they are appearing in front of the Committee to introduce if 
the time makes that permissible. I know very much how proud 
they are of their families and friends and how proud their 
families and friends are of them, and I have had a chance to 
meet most of them. But I hope you have a chance, if not 
formally at least informally, to say a few words perhaps to 
them.
    In alphabetical order again, the first nominee is Matthew 
Leitman. Mr. Leitman graduated from Harvard Law School magna 
cum laude. From 1993 to 1994 he was a clerk to a judge named 
Charles Levin, who happens to be my cousin. That was on the 
Michigan Supreme Court, and that was now 20 years ago where he 
was a clerk to my cousin.
    He has also had extensive experience in private practice. 
He has focused on commercial litigation, appellate litigation. 
He has argued before State and Federal trial courts as well as 
appellate courts.
    He has had an outstanding legal career. He has published 
numerous articles on complex constitutional and Federal law 
issues. His dedication to public service is well known in 
Detroit, and he has been recognized as a pro bono honoree for 
the last 5 years by the Eastern District Court in Detroit.
    Judith Levy graduated cum laude from the University of 
Michigan Law School in 1996. She served as a law clerk to the 
United States District for the Eastern District of Michigan. 
She has taught classes and seminars at the University of 
Michigan. Since 2000, she has served as an Assistant U.S. 
Attorney in the U.S. Attorney's Office in Detroit. She has 
received numerous awards for her dedication to community 
service, including the University of Michigan Council for 
Disability Concerns and the Department of Justice Director's 
Award.
    Laurie Michelson received her law degree from Northwestern 
University School of Law in 1992. After law school, she served 
as law clerk to Cornelia Kennedy of the United States Court of 
Appeals for the Sixth Circuit, then for about 18 years worked 
in private practice focusing on intellectual property law. She 
was sworn in as a magistrate judge for the Eastern District of 
Michigan in February 2011. She has navigated some of the most 
complex areas of Federal law, including intellectual property 
issues, in both private practice and as a magistrate judge. She 
has been recognized in the legal community for her service. 
Among other things, she has served as president of the Federal 
Bar Association for the Eastern District of Michigan Chapter, 
and she has also been a member of the Advisory Board of 
Trustees for the Eton Academy, which is the only accredited 
school in Michigan devoted solely to children with learning 
disabilities.
    Judge Linda Parker received her law degree from the 
National Law Center at George Washington University here in 
Washington, DC. She was a partner in the early 1990s in the 
very prestigious law firm of Dickinson Wright. She served then 
as an Executive Assistant U.S. Attorney for the Eastern 
District of Michigan under U.S. Attorney Saul Green for about 6 
years in the late 1990s. She then served from 2003 to 2008 as 
the director of the Michigan Department of Civil Rights, and 
may I say I was their first general counsel to that department 
back in the early 1960s or mid-1960s.
    In 2008, Judge Parker was appointed to be a circuit court 
judge for Wayne County in Michigan, and she has been recognized 
also for her community service as well as her legal service. 
She served as chair of New Steps, an organization committed to 
providing services for economically disadvantaged new mothers 
who are in substance recovery. She has received the Damon Keith 
Community Spirit Award for her exemplary commitment to 
community service, and she received one of the Women of 
Achievement Awards awarded by the Michigan Anti-Defamation 
League.
    She has been very active in an organization called ``Boys 
Hope, Girls Hope'' in Detroit, which is a mini-boarding home 
for children who need a home, supported by the archdiocese in 
Detroit.
    Senator Stabenow obviously would have wanted to be with me 
here today. She cannot be. She is tied up in the Agriculture 
Committee conference, and so she is very supportive of these 
nominees. Again, these are joint recommendations. They come 
from a list of joint recommendations which we made to the White 
House that, again, emanated from the group of distinguished 
citizens that we appoint to give us recommendations for these 
positions.
    And so we recommend them very, very highly to this 
Committee, and we are again very appreciative of this Committee 
taking the time to reach these nominees very quickly. It has 
been a long time for them in their lives waiting for this 
moment, but from your perspective and mine as a Senator, this 
Committee has moved very, very expeditiously on these nominees, 
and we are very grateful for that as well.
    Senator Feinstein. Thank you very much, Senator Levin. I 
have no questions of you.
    Do you have questions of the Senator?
    Senator Grassley. No. Thank you very much.
    Senator Feinstein. And I thank you, Senator Levin. Thank 
you for coming. I think you do great justice to the nominees 
from the State of Michigan, and we look forward to their 
testimony in just a few minutes. So thank you.
    Senator Levin. Thank you again, Madam Chair.
    Senator Feinstein. You are always welcome to come sit with 
us, but you may have better things to do.
    Senator Levin. Thank you.
    Senator Feinstein. Thank you very much.

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

    Senator Feinstein. We will now proceed with the opening, 
and I just want to welcome everyone to this hearing on behalf 
of both the distinguished Ranking Member and myself. Today we 
are going to hear testimony from nominees on two panels. The 
first will be John Owens, a distinguished nominee to the Ninth 
Circuit Court of Appeals. And the second panel will be the four 
judges that--or the four nominees that Senator Levin just spoke 
about as well as Peter Kadzik, who is nominated to serve as 
Assistant Attorney General for Legislative Affairs at the 
Justice Department. I want to congratulate all the nominees 
and, of course, welcome you.
    I just want to say quickly what an important role Federal 
judges play in our system, and maybe that is one of the reasons 
why this is so important. It is a lifetime appointment, and 
once appointed, you cannot be removed. So how judges serve is 
really important.
    We have four judges for the trial courts, four nominees to 
be judges for the trial courts, and we have one for one of the 
appellate courts, the nine circuits. This is for the Ninth 
Circuit. It is the biggest circuit by far. It happens to 
include California and a number of Western States.
    I think the beauty of the trial court for judges is that 
they are up close and personal to the disputes that bring 
people into Federal courts. And you get to see the trial 
experience and the work of the justice system firsthand.
    The circuit courts are much more appellate courts that 
handle appellate-related matters and often do not get the 
wonderful seasoning that a trial bench provides for any judge, 
I believe.
    The Justice Department's Office of Legislative Affairs is 
also very important to this Committee. It has jurisdiction over 
most criminal laws and other law enforcement functions of the 
Department of Justice.
    I will not say more at this time, but, Senator, would you 
like to make your opening statement now?
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Senator Grassley. Thank you.
    Senator Feinstein. Good.

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

    Senator Grassley. She gave details about each of the 
judges. I will simply say I welcome you as the nominees, and I 
know that you are proud of the advancement you have made in 
your profession, being nominated to these courts. And your 
families and friends are very proud of you.
    Today's hearing is the 14th judicial nomination hearing 
this year during which we will have considered a total of 48 
judicial nominees. This hearing record is especially remarkable 
when you compare this pace to the first year of President 
Bush's second term, because now we are in the second term of 
President Obama. At this stage in President Bush's second term, 
the Committee had held only four hearings with eight nominees 
compared to the 48 I just stated so far this year.
    In fact, for the entire year of 2005, the Judiciary 
Committee held only 6 hearings for 15 judicial and circuit 
nominees--again, the 14 hearings that I have talked about.
    Today we consider a nominee to the Ninth Circuit, and 
regarding this particular seat, a bit of history is in order. 
For nearly a decade, there has been some dispute over this 
seat. It became vacant on December 31, 2004, when Judge Stephen 
Trott took senior status. I would note that Judge Trott was 
from Virginia at the time of his nomination. He moved to Idaho 
upon confirmation where he maintained his chambers throughout 
his service on the Ninth Circuit.
    When Judge Trott took senior status, President Bush 
nominated Randy Smith of Idaho to fill the vacancy. The Smith 
nomination was blocked by Senate Democrats because the 
California delegation asserted that the seat belonged to 
California. Mr. Smith had his hearing in March 2006 and was 
voted out of Committee that May. But Senate Democrats 
repeatedly refused to grant the request to hold the nominee in 
the Senate during a recess and demanded his nomination return 
to the President.
    Of course, at the same time, Senate Democrats were 
filibustering another nominee to the Ninth Circuit, William 
Myers. After a failed cloture vote and repeatedly returning his 
nomination to the President during recess periods, Myers 
withdrew. Ultimately, after this dual-track obstruction in the 
Ninth Circuit, the President withdrew Mr. Smith's original 
nomination and nominated him to a seat to which Mr. Myers had 
been nominated. Judge Smith was confirmed to that position in 
February 2007, 94-0. Mr. Myers was never confirmed.
    After the Smith nomination was blocked, the seat remained 
vacant with no nominee throughout the remainder of President 
Bush's second term and with no nominee through President 
Obama's first term.
    Now, that is the recent history of this seat, and I am not 
suggesting that I know the right way to handle the situation 
here. But it is important to remember how the Democrats treated 
the last nominee to this seat, a seat I would like to remind my 
fellow Committee Members that does not really belong to any 
particular State. In fact, this seat has been filled by judges 
sitting in Idaho, California, Washington, and Oregon.
    But in 2005, one senior Judiciary Committee Member accused 
the White House of attempting to ``steal a seat'' by nominating 
Mr. Smith. Another Member said that that Member would not ``sit 
by and let this happen. If I have to filibuster this judge, I 
will do so.'' And that is essentially what happened as I have 
outlined.
    In addition to the judicial nominees, we are considering 
the nomination of Peter Kadzik to be Assistant Attorney General 
to head the Office of Legislative Affairs. He is presently 
serving as Principal Deputy Assistant Attorney General and in 
that capacity heads the same office. I have concerns about the 
way Mr. Kadzik has been running the office since he came to the 
Department. I will not outline those here now but will put them 
in the record in a more complete statement. But let me 
emphasize that I have serious doubts about whether the 
nominee's record demonstrates an ability to restore trust and 
confidence to the Office of Legislative Affairs regardless of 
the qualifications of the nominee.
    Mr. Kadzik has continued the erroneous and troubling 
pattern of using so-called Department policies that are not 
required by law to interfere with oversight work of Senators, 
and I speak specifically of some trouble I have had with my 
oversight work. The Department needs to stop misinterpreting 
the Privacy Act and other statutes as an excuse to thwart 
congressional oversight. After all, Congress not only passes 
laws; we have a constitutional responsibility to see that those 
laws are faithfully executed. And part of that process of 
seeing that they are faithfully executed by the executive 
branch of Government as part of our constitutional checks and 
balances is getting information from the executive branch.
    Now, my concerns about Mr. Kadzik are also based on his own 
troubling personal record with regard to congressional 
oversight. In 2001, when the House Committee on Governmental 
Affairs learned that Mr. Kadzik had worked on a questionable 
pardon of billionaire tax fugitive Marc Rich, Mr. Kadzik was 
called to testify at a hearing on that matter. I will not go 
into all the details here, but the record is there for all to 
examine. I would note that the House Committee report concluded 
that Mr. Kadzik's ``attempts to avoid compulsory process were 
unseemly.'' And that is a direct quote.
    The Committee report says he attempted ``to avoid 
compulsory process.'' Mr. Kadzik sent a rebuttal to the 
Committee regarding the circumstances on his testimony before 
the Committee. The final report called the claim ``utterly 
false.'' So this is a troubling nomination, and I will have 
questions for Mr. Kadzik at that time.
    I welcome the nominees and their families to the hearing. 
Thank you.
    [The prepared statement of Ranking Member Grassley appears 
as a submission for the record.]
    Senator Feinstein. Thank you very much, Senator Grassley.
    I would like to ask the nominee John Owens to come forward, 
please, and take your seat, and we will begin with you.
    Prior to the time I introduce you and say a few words about 
you, I would just like to give my review of the Trott seat, 
Senator, since you mentioned that history. I have a very 
different history----
    Senator Grassley. And if I was wrong, I will be glad to 
listen to that.
    Senator Feinstein. Okay. If you would listen, that would be 
great.
    Senator Grassley. Yes.
    Senator Feinstein. Okay. Let us go back to 1965. Throughout 
his career, Judge Trott was licensed to practice law in one 
State. That was California. Beginning in 1965, he served as a 
county prosecutor in Los Angeles. In 1975, according to the Los 
Angeles Times article, Trott sought the position of DA from the 
L.A. County Board of Supervisors, after then-District Attorney 
Charles Bush passed away.
    When John Van de Kamp was named district attorney, Trott 
was chosen as his chief deputy, the second in command in the 
district attorney's office in Los Angeles.
    In 1981, he was appointed United States Attorney for the 
Central District of California by President Reagan. He was 
recommended for this position by Senator Hayakawa of our State. 
In 1982, while serving as United States Attorney, Trott again 
submitted an application to the L.A. Board of Supervisors to 
become DA after DA John Van de Kamp was elected to be the 
State's Attorney General.
    He was nominated by President Reagan in 1983 to serve as 
Assistant Attorney General for the Criminal Division at the 
Department of Justice. At his confirmation hearing for that 
position, Senator Pete Wilson, a friend of both of ours, of 
California, introduced him. In 1986, he was nominated by 
President Reagan to be Associate Attorney General, the third 
ranking position in the Justice Department. Once again Senator 
Wilson of California introduced him at his confirmation 
hearing.
    Now, the way that is somewhat dispositive is a nominee is 
always introduced by the Senator from his or her State.
    In 1987, President Reagan nominated Trott to the Ninth 
Circuit. This Committee sent its blue slips to Senators Wilson 
and Cranston of California. Trott stated in his questionnaire 
that his ``two clients have been the people of the State of 
California and the Government of the United States.'' He was 
confirmed in 1988 to a seat previously held by Judge Joseph 
Sneed, a California nominee. Judge Sneed's connection to the 
Ninth Circuit prior to his appointment was his 9-year tenure as 
professor at Stanford Law School. He established his chambers 
in San Francisco.
    Now, these are the facts of Judge Trott's legal life, all 
of which was legally spent in California. Now, he may have 
moved to your State, but his legal life--or not to your State 
but to----
    Senator Grassley. Not my State. Idaho. Everybody gets us 
mixed up.
    Senator Feinstein. Right.
    [Laughter.]
    Senator Feinstein. Once confirmed, he established his 
chambers in Idaho. That is the rub. So his whole history had 
been California. This personal choice of residence, essentially 
an arbitrary occurrence, should not result and cannot result in 
a State losing a judgeship to another State.
    As we all know, the overwhelming practice of 
administrations and Senates of both parties has been to retain 
each State's representation on its respective circuit. If you 
look at the makeup of the circuits represented by Members of 
this Committee, both Iowans on the Eighth Circuit occupy Iowa 
seats. Three Alabamans on the Eleventh Circuit occupy Alabama 
seats. All three Arizonans on the Ninth Circuit were preceded 
by Arizonans. And that is not by accident. There is a reason 
for it. So it is fundamental to how administrations of both 
parties get the advice and consent of the Senate on judicial 
appointments. Simply put, any President has to know which 
Senators to seek advice from on these appointments.
    So I am not going to go on from there. I mean, it goes on 
and on. But I think you get the drift. The great bulk of his 
professional life was conducted in California and for 
California.
    Now, if I can, I would like to introduce this nominee, whom 
I actually think you are going to like very much.
    [Laughter.]
    Senator Feinstein. He has been nominated----
    Senator Grassley. Did I indicate I might not like him?
    Senator Feinstein. No. Not yet.
    [Laughter.]
    Senator Feinstein. He has been nominated to serve on the 
Court of Appeals for the Ninth Circuit. His wife, Marjorie, is 
sitting in the front row, and his beautiful daughters, Jaclyn 
and Audrey, are here. Would you stand? We would like to give 
you a round of applause? That is wonderful.
    [Applause.]
    Senator Feinstein. Though born in Washington, DC, John 
Owens was raised in California, living in Silicon Valley during 
the school year, but he spent summers and many weekends on a 
farm in Modesto. He earned his bachelor's with high distinction 
from UC-Berkeley in 1993 and was inducted into Phi Beta Kappa. 
He graduated first in his class at Stanford Law School in 1996 
where he was inducted into the Order of the Coif and served as 
executive editor of the Stanford Law Review.
    From 1996 to 1997, he served as a law clerk to Judge J. 
Clifford Wallace, a noted conservative jurist appointed by 
President Nixon on the Ninth Circuit. From 1997 to 1998, he 
served as a law clerk to Justice Ruth Bader Ginsburg on the 
Supreme Court of the United States. So he has served both a 
conservative jurist and a liberal jurist.
    [Laughter.]
    Senator Feinstein. From 1998 to 1999, he served----
    Senator Grassley. Well, you might say he is well educated.
    Senator Feinstein. Yes. Not confused.
    From 1998 to 1999, he served as a trial lawyer, a trial 
attorney in the Office of Consumer Litigation at the Department 
of Justice, where he handled white-collar criminal 
investigations and affirmative civil litigation under statutes 
like the Food, Drug, and Cosmetic Act.
    He then joined the Washington office of the law firm 
O'Melveny and Myers, where he co-tried two jury trials. In 
2001, he joined the United States Attorney's Office in Los 
Angeles where he served as a Federal prosecutor. He began in 
the general crimes section prosecuting a wide variety of 
violent crimes, drug crimes, and white-collar crimes. He also 
served in the public corruption and government fraud section.
    In addition, during his time in the L.A. United States 
Attorney's Office, Mr. Owens served as counsel of record in 
more than 20 cases before the Ninth Circuit. From 2004 to 2012, 
he served as an Assistant U.S. Attorney in San Diego. His 
primary focus was investigating and prosecuting complex white-
collar crime, including fraud, health care, money laundering, 
public corruption, and national security cases. In 2008, he 
rose to become deputy chief of the major fraud section in San 
Diego, and in 2010, he was named chief of the criminal 
division.
    In multiple cases, he prosecuted individuals for conspiracy 
and wire fraud in financial fraud cases where victims lost 
millions of dollars. These were highly complex cases, often 
involving dozens of witnesses at trial. The defendants were 
convicted and sentenced, and those judgments were affirmed by 
the Ninth Circuit.
    One of the cases, U.S. v. Treadwell, received national 
press attention on the CNBC show ``American Greed.'' This case, 
in the words of the Ninth Circuit, involved ``a massive 4-year 
Ponzi scheme in which more than 1,700 investors across the 
United States lost over $40 million.''
    As chief of the criminal division, he was responsible for 
supervising more than 100 attorneys and 5,000 prosecutions, and 
he reviewed each appellate brief filed by his office.
    The role of chief of the criminal division is especially 
important in San Diego because the Federal court's criminal 
docket is huge. In fact, in recent statistics the San Diego 
Federal court ranked second nationally in terms of the number 
of criminal felony filings per judgeship.
    John Owens served as chief of this division in this busy 
district with great distinction, receiving the Director's Award 
from the Justice Department for his superior performance in 
that role.
    He also earned numerous other awards for his prosecutorial 
service, including the Secret Service Honor Award, another 
Director's Award from the Justice Department, a Special 
Achievement Award from Justice, and an Award for Excellence 
from the Federal Bureau of Investigation.
    In 2012, he joined Munger, Tolles and Olson as a partner in 
the firm's L.A. office. During his time at Munger, Mr. Owens 
represented individuals and corporations in a wide variety of 
cases, including civil, criminal, and administrative cases, as 
well as internal investigations. And he has devoted part of his 
time to pro bono cases, including amicus briefs in the U.S. 
Supreme Court filed on behalf of the National Association of 
Criminal Defense Lawyers, the National Association of Federal 
Defenders, and California Attorneys for Criminal Justice.
    Now, the record I have just described is one of great 
distinction. It is a record of excellence at every level, and 
it is a record of balance and good judgment that will serve Mr. 
Owens and the people of all States in the Ninth Circuit very 
well. In fact, he has a broad base of support across the 
ideological spectrum. I want to convince you, Senator.
    For example, several corporate general counsels and other 
corporate officials wrote to the Committee to support this 
nomination. They stressed that the Ninth Circuit's 
extraordinary caseload produces significant delays in resolving 
appeals and how the backlog of cases in the Ninth Circuit 
undermines the need for certainty and resolution.
    A group of 27 individuals who clerked on the Supreme Court 
the same year Mr. Owens clerked for Justice Ginsburg also wrote 
to support his nomination. These individuals clerked for every 
Justice who served that year, including Chief Justice 
Rehnquist, Justice Scalia, and Justice Thomas. Here is what 
they wrote:
    ``During that year we developed a deep appreciation for 
John's sharp legal mind, incredible good humor, openness to all 
points of view, and adherence to the highest possible standard 
of personal and professional ethics.''
    Four individuals who served as U.S. Attorneys in California 
under President George W. Bush also wrote in praise. They wrote 
this: ``While his impeccable academic credentials are 
impressive, that is not all John brings to this nomination. He 
is both smart and thoughtful, and he performs his job with the 
combination of judgment, skill, fairness, and appropriate 
restraint that is so important in the world of criminal 
prosecution.''
    They concluded by stating: ``In a time of rising caseloads 
and shrinking judicial resources, this is truly an appointment 
of which both parties and the President can be proud.''
    In fact, one of those U.S. Attorneys told my judicial 
selection committee that Mr. Owens was ``simply the best legal 
mind in the U.S. Attorney's Office.''
    Paul Charlton, who served as a U.S. Attorney for the 
District of Arizona under President Bush in 2001 to 2007 also 
wrote in support. He said: ``What distinguishes good 
prosecutors from the great ones is the ability to do what is 
right, to make sure that neither the innocent suffer nor the 
guilty escape. By continually doing what is right, by proving 
himself a person of integrity, Mr. Owens earned the reputation 
of a great prosecutor.''
    When my judicial selection committee considered candidates, 
John Owens truly stood out from the pack. I did not know him, 
but when I reviewed his record, what emerged for me was an 
individual who will truly be an outstanding Ninth Circuit 
judge, and it is really as simple as that. And I hope you are 
convinced.
    Now I would like to--since that introduction is over, Mr. 
Owens, would you like to say your piece and then we will----
    Senator Grassley. Before he goes----
    Senator Feinstein. Oh, you have got more to say. Okay, 
sure.
    Senator Grassley. Not really, but your long statement I 
listened to, and I do not know anything controversial about 
this gentleman. Now, maybe there is something coming up here 
that you are preparing for, but I do not know him to be 
controversial.
    Senator Feinstein. Oh, it is just the conflict over the 
seat.
    Senator Grassley. Yes. That is about it, but I am not 
involved in that conflict.
    Senator Feinstein. Good. Okay. I did not know when you 
started, you see. So I just thought I----
    Senator Grassley. Well, let me make clear then about the 
history, just so long as we are historians here.
    Senator Feinstein. Here we go.
    Senator Grassley. Again, I am not going to arbitrate this 
issue. There are other Senators who are going to arbitrate that 
issue. Prior to Judge Trott, the following judges served in 
this seat: Judge Sneed, California, 1973 through 1987; Judge 
Hamley, Washington, 1953-71; Judge Bone of Washington State, 
1944-56; Judge Bone was preceded by Judge Haney of Oregon, 
appointed in 1935 to a newly authorized seat. So that is kind 
of the whole history of it.
    But, again, I would get involved in these arguments if it 
were the Eighth Circuit.
    Senator Feinstein. Okay.
    Senator Grassley. Not the Ninth Circuit.
    Senator Feinstein. Thank you very much, Senator.
    I would ask to put my whole statement on the Trott seat in 
the record. There is more that I did not want to go into and 
take the time.
    If you would please stand and be sworn? Do you affirm that 
the testimony you are about to give to this Committee is the 
truth, the whole truth, and nothing but the truth?
    Mr. Owens. I do, Senator. Thank you.
    Senator Feinstein. Thank you very much.
    Okay. Would you like to make an opening statement?

