[Senate Hearing 113-515, Part 6]
[From the U.S. Government Publishing Office]






                                                 S. Hrg. 113-515, Pt. 6
 
             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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            NOVEMBER 13, NOVEMBER 20, and DECEMBER 19, 2013

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                           Serial No. J-113-1

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                                 PART 6

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         Printed for the use of the Committee on the Judiciary






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                                                 S. Hrg. 113-515, Pt. 6

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

            NOVEMBER 13, NOVEMBER 20, and DECEMBER 19, 2013

                               __________

                           Serial No. J-113-1

                               __________

                                 PART 6

                               __________

         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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                      NOVEMBER 13, 2013, 2:04 P.M.

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
    prepared statement...........................................   215

                               PRESENTERS

Kirk, Hon. Mark, a U.S. Senator from the State of Illinois 
  presenting Manish S. Shah, Nominee to be District Judge for the 
  Northern District of Illinois..................................     2
Moran, Hon. Jerry, a U.S. Senator from the State of Kansas 
  presenting Hon. Nancy L. Moritz, Nominee to be Circuit Judge 
  for the Tenth Circuit..........................................     2
Murray, Hon. Patty, a U.S. Senator from the State of Washington 
  presenting Stanley Allen Bastian, Nominee to be District Judge 
  for the Eastern
  District of Washington.........................................     4

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................    21
Bastian, Stanley Allen, Nominee to be U.S. District Judge for the 
  Eastern District of Washington.................................    12
    biographical information.....................................   136
Lipman, Sheryl H., Nominee to be U.S. District Judge for the 
  Western
  District of Tennessee..........................................    11
    biographical information.....................................    78
Moritz, Hon. Nancy L., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................     5
    biographical information.....................................    22
Shah, Manish S., Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................    12
    biographical information.....................................   175

                               QUESTIONS

Questions submitted to all Nominees by Senator Cruz..............   217
Questions submitted to Stanley Allen Bastian by Senator Grassley.   218
Questions submitted to Sheryl H. Lipman by Senator Grassley......   221
Questions submitted to Hon. Nancy L. Moritz by Senator Grassley..   224
Questions submitted to Manish S. Shah by Senator Grassley........   228

                                ANSWERS

Responses of Stanley Allen Bastian to questions submitted by:
    Senator Cruz.................................................   253
    Senator Grassley.............................................   255
Responses of Sheryl H. Lipman to questions submitted by:
    Senator Cruz.................................................   245
    Senator Grassley.............................................   247
Responses of Hon. Nancy L. Moritz to questions submitted by:
    Senator Cruz.................................................   230
    Senator Grassley.............................................   233

Responses of Manish S. Shah to questions submitted by:
    Senator Cruz.................................................   260
    Senator Grassley.............................................   263

          LETTER RECEIVED WITH REGARD TO STANLEY ALLEN BASTIAN

American Bar Association, September 20, 2013, letter.............   272

            LETTERS RECEIVED WITH REGARD TO SHERYL H. LIPMAN

Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, November 13, 2013, letter...........................   271
American Bar Association, August 2, 2013, letter.................   269

          LETTER RECEIVED WITH REGARD TO HON. NANCY L. MORITZ

American Bar Association, August 2, 2013, letter.................   267

             LETTER RECEIVED WITH REGARD TO MANISH S. SHAH

American Bar Association, September 20, 2013, letter.............   274

                MISCELLANEOUS SUBMISSION FOR THE RECORD

Cohen, Hon. Steve, a Representative in Congress from the State of 
  Tennessee,
    prepared statement with regard to Sheryl H. Lipman, Nominee 
      to be District Judge for the Western District of Tennessee.   276











                            C O N T E N T S

                              ----------                              

                      NOVEMBER 20, 2013, 2:35 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   277
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   277

                       STATEMENTS OF THE NOMINEE

Witness List.....................................................   295
Barron, David Jeremiah, Nominee to be U.S. Circuit Judge for the 
  First Circuit..................................................   280
    biographical information.....................................   296

                               QUESTIONS

Questions submitted to David Jeremiah Barron by:
    Senator Cruz.................................................   379
    Senator Grassley.............................................   380
    Follow-up questions submitted by Senator Grassley............   391

                                ANSWERS

Responses of David Jeremiah Barron to questions submitted by:
    Senator Cruz.................................................   393
    Senator Grassley.............................................   396
    Responses to follow-up questions submitted by Senator 
      Grassley...................................................   425

         LETTERS RECEIVED WITH REGARD TO DAVID JEREMIAH BARRON

Agarwal, Amit, et al., U.S. Department of Justice, Office of 
  Legal Counsel (OLC) Attorney Advisors, November 15, 2013, 
  letter.........................................................   447
Ambrose, Julia C., et al., U.S. Supreme Court Law Clerks, 
  November 19, 2013, letter......................................   450
American Bar Association, September 24, 2013, letter.............   429
Clark, Bradford R., September 24, 2013, letter...................   431
Ferrell, Allen, November 13, 2013, letter........................   444
Fried, Charles, September 24, 2013, letter--Redacted.............   433
George, Ronald M., Chief Justice, Retired, Supreme Court of 
  California,
  November 6, 2013, letter--Redacted.............................   440
Goldsmith, Jack, September 24, 2013, letter......................   435
Jefferson, Wallace B., November 13, 2013, letter.................   445
Kinnaird, Stephen B., November 11, 2013, letter..................   442
Manning, John F., September 24, 2013, letter--Redacted...........   438

                MISCELLANEOUS SUBMISSION FOR THE RECORD

Amar, Vikram, Professor, University of California, et al., letter 
  to Hon. Bill Frist, a U.S. Senator from the State of Tennessee, 
  and Hon. Tom Daschle, a U.S. Senator from the State of South 
  Dakota, May 16, 2003...........................................   452







                            C O N T E N T S

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                     DECEMBER 19, 2013, 10:25 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California
  presenting Hon. Cynthia Ann Bashant, Nominee to be District 
  Judge for the Southern District of California..................   459
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   469
    prepared statement...........................................   709
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................   468

                               PRESENTERS

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland
  presenting Theodore David Chuang, Nominee to be District Judge 
  for the District of Maryland, and George Jarrod Hazel, Nominee 
  to be District Judge for the District of Maryland..............   462
Collins, Hon. Susan M., a U.S. Senator from the State of Maine 
  presenting Hon. Jon David Levy, Nominee to be District Judge 
  for the District of Maine......................................   465
King, Hon. Angus S., Jr., a U.S. Senator from the State of Maine 
  presenting Hon. Jon David Levy, Nominee to be District Judge 
  for the District of Maine......................................   464
Mikulski, Hon. Barbara A., a U.S. Senator from the State of 
  Maryland
  presenting Theodore David Chuang, Nominee to be District Judge 
  for the District of Maryland, and George Jarrod Hazel, Nominee 
  to be District Judge for the District of Maryland..............   461
Moran, Hon. Jerry, a U.S. Senator from the State of Kansas 
  presenting Daniel D. Crabtree, Nominee to be District Judge for 
  the District of
  Kansas.........................................................   466

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................   481
Bashant, Hon. Cynthia Ann, Nominee to be U.S. District Judge for 
  the Southern District of California............................   470
    biographical information.....................................   521
Chuang, Theodore David, Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   471
    biographical information.....................................   627
Crabtree, Daniel D., Nominee to be U.S. District Judge for the 
  District of Kansas.............................................   474
    biographical information.....................................   482
Hazel, George Jarrod, Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   473
    biographical information.....................................   677
Levy, Hon. Jon David, Nominee to be U.S. District Judge for the 
  District of Maine..............................................   471
    biographical information.....................................   566

                               QUESTIONS

Questions submitted to all Nominees by Senator Cruz..............   724
Questions submitted to Hon. Cynthia Ann Bashant by Senator 
  Grassley.......................................................   711
Questions submitted to Theodore David Chuang by Senator Grassley.   714
Questions submitted to Daniel D. Crabtree by Senator Grassley....   717
Questions submitted to George Jarrod Hazel by Senator Grassley...   719
Questions submitted to Hon. Jon David Levy by Senator Grassley...   721

                                ANSWERS

Responses of Hon. Cynthia Ann Bashant to questions submitted by:
    Senator Cruz.................................................   737
    Senator Grassley.............................................   732
Responses of Theodore David Chuang to questions submitted by:
    Senator Cruz.................................................   755
    Senator Grassley.............................................   748
Responses of Daniel D. Crabtree to questions submitted by:
    Senator Cruz.................................................   729
    Senator Grassley.............................................   725
Responses of George Jarrod Hazel to questions submitted by:
    Senator Cruz.................................................   762
    Senator Grassley.............................................   758
Responses of Hon. Jon David Levy to questions submitted by:
    Senator Cruz.................................................   745
    Senator Grassley.............................................   739

        LETTER RECEIVED WITH REGARD TO HON. CYNTHIA ANN BASHANT

American Bar Association, September 20, 2013, letter.............   766

         LETTERS RECEIVED WITH REGARD TO THEODORE DAVID CHUANG

American Bar Association, September 26, 2013, letter.............   770
Asian Pacific American Bar Association of the Greater Washington, 
  DC, Area (APABA-MD), T. Christine Pham, December 16, 2013, 
  letter.........................................................   772
Asian Pacific American Bar Association of the Greater Washington, 
  DC, Area (APABA-DC), Tacie H. Yoon, December 16, 2013, letter..   775
Sullivan, Michael J., December 17, 2013, letter..................   777

           LETTER RECEIVED WITH REGARD TO DANIEL D. CRABTREE

American Bar Association, August 2, 2013, letter.................   764

           LETTER RECEIVED WITH REGARD TO GEORGE JARROD HAZEL

American Bar Association, September 26, 2013, letter.............   779

           LETTER RECEIVED WITH REGARD TO HON. JON DAVID LEVY

American Bar Association, September 20, 2013, letter.............   768

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Hewey, Melissa A., February 15, 2013, letter.....................   783
Silver, Hon. Warren M., Associate Justice, Maine Supreme Court, 
  February 15, 2013, letter......................................   781
Saufley, Hon. Leigh I., Chief Justice, Maine Supreme Court, 
  letter to Hon. Angus S. King, Jr., a U.S. Senator from the 
  State of Maine, December 17, 2013..............................   785
Tierney, James E., Director, National State Attorney General 
  Program,
  Columbia Law School, February 21, 2013, letter.................   788

                     ALPHABETICAL LIST OF NOMINEES

Barron, David Jeremiah, Nominee to be U.S. Circuit Judge for the 
  First Circuit..................................................   280
Bashant, Hon. Cynthia Ann, Nominee to be U.S. District Judge for 
  the Southern District of California............................   470
Bastian, Stanley Allen, Nominee to be U.S. District Judge for the 
  Eastern District of Washington.................................    12
Chuang, Theodore David, Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   471
Crabtree, Daniel D., Nominee to be U.S. District Judge for the 
  District of Kansas.............................................   474
Hazel, George Jarrod, Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   473
Levy, Hon. Jon David, Nominee to be U.S. District Judge for the 
  District of Maine..............................................   471
Lipman, Sheryl H., Nominee to be U.S. District Judge for the 
  Western
  District of Tennessee..........................................    11
Moritz, Hon. Nancy L., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................     5
Shah, Manish S., Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................    12


  NOMINATIONS OF HON. NANCY L. MORITZ, NOMINEE TO BE CIRCUIT JUDGE FOR
 THE TENTH CIRCUIT; SHERYL H. LIPMAN, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TENNESSEE; STANLEY ALLEN BASTIAN, NOMINEE TO BE 
                     DISTRICT JUDGE FOR THE EASTERN
  DISTRICT OF WASHINGTON; AND MANISH S. SHAH, NOMINEE TO BE DISTRICT 
              JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

                              ----------                              


                      WEDNESDAY, NOVEMBER 13, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:04 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin, 
presiding.
    Present: Senators Durbin and Grassley.
    Senator Durbin. Good afternoon. The Judiciary Committee 
will come to order, and we will consider four nominations for 
the Federal bench. They include: Nancy Moritz, of Kansas, who 
has been nominated to serve on the U.S. Court of Appeals for 
the Tenth Circuit; Stanley Bastian, nominated to be a district 
judge for the Eastern District of Washington; Sheryl Lipman, 
nominated to be a district judge for the Western District of 
Tennessee; and Manish Shah, who has been nominated to be a 
district judge for the Northern District of Illinois.
    Each nominee has the support of their home State Senators, 
and I commend President Obama for sending their names to the 
Senate.
    At these hearings it is traditional for the nominees to be 
introduced before the Committee by Senators from their home 
States, and unless the Ranking Member has any opening remarks--
okay, they will be submitted for the record.
    We will proceed with the introductions. I would like to 
invite my Senate colleagues at the witness table to make their 
introductions, and I know they have busy schedules and may have 
to leave afterwards, but we are honored to have them here.
    First up will be Senator Mark Kirk of the great State of 
Illinois. Senator Kirk, proceed. Make sure your microphone is 
on there, Mark.

 PRESENTATION OF MANISH S. SHAH, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON. MARK KIRK, A 
                  U.S. SENATOR FROM THE STATE
                          OF ILLINOIS

    Senator Kirk. Thank you, Mr. Chairman. I want to say that 
you and I both agree that Manish Shah should be sitting on the 
Federal bench in the Northern District of Illinois. I would say 
about Manish that he has been heading the Criminal Division of 
the U.S. Attorney's Office, which has substantial management 
responsibility because he is overlooking the work of 130 other 
people, more than most U.S. Attorneys in the country.
    I want to note this about Manish's career: that he has 
managed the prosecution of the hired truck scandal that 
included the prosecution of 49 public officials, sorely needed 
for our State where we suffer from corruption problems, that 
Manish has been a good corruption fighter. I think as a justice 
he will be outstanding in his service to the country.
    Senator Durbin. Thank you very much, Senator Kirk. It is 
true that we do this on a bipartisan basis, and each approves 
the other's nominees, and I was happy to join. I will have a 
few words about Mr. Shah after our other colleagues have had a 
chance to speak about their nominees.
    Let me now recognize Senator Jerry Moran of Kansas.

  PRESENTATION OF HON. NANCY L. MORITZ, NOMINEE TO BE CIRCUIT 
   JUDGE FOR THE TENTH CIRCUIT, BY HON. JERRY MORAN, A U.S. 
                SENATOR FROM THE STATE OF KANSAS

    Senator Moran. Chairman Durbin, thank you very much. I 
appreciate you and Ranking Member Grassley giving me the 
opportunity to appear before this Committee, and it is a 
pleasure and honor to be here to introduce Honorable Nancy 
Moritz, who is a Supreme Court Justice of the Kansas Supreme 
Court. She has been nominated by the President to serve as a 
judge on the Tenth Circuit Court of Appeals.
    I am a member of the bar and have great concern about the 
dispensing of justice in our State, and this position has been 
open for a considerable amount of time, and I am pleased to say 
that Senator Roberts and I and the White House had the 
opportunity to work together to find nominees that were 
acceptable to the White House as well as to Senator Roberts and 
to me, and Justice Moritz meets that criteria.
    It is important, it seems to me, that our ability to come 
together is particularly demonstrated in the need for the 
filling of positions, both at the Federal district court as 
well as the Tenth Circuit.
    I am also grateful to Justice Moritz for her willingness to 
continue her public service. She will, if confirmed, replace 
Judge Deanell Reece Tacha, a very highly qualified and 
respected member of the Tenth Circuit Court of Appeals, someone 
highly regarded in Kansas and across the country, and I have 
little doubt that Justice Moritz will fulfill those shoes with 
similar capabilities and similar distinction.
    Justice Moritz comes--let me express my support for her 
nomination in a couple of ways. She comes from a community of a 
population of just a few hundred, Tipton, Kansas, and not too 
far down the road from my home town. And I know the type of 
community as well as I know the specifics of this community, 
and I have great regard for the way that small towns raise 
their kids. And I have great regard and, therefore, great 
expectation that, if confirmed, Nancy will serve justice well 
and will serve our country well.
    In small towns across Kansas and across the country, when 
you grow up in that setting, you are raised in a way that I 
think is important. It creates a certain level of character, 
kind of character, amount of respect, kindness for others, a 
work ethic, and a genuine concern for others. And I am so 
supportive of that kind of upbringing and the kind of 
qualifications, therefore, that this nominee brings.
    So it is in a sense an opportunity to brag about the way we 
raise our kids in Kansas and indicate to you that Nancy Moritz 
really exemplifies that kind of upbringing.
    She is highly regarded in her community where you have no 
way but being known in a town that size. Everyone knows you, 
and so the way that the community came together to support her 
nomination and to support her qualifications to be a judge has 
great appeal to me.
    Additionally, Justice Moritz was a law clerk for a Kansas 
Supreme Court Justice named Ed Larson. If there is a lawyer in 
Kansas who I consider a lawyer's lawyer, it is Justice Larson. 
And the fact that Justice Moritz was mentored by Justice Larson 
means a great deal to me. Ed Larson was one of my partners in 
our law firm of five attorneys, and so I know the justice well, 
and I know based upon his recommendation and the relationship 
that he and Nancy Moritz developed, clerk to judge, that she 
has been mentored by one of Kansas' finest jurists.
    So those two aspects of her life--her upbringing and her 
mentorship by a great attorney and justice--causes me to be 
here. And then you add to that all of the experience, the mix 
of experience that Nancy has had in private practice and as a 
Federal attorney as well as a court of appeals judge and a 
Supreme Court justice, I think there is a significant and well-
based foundation for her to make an excellent Federal judge.
    And so, Mr. Chairman and Ranking Member Grassley, I look 
forward to supporting Justice Moritz's confirmation to the 
Tenth Circuit, assuming that this Committee recommends her 
favorably to the U.S. Senate, and, again, I express my 
gratitude to her and her family, who have joined her here 
today, for her willingness to serve in this important capacity.
    Thank you very much, Senator Grassley.
    Senator Durbin. Thank you, Senator Moran.
    Senator Murray.
    Senator Murray. Mr. Chairman, I note that Senator Kirk was 
here ahead of me, and I am happy to allow him to go first, if 
he wants.
    Senator Durbin. He has already spoken.
    Senator Murray. He already has, okay.