              STATEMENT OF JOHN B. OWENS, NOMINEE
           TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT

    Mr. Owens. Your Honor--I am sorry. That is from my court 
experience. Madam Chairwoman, thank you very much for that 
introduction. I do want to thank the Committee as well for 
having this hearing today. I would like to thank the President 
for the nomination. And I also want to thank my home State 
Senators for their support.
    And in light of the fact you introduced my family, I am 
ready to answer any questions.
    [The biographical information of Mr. Owens appears as a 
submission for the record.]
    Senator Feinstein. Well, that is short. All right.
    He is a man of few words.
    [Laughter.]
    Senator Feinstein. All right. You know the Ninth Circuit. 
You know it is a busy circuit. You know it has the most pending 
appeals per panel of any circuit, and the appeals take longer 
to resolve in the Ninth Circuit than in other circuits.
    Tell us a little bit about how you view this fact, what you 
might be able to do to speed things up, and discuss the kind of 
Ninth Circuit judge you would like to be.
    Mr. Owens. Sure. If I were lucky enough to be confirmed, 
the first thing I would do, Senator, is work very, very hard. I 
understand from judges on the Ninth Circuit how busy they are, 
and I would do everything I could to help them eliminate the 
backlog of cases.
    Having been a litigant in the Ninth Circuit, I have seen 
the backlog of cases and the time between conviction and 
sentencing before the appeal is actually argued can be a very 
long amount of time.
    In terms of the judge I would like to be, I would like to 
reflect on the two mentors I had. I was very fortunate to have 
clerked for Judge Wallace and Justice Ginsburg, and together 
they taught me a few lessons, and the first is you have to be 
fair and impartial at all times. You are not rooting for one 
side. You have to just decide cases on the law. And as an 
appellate court judge, you have a very limited role. Your job 
is to review that case, not some other case, based solely on 
the record and under the appropriate standard of review.
    One of the other main things they taught me was you have to 
work hard in the job, very hard. There is no substitute for 
hard work. You have got to be prepared. And both Judge Wallace 
and Justice Ginsburg taught that to me. If you are going to 
write a decision, you have got to do it in a way that makes 
sense. The public and the parties have to be able to understand 
the decision you have written, so write it in plain English.
    Senator Feinstein. Yay.
    Mr. Owens. And then, finally, at all times you need to 
remember how lucky you are if you are a Federal judge. This 
shows tremendous faith by the people of this country, by the 
Senate, and by the President of the United States. And you need 
to repay that luck by being collegial to the parties, to the 
court staff, and to your fellow judges. And that in a nutshell, 
Senator, is what I believe.
    Senator Feinstein. Thank you.
    Senator Grassley.
    Senator Grassley. I only have two questions. The Ninth 
Circuit has a high rate of cases being overturned by the 
Supreme Court. Why do you think that this is the case? And 
knowing that, what will be your strategy in approaching cases, 
if confirmed, to combat the trend? Because I assume it does not 
speak--I mean, I am not a lawyer, but I assume it does not 
speak well of a court if you get now I think about 39 out of 41 
cases overturned by the Supreme Court.
    Mr. Owens. Well, as a law clerk to the Ninth Circuit and 
the Supreme Court and a prosecutor in the Ninth Circuit, I am 
very well aware that the Ninth Circuit has not always received 
the warmest welcome in the Supreme Court. I do not know exactly 
why that is, why the court's decisions have such a high 
reversal rate, but I can tell you this, Senator: If I were 
lucky enough to be confirmed, I would work extremely hard to 
make sure that the decisions in which I were involved with were 
consistent with Supreme Court precedent.
    Senator Grassley. A followup to that, not my second 
question, but wouldn't solving that problem the extent to which 
Supreme Court precedent has to be followed by the Ninth 
Circuit?
    Mr. Owens. Yes, it does. That is correct, Senator. Every 
circuit is supposed to follow the precedent of the Supreme 
Court.
    Senator Grassley. You gave an interview regarding a case in 
which the Ninth Circuit overturned a conviction in a case 
alleging threats to President Obama. The Department of Justice 
gave up on the case, leaving in place a legal precedent, and 
you remarked, ``This opinion remaining on the books unchecked 
makes the Secret Service's job more difficult.''
    Now, I do not want to get into the specific facts of that 
case, but could you more generally explain a judge's role in 
declaring what the law is or should be when a particular law or 
precedent appears to be poorly written or unjust? What should a 
judge do?
    Mr. Owens. If I understand your question, Senator, it is 
that if a judge disagrees with a law, for example?
    Senator Grassley. Well, how a judge would go about 
clarifying a law, what the law is or what the law is intended 
to be, and when you have that being the case, where it might be 
poorly written or unjust, what should a judge do about it?
    Mr. Owens. Well, a judge's primary job is to determine 
congressional intent, and the way a judge does that is by 
reviewing the language of the law. It may be the judge does not 
personally like the outcome of that decision, but that is not 
the judge's province. The judge is there to determine what 
Congress decided in passing the statute, and the judge has got 
to stick with that.
    The decision you are referring to, I believe, was a 2-1 
decision, and there was a dissent in the case. I was the 
criminal chief of the office when that case was tried. I was no 
longer in the office when the appeal came down. But I was 
familiar with the case, and as chief of the criminal division, 
I felt strongly about it.
    Senator Grassley. What if a decision leaves a poor 
precedent in place?
    Mr. Owens. Well, as the circuit court judge, in a sense, 
you have to follow that decision. The only way you can overturn 
it is through the en banc process, which is a very limited 
process, or if the Supreme Court overturns the process. But if 
there is a decision by the Ninth Circuit, if I am lucky enough 
to be confirmed, as a panel you have got to follow that 
decision.
    Senator Grassley. Thank you, sir.
    Thank you.
    Senator Feinstein. Go back into that case that the Senator 
referred to. I am not familiar with it. Just tell us a little 
bit about the case and your view.
    Mr. Owens. Sure. So in that case, if I remember it, 
Senator--it has been a few years--an individual made some 
threats to the President, and he used some racially very 
offensive language in describing the President and talked about 
a 50-caliber rifle being used in terms of the President. My 
office tried the case--one of our most experienced prosecutors 
tried the case before Judge Marilyn Huff in a bench trial. And 
Judge Huff returned a guilty verdict, and on appeal the defense 
argued, well, what he said was protected speech in a sense, it 
did not fall within the scope of the statute, if I remember the 
decision correctly. That was the decision. The department, 
after I left the department, decided not to appeal it.
    So that happens sometimes as a prosecutor. The Ninth 
Circuit made its ruling, and the department decides if we 
appeal it or not, and I was no longer in the department. But 
that is one of those cases you remember, and, you know, that 
happens sometimes as a prosecutor. You do not always prevail.
    Senator Feinstein. Let us say you are on the Ninth Circuit, 
and let us say 15 years from this point you look back. How 
would you like to see yourself as having performed as a Ninth 
Circuit Court judge?
    Mr. Owens. Well, I would hope that people would say that he 
was thoughtful, fair, reasonable, and collegial and he always 
worked hard. I would never want someone to say, ``Oh, I 
remember Judge Owens. He was the one who fell asleep.'' Or, ``I 
remember Judge Owens. He was playing with his iPhone during a 
hearing.'' I want to be known as the guy who took his job very, 
very seriously in all facets.
    Senator Feinstein. Thank you.
    Do you have any other questions?
    Senator Grassley. No. Thank you very much.
    Senator Feinstein. Thank you very much.
    Mr. Owens. Thank you, Senator.
    Senator Feinstein. I do not want to keep your daughters, so 
we will be mercifully brief.
    Mr. Owens. Thank you. Thank you, Senator Grassley.
    Senator Feinstein. Thank you very much, Mr. Owens.
    Senator Feinstein. All right. Now we will bring up the 
other five people for the Michigan court spots and the fifth 
for the Justice Department. And I believe we will do the court 
seats first.
    All right. We have Mr. Kadzik on the right, and we have the 
four nominees here. I would like to begin with Mr. Leitman, and 
if you would like to make a brief statement, and then we will 
just go right down the row to Judge Parker, and then we will 
ask questions of the four of you. And then we will do Mr. 
Kadzik.