 PRESENTATION OF STANLEY ALLEN BASTIAN, NOMINEE TO BE DISTRICT 
               JUDGE FOR THE EASTERN DISTRICT OF
WASHINGTON, BY HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Murray. Well, thank you very much, Chairman Durbin 
and Ranking Member Grassley and all the Members of your 
Committee. I really appreciate the opportunity today to join 
you to introduce an outstanding nominee to be the United States 
District Judge for the Eastern District of Washington, Stan 
Bastian. I am pleased to welcome him and, I believe, his wife 
and daughters as well who are with him in Washington, DC, 
today--or as the people from my State call it, ``the other 
Washington.''
    As many of you may know, in my home State we use a 
bipartisan judicial selection process to recommend to the 
President potential nominees to the Federal bench. At a time 
when we too often suffer from partisan gridlock, facing the 
threat of filibusters on the floor of the Senate for even the 
most routine of votes, I am very pleased to report to you that 
Stan Bastian was unanimously recommended by Democrats and 
Republicans alike to be the next Federal judge in eastern 
Washington.
    For the many reasons I will briefly touch upon, Stan is 
immensely qualified to serve as United States district judge, 
and I urge this Committee to support his confirmation.
    With nearly 30 years of litigation experience under his 
belt, Stan represents the best of the legal profession in 
Washington State. He is a fellow in the American College of 
Trial Lawyers. He is a lawyer representative to the Ninth 
Circuit Judicial Conference. He is chairman of the Equal 
Justice Coalition and has served the Washington bar faithfully, 
first as a member of the board of Governors, then as president-
elect and as president.
    As a partner at the Wenatchee law firm Jeffers, Danielson, 
Sonn and Aylward, Stan has practiced in both State and Federal 
court trying hundreds of cases, including civil and criminal 
cases and jury and bench trials.
    At the outset of his career, Stan clerked for the 
Washington State Court of Appeals, and he served for a time as 
judge pro tem in several municipal courts.
    Stan has described the ideal judicial temperament as one of 
``fairness, impartiality, efficiency, and patience''--
attributes that Stan displays time and time again in the 
courtroom, as a leader in his firm, and as a leader in the bar. 
I have no doubt, Mr. Chairman, that these attributes will serve 
him well as a Federal judge.
    So let me thank Stan for accepting the President's 
nomination and for his willingness to serve Washington State 
and our Nation as a Federal judge. Our system of Government is 
at its best when good people step up to the plate and are 
willing to serve. Throughout his legal career, Stan Bastian has 
done just that, working tirelessly to strengthen and improve 
the practice of law and access to justice in my State. I know 
Stan will bring this same work ethic to his service as a 
Federal judge in the Eastern District, and I know the judiciary 
will be better off because of his service.
    Thank you very much.
    Senator Durbin. Thanks, Senator Murray.
    I understand the Senators from Tennessee could not join us 
at this moment, and they have asked me to give a brief 
introduction on behalf of Sheryl Lipman, who has been nominated 
to the District Court for the Western District of Tennessee. 
She served as university counsel for the University of Memphis 
since 2002. In this capacity, she serves as the university's 
primary in-house counsel for all major litigation. Previously 
she worked as vice president of Comprehensive Services at the 
Memphis Race Relations and Diversity Institute, spent a decade 
in private practice at the law firms Reed Smith; Wyatt, Tarrant 
and Combs; and Burch, Porter and Johnson. She received her 
undergraduate degree from the University of Michigan, her J.D. 
from New York University School of Law, served as a law clerk 
for Judge Julian Gibbons, who was then serving on the District 
Court for the Western District of Tennessee, and we are happy 
that she is here today.
    I will just conclude--Senator Kirk opened with the 
introduction of Mr. Shah. We have a bipartisan process, and I 
am happy to lend my name in support of his candidacy or 
nomination. He is the nominee of historic moment in that he 
would be the first Article III judge of South Asian descent to 
serve in our State of Illinois. I understand that Mr. Shah is 
joined by his family and friends, whom I am sure he will 
introduce at a later moment.
    I want to thank our colleagues, unless Senator Grassley has 
something to say at this point before we call up the panel.
    Senator Grassley. I welcome all the nominees, and I am 
going to put my statement in the record.
    [The prepared statement of Ranking Member Grassley appears 
as a submission for the record.]
    Senator Durbin. Thank you, Senator Grassley. Thank you to 
our colleagues. You are free to go if you wish, and I am sure 
you have very busy schedules.
    Justice Moritz, you will be the first, and if you would 
stand for just a moment. Do you affirm that the testimony that 
you are about to give before the Committee will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Justice Moritz. I do.
    Senator Durbin. Thank you. The record will reflect that the 
nominee answered in the affirmative.
    And now let me turn it over to future Justice Moritz--
current Justice Moritz to say a few words and introduce her 
family.

           STATEMENT OF HON. NANCY L. MORITZ, NOMINEE
           TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT

    Justice Moritz. I would like to first thank President Obama 
for appointing me and putting his trust in me for this 
position, and Senator Durbin, Chair, and Senator Grassley, the 
Ranking Minority Member, for convening this hearing. I 
appreciate it very much.
    And I want to thank Senator Moran for those very, very kind 
remarks, and especially for the kind remarks about my little 
community of Tipton. I can guarantee you that they feel just as 
strongly about him as he does about them and for all he has 
done to help them remain a thriving community.
    And very quickly, I want to say that I have my family here 
to support me, and my brother reminded me yesterday of how our 
big adventures used to be. We would get in the family station 
wagon, and we would all pile in, and we would argue about who 
had to sit in the back seat, and fight, and take a Sunday drive 
all around Tipton. Well, the adventure has changed a little 
bit, but one thing is the same, and my family is still here to 
support me, as you will see in a minute, and it is great that I 
finally get the front seat.
    I have here with me my daughters, two daughters: Kathleen 
Landis, who is a student at Colgate University, and her friend, 
Bennett Wade, from Portland, Maine; and my daughter Sarah 
Landis who is a student at Washburn University in Topeka, and 
her fiance, Ryan Rowe, who is a student at Washburn also; my 
mother, Carol Moritz, from Salina, Kansas; my sister, Kathy 
Gasper, and her husband, Steve Gasper, from Salina, Kansas; my 
brother Larry Moritz, from Salina; my brother John Moritz, from 
Tipton; my cousin Rose Ann Morrow, from Topeka, and her 
children, Beth and Jeff Morrow, and his fiance, Patricia Clark, 
from Topeka; my former friend Mike Corpstein from Tipton; my 
two research attorneys from the Kansas Supreme Court, my right 
and left hands, Tina Hardin--and her husband, Greg, is here--
and Jackie Blase Freed. And I also have a couple of cousins 
from this area: Sharon Winter is here, and Retired Colonel Ron 
Winter, her husband, and retired fighter pilot, I might add.
    And I also want to introduce Mary Elizabeth Elliott, who is 
sitting in the back and is here--is from this area, and she is 
the daughter of Senator--or, I am sorry, Justice Larson, who 
the Senator mentioned. And she is representing him today 
because he could not be here, and I am very, very pleased to 
have her here.
    And with that, I would open myself up to questions.
    [The biographical information of Justice Moritz appears as 
a submission for the record.]
    Senator Durbin. Thank you very much, and let me just say at 
the outset, since Senator Moran is still here, that his appeal 
to your Kansas roots and Kansas values was really loaded 
testimony, because he knows that my grandfather was born in 
Kansas.
    Justice Moritz. Really? Wow.
    [Laughter.]
    Senator Durbin. So he is trying his best to get on my best 
side, and it worked. So thank you very much for those comments, 
Senator Moran.
    You have had some interesting assignments on the Kansas 
Supreme Court and the Court of Appeals, and now you have an 
opportunity to serve in a very important position in the 
Federal judiciary. How do you view the difference in moving 
from the State courts to the Federal courts, the difference in 
the challenge?
    Justice Moritz. The difference, I do not know that there is 
a difference in the challenge. The challenge is always the 
same, Senator. That is a good question. But it seems to me it 
is always the same, which is to apply the rule of law, whether 
it is our United States Constitution or our Kansas Constitution 
or a Federal statute or a State statute, and to apply it as 
well as you can. I think the challenge is the same.
    Senator Durbin. So let me ask you about several cases that 
you have been involved in, and I think it gives you an 
opportunity to explain your reasoning when you are confronted 
with, in many cases, challenging and very difficult factual 
patterns.
    Earlier this year, the Kansas Supreme Court issued a ruling 
in the case Shirley v. Glass that dealt with the duty owed by 
gun dealers not to sell guns to straw purchasers. In this case, 
a man named Russell Graham had a history of violence and abuse 
against his son and his son's mother. He went into a gun shop 
to buy a shotgun. Graham told the dealer at the gun shop that 
he had a felony conviction, and the dealer then sold the gun to 
Graham's grandmother who was with him in the store and who 
could pass a background check. Graham paid for the gun in cash, 
took it home that night, and used it to fatally shoot his son 
and then himself. The son's mother sued the gun dealer, 
alleging that he negligently entrusted the gun knowing that it 
was really intended for Graham.
    The Kansas Supreme Court upheld a lower court decision 
allowing the mother to proceed with her negligent entrustment 
claim and also found that gun dealers must use a high standard 
of care to avoid selling guns to convicted felons.
    Please tell me how you analyzed that case and your 
reasoning behind that decision.
    Justice Moritz. Yes, Senator, thank you for the 
opportunity. That case actually involved a statute, a Kansas 
statute. It did not involve the Second Amendment. It involved a 
statute that we had to decide whether that statute created a 
duty, and our case law had not been particularly clear on that 
point. So we kind of went through that case law and analyzed it 
and determined that there was a duty on the part of the pawn 
shop in this case.
    We did not go any further than that because the other 
elements of a negligence case were not before us. This was a 
summary judgment decision, which means that, you know, they 
still had to go back and try the case. But we determined that 
there was a duty----
    Senator Durbin. Based on the statute?
    Justice Moritz. Based on the statute, yes.
    Senator Durbin. Let me ask you about another case. Last 
year, you wrote an opinion on behalf of a unanimous Kansas 
Supreme Court in a case called In re T.S.W.
    Justice Moritz. Yes.
    Senator Durbin. The case involved a Federal law called the 
``Indian Child Welfare Act.'' This Act contains an adoption 
preference to place tribal children either with a member of the 
child's extended family or with other members of the child's 
tribe. In this case, the mother wanted to put her child up for 
adoption, and the child was a member of the Cherokee Nation on 
his father's side. The mother had a desire to place the child 
with a non-Indian family, and there was a question about 
whether a deviation from the Act's placement preference was 
warranted because of the wishes of the mother. Your court held 
that the preference under the law applied in that case.
    Can you describe your reasoning behind that decision?
    Justice Moritz. Yes, Senator. The Indian Child Welfare Act 
that you referred to, it creates preferences, and trial courts 
are required to follow those preferences. And in this case, we 
had to determine whether the mother's preference for the 
placement--the non-Indian mother's preference for the placement 
of her child could overcome the normal preference procedure 
that--the steps that you follow. And we determined based on our 
analysis of the law as well as Supreme Court precedent and some 
of our own Kansas Supreme Court precedent that it could not 
overcome those steps.
    Senator Durbin. I have not deal with this particular 
Federal law, but there are no exceptions in it for parental 
preference or cases where one of the parents might be Native 
American and the other not Native American? There are no 
exceptions in the law?
    Justice Moritz. I believe it is a factor that can be 
considered, but our decision had to do with whether that one--
the mother's preference could overcome other preferences that 
are required to be considered under the law.
    Senator Durbin. You worked from 1995 to 2004 as an 
Assistant U.S. Attorney on civil litigation and served as the 
office's appellate coordinator. Could you discuss the types of 
matters you handled in that capacity?
    Justice Moritz. Yes. I actually handled both civil and 
criminal matters. I had not been a prosecutor, but I did handle 
a number of criminal matters. Generally they were not matters 
that had lengthy trials because our office preferred that if 
there had been a lengthy trial that the prosecutor herself or 
himself would appear in front of the court and handle those 
cases. But I did handle a number of criminal matters, drug-
related robberies, kind of the normal criminal cases. And I 
also handled several civil appeals in front of the Tenth 
Circuit.
    Senator Durbin. Thank you.
    Senator Grassley.
    Senator Grassley. Thank you for your willingness to serve.
    Justice Moritz. Thank you.
    Senator Grassley. In 1991, you wrote an article regarding 
permissible discrimination in private clubs. I recognize this 
was a long time ago and early in your career, so it might not 
be fresh in your mind. Nevertheless, I have a few questions 
based on that article and have you explain your current views 
and approach to the subject.
    In your conclusion, you wrote, ``As is often the case, the 
law is in step with the views of society.'' That statement 
implies that there are times when the law may not be in step 
with societal views. When is it appropriate for a judge either 
to determine what the views of society are or to take them into 
account in a particular case?
    Justice Moritz. Thank you, Senator, for the opportunity to 
address that article. It is dated. It was quite some time ago. 
But I think that statement that you are referring to, we were 
addressing, as I recall, the various statutes that can be used 
to address discrimination in private clubs. At the time it was 
not particularly clear and the cases were fairly new, and so we 
were trying to set out what some of those means were. I think 
that was the context of the statement that you have read.
    Senator Grassley. When then is it appropriate for a judge 
either to determine what the views of society are or to take 
them into account in a particular case?
    Justice Moritz. I do not believe it is ever appropriate for 
a judge to consider that.
    Senator Grassley. If a judge determined that the law and 
prevailing society views are out of step, what is the duty of a 
judge? I think you just answered that, didn't you?
    Justice Moritz. Yes, sir.
    Senator Grassley. In the case of first impression, In re 
Interest of K.M.H, decided in 2007, the Kansas Supreme Court 
addressed the issue of parental rights. The majority held that 
the clear language of the statute said a particular class of 
individuals had no parental rights and the statute did not 
violate equal protection or due process. You dissented, arguing 
that the statute violated a fundamental right and that 
fundamental rights must be actively waived.
    I am not asking you about the specifics of that case but 
more generally how you would approach judging. What is your 
approach to statutory construction?
    Justice Moritz. Senator, my approach to statutory 
construction is I take a look at the statute, and I determine 
whether the statute is clear or unambiguous on its face. And in 
doing that, I look at the whole statute, not just that part of 
the statute, and if I find that it is clear from the text of 
the statute, that is what I go with and that is what we go 
with. And if I find that it is not clear, then we have to look 
outside the statute to intent and try to determine the intent 
of the legislature in Kansas now or, if I am lucky enough to be 
nominated, of the legislature, of Congress in enacting that 
statute.
    Senator Grassley. And then what process would you under 
take to determine the plain meaning of a statute, and at the 
point you would just end it?
    Justice Moritz. I think I would, you know, first of all, I 
would look at the context and how it was enacted, why it was 
enacted, and whatever evidence we have of intent. And then I 
would also, of course, look to precedent interpreting it.
    Senator Grassley. Under what circumstances is it 
appropriate to disregard statutory language?
    Justice Moritz. To disregard statutory language?
    Senator Grassley. Yes.
    Justice Moritz. I do not think it is appropriate.
    Senator Grassley. As a judge, how would you determine what 
is a fundamental right?
    Justice Moritz. Well, Senator, our Supreme Court has 
determined a number of rights are fundamental, and I would 
certainly enforce and--excuse me, I would certainly apply that 
precedent.
    Senator Grassley. Okay. In the Kansas Supreme Court case 
regarding parental custody, there was a discussion that a judge 
must differentiate between the religiously motivated conduct or 
actions that concern the parents' religious beliefs versus 
those that implicate the best interests of the child. You 
dissented in that case, stating, ``The majority has essentially 
judicially mandated a preference for one parent's fundamental 
right to the free exercise of religion over another parent's 
fundamental liberty interest in exercising the care, custody, 
and control of the child.''
    Again, I do not necessarily want to get into the specifics 
of the case, so at a more general level, can you describe the 
approach you take in weighing competing interests? First, how 
would you distinguish between a fundamental right and a 
fundamental liberty interest?
    Justice Moritz. Well, I guess I cannot--taking it in the 
context of that case, the fundamental right that we were 
referring to was the right--or I was referring to, excuse me, 
in the dissent was the right to parent.
    Senator Grassley. You said one side of it was a fundamental 
right to free exercise of religion and----
    Justice Moritz. I am sorry. I apologize----
    Senator Grassley [continuing]. The other was a fundamental 
liberty----
    Justice Moritz. Yes. Right, right. I am sorry. Yes, the 
context of that in that case was--that was a custody matter. I 
think you are referring to a custody matter.
    Senator Grassley. Yes.
    Justice Moritz. And what we had determined was the majority 
determined that the best interests of the child did not 
require--or the judge was not allowed to consider the impact of 
religious practices upon the best interests of the child. And 
my point really was to say that that may have deprived one 
parent of their fundamental religious right, the right to 
express their religious freedom because that parent's views and 
practices were not being taken into account, as I recall that 
case. And my view was that the religious practices should not 
control that setting, but that the religious practices should 
be considered just like any other practice on what is in the 
best interests of the child. And ultimately that is what the 
Kansas Supreme Court held. That was a court of appeals case 
that I dissented on, and they did take that. They ultimately 
affirmed the decision, but they did find that a religious 
practice, if it has an impact upon the best interests of the 
child, just like any other factor, should be considered.
    Senator Grassley. If you want to look at your answer to 
that and submit in writing a more clear view of how you 
distinguish between a fundamental right and a fundamental 
liberty interest, I would appreciate it.
    Justice Moritz. All right.
    [The information referred to appears as a submission for 
the record.]
    Senator Grassley. I will submit my last question for answer 
in writing.
    Justice Moritz. Thank you, Senator.
    Senator Durbin. Thank you, Senator Grassley.
    [The question of Ranking Member Grassley appears as a 
submission for the record.]
    Senator Durbin. Justice Moritz, thanks for--did I pronounce 
that correctly?
    Justice Moritz. Yes, you did.
    Senator Durbin. Okay. Justice Moritz, thank you very much 
for being with us today, and as Senator Grassley indicated, 
some of the questions may be sent to you in writing. I hope you 
can give us a prompt response and give us an incentive to move 
your nomination along based on that.
    Justice Moritz. I certainly will.
    Senator Durbin. So thank you very much for your testimony 
today and for the attendance of your family and friends.
    Justice Moritz. Thank you so much, Senator.
    Senator Durbin. We now call the second panel, which will 
include Mr. Shah, Mr. Bastian, and Ms. Lipman. If you would 
please raise your right hand. Do you affirm 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. Lipman. I do.
    Mr. Bastian. I do.
    Mr. Shah. I do.
    Senator Durbin. Thank you. Let the record reflect that all 
three of the witnesses have answered in the affirmative.
    We will give you each an opportunity for a brief opening 
statement, introduction of your family. Ms. Lipman, you are 
first.