STATEMENT OF MATTHEW FREDERICK LEITMAN, NOMINEE TO BE DISTRICT 
                 JUDGE FOR THE EASTERN DISTRICT
                          OF MICHIGAN

    Mr. Leitman. Thank you, Senator. I would like to begin by 
thanking you, Senator Feinstein and Senator Grassley, for 
holding this hearing. I would like to thank the President for 
the great honor of this nomination and Senators Levin and 
Stabenow for supporting me in this nomination.
    And the only other thing I would like to do is just 
introduce the folks that I brought with me: my wife, Kelly; my 
son, Joshua----
    Senator Feinstein. Could you all please stand?
    Mr. Leitman [continuing]. My son, Joshua; my daughter, 
Natalie; my mother, Susan; my sister, Rebecca; my legal 
assistant, Alisha. And at home, my dad could not make it here, 
but he is watching on the Internet, and so are some folks at my 
law firm, Miller Canfield.
    Thank you very much for having me.
    [The biographical information of Mr. Leitman appears as a 
submission for the record.]
    Senator Feinstein. Thank you. Thank you all for being here.
    Ms. Levy.

 STATEMENT OF JUDITH ELLEN LEVY, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF MICHIGAN

    Ms. Levy. Thank you. Thank you, Madam Chairwoman and 
Ranking Member Grassley, for convening this hearing. I, too, 
would like to thank the President for the honor of this 
nomination, and I would like to thank Senator Levin and Senator 
Stabenow for recommending me for this position, and Senator 
Levin for his kind introduction.
    I would also like to thank Susan Plachinsky, who is back in 
Detroit at the U.S. Attorney's Office watching this hearing, 
for helping me prepare the materials that you have reviewed in 
anticipation of the hearing.
    Today with me--I would love to introduce my family--is my 
spouse, Janet Johnson; my twin daughters Kayla and Micah 
Johnson-Levy, who are sophomores at Pioneer High School.
    Senator Feinstein. Would they please stand?
    Ms. Levy. And I would like to send a special thank you to 
their teachers for excusing their absence today.
    [Laughter.]
    Ms. Levy. My daughter Rihanna Johnson-Levy is a freshman at 
Yale College, and we all agreed it would be a good idea for her 
to focus on her studies in New Haven. So she is there tuning in 
on an electronic device no doubt watching the hearing.
    My mother, Steen Levy, was unable to be here due to a 
recent illness, and my brother and sister, Paul and Claire 
Levy, are both lawyers, and they are tuning in from across the 
country.
    I would like to acknowledge one person who is not here 
today, and that is my father, Leon Levy, who would be so proud 
to know that I am in this room with all of you. He passed away 
3 years ago, and if he knew that I was here, he would be so 
proud.
    I am joined today in this room by a good number of 
colleagues from the Department of Justice who took time away 
from their demanding schedules, and specifically with my family 
is Sam Hall, a DOJ Honors hire, a former student of mine at the 
University of Michigan Law School; Chloe Holtzman, also working 
at the Department of Justice and a former student; and Thomas 
Bohnett, who is clerking for Judge Allegra on the Federal 
Circuit.
    I am also joined by Webcast by colleagues at the U.S. 
Attorney's Office who threatened to listen to this, and I would 
like to send a special thanks to Elizabeth Laren for her 
friendship and support, and to our U.S. Attorney, Barbara 
McQuaid, for her leadership, friendship, and confidence in me.
    Thank you.
    [The biographical information of Ms. Levy appears as a 
submission for the record.]
    Senator Feinstein. Thank you.
    Ms. Michelson.

 STATEMENT OF HON. LAURIE J. MICHELSON, NOMINEE TO BE DISTRICT 
           JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN

    Judge Michelson. Thank you, Senator Feinstein. It is a 
privilege and a thrill to be here today, especially with my 
fellow nominees from Michigan. I thank you, Ranking Senator 
Grassley, and all of the Members of the Committee for the 
opportunity to appear before you.
    I also would like to thank Senators Levin and Stabenow for 
their kind words and for their trust in recommending me, and, 
of course, President Obama for the honor of this nomination.
    I would also like to thank my colleagues on the bench: my 
mentor, David DuMouchel; my staff, and especially my law clerk, 
Eric Lee, who is here this afternoon; and my friends for----
    Senator Feinstein. Everybody stand up so we can see you. 
Thank you.
    Judge Michelson. And my friends for all of their support 
and assistance throughout this process. And last, but certainly 
not least, I have to thank my wonderful family for making this 
all possible. Here with me today are my role model parents, Jim 
and Bonnie Michelson; my brother and sister-in-law, Jamie and 
Beth Michelson; and their two daughters, my nieces Brook and 
Rebecca, who took the train in today from the University of 
Pennsylvania where they both attend college. And while this is 
primarily an all M Go Blue panel, I am very proud of them.
    As always, my twin sister, Pam Renusch, is here with me. I 
will confess we are identical, so she is prepared to jump in 
and take my place should I get a really difficult question.
    [Laughter.]
    Judge Michelson. Her 11-year-old, almost 12-year-old son, 
my terrific nephew, Connor Renusch is also here. And he sends a 
shout-out to all of the seventh graders at Bloomfield Hills 
Middle School.
    [Laughter.]
    Judge Michelson. His 5-year-old sister, my niece Peyton, is 
home with her father. She had kindergarten today. And also here 
is my sister Debbie Fuger, and her husband is also home with 
their 3-year-old twins, my niece and nephew, Michael and Avery, 
who are either listening in to this Webcast or destroying the 
house.
    [Laughter.]
    Judge Michelson. I am blessed to be part of their family.
    Thank you.
    [The biographical information of Judge Michelson appears as 
a submission for the record.]
    Senator Feinstein. Thank you. I should have introduced you 
as ``Judge,'' so forgive me for that.
    Judge Michelson. That is quite all right.
    Senator Feinstein. Judge Parker.

        STATEMENT OF HON. LINDA VIVIENNE PARKER, NOMINEE
         TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT
                          OF MICHIGAN

    Judge Parker. Good afternoon. Thank you, Madam Chairperson. 
It is indeed a thrill for me to be here sitting in this room 
amongst you and amongst the Ranking Member, Senator Grassley. 
Thank you very much for having me.
    I have to begin--I would like to extend my further thanks, 
I should say, to President Barack Obama. This is beyond a 
thrill, an honor, and a privilege, and I am so very thankful 
and grateful for the nomination.
    I would also like to, of course, thank Senator Levin. He is 
just an icon to all of us, to many of us in Michigan, I think. 
And I would like to thank Senator Stabenow for the remarks that 
she also extended through Senator Levin.
    I have with me today family members, and I would like to 
introduce them. I have my mother, Sheila Parker, and she is 
here representing my brother, James, who is a lawyer in 
Detroit, and my sister, Amy, who is a dentist in Detroit, 
neither of whom could be with me.
    I have two great nephews who I believe are watching this on 
the Webcast--they better be doing that--Ian and Logan.
    [Laughter.]
    Judge Parker. Come on now. All right. And then I have with 
me a very, very dear friend, a lifetime friend, Patti Grace 
Smith, who is here in Washington, who is here with me today. To 
her left is Nicole Lamb-Hale, who is a very, very dear friend. 
We go back 20 years plus. And then seated next to my mother is 
my dear friend Arthur McCullar. Please stand.
    Thank you very much for giving me an opportunity to 
introduce them.
    [The biographical information of Judge Parker appears as a 
submission for the record.]
    Senator Feinstein. Thank you very much.
    All right. We will begin now with the questions of the four 
nominees. I think everyone here understands that our Federal 
courts have a special responsibility to make sure that every 
person is treated fairly under the law and that our disputes 
are resolved according to law and that rights are protected.
    Could each nominee--and we will go right down the line--
describe his or her view of the role of the court, the Federal 
court, in our system of Government and how you will strive to 
provide fair and impartial treatment to litigants who will come 
before you as a district judge if you are confirmed by the 
Senate? Mr. Leitman?
    Mr. Leitman. Senator, thank you for that question. I would 
say in my view the Federal courts play an essential but a 
limited role in our Federal system. The essential role is 
providing justice, deciding cases fairly, as you indicated, 
treating all litigants the same, and applying settled law to 
the facts of every case and playing it right down the middle. 
And I think that is really the essential role that the courts 
play, and that is what I would strive to do if I were fortunate 
enough to be confirmed.
    Senator Feinstein. Excuse me. My staff sent me a note. The 
notes says, ``They are not yet sworn in.'' If you would stand?
    [Laughter.]
    Senator Feinstein. Affirm the oath and complete its 
statement. Do you solemnly swear that you will tell the truth 
and nothing but the truth, so help you God?
    Mr. Leitman. I do.
    Ms. Levy. I do.
    Judge Michelson. I do.
    Judge Parker. I do.
    Senator Feinstein. Consider yourselves sworn. Shall we have 
Mr. Leitman----
    Mr. Leitman. I would adopt what I just said, Madam Chair.
    [Laughter.]
    Senator Feinstein. Got it. Thank you.
    Ms. Levy. Thank you, Senator Feinstein. I agree entirely 
with what Mr. Leitman said in terms of the role of the court. I 
would just add to that that, in addition to having a limited 
role, they are the face of the Government to many people. To 
jurors, it is the first time that they come in contact with 
some part of the Federal Government in a very direct way. I 
believe that the courts and judges need to be respectful of all 
litigants, need to be open-minded on all cases, and we owe it 
to our Government and to the people in our district to reach 
decisions that are very well reasoned and carefully articulated 
so that they are understood.
    Senator Feinstein. Thank you.
    Judge Michelson.
    Judge Michelson. Thank you, Senator. I have learned in my 
nearly 3 years as a magistrate judge that I cannot make all of 
the litigants and the lawyers feel good about the outcomes or 
the results necessarily, but I can make them feel good about 
the process and make them feel that they did indeed receive a 
fair shot. And I believe that every lawyer and litigant is 
entitled to a judge who will work hard, who will study and 
learn the facts, who will study and learn the law, and who will 
decide only the cases before her based on those facts and law 
fairly and impartially, as expeditiously as possible, and in a 
way that both litigants can understand the ruling. And I have 
found that that is the way you can have people feel that they 
received fair justice.
    Thank you.
    Senator Feinstein. Thank you.
    Judge Parker.
    Judge Parker. Yes, thank you, Senator, for the question. I 
will continue to do what I have been doing for the last 5 
years, which is to have a faithful application of the precedent 
that applies in any particular given case. I have been serving 
as a State court judge for the last 5 years, and it has indeed 
been a privilege for me to serve in a manner which is designed 
to assure those who come before me that I am respectful that 
this is their time in court.
    As I look at the role of the district court, I agree 
certainly with all that has been said by my colleagues, but I 
would like to also add that for many of those who will appear 
before the Federal court, that may be the last opportunity for 
them to receive justice because the case might not go forward. 
And so while there is indeed a limitation on that role for 
many, that may be the moment at which justice will be rendered 
for them.
    Thank you.
    Senator Feinstein. Thank you very much, all four of you.
    Senator.
    Senator Grassley. Yes, I will have questions of each of 
you, but I will ask them separately.
    I am going to start with you, Mr. Leitman. You have 
defended companies in qui tam cases. You probably know of my 
authorship of some of that legislation. And you gave 
presentations advising companies on how to prevent these 
whistleblower cases from arising.
    In 2010, you warned these companies that I, Senator 
Grassley, have been ``pushing for reforms for several years to 
enhance the Government's fraud enhancement capabilities 
relating to Federal health care funds.''
    What do you think is the role of a Federal judge with 
respect to whistleblower claims?
    Mr. Leitman. Thank you, Senator Grassley. I think the role 
of a Federal judge with respect to a whistleblower claim is the 
same with respect to any sort of claim: when the claim comes 
before the court, to look at the applicable statute, to look at 
the governing precedent from the Supreme Court of the United 
States and the Sixth Circuit, and to faithfully apply that 
precedent to the facts before the court.
    Senator Grassley. Okay. Your questionnaire indicates that 
you are a member of the American Constitution Society for Law 
and Policy. There is nothing wrong with memberships in groups 
like that, or any group, for that matter--well, I should not 
say ``any group'' because I would not say that for a hate 
group, as an example. But I do have questions about how the 
goals of that organization might affect your judgment if 
confirmed. Peter Edelman, as Chair of the Board of Directors of 
the American Constitution Society, stated, ``What we want to do 
is to promote conversation, the idea of what a progressive 
perspective of the Constitution is, and what it means to the 
country.''
    Also, some of the stated goals and missions of the 
organization are ``countering right-wing distortions of our 
Constitution'' and, further, ``debunking conservative buzz 
words such as `originalism' and `strict construction' that use 
neutral-sounding language but all too often lead to 
conservative policy outcomes.''
    So could you please explain in your view the idea of what 
is a progressive perspective of the Constitution?
    Mr. Leitman. Senator, thank you for the opportunity to 
clarify and explain my involvement in the ACS. I am not 
familiar with the context of the quote from Mr. Edelman, but 
what I would like to stress to you is that my involvement in 
the ACS has been exclusively at the local level in the State of 
Michigan, and our chapter is really focused on three goals:
    Promoting education generally about legal issues, and we 
hold seminars such as this is the experience of arguing before 
the U.S. Supreme Court, and we educate people about that. We 
educate people on reforms in indigent defense law.
    We also promote civility in the practice of law. One of our 
really primary goals each year is to give an award that 
recognizes civility in public service.
    And the other thing that we do is we encourage debate on 
hot topics and legal issues, and when I say debate, I mean 
debate on both sides of issues. One of our signature programs 
involved speakers from both the Michigan Chamber of Commerce 
and the Michigan Democratic Party.
    Those are the goals that I have been working toward in the 
ACS, and what I would like to close with is absolutely assuring 
you that my membership and participation in the ACS, just like 
my membership and participation in other groups, will have 
absolutely no impact on the way I approach cases, which will be 
to faithfully apply precedent to the facts before me.
    Senator Grassley. Well, I accept that as a good-faith 
effort. It would give me an opportunity, though, whether it is 
with that organization or any other organization that might 
have certain precepts, could you identify right-wing 
distortions of the Constitution that this organization says 
they want to dispute or feel a need to be countered and why 
concepts such as originalism or strict construction need to be 
debunked?
    Now, that is a question that could be separate from any 
sort of association you have with this organization. I think it 
is legitimate to ask questions about your concept of 
originalism and strict construction and why that needs to be 
debunked.
    Mr. Leitman. Senator, let me be as clear as I can. I have 
absolutely no interest in using my spot as a Federal judge, if 
I am able and fortunate enough to achieve that spot, to debunk 
anything. I would simply be deciding cases.
    Senator Grassley. Let us stop there then.
    Mr. Leitman. Okay. Thank you.
    Senator Grassley. For Ms. Levy, in 2009, at the Hot Topics 
in Fair Housing event, you said, ``The issue of racial 
integration is the most pressing issue facing fair housing 
enforcers.''
    First question: What role do you believe Government should 
play in the issue of racial integration?
    Ms. Levy. Senator, are you asking me what role should the 
Federal courts play on that issue or Government in general?
    Senator Grassley. The courts.
    Ms. Levy. The courts, okay.
    Senator Grassley. Well, then, let me ask a followup 
question. If confirmed as a judge, what would be your priority 
and approach in this area?
    Ms. Levy. Okay. Thank you. My approach to fair housing 
cases would be exactly the same as my approach to every case 
that would come before me if I am confirmed for this position, 
and that would be to work very hard, to listen carefully to all 
of this, both sides, to have an open mind on both sides, and to 
apply whatever facts are developed in those cases by the 
lawyers and the parties to the established law. I would do that 
whether it is a fair housing case, which is an area that I have 
some experience in, but if it was that kind of case or any 
other kind of case, that is the approach I would take, and that 
is what I think is appropriate for all district court judges to 
do.
    Senator Grassley. My last question will be a little bit 
more related to just exactly what your philosophy might be. You 
were a moderator for an event entitled ``Race and the Justice 
System: The New Jim Crow.'' Do you believe that the justice 
system has been crafted to replace Jim Crow laws and oppress 
blacks because of their race?
    Ms. Levy. No, I do not.
    Senator Grassley. Thank you.
    For Judge Michelson, you taught a media law course at 
Oakland University that included the friction between free 
press and fair trial. What has been your experience with 
cameras in the courtroom? And if confirmed, would you allow 
cameras in the courtroom? And let me followup with the second 
part of that. Do you think cameras in the Federal courtrooms 
implicate an individual's right to a fair trial?
    Judge Michelson. Thank you, Senator. I do not have personal 
experience with that. In terms of the teaching of the course, 
we taught that--it was for undergraduates. We taught that 
primarily as a law school course, so we did it through the use 
of case law and primarily Supreme Court case law. And when I 
practiced media law, most of it was in the State courts where 
cameras were allowed. I practice in a district where cameras 
are not allowed, and as a judge, I follow the rules of the 
court. And as my colleagues have indicated, as a judge I would 
also follow and abide by any of the precedent of the Supreme 
Court or the Sixth Circuit, and so whatever they ultimately 
decide on that issue is certainly what I will follow.
    Senator Grassley. My last question. You have stated that 
the law has produced its share of oxymorons, and in a list of 
examples, you included the term ``criminal justice.'' Could you 
explain why ``criminal justice'' is an oxymoron?
    Judge Michelson. Senator, I do not recall the context that 
I think I had written an article where I was trying to indicate 
that civil litigation could be much more civil, that as 
somebody who had practiced in criminal law and civil practice, 
I saw much more civility on the criminal side than I saw on the 
civility side. And I think I found an article that had given 
some examples of legal--what they considered legal oxymorons. I 
certainly believe in justice on both the civil side and on the 
criminal side, especially as someone who has practiced in both 
areas.
    Senator Grassley. I will accept your answer. If there is 
some followup I need, I will submit it in writing.
    Judge Michelson. Thank you.
    Senator Grassley. Now to Judge Parker.
    Judge Parker. Yes, sir.
    Senator Grassley. Thank you. In a 2010 interview, you said, 
``I very rarely see people who have evil in their hearts. It is 
just people making really bad decisions because they did not 
have any other option.'' So I have some interest in an 
explanation from you on that.
    Judge Parker. Yes, sir.
    Senator Grassley. As a judge, what role does empathy play 
in your decisionmaking process regarding criminal defendants?
    Judge Parker. Thank you, Senator, for that question and 
giving me an opportunity also to clarify. I do not believe that 
empathy has any role, and it has not for the last 5 years that 
I have been on the State court, in making any decisions. I look 
at each case, and I apply the applicable appellate precedent 
from Michigan, from our Michigan courts. So empathy has not 
proven to be a factor for me in sentencing or in reaching a 
decision of any nature.
    As relates, Senator, to the remark that I made, I have to 
say that I regret having made the remark in the sense that I 
was very new to the bench, and I think I was very, very naive 
when I made the statement. And at the end of the day, I realize 
now after the 5 years that my role is not to judge what is in 
anyone's heart. That is absolutely not my role. And the role 
for a State court judge and, again, as well, Senator, for a 
Federal court judge is to look at the facts and apply the 
applicable law to those facts.
    Senator Grassley. I think you just answered the second part 
of that question, so I will go on to my last question to you. 
In 2004, you stated that, ``Fair housing must be recognized as 
a human right.'' Could you please explain what you meant by 
this statement and any legal arguments you believe that back up 
that assertion?
    Judge Parker. Well, Senator, at the time that I made that 
statement--it was in 2004, as you noted. I do not actually 
recall making it, but I will not distance myself at all from 
having made it, because I, at the time that I made the 
statement, was the director of the Michigan Department of Civil 
Rights, and as an advocate there for the Michigan Civil Rights 
Commission, we did quite a bit of work in the area of fair 
housing, and it was understood at that time that where you 
decide that you live, where you choose to live, has a very 
significant impact on where you learn and other things that are 
critical to our just basic everyday life. That is the 
explanation, Senator, and I thank you for the opportunity to 
offer it.
    Senator Grassley. Is there any indication in that statement 
that, if confirmed, you would--how you would approach that 
issue, would you seek to find any new constitutional right?
    Judge Parker. Absolutely not, Senator.
    Senator Grassley. Thank you all very much for answering my 
questions.
    Senator Feinstein. Well, let me add to Senator Grassley in 
saying thank you. I have no further questions, and the four of 
you, if you would like to leave the speaker table and take your 
place in the audience, and we will move Mr. Kadzik over to 
where you are, Judge Michelson, and let me thank you very much. 
Your inquisition is over.
    [Laughter.]
    Mr. Leitman. Thank you.
    Ms. Levy. Thank you.
    Judge Michelson. Thank you, Senator.
    Judge Parker. Thank you.
    Senator Feinstein. Actually for us it was not much of an 
inquisition. It was rather nice.
    Senator Feinstein. Mr. Kadzik, if you would like to make an 
opening statement, we would be very pleased to hear it.

          STATEMENT OF PETER JOSEPH KADZIK, NOMINEE TO
         BE ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT
                           OF JUSTICE

    Mr. Kadzik. Thank you, Madam Chairman.
    Madam Chairman, Ranking Member Grassley, it is an honor and 
a privilege to appear before you today as the President's 
nominee to be the Assistant Attorney General for the Office of 
Legislative Affairs at the Department of Justice. In my time at 
the Department, I have sought to improve the Department's 
responsiveness to inquiries from congressional committees and 
Members of Congress, and if confirmed, I will continue to 
improve our performance.
    In many respects I consider myself to be the beneficiary of 
the American dream. All four of my grandparents were immigrants 
from Poland. They worked hard so that my parents could graduate 
from high school. My parents also worked hard. My father worked 
in a factory in Buffalo, New York, for more than 30 years so 
that their children could attend college and graduate school. I 
began working part-time when I was a junior in high school to 
help finance my education, and I continued to work through 
college and law school.
    I had the good fortune to attend the Georgetown University 
Law Center and then to clerk for Judge Flannery on the U.S. 
District Court here in the District of Columbia. Judge Flannery 
had previously served as the United States Attorney for the 
District of Columbia, and he steered me into that office and 
remained my mentor throughout my career.
    As I have often said, there has been no greater honor in my 
career than to stand in a courtroom as an Assistant United 
States Attorney and state, ``I represent the people of the 
United States of America.''
    Returning to the Department of Justice has long been my 
dream, and I look forward to continuing to work for the people 
of the United States. If confirmed, I also look forward to 
working with you to assist the Committee in performing its 
legislative and oversight functions.
    If I might take a moment, I would like to introduce my 
family here with me today: my daughter Melissa, a former Peace 
Corps volunteer, who works for the Centers for Disease Control 
in Atlanta; my daughter Mary-Pat, who works for the University 
of Chicago Endowment, and her husband, David Barron; my son 
P.J., who works for the Malala Fund, a nonprofit organization 
in New York City; also my daughter Allison, who is also a 
Georgetown Law graduate, who practices in San Francisco, could 
not be here today because she is more than 8 months pregnant 
with our first grandchild, so she remained in San Francisco 
with her husband, Chris Gathwright; and my step-son Jack, who 
attends the Field School here in Washington, could not be here 
because he is participating in the cross-country championships.
    And, finally, also with me here today is my most trusted 
adviser, my wife, Amy Weiss.
    I look forward to answering any questions you may have.
    [The biographical information and the prepared statement of 
Mr. Kadzik appear as submissions for the record.]
    Senator Feinstein. Well, thank you very much.
    Both Senator Schumer and Senator Gillibrand told me they 
really regretted not being able to be here. I was going to make 
a brief comment on your behalf, and I would just like to say, 
so that everybody knows, that before joining the Justice 
Department's Office of Legislative Affairs in March 2013, Mr. 
Kadzik had a long career in the law, including over 30 years in 
private practice and more than 2 years as an Assistant United 
States Attorney. He has diverse experience in several areas of 
the law and I believe will serve the Nation well. So we look 
forward to your testimony and answering the questions.
    I am delighted to hear that your daughter Allison and son-
in-law Chris are constituents of mine in San Francisco, and I 
trust they love living there.
    Mr. Kadzik. That is right. Thank you, Madam Chair.
    Senator Feinstein. They may not like the high prices, but I 
think----
    Mr. Kadzik. That is true.
    Senator Feinstein [continuing]. They probably--I mean, it 
is a wonderful city.
    Mr. Kadzik. Yes, indeed.
    Senator Feinstein. If you would stand, I do not want to 
forget the oath again. I was just reminded. Do you affirm that 
the testimony you are about to give to this Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Kadzik. I do.
    Senator Feinstein. Thank you very much.
    Okay. Let me find my questions here. Let me start off with 
something very important to me. I chair the Senate Select 
Committee on Intelligence, and recently we received a set of 
answers to official questions for the record well over a year 
late. As I understand it, part of the delay is that DOJ has to 
review whatever the FBI sends over to the Intelligence 
Committee, including intelligence products that are sent over 
on a daily basis by other intelligence agencies. So, I mean, I 
must tell you I find that untenable that the FBI cannot just 
send us things straight on, that it has got to go through some 
review process at Justice. And what I would like to ask is, 
Will you commit to looking into how to accelerate the pace with 
which information gets from the FBI to the Senate Intelligence 
Committee and the Judiciary Committee as well?
    Mr. Kadzik. Yes, Senator, I certainly will. Part of the 
disappointment that I have had at the office is looking at our 
track record on responding to questions for the record and 
congressional correspondence. And one of my missions at the 
Department is to improve that record and to expedite the 
providing of information to this Committee and all Members of 
Congress.
    Senator Feinstein. Let me just say that nothing does more 
to turn off a committee or an individual Senator than you do 
not get back the answers, and a year is really outside the pale 
of propriety.
    Mr. Kadzik. I agree, Senator, and I look forward to 
improving our track record in that regard.
    Senator Feinstein. Good. I will count on it.
    Mr. Kadzik. Thank you.
    Senator Feinstein. Let me raise the question of the issue 
of domestic drones. I just did an interview on the subject. The 
IG recently released a report calling for privacy policies 
specific to drones. The report specifically noted, and I quote, 
``The capability of small UAS, or drones, to maneuver 
effectively yet covertly in the area near one's home and stress 
the technological advancements allow flights of several hours 
or even days at a time, increasing the need for privacy 
protections.''
    I am working on legislation to provide privacy protections 
from drones. I am very concerned about this. We have drones 
used publicly now. We have the Defense Department signing off 
on the use of drones to aid in surveillance of the Big Rim Fire 
in California, which I have to think is appropriate because 
this can save firefighters' lives, it can chart the advance of 
a big wildfire, of which this was huge, and really be a 
significant asset.
    On the other hand, you have surveillance of individuals. 
You have sheriff's offices using it. You have the FBI using it. 
Should a warrant be required?
    On the third point, you have the very real privacy concerns 
of people. In this television show, I used just a small 
example. I had a demonstration outside my home, so I went to 
the window to peek out and see who it was, and there was a 
drone right outside my window.
    Well, I gather the person piloting the drone turned it away 
and the drone crashed, which I thought was good justice on the 
spot, but it raises the question of people in their homes with 
drones looking through, people being looked at in private 
gardens, backyards, whatever, people being followed innocently 
or stalked on the street. We just saw in Texas where someone 
with a drone saw a creek running with blood from a 
slaughterhouse--it was pig's blood going into a river--turned 
it into the police department, and Texas took the action to 
protect the property, not to sue the polluter.
    So, you know, there is a great mix of problems here. I 
would be very interested in what you think we can do and 
hopefully to work with me on legislation to protect individual 
privacy.
    Mr. Kadzik. Madam Chairman, I know that the Department 
shares your interest in protecting the personal privacy of all 
American citizens. And I know that the FBI is revising its 
drone policies and procedures, and the Department would look 
forward to working with you on any legislation that would be 
proposed in order to make sure that those safeguards and 
protections are put into place.
    Senator Feinstein. What can you tell us about this revision 
of FBI policies?
    Mr. Kadzik. Well, my understanding is that it began after 
Director Mueller's testimony, and that as a consequence of that 
testimony and the subsequent disclosures, the FBI undertook to 
review and revise its policies, and we would look forward to 
working with you on legislation that would assist in those 
revisions, much like we have done revisions in the area----
    Senator Feinstein. Has that undertaking been completed?
    Mr. Kadzik. I do not know if it has been completed yet, but 
I can find out.
    Senator Feinstein. Well, if you would find out. This is, I 
think, of real concern to our whole Committee, and I cannot 
speak on behalf of the Judiciary Committee, but we have the 
Ranking Member here, and I would think as a Member it is very 
important that the Judiciary Committee see any revision of the 
drone policies of the FBI as soon as we possibly can.
    Mr. Kadzik. I will look into that, Madam Chairman, and get 
back to you.
    Senator Feinstein. Okay. The third question. For nearly a 
decade, I have worked with Senator Hatch on a gang bill. In 
2007, it passed the Senate by unanimous consent but got held up 
when we tried to work out differences with the House.
    Since then, gang activity has continued to devastate many 
of our communities. According to a 2011 National Gang Threat 
Assessment, gang membership increased 40 percent between 2009 
and 2011 to 1.4 million gang members in the United States. And 
these gangs are responsible for an average of 48 percent of 
violent crime in most jurisdictions.
    The talk in California in certain cities are now random 
shootings by gangs, which go through walls, hit children, hit 
infants, hit grandmothers. And this kind of thing has just got 
to stop.
    Senator Hatch and I were trying to pass a bill which has 
asset seizures and forfeitures, RICO statute applied, really a 
tough bill on joining a gang. I do not know what we are going 
to do to stop this because in the 10 years we have been 
working, it has only gotten worse.
    Do you have any thoughts?
    Mr. Kadzik. Well, Madam Chairman, I know that it is a 
priority for the Justice Department with respect to its 
prosecutorial responsibilities, and preventing and prosecuting 
gang violence and gang activity is high on our list. We also 
work with our Office of Justice Programs to provide assistance 
to local law enforcement and community groups in order to 
assist them in preventing gang membership and gang violence, 
and I hope that we are able to increase those resources in 
order to better combat gang violence.
    Senator Feinstein. Well, I think we have to do this because 
I am embarrassed to say, but in a way, you know, California has 
been sort of the gang capital and exporting gangs. When the 
Crips and Bloods began, they began in Los Angeles. They are now 
in more than 100 cities in America, and there is really no good 
that comes out of this activity. And it only gets worse and 
worse.
    So what I would like to do is really encourage a 
partnership between DOJ and us in trying to see what we can do 
to toughen Federal law and also to bring--you know, Federal law 
is very good. The trial is fast. You do not bail out, you get 
convicted, and you go to prison. And that is where a lot of 
these gang members, candidly, belong.
    Mr. Kadzik. Well, we would look forward to working with 
you, Madam Chairman, in making that a priority in our 
prosecutorial functions.
    Senator Feinstein. Okay. I will take you at your word.
    Mr. Kadzik. Thank you.
    Senator Feinstein. Senator Grassley.
    Senator Grassley. Thank you very much.
    There is so much she said that I would normally preface my 
questions with that all I can say is I heard almost everything 
she said, I agree with it, particularly that part that deals 
with answers to letters and fulfilling our oversight 
responsibilities and your helping us do that--not just you. You 
could be Homeland Security sitting here. You could be the 
Department of Defense. It is not just the Justice Department. 
You happen to be working for them.
    The delay is one thing. You are kind of in a situation 
where I think there is institutional problems that, regardless 
of how faithful you are in trying to accomplish what you want 
to do, it seems to me it is an almost impossible thing to do. I 
hope you do everything you say you are going to do. But we have 
problems not only in this administration. We have problems if 
you have a Republican administration and you have a Republican 
majority in the U.S. Senate. There is something about 
bureaucracy that they thumb their nose at the Congress on this 
oversight too often.
    And the only thing that I would say would be different with 
this President than other Presidents is this: It is a benchmark 
he set for himself on January 21, 2009, of being the most 
transparent administration in the history of the country, or 
words to that effect, but that is what it meant. By his own 
benchmark and the cooperation we are getting, I could say 
without question the most stonewalling of any President.
    Now, it is only because he set that benchmark. If he had 
not said that, I could not say that he is different than other 
Presidents. But I would think that that would put all of his 
Presidential appointments, including you, in a position of not 
doing anything to embarrass the President. So all this request 
for information would be forthcoming based upon his wanting to 
be the most transparent President or administration in the 
history of the country. And you would want him to do that, 
because he does not know what Mr. Kadzik is doing from day to 
day, and he does not know what anybody else in the Department 
is doing every day. He has just got to trust that you folks are 
going to carry out what he said on January 21, 2009, unless he 
has changed that, and I hear him on television still saying 
that he is the most transparent of any administration this 
country has ever seen. And those are recent statements, not 
things that you see on MSNBC or Fox News that says something 
was said in July 2008 or something like that.
    Now let me get to my questions. In 2002, a House Committee 
report called your conduct in attempting to avoid a subpoena to 
testify before that House Committee ``unseemly.'' The Committee 