STATEMENT OF SHERYL H. LIPMAN, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE WESTERN DISTRICT OF TENNESSEE

    Ms. Lipman. Thank you. Thank you, Mr. Chairman, and thank 
you to the Committee for convening this hearing. I would also 
like to thank the President for the nomination, Senators 
Alexander and Corker as well as Congressman Cohen for their 
support for this position.
    Today I have with me a few family and friends that I would 
like to introduce. First, my husband, Dale Anderson. Dale is a 
retired Navy photojournalist and currently a civilian Navy 
employee at the Navy Recruiting Command at Millington.
    My father, Clifton Lipman, is a semi-retired construction 
lawyer in Memphis.
    My mother, Sandra Lipman, is a retired business executive 
and former educator.
    My sister, Elise Jordan, is a senior vice president with 
FedEx Express. She is here representing the entire Jordan 
family watching back home in Memphis: my brother-in-law, 
Richard; my nieces Samantha and Hannah.
    Also in Boston watching online is my brother, Barton 
Lipman, who is the chair of the economics department at Boston 
University. He is watching with my sister-in-law, Marie O'Deal, 
and my nephew, Matthew.
    Today I also have several DC friends who I am very thankful 
who could come today: friends Eve Dubrow, Michael Boston, Lynn 
Starr, Nancy Berkall, and Scott Kreeger, as well as two 
colleagues from the University of Memphis who happened to be in 
DC, David and Pam Cox. I am thankful for them.
    Finally--and I am almost done--watching back home in 
Memphis, I have got colleagues at the University of Memphis' 
Cecil C. Humphreys School of Law watching, as well as 
colleagues at the main campus of the university, including our 
president, Brad Martin. And family and friends in Memphis and 
San Antonio and other parts of the country watching, I want to 
thank them all for their support and their confidence.
    I am here to answer any questions.
    [The biographical information of Ms. Lipman appears as a 
submission for the record.]
    Senator Durbin. One of the widest national broadcasts we 
have ever had of this Judiciary Committee.
    [Laughter.]
    Senator Durbin. Thank you very much.
    Mr. Bastian, if you would like to make a brief opening 
statement and introduce your family and friends.

         STATEMENT OF STANLEY ALLEN BASTIAN, NOMINEE TO
         BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
                           WASHINGTON

    Mr. Bastian. Good afternoon, and thank you for that 
opportunity. And, Senator Durbin and Senator Grassley, I want 
to thank both of you for inviting me to appear before this 
Committee and answering your questions regarding my nomination.
    I would also like to thank Senator Patty Murray for the 
very kind remarks that she just made about me and for 
supporting my nomination, and for Senator Cantwell, who has 
also supported me.
    I am very pleased today to introduce to the Committee and 
to acknowledge the support of my family: my wife, Alicia 
Nakata, who is seated behind me, who is a judge on the Chelan 
County Superior Court; my daughter Audrey Bastian, who flew in 
last night from Chicago, where she is teaching high school with 
the Teach for America program; and my daughter Elenore Bastian, 
who flew in last night from Walla Walla, Washington, where she 
is a junior at Whitman College.
    Thank you, and I am here to answer any questions that you 
might have.
    [The biographical information of Mr. Bastian appears as a 
submission for the record.]
    Senator Durbin. Thank you.
    Mr. Shah.

           STATEMENT OF MANISH S. SHAH, NOMINEE TO BE
      DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

    Mr. Shah. Thank you, Mr. Chairman. Thank you, Ranking 
Member Grassley and to Chairman Leahy as well, for scheduling 
this hearing. Senator Durbin, I thank you for your support of 
my nomination. I also thank Senator Kirk for his efforts on my 
behalf.
    I also thank President Obama for this nomination, which is 
the greatest honor of my professional life, and I am deeply 
humbled by it.
    My family is here today, and I would like to introduce them 
to you. My wife, Joanna Grisinger, is here, and without her 
support and sacrifice, I would not be here today.
    My mother-in-law, Patricia Grisinger, traveled a great 
distance to be here, and I appreciate her support.
    My father-in-law, John Grisinger, was unable to attend the 
hearing, but I understand he is watching on the webcast.
    My brother, Dr. Ash Shah, his wife, Rebecca Shah, and their 
two children, my nephew, Alexander, and my niece, Sonia, are 
here today, had to juggle their busy schedules to be here 
today, and I appreciate their support.
    A very dear family friend, Mrs. Kala Prasad, is here today 
accompanying, finally, my mother, Mrs. Dina Shah, and I 
appreciate all the support that my family has given me.
    And one final word of thanks, my father, Dr. Suresh Shah, 
passed away last year. He would have been thrilled with this 
moment for me, and I would like to take the opportunity to at 
least place his name in the record of this august body as a 
small token of my thanks.
    And with that, I am happy to answer any of the questions of 
the Committee.
    [The biographical information of Mr. Shah appears as a 
submission for the record.]
    Senator Durbin. Thank you. I am sure your father would be 
honored to see you before us today, and in his memory, we will 
be remembering him, as your family is at this moment.
    Let me ask you, Mr. Shah--just a few questions for the 
three nominees--most of the work which you will probably do on 
the Federal bench will be of a criminal nature to start with, 
not exclusively but a lot of criminal work, and there will be 
many criminal defendants who will stand before you in a 
courtroom seeking justice, and they will undoubtedly know that 
your background is primarily that of a criminal prosecutor. 
They may wonder if they are going to get a fair shake from 
someone who spent most of their legal career at the other 
table.
    What assurance could you give them and this Committee today 
about that concern?
    Mr. Shah. Senator, thank you for the question. I can give 
this Committee my personal assurance that when and if I were 
fortunate enough to be confirmed, I would absolutely shed the 
role of an advocate and become the neutral arbiter that I 
firmly believe the judge must be. For stability and integrity 
of the rule of law, the judge must be open-minded and fair to 
all who come before the court.
    And I will say that it has been my experience as a 
prosecutor that being a prosecutor is not just being an 
advocate seeking a conviction at all costs. A prosecutor has to 
be thoughtful about the very consequential decision to bring a 
criminal charge, and I have been fortunate enough to experience 
a prosecutor's office that takes that responsibility very 
seriously, and I have learned from, I hope, the very best, and 
I have tried to pass on to others in my office that one should 
never forget that the choice to bring a criminal charge affects 
defendants and that one should always consider the vantage 
point of the defendant when wrestling with issues in criminal 
prosecution. And while I would be shedding my role as an 
advocate if I became a judge, I certainly would take with me 
the appreciation of the gravity of the situation and the 
importance to everybody before the court of having a fair and 
open-minded judge.
    Senator Durbin. Thank you.
    Mr. Bastian, among other things, you were president of the 
Washington State Bar Association from 2007 to 2008. You have 
had an active private practice of your own. What qualities do 
you look for in a Federal judge if you are going to appear 
before him?
    Mr. Bastian. Your Honor, I look to the same qualities that 
I think I brought my practice. I think that a Federal judge 
should be fair, should work hard, should give everybody in the 
courtroom an opportunity to be heard, should listen carefully 
to the points that they are trying to make, should strive hard 
to make them feel that they are getting justice in the 
courtroom even if they are not pleased with the result. And I 
think all of those qualities I will bring to the bench if I am 
confirmed, and that is what I look as my role model.
    Senator Durbin. In response to your questionnaire, you 
talked about a case that you took to trial in 2009, Bining v. 
Central Washington Hospital. In that case, you represented a 
plaintiff diagnosed with cancer who took leave under the Family 
and Medical Leave Act. The plaintiff was replaced while she was 
on leave, and when she got better and went back for her job, 
her employer did not provide her an accommodation. She sued for 
disability discrimination, and the case resulted in a 
deadlocked jury.
    Can you please discuss some of the facts of that case and 
the work you did on it?
    Mr. Bastian. That was a case--I generally work as a defense 
attorney in employment-related matters. In that case I 
represented the plaintiff. She was a woman who I believed was 
not provided the accommodations that she was entitled to by her 
employer. We tried to convince the employer to offer those 
accommodations prior to filing the lawsuit, and we were not 
given the relief that we were looking for.
    We took the matter to trial. We mediated it twice. We still 
felt that it was important to try the case. And I think the 
jury was bothered with the accommodations that were offered and 
with whether or not those were sufficient for what she 
struggled with.
    Unfortunately the jury hung, and we did not have a decision 
from them. We settled the case a few weeks later with 
mediation, but we got a much better result for her than we 
would have prior to trial, so I think the trial was a very 
useful tool to get her the relief that I think she was entitled 
to. I believe that Ms. Bining is still with us and is still 
successfully employed.
    Senator Durbin. More and more cases are headed to 
mediation. More and more Federal judges retire now instead of 
going senior status to become mediators. What do you think 
about this trend?
    Mr. Bastian. Well, I think mediation is a very important 
tool in resolving cases, and that is, after all, what we are 
trying to do, is to get that case resolved after it starts. 
That is what I always tell my clients when they come in and 
hire me, that my job is not necessarily to take their case to 
trial or to get the best result that they might have in mind. 
My job is to get that dispute resolved.
    I think, unfortunately, a lot of our courts are backlogged 
with family law cases, particularly at the State level, with 
criminal law cases, and it is difficult for civil cases, the 
type of cases that I have worked on in my career, to get to 
trial. Therefore, it is important that we always look to 
settlement conferences, mediations, and arbitrations if 
necessary to try to resolve that matter. I think it is a very 
useful tool, and it is a tool that we should always keep in 
mind for every case.
    Senator Durbin. Ms. Lipman, you became in-house counsel at 
the University of Memphis and represented the school for nearly 
a decade in litigation involving the school. You know that I 
represent the city of Chicago. You may not know that I am a 
Chicago Bulls fan, but you can probably guess my next question.
    Could you tell us about a case you were involved in, a 
high-profile case involving Derrick Rose as a student at the 
University of Memphis?
    Ms. Lipman. Yes, Senator. Thank you. I could probably go on 
for much longer than you really want to hear about the case. It 
was a very high profile matter in the city of Memphis. Like in 
Chicago with your Bulls, the Tigers are very popular in the 
city, and it is truly the city's team.
    That was an unfortunate situation where we had a student 
athlete who played an entire season. We assumed that he was, in 
fact, eligible to play. We had a wonderful season. It was a 
joyous year for all Tiger fans--and you may have seen the 
article I wrote about this--until 2 minutes and 12 seconds to 
go in the game, we were up by 9, and then it went downhill.
    After the season was over, after the school year was over, 
in fact, the school was notified that the student athlete's SAT 
score was invalidated, which meant that he was not eligible, 
and we began the NCAA process of essentially trying that matter 
within the confines of the NCAA.
    It was an interesting case, had all sorts of different 
angles to it, from the press' view to fans' view to how the 
NCAA approaches infractions matters. In the end, the season was 
invalidated. The NCAA felt--the Committee on Infractions as 
well as the Infractions Appeals Committee felt that the 
university should be strictly liable for the student athlete's 
invalid test score and his ineligibility and, therefore, 
invalidated the season and required that we repay the bonus 
money.
    I will add on behalf of the student athlete, he was never 
found to have not taken his test. It is simply that he did not 
get the--we have no proof that he got the notice and was able 
to respond to the inquiry from the testing service.
    I would be happy to answer any other questions. We could 
talk for days.
    Senator Durbin. I am sure there is a lot more you could 
say.
    Senator Grassley.
    Senator Grassley. I will have different questions, as the 
Chairman did, for each of you, so do not feel offended if I do 
not ask each of you the same question.
    First of all, congratulations for your nomination. I will 
start with you, Ms. Lipman. Where in the Constitution do you 
find the right to privacy? That is a philosophical question, 
but one I would like to have you answer.
    Ms. Lipman. Well, the Supreme Court has noted that there is 
a right to privacy in the Fourth Amendment, in the Fourteenth 
Amendment, has found that right to privacy in several different 
situations.
    Senator Grassley. What is your understanding in general 
terms of the contours of that right to privacy?
    Ms. Lipman. The Supreme Court, again, has held that there 
is the right to--in the context of the Fourth Amendment, of 
course, the right to be free from unreasonable searches and 
seizures; in the Fourteenth Amendment, there is marital privacy 
rights; and other situations like that.
    Senator Grassley. Yes. I am going to bring up a 
controversial issue. I am not asking you for your opinion on 
it. I just want to know how you might approach this as a judge.
    If confirmed, how would you approach a law that requires 
physicians performing abortions to have hospital admitting 
procedures? I am not asking how you would decide the case, but 
I am interested in what factors you would consider and what 
weight you would give to those factors.
    Ms. Lipman. Well, Senator, as a district court judge, my 
job is to look to the facts of the case and then look to 
precedent and to look to what the Sixth Circuit has instructed 
the judge to look to as well as the Supreme Court. So my 
approach to the case would be to look to case precedent, to 
analyze the facts in front of me, and to apply that precedent.
    Senator Grassley. Okay. Because of your involvement in the 