wanted to hear about your work for Marc Rich, who obtained a 
controversial pardon from President Clinton. In response to the 
Committee's report, you wrote a letter claiming that neither 
you--and I want to emphasize--nor anyone at your firm knew 
about the subpoena until after you had already boarded a plane 
to California. The final report called your claim ``utterly 
false.''
    So, question: Why were you so sure that the Committee staff 
had not informed anybody at your firm of the subpoena?
    Mr. Kadzik. Well, Senator, two things. One is when I got on 
that plane and went to California, no one had advised me that 
my appearance would be mandatory. As soon as I arrived in 
California and I was advised that that was the case, I turned 
around, came back. I testified before the Committee. Chairman 
Burton excused me from the Committee before the hearing was 
over so that I could return to California, and he thanked me 
for my testimony.
    Moreover, at the time of my testimony, which was 
contemporaneous with the events that occurred, I laid out the 
chronology that occurred, and I did not receive a single 
question about my testimony at that time.
    Senator Grassley. Okay. Now, is it your testimony today 
that the Committee staff did not inform the following attorneys 
with your firm of a subpoena: Richard Conway, Andy Zausner, and 
Henry Cashen?
    Mr. Kadzik. I am not aware of the Committee staff advising 
my attorneys of that. All I know is when I arrived in 
California, I got greeted by a U.S. Marshal. I turned around, I 
came back, and I testified. But before I got on that plane, no 
one had advised me that my attendance was going to be 
mandatory.
    Senator Grassley. Through consultation with the House 
Committee, I was able to obtain the handwritten notes of the 
staff who spoke with these attorneys at your firm. According to 
those notes, there were about 24 contacts with these attorneys 
leading up to the subpoena. One entry in the notes indicates 
that on February 27, 2001, Committee staff left messages for 
each of those three attorneys at your firm. Another entry 
indicates that at 8:29 a.m. on February 28th, two of those 
attorneys refused to accept service of the subpoena on behalf--
by fax. That was 2\1/2\ hours before your plane was scheduled 
to leave.
    Question: How do you square your claim that no one told you 
or your attorneys about the subpoena when these notes suggest 
otherwise?
    Mr. Kadzik. Senator, I have not seen those notes before. I 
am not aware of what notes were made by the Committee staff at 
that time. All I can say is that at the time I got on the 
plane, no one had advised me that my attendance would be 
mandatory. When I was advised that it would be, I returned, I 
testified, and I was thanked for my testimony.
    Senator Grassley. Let me make a little statement now, and 
then I will go on to some other questions.
    In Operation Fast and Furious, one problem the Inspector 
General documented was that the Office of Legislative Affairs 
was making a claim without doing the independent fact finding 
to know whether or not it was true. The most charitable reading 
of your letter to the Government Reform Committee would be that 
you did exactly the same thing. Whether in Fast and Furious or 
in Mr. Kadzik's case, shooting letters willy nilly to Congress 
without checking on their accuracy is simply unacceptable. A 
person in your position or where you are going to be confirmed 
for needs to ensure that Congress receives accurate and prompt 
information from the Department.
    Let me go to the next question. Last week, your office 
instructed ATF not to brief my staff on a matter related to a 
book by whistleblower John Dodson. The briefing was scheduled 
by Chairman Issa, who invited my staff to attend. After 
consulting with your office, ATF walked out of the briefing, 
citing Privacy Act concerns even though my staff had a Privacy 
Act waiver from the whistleblower and even though the Act 
allows disclosures to Congress. So I think that such behavior, 
whether you were personally involved or people underneath you 
were involved, is extremely disturbing.
    To get to the bottom of how this happened, I sent you a 
letter asking you four specific questions. I also requested 
copies of all records and communications related to the 
briefing. Your response failed to answer my questions or 
provide the documents I requested. Nothing in your response 
indicates that you intend to answer my questions or provide 
documents.
    So, several questions: Will you answer the questions in my 
letter and provide the documents I requested? And if not, why 
not?
    Mr. Kadzik. Senator, I believe that my letter answered your 
questions. I set forth the misunderstanding that occurred on 
behalf of the ATF representatives. In fact, my office did not 
instruct them not to go forward with the briefing. They wanted 
to get guidance on the Privacy Act. They returned, got that 
guidance; they came back to the Senate that very afternoon to 
conduct the briefing, and at your staff's request it was 
postponed until this Monday, and it just occurred on Monday.
    Senator Grassley. What about the documents I requested?
    Mr. Kadzik. With respect to the documents, I interpreted 
your letter to mean documents with respect to the Privacy Act 
advice, and to the best of my knowledge, there are no 
documents. When they got back, I understand they showed the 
waiver, consulted, realized that the waiver was valid, and they 
went back and attempted to conduct the briefing, but it was 
postponed.
    Senator Grassley. Would you agree to review whether the 
Department's so-called policy against Ranking Members receiving 
Privacy Act information is required by the law?
    Mr. Kadzik. Absolutely, Senator. In fact, I sent your 
letter to other departments within the Department to ask them 
to look at the authorities in the precedent that you cite.
    Senator Grassley. Did we cite that district court case?
    Pay attention to that district court case. It was kind of 
irritating. One hundred Senators, not just those 55 in the 
majority. If they are in the minority sometimes, it is going to 
be just as irritating to them. But a district judge says that 
any Senator has a right to information from whatever 
administration it is. And somehow, you know, again, it is not 
just this administration, and it is not just you. This is an 
institutional problem that is keeping the constitutional 
function of checks and balances from working, and that is for 
us not only to pass laws but to see that those laws are 
faithfully executed.
    If you find that a legal precedent supports--well, I asked 
that. Mr. Kadzik, in your statement, you say that during your 
time at the Department you have sought to improve the 
Department's responsiveness to inquiries from congressional 
committees and Members of Congress, and if confirmed, I will 
continue to improve that performance. And I heard you tell 
Chairwoman Feinstein the same thing.
    Now, your office has a history of--now, when I say ``your 
office,'' you know, before you get there, as far as I am 
concerned, and maybe several people before you. Your office has 
a history of interfering with agencies at the Department of 
Justice to prevent them from meeting with me and my staff. In 
addition to the incident last week, your office instructed the 
DEA Administrator not to meet with me and the Government 
Accountability Office regarding a bipartisan request I have 
with Senator Whitehouse. He happens to be a Democrat. He is a 
Member of the majority where there is no question about whether 
the Privacy Act or any other policy interferes with his getting 
information.
    The DEA said it could not take the meeting because of your 
office's so-called third-party meeting policy. This policy 
supposedly prohibits agencies from meeting with Members of 
Congress or any third party at any time.
    Question: Why should I support your confirmation if your 
office is consistently working behind the scenes to block me 
and my office from attending routine briefings and meetings?
    Mr. Kadzik. Senator, we are not seeking to block any 
meetings, and, in fact, I know that the DEA would be pleased to 
meet with you. The policy concerns third parties and having 
others participate in the meetings, and our concern is we want 
to avoid any inference or implication that there has been any 
political influence on our litigation or law enforcement 
priorities. And so in order to protect ourselves and to protect 
the Members of Congress, we are happy to meet with Members of 
Congress, we are happy to meet with third parties; but we 
believe that the three-way meetings present a political risk 
both for the Members and for the Department.
    Senator Grassley. You know, the Government Accountability 
Office is part of the U.S. Government, and you call that a 
third party. You know, it is not like it is Joe Blow from 
Podunk Center, Missouri. It is a part of the Government. That 
is a third party?
    Mr. Kadzik. I understand, Senator, and one of the things 
that we are working on now is to resolve the dispute between 
DEA and GAO with respect to the data that they seek. I know 
that we have reached agreement on one of the data bases. We are 
close to agreement on the second data base. And I think there 
are active discussions with respect to the third. So we are 
working hard to accomplish what GAO needs.
    Senator Grassley. You know, the letter was first sent about 
a year, maybe more than a year ago, and I do not know how many 
times we have heard even from DEA sitting in that chair here 
before our Committee, our caucus about a month ago, said, ``We 
are getting close to it.'' Well, you have got to be getting 
closer than 2 months passing by until there is a decision to be 
made.
    Mr. Kadzik. Senator, I know that the ARCOS data base has 
been made available to GAO. With respect to the Registrant 
Information data base, there is a proposed agreement that has 
gone back and forth between DEA and GAO. And with respect to 
the YIRS data base, there is ongoing negotiations with respect 
to a proposal to provide that information as well.
    Senator Grassley. Before this incident, I or my staff had 
never heard of the so-called third-party meeting policy. Is it 
a written policy? And if it is a written policy, would you 
provide a copy of it? And if it is not written, how does it 
develop?
    Mr. Kadzik. Senator, I do not know if it is a written 
policy. I would be happy to go back to the Department and find 
out if it is. But that is the guidance that I received from the 
Department, and I would be happy to provide you with further 
information concerning it.
    Senator Grassley. And I think we have already discussed my 
last question, because I told you that the GAO is part of the 
legislative branch that governs part of the U.S. Government. 
How does it get to be a third party? And how--well, I guess I 
could ask this: How can you justify preventing an agency of the 
Government from meeting with Senators and the GAO?
    Mr. Kadzik. Again, with respect to both our litigation and 
our law enforcement priorities, we again want to avoid any 
appearance that there has been any political influence on what 
we do. And, again, we, DEA, and the Department would be happy 
to meet with you, and we have ongoing negotiations and 
decisions with GAO. It is the three-way meeting that we believe 
leads to a potential inference, and we want to avoid that.
    Senator Grassley. I do not know that the Government 
Accountability Office is a political organization. I think it 
is very non-political.
    Mr. Kadzik. I am not saying that the GAO is a political 
entity, but certainly with respect to a Member of Congress, if 
we were to meet with respect to ongoing prosecutions or 
litigation, that could lead to the inference or the implication 
that our decisions have been influenced by political leaders, 
and that is something we would like to avoid.
    Senator Grassley. I think you have got to realize that 
there is plenty of precedent right up here among us--not just 
us two, I mean among the Senate as a whole. Some Senators have 
gotten in trouble for trying to make those political 
interferences, so it is going to be a violation of Senate 
ethics as well as probably, you know, some Federal law. So you 
ought to know that Senators are going to be cautious, and the 
ones that are not cautious probably are not around here 
anymore.
    Mr. Kadzik. I agree with you, Senator, and we work hard to 
get you the necessary information and to get GAO the necessary 
information as well.
    Senator Grassley. And then when you talk about you want to 
be cautious about not influencing some prosecution, there is 
not any prosecution here we are talking about. It is all about 
a GAO request to get a study of something.
    Mr. Kadzik. Well, there are both Privacy Act and 
confidential proprietary interests involved in the data that is 
being sought by GAO, and we want to avoid any implication that 
there has been political influence on providing that business 
proprietary information to GAO.
    Senator Grassley. Thank you. Thank you.
    Senator Feinstein. Thank you. You have done your homework, 
Senator.
    Senator Grassley. Thank you.
    Senator Feinstein. You are welcome. But I think I 
understand why they would not want to meet with a Senator and a 
third party. So if I understand you correctly, Mr. Kadzik, you 
are saying absolutely we will meet with you directly, but it is 
the third party that has a point of issue that you do not want 
to include in that meeting.
    Mr. Kadzik. That is absolutely correct, Madam Chair.
    Senator Grassley. And that third party is part of the U.S. 
Government. We are all supposed to be working for the same 
people--the people of the United States of America. There is 
not such a thing as an institution of Government that is 
separate from the interests of the American people.
    Senator Feinstein. Well, you do not want me to debate that 
with you.
    Senator Grassley. No, because I would lose.
    [Laughter.]
    Senator Feinstein. In any event, I think that completes our 
questions. We will hold the record open for 1 week. I would 
like to enter into the record six letters of support for Mr. 
Owens from a number of people. So ordered.
    [The letters appear as submissions for the record.]
    Senator Feinstein. And let me thank you, Mr. Kadzik, and 
ladies and gentlemen and judges and judges to be, thank you.
    Senator Grassley. I will have some things to enter into the 
record.
    Senator Feinstein. Certainly.
    Senator Grassley. Okay.
    Senator Feinstein. Okay.
    [The information referred to appears as a submission for 
the record.]
    Senator Feinstein. So thank you, everybody, and the hearing 
is adjourned.
    Mr. Kadzik. Thank you, Madam Chairman. Thank you, Mr. 
Grassley.
    [Whereupon, at 4:10 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