Memphis Regional Planned Parenthood, I would ask you maybe a 
general description of your roles, but more specifically, what 
policies have you been involved in, in crafting, advocating 
for, or advising on while associated with that organization?
    Ms. Lipman. Certainly, Senator. My role--as you know, I 
served as a board member and as board chair of the local 
affiliate of Planned Parenthood. My role during that time was 
really to try and help the organization in terms of their 
operations. It had not been an affiliate that was operated in a 
very business-like fashion, and so the concentration of my time 
and effort during that time period was to help right the ship, 
so to speak, to help it operate in a more efficient way.
    In terms of policies, it was not a time where I 
participated in policies, so I--that was my role at the time.
    Senator Grassley. Okay. Mr. Bastian, in 2007, as president 
of the Washington State Bar Association, you advocated for the 
fundamental right to Government-provided counsel for low-income 
litigants in civil matters. What is the constitutional 
provision, statute, precedent, or legal analysis you used to 
determine this fundamental right?
    Mr. Bastian. Well, I think we were looking to the language 
of the Constitution and equal justice for all, and we were 
faced with a problem of people coming into the courtrooms 
without lawyers because they could not afford them, and it 
would be very difficult for the judge--it would be very 
difficult for them to find their way through the civil 
procedure rules and the rules of law. It is difficult for the 
judge to help them sort that out, and it clogs the system. And 
I think that it is important for all litigants to have access 
to an attorney if they can afford it, certainly, and if they 
cannot, that is one of the things I have done, as the former 
chair now, not the chair of the local Equal Justice Coalition, 
to try to advocate for funding for that.
    So we do think it is important, and unfortunately, too many 
litigants cannot afford lawyers, and that creates quite a 
strain on the civil justice system.
    Senator Grassley. If confirmed as a Federal trial judge, 
you might preside over cases involving indigent pro se 
litigants. Would you remain impartial in those circumstances? 
Or would you feel one party is being denied equal justice 
because they are not represented?
    Mr. Bastian. Senator, my job as a trial judge is to remain 
impartial on all cases, independent of whether the parties are 
represented by counsel or not. I think the challenge that your 
example presents is that sometimes it is difficult for a judge 
to discern exactly what the unrepresented party is advocating 
or is trying to argue. That is a challenge that I am prepared 
to meet, but I can assure you that I will remain impartial 
regardless of whether they are represented or not represented.
    Senator Grassley. Okay. You were past president of the 
State bar, but the board's presiding officer. You broke with 
the bar's--the association's tradition of abstaining from 
political matters to join a resolution signed by bar 
association board of Governors supporting equal access for 
same-sex couples, civil marriage, and its attendant legal 
rights and obligations afterwards, and those few words are in 
quotes. I should have said that.
    It appears this decision was made without polling bar 
association members. Why did you feel that it was necessary to 
break with the norm of abstaining from political matters?
    Mr. Bastian. Well, I am not sure that I agree with the 
facts as you stated them. As the president of the board of 
Governors, I do not have a vote, and I did not vote at that 
particular meeting. I did sign the resolution because that is 
my job as president to do, acknowledging that the board has 
taken----
    Senator Grassley. Well, then, I am wrong in assuming you 
were part of that decision then. If I am wrong, you can tell me 
I am wrong.
    Mr. Bastian. I do not think you are wrong, Senator 
Grassley. However, I do not believe that we broke from a 
longstanding tradition in terms of taking a position on a 
political matter. It clearly does have political import, but 
our job as the board of Governors and my job as president of 
the board was to guide the bar in taking positions on 
legislation when asked to, if that legislation impacted the 
practice of law and the administration of justice. And so it 
was the decision of the board of Governors during the time that 
I was president that supporting marriage equality legislation, 
in fact, did impact the practice of law and the administration 
of justice, and that is why they took that position.
    We did not poll the members of the bar, but we knew that it 
would be--you know, there would be opposition to it, and there 
was. But what we did to plan for that resolution, for about 2 
years we held seminars throughout the State of Washington. We 
invited all members of the bar to come. We offered them CLE 
credits to encourage them to attend, and we offered everybody 
an opportunity to be heard on it before that vote was taken. So 
we felt that we did involve the bar as much as we could.
    Senator Grassley. Last question. You said in 2007 that 
diversity is a journey not a destination. ``The public must 
trust that justice will be delivered in a fair and impartial 
manner, but this trust can be easily lost if lawyers and judges 
do not reflect the public they serve.''
    Are you saying that the public cannot trust people who do 
not reflect their own personal demographics?
    Mr. Bastian. No, not at all. I think what I was trying to 
do was encourage debate and thought on the part of the members 
of the bar that it is important to have diversity both in the 
legal profession, those serving as lawyers and those serving as 
judges. However, I think all of those people who are serving as 
both lawyers and judges are all trained in the same legal 
system, all trained to respect the rule of law, and I would 
expect that all of them, regardless of their race, their 
gender, their geographic area, or their age, all of them would 
approach their role equally. But it is important to cast the 
net widely and to have a diverse membership.
    Senator Grassley. Mr. Shah, I am going to ask you something 
I have got a big interest in, is protecting whistleblowers. At 
CLE on ethics and internal investigations, you addressed 
whistleblower as well as company counsel being present for 
employee interviews by Government agencies. Would you please 
further describe your experience with whistleblower cases?
    Mr. Shah. Yes, thank you, Senator, for the question. In my 
current practice at the U.S. Attorney's Office in the Criminal 
Division, it is not uncommon for matters to be referred for 
potential criminal investigation and prosecution that were 
initiated by civil litigants, possibly filing a False Claims 
Act case, qui tam litigation, as well as, more broadly 
speaking, it is not uncommon for individuals who are insiders 
in corporations or institutions to report wrongdoing that they 
have observed in the course of their employment to the 
authorities.
    And so in my experience as a criminal prosecutor, I have 
had occasion to review cases that were either initiated or a 
byproduct of some type of whistleblower complaint. It is not an 
uncommon feature of criminal investigation.
    Senator Grassley. Okay. And in a general way, give me your 
view on whistleblower assertions.
    Mr. Shah. Well, Senator, the general view of whistleblower 
assertions in my experience is really no different than 
assertions from anyone. Every case requires investigation and 
thoughtful deliberation to determine the facts in any given 
case, without regard to the nature of the person making the 
complaint being labeled a ``whistleblower'' or not.
    Senator Grassley. I think you just answered another 
question, so I will go on. Would you comment on particular or 
special ethical considerations that are raised by employee 
interviews by Government agents?
    Mr. Shah. Well, in my experience, Senator, one of the 
ethical considerations that comes into play when agents are 
interviewing employees is the question of their representation. 
If the corporation is represented by an attorney, it is often 
the case that that attorney may also be the attorney for the 
individual employees, and those raise ethical questions with 
regard to having contact with individuals who are represented 
by attorneys, and it has been my experience that we look very 
carefully at the ethical rules that might apply before 
authorizing an agent to speak to anyone who may or may not be 
represented.
    Senator Grassley. Okay. My last question. On a number of 
occasions, you addressed the University of Chicago Law School 
regarding Federal sentencing. In your notes, you stated, ``The 
prosecutor is or should be thinking about all defendants 
currently in the system, past and future defendants, victims 
and future victims, and policy goals that are set to achieve 
societal interests.''
    Do you believe that the role of a prosecutor is to advance 
a policy agenda?
    Mr. Shah. Senator, thank you for the question. I think the 
comment that I was making in those talks was to address the 
issue from the prosecutor's perspective, which is to enforce 
the law and often enforce judgments that are made by 
prosecutors about the types of crimes that ought to be 
investigated and prosecuted. And it is on occasion a judgment 
made by the executive branch as to what crimes ought to be 
investigated and prosecuted. And those are necessarily policy 
judgments, but are made by the appropriate officials of the 
executive branch in seeking out criminal prosecution.
    Senator Grassley. Then in your prospective position as a 
Federal judge, what weight would you give to societal interests 
in deciding cases or controversies?
    Mr. Shah. Thank you for the question, Senator. None. My 
approach would be to study the text of whatever provision were 
before me and to apply the law according to precedent.
    Senator Grassley. Thanks to all of you.
    Senator Durbin. Thanks, Senator Grassley.
    There will be a statement for the record from Congressman 
Steve Cohen entered in support of Sheryl Lipman.
    [The prepared statement of Representative Cohen appears as 
a submission for the record.]
    Senator Durbin. And Senator Cantwell regrets that she could 
not be here today to speak personally in favor of Mr. Bastian, 
but gives her assurance that she will join in supporting his 
nomination and speak on the floor about his qualifications for 
this judge.
    Mr. Shah, thank you so much for being here, and I would 
have to say in just a moment of personal pride, we have been 
able to work out judicial appointments in Illinois, sometimes 
with the great cooperation of my friend here, on a very 
bipartisan basis, and the same is true of your nomination. We 
are very proud of the fact that you have stepped forward and 
are willing to serve in this capacity, and I think that you 
will be a good person to support before the Committee and the 
full Senate.
    We will leave the record open for any questions that might 
be sent your way. The quicker you can respond, the quicker you 
might even get on the Committee calendar. So we ask you to try 
to do that in a thoughtful way and as quickly as possible.
    We thank you and all of your friends and relatives for 
being with us today, and if there is nothing further, the 
Committee will stand adjourned.
    [Whereupon, at 3 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]