 NOMINATIONS OF MICHELLE T. FRIEDLAND, NOMINEE TO BE CIRCUIT JUDGE FOR 
                  THE NINTH CIRCUIT; CHRISTOPHER REID
  COOPER, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; 
                                 GERALD
   AUSTIN McHUGH, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN 
 DISTRICT OF PENNSYLVANIA; M. DOUGLAS HARPOOL, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE WESTERN DISTRICT OF MISSOURI; AND HON. EDWARD G. SMITH, 
              NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
                        DISTRICT OF PENNSYLVANIA

                              ----------                              


                      WEDNESDAY, NOVEMBER 6, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:34 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono, 
presiding.
    Present: Senators Hirono, Coons, and Grassley.
    Senator Hirono. Good afternoon, everyone. I would like to 
acknowledge the presence of Justice Sandra Day O'Connor. It is 
a privilege to have you join us for this hearing.
    Justice O'Connor. It is my privilege to be here, 
Chairwoman.
    Senator Hirono. As we say in Hawaii, mahalo nui loa. Aloha.
    I am pleased to call this nomination hearing of the Senate 
Committee on the Judiciary to order. I would like to welcome 
each of the nominees, their families, and friends to the U.S. 
Senate and congratulate them on their nominations. I would also 
like to welcome Senators McCaskill and Toomey, who are joining 
us this afternoon, and perhaps we will be joined by Senator 
Bennet.
    You are here to introduce your nominees, and I know that 
you have pressing commitments, so please feel free to leave 
after you have given your introductions.
    So I would like to start with Senator McCaskill. Please 
proceed.

  PRESENTATION OF M. DOUGLAS HARPOOL, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE WESTERN DISTRICT OF MISSOURI, BY HON. CLAIRE 
      McCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator McCaskill. Thank you, Madam Chairwoman. I am really 
excited to be here. As a young lawyer in the courtroom, I had 
many occasions where sometimes too loudly under my breath, I 
expressed frustration over judges that were presiding over 
trials that had never been in the trenches of trial, that had 
never known the frustrations, the exhilaration, the challenges 
of doing your very best for your client or for the State, when 
you do not always know what is going to happen in the 
courtroom.
    I swore as a young lawyer that if I ever had the chance to 
influence the selection of judges that would sit in trial 
courts, I would make sure that they had been in the trenches, 
and I have a trench warrior to present to you today.
    My friend Doug Harpool and I met when we served together in 
the Missouri Legislature, and in the Missouri Legislature, at a 
time that it was very unfashionable to do so, he was a warrior 
for ethics legislation. He was marginalized, he was made fun 
of, he frankly was treated with disdain by many of our 
colleagues because he was determined to enact ethics 
legislation, unprecedented ethics legislation in the State of 
Missouri. He succeeded. In fact, he earned the nickname during 
our time together in the legislature as ``The Bulldog of 
Ethics.''
    Doug had had a distinguished career prior to his time in 
the legislature as a practicing attorney, and he literally is 
not completely embraced by the plaintiffs' bar and not 
completely embraced by the defense bar because he has worked so 
much on both sides of that bar, which means he is perfect for 
this job.
    As a law student, he excelled. This is one smart man--a 
member of Missouri Law Review, a member of the Order of 
Barristers, a member of the Board of Advocates, and the 
recipient of both the Prize in Excellence for Trial Advocacy 
and Appellate Advocacy even as a law student.
    He is respected in his community, the father of six 
children--three birth children and three adopted children. And 
I will tell you one of his claims to fame that I must mention 
to the Committee today because it will tell you how much I 
trust him and how good I think he will be at this job.
    When it came time for me to pick someone to stand in as my 
opponent in debate preparation, I said, ``Go get Doug 
Harpool,'' because if there is anybody who can challenge me in 
a debate, effectively playing my opponent, it will be Doug. So 
he has had to be a number of different candidates over the 
years because, in all of my races, Doug Harpool stood and 
pretended that he was my opponent as we prepared for debates. 
And I will not disclose to this Committee how many times he 
bested me in those debates. I will tell you I am very grateful 
that he was actually never my opponent.
    I am very proud of his ethics, his integrity. He has a 
Midwest work ethic. He will never get ``robe-itis.'' He will 
always relate to the lawyers and, even more importantly, the 
litigants in the courtroom who are trying to find their way 
through a byzantine system that sometimes feels like a foreign 
land. He will make sure they feel comfortable, honored, and 
respected. And I think that is the most we could ask for a 
Federal judge.
    I highly recommend to this Committee the confirmation of 
Doug Harpool for a trial judge in the Western District of the 
State of Missouri.
    Senator Hirono. Thank you, Senator McCaskill.
    Senator Toomey.

   PRESENTATION OF GERALD AUSTIN McHUGH, JR., NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND 
 EDWARD G. SMITH, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN 
  DISTRICT OF PENNSYLVANIA, BY HON. PATRICK J. TOOMEY, A U.S. 
             SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Toomey. Thank you very much, and good afternoon, 
Madam Chairman Hirono, Ranking Member Grassley. Thanks for the 
opportunity and the invitation to come before you today to 
introduce Judge Ed Smith and Mr. Gerald McHugh to the 
Committee. Both of these gentlemen were nominated by President 
Obama on August 1st, and I really appreciate the timely 
scheduling of this hearing.
    I also should point out that Senator Casey regrets that he 
is not able to be here with us today to join in this 
introduction, but I want to publicly state my appreciation for 
Senator Casey and the terrific working relationship that he and 
I have, for the collaboration that has already led to the 
successful confirmations of eight new members of the Federal 
bench in Pennsylvania just in the 2\1/2\ years since I have 
taken office. We are fully committed to continue to work with 
this Committee to ensure that the remaining vacancies are 
filled. And I know that my enthusiastic support for these 
nominees is entirely shared by Senator Casey. So let me just 
say a couple of words about each of these two gentlemen.
    First, Gerald McHugh is a very accomplished authority. He 
is very, very widely respected by his peers. He has a terrific 
and keen intellect. He has got the integrity that we simply 
must demand of any Federal judge. And he has also got a 
terrific commitment to public service.
    He has been a partner in Raynes McCarty. He has been a 
shareholder in Litvin, Blumberg, Matusow, and Young. He has 
been very active in his community. In greater Philadelphia, he 
has worked with the Hospitality House of Philadelphia to help 
ex-offenders. He does pro bono work to improve neighborhoods 
and prevent crime in West Philadelphia. He is universally 
acknowledged as very, very well qualified, and I am very 
confident that he will be an outstanding judge.
    As for Judge Ed Smith, I will disclose to the Committee 
that I have known Ed Smith for almost 20 years, and I can tell 
you that he, too, is very, very well respected by his peers on 
the bench in Northampton County in Pennsylvania, but also by 
the litigants who have appeared before him in his courtroom. 
He, too, has the requisite judicial acumen and the temperament 
to be a great Federal judge. Ed Smith has a distinguished 
background. He is a captain in the United States Navy. He has 
been a Judge Advocate General since 1984. He is currently the 
commanding officer at the Navy Reserve Naval Justice School. He 
has served as a military trial judge in the Navy Reserve. He 
was deployed to Iraq in 2007 and 2008 to serve as a rule of law 
adviser, and he received a Bronze Star for his service in Iraq.
    Judge Ed Smith has been a member of the Northampton County 
Court of Common Pleas since 2002. Prior to that he, was a 
partner in the firm DeRaymond and Smith. I should also point 
out he has agreed to sit in the courthouse in Easton, 
Pennsylvania, which is a Federal courthouse that has been 
without an active Federal judge since 2004. So we are very much 
looking forward to and hopeful that he will be confirmed so 
that the city of Easton and Northampton County can once again 
have a district judge in Easton.
    Both of these candidates, Madam Chairman, have the crucial 
qualities necessary to make an outstanding Federal judge. They 
have got the intellect, they have the integrity, they have the 
commitment to public service, and they have a respect for the 
inherently limited role that is appropriate for the judiciary.
    So I am very proud to recommend both of these gentlemen. I 
know that Senator Casey shares my enthusiasm for them, and I 
thank the Committee very much for its time today and for the 
expeditious fashion in which they have considered these 
nominees. Thank you.
    Senator Hirono. I would like to thank both of our Senators.
    As we are setting up for the first panel, I would like to 
introduce Michelle Friedland. Ms. Friedland has been a 
litigator with the San Francisco firm of Munger, Tolles and 
Olson since 2004, where she started as an associate before 
being made partner in 2010. Prior to entering private practice, 
she was a lecturer in law at Stanford Law School.
    Born in Berkeley, California, Ms. Friedland earned her B.S. 
with honors and distinction from Stanford University and her 
J.D. with distinction from Stanford Law School. She began her 
legal career as a law clerk for Judge David Tatel of the U.S. 
Court of Appeals for the District of Columbia Circuit and 
Associate Justice Sandra Day O'Connor of the U.S. Supreme 
Court. Ms. Friedland has experience in both the trial court and 
appellate levels, including the U.S. Supreme Court. She manages 
an active pro bono practice and frequently represents the 
University of California in constitutional litigation.
    Ms. Friedland is co-chair of the Bar Association of San 
Francisco's Amicus Committee and serves on the Board of the 
Silicon Valley Campaign for Legal Services. She was also a 
recent recipient of the California State Bar's 2013 President's 
Pro Bono Service Award.
    At this point I would like to ask Ms. Friedland to come to 
the table, and if you would stand and raise your right hand 
while I administer the oath. Do you solemnly swear that the 
testimony you are about to give to the Committee will be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Ms. Friedland. I do.
    Senator Hirono. Thank you. Let the record show that the 
nominee has answered in the affirmative.
    I would like to invite you to recognize your family, your 
loved ones, and your supporters before you proceed.

          STATEMENT OF MICHELLE T. FRIEDLAND, NOMINEE
           TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT

    Ms. Friedland. Thank you. I would like to begin by thanking 
Chairman Leahy and Ranking Member Grassley for scheduling this 
hearing, Senator Hirono for chairing it, and all the Committee 
Members for their time considering my nomination.
    I would also like to thank you, Senator Hirono, for the 
very kind and generous introduction, Senators Feinstein and 
Boxer for their support in this process, and President Obama 
for the enormous honor of this nomination.
    I have many dear friends here today. I will not introduce 
them all individually, but I do want to thank them for their 
support and for the substantial efforts they have made to be 
here today.
    I would like to introduce my immediate family. Sitting 
right behind me is my fantastic husband, Dan, without whose 
love and constant support I could not have had the legal career 
I have been so fortunate to have. And sitting with him are our 
7-year-old twins, Max and Sierra, who bring great joy to our 
lives every day and are very, very excited to be here, though I 
fear that this hearing may challenge their abilities to sit 
still.
    My parents are here as well, Tom and Sandy Friedland, as 
are my father- and mother-in-law, Jim and Marilyn Kelly. And I 
have the incredible good fortunate to have my grandmother here 
today as well, Adele Friedland.
    My brothers could not be here. David and Ben Friedland are 
watching by webcast from New Mexico and California, 
respectively.
    And I know that she has already been recognized, but I want 
to introduce my former boss and mentor, Justice Sandra Day 
O'Connor. The honor of being nominated and being considered by 
this Committee was staggering already, but having Justice 
O'Connor here only magnifies that honor. I cannot express how 
much it means to me to have her here.
    I have no further opening remarks beyond that, and I look 
forward to answering the Committee's questions.
    [The biographical information of Ms. Friedland appears as a 
submission for the record.]
    Senator Hirono. Thank you very much.
    As Ranking Member Grassley is going to be submitting his 
opening statement for the record, I will do likewise.
    [The prepared statement of Senator Hirono appears as a 
submission for the record.]
    [The prepared statement of Ranking Member Grassley appears 
as a submission for the record.]
    Senator Hirono. But I would like to have unanimous consent 
to place in the record letters that the Committee has received 
in connection with your nomination.
    Senator Grassley. Yes.
    Senator Hirono. Thank you.
    [The letters appear as submissions for the record.]
    Senator Hirono. We will now proceed to questions of 5 
minutes, and of course, if Ranking Member Grassley would like 
to go longer, by all means.
    Ms. Friedland, the Ninth Circuit is a very important 
circuit--and, by the way, I am sure you know that it covers 
Hawaii.
    Ms. Friedland. Yes. A beautiful State.
    Senator Hirono. Thank you. Could you briefly describe your 
judicial philosophy?
    Ms. Friedland. Of course. Thank you, Senator. I have been 
working hard as a lawyer and have not been theorizing about 
judicial philosophy, so I do not expect to come to the bench, 
if I have the honor to be confirmed, with any overriding 
ideology such as law and economics or any other approach. 
Rather, my approach as a judge would be to take each case one 
at a time, to study the relevant text and precedent, and to 
apply the law to the facts of that case in a neutral manner 
that is faithful to the law.
    Senator Hirono. You have written about the concept of stare 
decisis and when appellate judges may depart from precedent, so 
you have written from both aspects. Can you explain your views 
on stare decisis and when it would be appropriate to not follow 
that precedent?
    Ms. Friedland. Thank you, Senator. As a circuit court judge 
sitting as a member of a panel, I would have no ability to 
depart from Ninth Circuit precedent and certainly never from 
Supreme Court precedent. The only way to overturn precedent of 
the Ninth Circuit would be as a member of the en banc court, 
and even then it should be done very, very rarely, only when 
there is a conflict within the Ninth Circuit's decisions 
already or when a rule has proven entirely unworkable.
    Our system depends on predictability in the law. Businesses 
and individuals need to know that there is stability in the 
rules that guide their behavior, and it is very, very important 
that courts uphold precedent.
    Senator Hirono. You mentioned that it may be appropriate 
when there is conflict within the district courts, Federal 
district courts. Can you think of an example where that might 
have been the case?
    Ms. Friedland. Thank you for the opportunity to clarify 
that. What I actually meant was, as you know, the Ninth Circuit 
is quite large and has many panels, and so it sometimes occurs 
that there are decisions of the Ninth Circuit that conflict 
with each other. And so in that situation where there are two 
rules of law within the Ninth Circuit, that creates uncertainty 
for the district courts within the Ninth Circuit, and that is 
one of the circumstances in which it is appropriate for the 
court to take the issue en banc to resolve that conflict so 
that there is only one rule within the Ninth Circuit.
    Senator Hirono. Can you think of an example where that 
happened in the Ninth Circuit? If you cannot, it is all right.
    Ms. Friedland. I am sorry. I do not have one off the top of 
my head, but that is one of the circumstances in which en banc 
review is appropriate.
    Senator Hirono. You have a very extensive pro bono 
portfolio, so can you discuss how you would approach shifting 
from the role of advocate in your pro bono work particularly 
and your work as an appellate judge, should you be confirmed?
    Ms. Friedland. Thank you, Senator. The role of a judge is 
very different from that of an advocate. As a judge, the 
question is always what is the interpretation of text and 
precedent that is most faithful to both and approaching that 
question from a neutral perspective.
    As an advocate, my role as a lawyer has always been to 
advocate for my clients, and that has meant arguing for the 
interpretation of text and precedent that best furthers my 
client's positions. That is a very different perspective than 
the neutral perspective as a judge. When I was a law clerk, I 
approached questions from a neutral perspective, and in my law 
school teaching, I have always tried to address issues from a 
neutral perspective for my students. So I feel confident that I 
can make that switch.
    Senator Hirono. Since Justice O'Connor is sitting here, 
perhaps you would like to share with us an important lesson you 
learned from clerking with her.
    Ms. Friedland. Thank you. I learned so many lessons from 
Justice O'Connor that I could not name them all, but some of 
them are the importance of very hard work and always being 
prepared, finishing one's work promptly, treating one's 
colleagues with respect, always studying the facts of the case 
very carefully, knowing the facts in the record and considering 
them very carefully, and always treating one's law clerks very 
well.
    [Laughter.]
    Senator Hirono. That probably went without saying.
    Thank you very much. Ranking Member Grassley.
    Senator Grassley. Last week, we had a hearing which also 
included a Ninth Circuit nominee, and I raised the issue with 
that person but wanted to get your views as well. The Ninth 
Circuit has a high rate of cases being overturned by the 
Supreme Court. Why do you think this is? And knowing that, what 
would be your strategy in approaching cases, if confirmed, to 
combat this trend? And I have the assumption--maybe it is the 
wrong assumption--that judges do not like to have the Supreme 
Court overturn them. But I think in this case of the Ninth 
Circuit, there is an overwhelming number of cases overturned.
    Ms. Friedland. Thank you, Senator Grassley. I am aware that 
the Ninth Circuit has been criticized for being overturned more 
often than some other circuits. I am not actually sure why that 
is the case, but I can tell you that if I have the honor to be 
confirmed, I would carefully and faithfully follow all Supreme 
Court precedent. I would be bound by all precedents of the 
Supreme Court and would attempt to write my decisions in a way 
that was so faithful to the Supreme Court's precedent that I 
would not have my decisions overturned.
    Senator Grassley. What do you think is the proper role of a 
Federal judge in attempting to discern the motives or intent of 
Congress when we write legislation that you have to interpret?
    Ms. Friedland. If the text of a statute is clear, then a 
case should be decided based on the text alone. There is no 
need to consider legislative history. If the text of a statute 
is not clear, then the Supreme Court has to both apply canons 
of statutory construction to try to resolve the ambiguity, but 
also sometimes look to legislative history to try to determine 
Congress' intent.
    Senator Grassley. You would not follow Scalia and say he 
does not look at anything beyond the text of the law?
    Ms. Friedland. Most of the Justices of the Supreme Court 
look to legislative history sometimes when the statutes are 
ambiguous and they are trying to resolve the ambiguity, so I 
would follow that Supreme Court precedent.
    Senator Grassley. And you would know, as you did for a law 
clerk.
    Your questionnaire indicated that you are an executive 
board member of the American Constitution Society for Law and 
Policy. There is nothing wrong with your membership in such 
groups, but I do have a question about how the stated goals of 
that organization have influenced your judicial philosophy or 
might affect your judgments, if confirmed. I will give you an 
example. Peter Edelman, chair of the board of that society, 
stated, ``What we want to do is promote a conversation, the 
idea of what a progressive perspective of the Constitution is 
and what it means for the country.''
    Also, some of the stated goals and missions of the 
organization are, and these are quotes, ``countering right-wing 
distortions of our Constitution''; another quote, ``debunking 
conservative buzz words such as `originalism' and `strict 
construction' that use neutral-sounding language but all too 
often lead to conservative policy outcomes.''
    Now, I do not expect you to be familiar with all of these 
quotes and everything, but please answer questions I have with 
the knowledge that you might have about it, and maybe being a 
board member, I should assume that you have a lot of knowledge 
about it. But I do not want to put you in a place where you 
cannot intellectually honestly answer questions.
    Can you please explain in your view the idea of what a 
progressive perspective of the Constitution is?
    Ms. Friedland. Thank you, Senator. I was involved in the 
American Constitution Society only at the local level. I was on 
the programming committee for a few years at the local level. I 
never had any involvement at the national level, and I have 
actually never met Professor Edelman and am not familiar with 
the speech from which you are quoting. So I cannot say what he 
meant by the term ``progressive Constitution,'' and I know that 
is a term that is used in many different ways by different 
people.
    But what I can say is that, if I have the honor to be 
confirmed, in interpreting the Constitution I would look to the 
text of the Constitution, precedents of the Supreme Court and 
the Ninth Circuit, and sources of original meaning, such as the 
Federalist Papers. And I would decide cases without regard to 
whether anyone would label my decisions ``progressive'' or with 
any other label.
    Senator Grassley. I think you probably answered another 
couple questions that I have quoting from that.
    Is there any way, for instance, following up along the same 
line, that if you were confirmed as a Federal judge and you 
believed in what that organization stands for and they used the 
word ``progressive perspective of the Constitution'' or to 
``counter right-wing distortions of the Constitution,'' if you 
were a Federal judge and--well, what is your comment on those 
goals of that organization, I guess, as a judge now, not as a 
private citizen?
    Ms. Friedland. Because I am not familiar with the speech, I 
do not really know what was meant by those terms, but----
    Senator Grassley. Maybe we ought to leave it go at that, 
then. That is okay.
    You wrote a letter with several colleagues to the President 
in support of Goodwin Liu and Edward Chen. The letter stated 
that, ``Obstruction of these nominations is unfair to the 
nominees and a deterrence to future candidates and a disservice 
to the Nation's judicial system.''
    What is your understanding of the Senate's role in advise 
and consent?
    Ms. Friedland. Thank you, Senator, for the opportunity to 
clarify that letter. I signed that letter along with many 
members of the California Bar. What motivated that letter was 
the fact that the courts in California are so, so busy. The 
district courts in California are some of the busiest in the 
country, and the Ninth Circuit is one of the busiest circuits. 
And the letter was asking the President to try to move along 
the nominations of now-Justice Liu and now-Judge Chen, then 
too, to try to fill some of those vacancies which are so 
important.
    I know that the letter said that delaying action on 
nominations would deter future nominees. Certainly when I 
signed that letter, I had no idea that I would be sitting here 
today. And I can say that I am very honored to be here, and 
that obviously did not deter me.
    [Laughter.]
    Senator Grassley. I think you probably anticipated a lot of 
my questions. Did you get them ahead of time?
    [Laughter.]
    Ms. Friedland. No.
    Senator Grassley. You once wrote that--so I am going on 
now. I had two other questions along that line, but I will 
forget them. You once wrote that being in any judicial office 
may lead a judge to recognize that the judge's duties ``may 
sometimes require a reevaluation of one's longest-held 
beliefs.'' What did you mean by that?
    Ms. Friedland. Thank you, Senator, for the opportunity to 
clarify that column. The column you are quoting from was 
written by some of my colleagues and me for a local bar 
magazine. My law firm had a long tradition of writing columns 
about the Supreme Court in that bar magazine from before I 
joined. And when I joined the firm, I became one of the 
authors.
    The practice was always to list all authors on any column, 
regardless of the role any particular lawyer played in the 
column. And the one you are asking about is actually not one 
that I authored, but I did have my name on it, and it was 
discussing Justice Stevens' concurrence in the Baze v. Rees 
case in which he argued that he did not believe in the death 
penalty anymore. He ultimately concurred in the case and thus 
agreed with applying the death penalty in that case, so he was 
just expressing his own view. And what that column was trying 
to describe was what he said in his concurrence, not any 
statement that all judges should change their minds about 
things. And certainly the majority of the Supreme Court has 
repeatedly upheld the constitutionality of the death penalty.
    Senator Grassley. Okay. Then also going on in that same 
article, what role should personal beliefs play in judicial 
decisionmaking?
    Ms. Friedland. Personal beliefs should play no role 
whatsoever in judicial decisionmaking.
    Senator Grassley. Let me ask you, if you have some of your 
own long-held beliefs that may have to be reevaluated if 
confirmed.
    Ms. Friedland. Senator, thank you for the question. If I 
have the honor to be confirmed, my decisions would be based on 
text and precedent as applied to the facts of every case at 
hand. Any views that I might have on an issue would not be a 
factor in my decisionmaking.
    Senator Grassley. Another question along a different line. 
Is diversity on the bench important? And if so, why do you 
think it is so, is necessary?
    Ms. Friedland. A judge's job is to apply the law to the 
facts of every case, and whether a judge is a woman or a 
judge's race has no effect on what the law is. But I do think 
that diversity has importance for external reasons. Having a 
bench that reflects the diversity of our society helps people 
view the decisions of our courts as fair, and having diversity 
on the bench also provides role models. I can say that, as a 
girl growing up, the fact that Justice O'Connor was on the 
Supreme Court made me feel that I could aspire to anything in 
my career. So she played a very huge role in my life long 
before I was her law clerk. And I think having such role models 
is a very important role that diversity on the bench can play.
    Senator Grassley. Are you personally opposed to the death 
penalty?
    Ms. Friedland. Senator, the Supreme Court has held 
repeatedly that the death penalty is constitutional, and I 
would have--I would absolutely apply those precedents, just as 
I would apply all precedents from the Supreme Court.
    Senator Grassley. Thank you. You have been very 
forthcoming. I appreciate it. Thank you.
    Ms. Friedland. Thank you very much.
    Senator Hirono. Thank you. I would like to call the second 
panel. Thank you very much, Ms. Friedland.
    Ms. Friedland. Thank you.
    Senator Hirono. And your family.
    Senator Hirono. I would like to ask all of the nominees to 
stand. Of course, you are already standing. Raise your right 
hands as I administer the oath. Do you solemnly swear that the 
testimony you are about to give to the Committee will be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Mr. Cooper. I do.
    Mr. McHugh. I do.
    Mr. Harpool. I do.
    Judge Smith. I do.
    Senator Hirono. Thank you. Let the record show that the 
nominees have answered in the affirmative.
    Mr. Cooper, you are going to go first, but I would like to 
say for the record that Senator Bennet sends his regrets that 
he is unable to join us today to speak on your behalf, but he 
will be submitting a statement in support of your nomination 
for the record.
    [The prepared statement of Senator Bennet appears as a 
submission for the record.]

         STATEMENT OF CHRISTOPHER REID COOPER, NOMINEE
       TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA

    Mr. Cooper. Thank you very much, Senator Hirono, Ranking 
Member Grassley, and thanks to all of the Members of the 
Committee for promptly scheduling this hearing and inviting me 
to attend. I am honored to be here.
    I would also like to thank Congresswoman Eleanor Holmes 
Norton and her judicial nominating commission here in D.C. for 
recommending me to the President and for all of the hard work 
that they do on judicial nominations in the District. And, of 
course, I would like to thank President Obama for nominating 
me.
    And as you said, I would also like to extend thanks to 
Senator Michael Bennet. I have no Colorado connection, but he 
is a long-time friend and former colleague at the Justice 
Department, and I understand that he has an unavoidable 
commitment that kept him from being here.
    Before I introduce the friends and family that I have with 
me today, I would like to acknowledge three of the judges from 
the district court here in Washington who have taken time out 
of their busy schedules to come down to the hearing today.
    First and foremost, Judge Royce Lamberth, whose seat and 
very large shoes I would have the difficult time of filling if 
I am fortunate enough to be confirmed. Judge Lamberth has 
served the district court and the country with distinction 
since his appointment in 1987, and it means a great deal to 
have you here today, Judge.
    I would also like to recognize Judges Paul Friedman and Jeb 
Boasberg, also from the district court, who are here with us 
today.
    As for family and friends, let me start with my wife of 15 
years, Amy Jeffress. Amy is a career Federal prosecutor and 
hands down the most talented lawyer in the household.
    [Laughter.]
    Mr. Cooper. I am also pleased to have my two sons, Lincoln, 
who is 12, and Leo, who is 9, here today. Their only regret in 
being here is that the hearing was not scheduled during school 
hours this morning. And my only regret is that they did not 
stop at the barbershop on their way.
    [Laughter.]
    Mr. Cooper. My parents are deceased, and I am an only 
child, but I am proud to be joined here today by my aunt, Peggy 
Cooper Cafritz, as well as my in-laws, Bill and Judy Jeffress. 
Also here is my brother-in-law, Jonathan Jeffress, who is an 
assistant Federal defender here in the District. I am also 
joined by a number of close friends and colleagues from my 
various law firms.
    So thank you very much, and I stand ready to answer any and 
all questions that the Committee may have.
    [The biographical information of Mr. Cooper appears as a 
submission for the record.]
    Senator Hirono. Thank you very much.
    We will proceed to Mr. McHugh.

        STATEMENT OF GERALD AUSTIN McHUGH, JR., NOMINEE
 TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

    Mr. McHugh. Thank you, Senator, and thank you to the 
Committee for finding time in what I know is a very full 
calendar to have the hearing today.
    I am accompanied today by my date to the high school senior 
prom, my wife, Maureen Tate, and my inspiration for 40 years; 
and three of my four children, all of whom I am proud to say 
work in the nonprofit sector with youth: my oldest daughter, 
Laura, who works with Philadelphia Youth Network; my third 
oldest, Colleen McHugh, who works right here in Washington with 
City Kids; my son, Michael McHugh, who is a youth minister at 
St. Patrick's Catholic Parish in nearby Rockville. And my 
second oldest, Amy McHugh, is back at St. Joe's University 
where she works at the Richard Johnson Anti-Violence Center, 
and she had commitments today and could not be with us. But I 
thank them for their support.
    And, of course, I thank Senator Toomey for those gracious 
remarks, and him and Senator Casey for their support.
    [The biographical information of Mr. McHugh appears as a 
submission for the record.]
    Senator Hirono. Thank you.
    Mr. Harpool.

 STATEMENT OF M. DOUGLAS HARPOOL, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE WESTERN DISTRICT OF MISSOURI

    Mr. Harpool. Thank you. It is a pleasure to be here, and we 
appreciate the courtesy of this Committee in hearing this 
nomination. I want to express my appreciation obviously to the 
President and particularly to Senator McCaskill and to Senator 
Blunt for their consideration.
    My family was not able to travel all the way from Missouri 
today, but they are on the webcast watching, and I want to 
recognize Cindy and my adult children, Ashley, Justin, and 
Tyler, and then our new children, Cyan, Jonathan, and 
Elizabeth; and then my grandchild, Kennedy. Also, my brothers 
Dan and Dave and Bill. My other brother, Dennis, has passed 
away, but I know that all of their families are watching. I had 
the privilege of having two older twin brothers and two younger 
twin brothers, and being in the middle, and that made us a very 
close family, and I know they are watching and they wish they 
could be here.
    Finally, I want to thank all of my law partners I have had 
over the years and acknowledge that they are back at the 
office, when they should be billing hours, watching what we are 
doing here. And I appreciate their support and encouragement 
and all they have taught me over all of these years.
    [The biographical information of Mr. Harpool appears as a 
submission for the record.]
    Senator Hirono. Thank you.
    Judge Smith.

        STATEMENT OF HON. EDWARD G. SMITH, NOMINEE TO BE
           DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
                          PENNSYLVANIA

    Judge Smith. Thank you, Senator Hirono. I also want to very 
much thank the President for this nomination, and I want to 
thank Senator Toomey and Senator Casey for everything they have 
done to make this a reality. And, of course, I want to thank 
you for chairing this Committee today, and to the Committee for 
convening this hearing.
    Today my son, Michael, my oldest son, was able to make it 
to the Committee and is seated here. My two other sons are at 
school and were not able to make it, and they are watching by 
webcast, as is my father.
    Also, my niece, Lauren, was able to be here today, and she 
is in the audience together with some very special friends: 
Jennifer Ireland, Steve Holzbaur, Shana Restucci, and Marjorie 
Restucci.
    I appreciate the opportunity to answer any questions that 
the Committee might have.
    [The biographical information of Judge Smith appears as a 
submission for the record.]
    Senator Hirono. Thank you very much. We will proceed to 
questions.
    Just as I asked Ms. Friedland, I would like to ask each of 
you to just very briefly describe your judicial philosophy, and 
we will go from my left to my right.
    Mr. Cooper. Thank you, Senator. I certainly would not come 
to the bench with any preset judicial philosophy other than the 
philosophy of working hard and doing what I believe all 
district court judges are obligated to do, which is applying 
relevant precedent of the Supreme Court and my particular 
circuit to each case that comes before me.
    Mr. McHugh. Senator, as a lawyer in private practice, it 
seems presumptuous to say I would take the bench and have a 
philosophy. But I think the way I would approach the job, if I 
were to be confirmed, would be to take the hallmark of private 
practice, which I have tried to show intellectual honesty, to 
read cases honestly, to recognize what they truly hold, and to 
apply them in a logical way to the facts that are before me in 
a case. And I would try to do that as well as a judge, 
recognizing, of course, the limited role that a judge plays in 
our system.
    Mr. Harpool. I do not know that it is a judicial philosophy 
that my parents, who are deceased--and I should have recognized 
them a moment ago also, what they meant to me--they taught me 
to work hard, they taught me to play by the rules, and they 
taught me to treat people as you expect to be treated. And I 
think that is a pretty good philosophy for a trial judge, and 
that is what I would try to do.
    Judge Smith. And, Senator, I interpret the term ``judicial 
philosophy'' as to how I would run my courtroom and how I have 
run my courtroom, and it is always with, first and foremost, 
patience and courtesy to those who come before me, both the 
litigants as far as the attorneys, a recognition of how 
difficult the practice of law is and dealing with attorneys, 
and also a recognition that the individuals who are appearing 
before me, to them it is often the most important case they 
will ever have, and they are entitled to whatever time and 
attention that I need to give it to make sure justice is done.
    Senator Hirono. Mr. Cooper, you have been in private 
practice for your entire career, legal career, correct?
    Mr. Cooper. After clerking on the D.C. Circuit for 1 year, 
I spent 2 years in the Justice Department before joining 
private practice.
    Senator Hirono. But most of your time has been in private 
practice, so what are the challenges that you see of serving as 
a Federal district judge after being in private practice and, 
of course, being an advocate in private practice?
    Mr. Cooper. I think one of the main challenges will be to 
come up to speed on the wide range of legal areas that Federal 
judges must confront. While I have had a broad and varied 
career in private practice thus far, I fully recognize that I 
will have lots of work to do to get up to speed, and I will 
rely on my colleagues and all of the educational and training 
opportunities that are available to Federal judges in order to 
fill those gaps.
    Senator Hirono. Mr. McHugh, you have demonstrated a 
commitment to pro bono work throughout your career, but you 
have also discussed the need for pro bono services in difficult 
economic times. Can you share your thoughts on this and explain 
the efforts you have undertaken to encourage others in the 
legal profession to help pro bono and provide low-cost legal 
services?
    Mr. McHugh. Senator, when the Pennsylvania Supreme Court 
appointed me Chair of the IOLTA Board in Pennsylvania, we 
launched a pro bono initiative where the chief justice invited 
every lawyer in the State to participate in pro bono. I moved 
on to become president of Pennsylvania Legal Aid Network, and 
what we have tried to do is fund local bar associations to 
encourage and recruit lawyers for pro bono service. So those 
have been my principal efforts in that regard.
    Senator Hirono. Thank you.
    Mr. Smith, when you ran for Congress in 1996, you stated 
your opposition to all forms of abortion, including in cases of 
rape and incest. Is that correct?
    Judge Smith. I believe it is, Senator.
    Senator Hirono. And during your time as judge, have you 
ruled in any cases pertaining to abortion rights?
    Judge Smith. As a State trial judge I have not, ma'am.
    Senator Hirono. I assume that, if confirmed, you would 
apply the Supreme Court's precedents that abortion is 
constitutional?
    Judge Smith. Absolutely, Senator.
    Senator Hirono. Roe v. Wade is still the law of the land. 
So regardless of how you would apply the Supreme Court's 
precedent, do you believe that a woman has a constitutional 
right to have an abortion?
    Judge Smith. Senator, I understand the difference between a 
legislator and a judge, and I understand that my personal views 
do not come into play in my interpretation of the law, and I 
can commit to you that I will not allow my personal views to in 
any way interfere with my ability to view the facts, view the 
law, and apply the law to the facts in accordance with Supreme 
Court precedent and Third Circuit Court precedent.
    Senator Hirono. Ms. Friedland was asked by Ranking Member 
Grassley about an article that she had helped to co-author that 
being a judge--and I will paraphrase--may require a judge to 
perhaps give pause regarding one's longest-held personal 
beliefs. So would you agree that your personal beliefs--I think 
you reiterated your personal beliefs--are your personal beliefs 
and that they would not be a factor in your judicial 
decisionmaking?
    Judge Smith. That is correct, Senator.
    Senator Hirono. I answered the question for you, didn't I?
    [Laughter.]
    Judge Smith. Thank you, Senator.
    Senator Hirono. I made it easy for you.
    As you can imagine, the issue of abortion rights is one 
that is very divisive in our country, and I would expect all of 
our nominees to apply the law, and thank you for confirming 
that that is exactly what you would do, Mr. Smith.
    Judge Smith. Thank you, Madam Chairman.
    Senator Hirono. Ranking Member Grassley.
    Senator Grassley. I am going to do like she did, ask each 
one of you a couple questions, and I will start with you, Mr. 
Cooper. I would not have thought about Judge Lamberth, but I 
hope you are like he is from this standpoint. I do not think I 
have ever met the judge, but I read enough about him that he 
seems to be a check, makes the checks and balances of 
Government work, and the judiciary serving as a role of 
checking either the legislative branch or judicial branch, and 
I hope you have that same philosophy.
    Mr. Cooper. I can only hope to.
    Senator Grassley. Okay. Let us see. Mr. Cooper, in a June 
2012 panel on anticorruption, you talked about the internal 
investigation stage being the time ``where there is the most 
opportunity to engage in creative lawyering to influence the 
range of outcomes a company can face.'' I would like to have 
you elaborate on what you meant by ``creative lawyering.''
    Mr. Cooper. Sure. I frankly do not quite recall the exact 
context in which that statement was made. What I may have meant 
is that certainly during an investigative stage before 
potential misconduct becomes known to the Government, it is the 
company's obligation and opportunity to go out and find all of 
the facts surrounding the case and the potential allegations, 
both those that are incriminating and those that may be 
exculpatory, and that is where lawyers can influence the 
outcome of results for their company once the investigation 
becomes known.
    Senator Grassley. As a Federal judge, if confirmed, what 
signs might you look for to determine whether or not a party 
before you has engaged in creative lawyering? And if you 
suspected such activity, what would be your response or 
approach to such a case?
    Mr. Cooper. Well, let me make clear that if I used the term 
``creative lawyering,'' it by no means suggested anything 
unethical. I think that in my career and practice that has not 
been my intent nor my practice at all. You know, I would 
welcome creative arguments. I would not countenance whatsoever 
any unethical conduct that I observe before me.
    Senator Grassley. Have you ever had any experience with 
whistleblower cases?
    Mr. Cooper. I have never handled a qui tam case, nor am I 
familiar with the Whistleblower Protection Act. I have advised 
companies in setting up policies and procedures that enable and 
encourage employees to report perceived misconduct, and I have 
always advised companies to take those allegations seriously, 
to investigate them thoroughly, and above all else, do nothing 
to retaliate against whistleblowers for raising credible 
allegations of wrongdoing to management.
    Senator Grassley. Mr. McHugh, you have been very active as 
a trial lawyer in speaking about tort reform. For example, you 
stated, ``Given the impact that the trial bar has, it is to be 
expected that powerful and moneyed interests like the U.S. 
Chamber of Commerce or demagogues like House Speaker Newt 
Gingrich will trial lawyers with negative ad campaigns.''
    Does this quote reflect your current views?
    Mr. McHugh. No, sir. First, some context for that. I 
believe at the time I made that remark I was president of the 
Philadelphia Trial Lawyers, and trial lawyers had become a 
political issue. So it was my job to basically speak up and say 
we are not all bad. And I think at the end of that article I 
said one of the reasons we are criticized is not all trial 
lawyers conduct themselves the way they should, and it was a 
call for more professionalism.
    But I am proud, Senator, to say that in applying for this 
position, I went to the defense bar in Pennsylvania and asked 
if the past presidents of that bar would support my nomination, 
and 18 of them signed a letter and said yes. And I am proud 
that I have been an arbitrator, sole binding arbitrator in 
cases against entities that I regularly sue, including the city 
of Philadelphia and hospital systems. And so as a judge, I will 
apply things down the middle fair and square.
    Senator Grassley. I think you have answered my last 
question with your last statement--well, no. You answered that 
question, but let me go on. You testified before the 
Philadelphia City Council to encourage passage of a strict 
liability statute for gun manufacturers and dealers unless they 
incorporated technology that would restrict the use of 
particular firearms to one who purchases it. You compared this 
strict liability campaign to other social policy initiatives 
like asbestos, airbags, tobacco. You said that this would allow 
individual victims and consumers to step forward and assert 
their rights.
    Question: Please explain your views on the Second Amendment 
and how the strict liability statute squares with Second 
Amendment jurisprudence?
    Mr. McHugh. Certainly, Senator. In context, I was at that 
time, again, president of the Philadelphia Trial Lawyers, and 
then Mayor Rendell asked me to testify about product 
liabilities that might apply, and that was my one touch with 
that issue. At the time he was trying to promote smart gun 
technology, which, of course, never proved to be viable. In the 
meantime, Heller has come down and McDonald, and it is the law 
of the land. People have a right to bear arms under the Second 
Amendment, and as a trial judge, I would enforce that right.
    Senator Grassley. Mr. Harpool, you have stated that you 
were pro-choice because it is not a Government issue. Is it 
your view that neither the State nor the Federal Government has 
either the right or duty to regulate abortion?
    Mr. Harpool. I believe the Supreme Court has ruled on what 
the parameters are, and it would be my obligation as a district 
judge to just set aside any personal feelings I had and to 
follow the precedent of the Supreme Court, and, of course, in 
the State of Missouri, it would be the Eighth Circuit. My job 
as a district judge would be to follow that precedent 
irrespective of personal opinion or past political policy.
    Senator Grassley. During your career, you have been 
actively involved in State politics. There is certainly nothing 
wrong with that activity. But should you be confirmed, your 
political history might concern future litigants. For example, 
you have commented on Republicans having ``a facade of moral 
superiority'' and then about Republicans who wear their faith 
on their sleeve. Could you assure this Committee that, if 
confirmed, your decisions will remain grounded in the precedent 
and the text of the law rather than any underlying political 
ideology or motivation?
    Mr. Harpool. I would, Senator. I think I appreciate that 
question, and someone with my background, it should be a 
concern of this Committee. I absolutely will have no problem 
setting aside that political thought.
    I will tell you that over the last 20 years, including 
during some of the periods of time I made a couple of the 
comments you just mentioned, I have been asked by Republican 
office holders to represent them and serve as their legal 
counsel. I understand that the political world and the judicial 
world are separate, and I give you my personal assurance that, 
as a district court judge, those political beliefs will be set 
aside, and I will follow the law and precedent as they are 
presented to me by higher courts.
    Senator Grassley. Since it appears from your questionnaire 
that you have had a practice mostly on civil matters, do you 
think you will be prepared to do criminal issues?
    Mr. Harpool. I will. Early in my career, very early, I 
tried a couple of criminal defense cases, and then in the 
legislature I served on the Judiciary Committee. I was Chairman 
for a couple years, then served on the Civil and Criminal 
Justice Committee--with Senator McCaskill, in fact, and former 
Senator Talent also was on those committees with us.
    Since that time, my practice has gone away from any 
touching of the criminal area, had been primarily civil, but it 
has been largely defending governmental entities, including 
sheriffs, police officers, when they are challenged as to 
whether they have acted appropriately under the criminal law. 
So that has kept me at least somewhat in touch with the 
criminal law.
    Then I have had the privilege to have been selected by the 
judges of the Western District to serve on the Federal Practice 
Committee, and we occasionally touch criminal law issues. But I 
certainly will have work to do to bring my level of immediate 
knowledge in the criminal area up to where it is in the civil 
area, and I make a commitment I will do that.
    Senator Grassley. I just have one question for you, Mr. 
Smith. You have been a member of the military service since 
1984, including active and reserve duty. That includes 
deployment in Iraq, and I commend you for that service. Would 
you please explain to the Committee how, if at all, this 
service has helped prepare you to become a Federal judge?
    Judge Smith. Well, in particular, Senator Grassley, the 
service as a military judge obviously while I was also sitting 
as a State trial judge assisted me in seeing the comparative 
nature of the two systems. It obviously exposed me much more to 
the Federal system as far as the Federal Rules of Evidence as 
opposed to the Pennsylvania Rules of Evidence. But I think in 
general any life experience assists a judge when he takes the 
bench and has to preside over a case, and certainly my military 
service I think has been a very important part of my life 
experience.
    Senator Grassley. Thank you very much. Thanks to all of 
you.
    Senator Hirono. I do have one followup question. A number 
of you have written and opined on controversial issues of the 
day, including abortion, firearms laws, et cetera. So, Judge 
Smith, you have obviously from what I read very strongly held 
views not only on abortion, but you are an NRA member, and you 
have articulated a position for welfare, medical reform, term 
limits for Congressmen, et cetera. Now, you have been on the 
State court for over a decade. Do you have a reputation as 
being a fair and impartial arbiter to the people who come 
before you in State court?
    Judge Smith. Thank you, Senator. I believe and I am very 
proud to have what I believe is a reputation for being 
completely fair and with unquestioned integrity as a judge in 
Northampton County.
    Senator Hirono. Thank you. I thank all the members of the 
panel.
    Mr. Cooper. Thank you, Senator.
    Mr. McHugh. Thank you, Senator.
    Mr. Harpool. Thank you, Senator.
    Judge Smith. Thank you, Senator.
    Senator Hirono. The record will remain open for 1 week for 
submission of written questions for the witnesses or other 
materials, and with that, this hearing is adjourned.
    [Whereupon, at 3:28 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record



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