 NOMINATION OF DAVID JEREMIAH BARRON, NOMINEE TO BE CIRCUIT JUDGE FOR 
                           THE FIRST CIRCUIT

                              ----------                              


                      WEDNESDAY, NOVEMBER 20, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Grassley, Lee, and Cruz.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Today we are going to welcome David Barron, 
a professor at Harvard Law School and President Obama's nominee 
to the U.S. Court of Appeals for the First Circuit. I had hoped 
to also include the five nominees for the judicial emergency 
vacancies in the District of Arizona in this hearing, but we 
have not yet received the blue slips from the Arizona Senators. 
So once they return those blue slips, we can include them.
    Before we start the hearing, I would note that one of my 
heroes is here: Justice John Paul Stevens. He is here on behalf 
of Mr. Barron, his former law clerk, and if we were a couple 
minutes late, it is because Justice Stevens and I have to get 
caught up when we see each other and tell tales. But, Justice, 
it is always great to see you, and thank you for being here.
    Do you wish to say something?
    Senator Grassley. Oh, are you ready for me?
    Chairman Leahy. Sure.
    Senator Grassley. Do you have a statement?
    Chairman Leahy. I just did.
    Senator Grassley. Then I will assume some of his time.

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

    Senator Grassley. Today we are holding the 17th judicial 
nomination hearing of the year, during which we will have 
considered a total of 58 judicial nominees. I would note this 
is the fourth nomination hearing in 4 weeks, so anyone who says 
Republicans are engaging in unprecedented obstruction is 
ignoring the cooperation that we Republicans have shown and I 
as Ranking Member trying to work with the Chairman.
    Compare the record on hearings for President Obama this 
year with how President Bush was treated in the fifth year of 
his Presidency.
    In 2005, the final judicial nomination hearing was held on 
November 15th. That was not the 17th hearing of the year, as we 
have done this year, but only the sixth hearing on lower court 
judges. During those six hearings we heard from not 58 judicial 
nominees, but only 15 district and circuit nominees.
    How are we doing this year compared to last year? 2012 was 
a very productive year for judicial nominations. In fact, in 
the 112th Congress, President Obama had more district judges 
confirmed than were confirmed in any of the previous eight 
Congresses. Our work in Committee last year contributed to that 
accomplishment when we held 10 hearings for 41 judicial 
nominees.
    In addition, I would like to have everybody be reminded 
that we have now confirmed 38 lower court Article III judicial 
nominees this year. That is more than two and a half times the 
number confirmed at a similar stage in President Bush's second 
term, when only 14 district and circuit nominees had been 
confirmed.
    In total, the Senate has confirmed 209 lower court Article 
III judges. This includes a significant number of women and 
minority nominees. We could have confirmed more judges over the 
last couple of weeks, but the Senate majority decided to take 
precious floor time for a diversionary political exercise 
rather than confirming additional judges.
    Now, as I explained earlier this week, the other side has 
been working diligently to manufacture a crisis on the D.C. 
Circuit. And in order to support their claim that the 
Republicans are obstructing nominees, it appears the other side 
is doing a sleight of hand on the data as well.
    Recently, one of my colleagues stated that the Senate 
Republicans have filibustered 34 of President Obama's nominees. 
So if you pay attention, you would know that Republicans have 
filibustered only a handful of nominees. So what are the facts? 
How does the other side get to 34?
    To begin with, fully one-half of these cloture petitions 
were filed by the majority on day one as a procedural gimmick 
and were totally unnecessary. None of those 17 cloture 
petitions required a vote. Every cloture petition was 
withdrawn, and every single one of these nominees was 
confirmed. So that was just another part of manufacturing a 
crisis.
    So that leaves us 17 of the 34. But Republicans have not 
filibustered anywhere close to 17 nominees. So, again, the real 
story is:
    Of the remaining 17 cloture petitions, 6 of those were also 
withdrawn. That leaves only 11 nominees who have actually faced 
a cloture vote. One of these nominees had 2 cloture votes, for 
a total of 12 cloture votes. Yet 6 of those 11 nominees were 
confirmed. That leaves only 5 nominees who have failed to 
achieve cloture vote.
    So to sum up, the majority claimed earlier this week, with 
great fanfare, that Republicans had filibustered 34 nominees, 
when we have actually stopped 5 nominees. And of those five, 
three are still pending in the Senate, leaving only two 
nominees actually defeated by filibuster.
    I suppose that is what one is required to do in order to 
overstate the record established during this administration 
compared to what it was during the Bush administration.
    During the Bush administration, Senate Democrats truly were 
unprecedented in their use of cloture against judicial 
nominees. In fact, they forced 30 cloture votes on judicial 
nominees, including a Supreme Court nominee.
    So that is the factual record: 30 cloture votes during the 
Bush administration, 12 cloture votes during President Obama's 
term. Of those 30 cloture votes faced by President Bush's 
nominees, Senate Democrats obstructed nominees 20 times.
    So to emphasize a point, during the Bush administration 20 
cloture motions failed. Senate Democrats continued to obstruct 
judicial nominees 20 times.
    So I think it is clear which party holds the record on 
delaying or obstructing confirmation. The number of cloture 
votes demanded by Senate Democrats on President Bush's nominees 
is two and a half times the number of cloture votes on 
President Obama's nominees. The number of times Senate 
Democrats refused to end debate is nearly three times what 
Republicans have done. Democrats clearly hold the record on 
delaying and obstructing.
    I think we have treated President Obama in a fair manner, 
and he enjoys an outstanding record for his judicial nominees.
    One final point on this charge that Republicans obstruct 
has left the Federal judiciary with high vacancies. The fact is 
President Obama's initial delay in nominations was the primary 
factor in the lower number of confirmations during the first 
term, resulting in the high number of vacancies.
    Even now, 42 of 93 vacancies have no nominee. That is 45 
percent of the vacancies with no pending nomination before the 
Senate. While this percentage recently has been reduced, it was 
the case for most of the Obama Presidency that the majority of 
vacancies had no nominee. Of the 38 judicial emergencies, 18 
have no nominee. That would be 47 percent. The Senate cannot be 
held responsible for these vacancies where almost half the 
seats have no nominee.
    Having set the record straight, let me now address today's 
nomination. I welcome the nominee, his family, and guests. This 
nomination has been pending in the Senate just 55 calendar 
days. I would note that President Bush's circuit nominees 
waited an average of 246 days for a hearing, more than four 
times the wait of this nominee.
    Mr. Barron has an extensive record as an academic. He has 
written on a wide range of subjects. I think it would be fair 
to say that I probably do not agree with much of what he has 
written. But that is not necessarily the standard for my review 
of his qualifications to sit on the Federal bench.
    I am interested in hearing his views on executive 
authority; on his work while on the Office of Legal Counsel; on 
his judicial philosophy, particularly what he calls 
``progressive constitutional outcomes''; and on a variety of 
other topics. I expect to address some of these today and will 
likely have a significant number of questions for answer in 
writing.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    This discussion is so fascinating, I have almost forgotten 
that we are here for Mr. Barron's nomination. But I do share 
the Ranking Member's concern about the number of vacancies on 
the Federal bench, and I would note there are 17 nominations 
pending on the Senate floor waiting for clearance by the 
Republicans, and we can lower that vacancy number by 17 this 
afternoon just by allowing them to be voted on.
    Mr. Barron, please step forward. Do you solemnly swear that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Barron. I do.
    Chairman Leahy. Mr. Barron, I have had the opportunity to 
meet your family when I came in, but please, so that someday in 
the Barron family archives, when they go back and find the 
transcript of this hearing, you will want to know who was here. 
So would you please tell me who you have here with you?
    Mr. Barron. I just want to make sure I do not forget 
someone, if that is what is going to be----
    Chairman Leahy. If you do, you are the one that is going to 
have to answer to it, not me.
    [Laughter.]
    Chairman Leahy. Please go ahead, sir.

          STATEMENT OF DAVID JEREMIAH BARRON, NOMINEE
           TO BE CIRCUIT JUDGE FOR THE FIRST CIRCUIT

    Mr. Barron. First, I just want to express my great thanks 
to you, Senator Leahy, for chairing the hearing today, and 
Ranking Member Grassley for convening it, Senator Lee for being 
here, to the President for nominating me, and I just would like 
to introduce my family to you.
    Right behind me is my wife, Juliette Kayyem, and next to 
her are my three children: my oldest, my daughter, Cecelia; my 
oldest son, Leo; and my youngest son, Jeremiah. Jeremiah told 
me he had an awesome gym class that he had to miss, so I 
appreciate his sacrifice for being here. Then Mallory Heath, 
who helps us with the kids, but we hope not this afternoon.
    And then over here is my parents. That is my father, Jerome 
Barron, who taught constitutional law for over half a century, 
much of it at George Washington, just retired last year. And 
then my mother, who is an attorney in her own right, Myra 
Barron.
    And then back this way I have a contingent of in-laws who 
are enthusiastic, and they have come. And that is my father-in-
law, Robert Kayyem, and my mother-in-law, Milly Kayyem. And 
then my sister-in-law and her husband, Marisa Kayyem and James 
Watts. And then my brother-in-law, John Kayyem.
    And then if I may, one other guest that I would like to 
just say something about, which is Justice Stevens, who I had 
the honor of clerking for and who has come here today. He 
instilled in me, as he has instilled in all of his law clerks, 
a deep reverence for the role of the Federal judiciary, so it 
is a particular honor to be able to testify before you today 
with him present.
    [The biographical information of Mr. Barron appears as a 
submission for the record.]
    Chairman Leahy. I might note that the very first Justice of 
the Supreme Court I got to vote on as a Member of the U.S. 
Senate was John Paul Stevens. That was a very difficult 
confirmation. I think he was confirmed on one day, heard on the 
next, and passed out of the Senate on the third. It was not 
quite that much, but it was not much longer than that. It was 
just a very few days, and I know that in later years hearing 
President Ford speak of his pleasure in appointing him, and he 
was also confirmed unanimously.
    Did you have a statement you wished to make, Mr. Barron?
    Mr. Barron. No, Senator. I am fine.
    Chairman Leahy. Thank you.
    Well, you have spent much of your career as a professor of 
law at Harvard Law School and a career that, by every report 
that we have, was a very distinguished one. But what is going 
to be the most difficult aspect if your transition from being a 
professor of law to a Federal court of appeals judge, if you 
are confirmed?
    Mr. Barron. Senator, thank you for the question. It is a 
very different job. The role of an academic in teaching has 
certain attributes to it that are, I think, relevant. They 
teach you to be open minded, to consider the weak points and 
arguments, but also to learn how to see arguments in their best 
light, and to teach students that.
    But the role of an academic is to think about broad 
patterns of law in more abstract ways, and I know from my 
experience in the Government that the actual legal questions 
when you have to give advice on them is to think about them in 
their particularity in connection with precedent and the role 
of precedent. And so going to the Federal bench really will 
call upon those skills in particular.
    Chairman Leahy. There is the obvious precedents of your own 
circuit, the First Circuit, that you would agree should be 
ignored only--well, not ignored but reversed only in the most 
extraordinary circumstances. Is that correct?
    Mr. Barron. It is correct, and also never by a member of a 
panel.
    Chairman Leahy. That is right. And, of course, if it is a 
decision by the Supreme Court, as the circuit court you are 
bound by it, are you not?
    Mr. Barron. Absolutely.
    Chairman Leahy. You know, I am constantly in readings, as 
we all are, looking at, I think, the extraordinary wisdom of 
our Founders of this country and the three branches of 
Government--two of them, of course, political, elected and so 
forth. The judiciary is not. It is supposed to stay out of 
politics. It is an undemocratic branch of our Government in 
that sense. And in the Federal judiciary, unlike in some State 
courts, this is a lifetime position.
    Like many on this panel, I have argued a lot of cases in a 
lot of different courts--State, Federal, courts of appeals. I 
have always felt that whoever the litigant is, when they come 
in there, they should look at the judge and figure that they 
are not going to be--their case is not going to ride on who 
they are, whether they are Republican, Democrat, plaintiff, 
defendant, State respondent, whatever, rich, poor, so on.
    Now, obviously any judge has their own feelings, their own 
opinions on things, personal opinions. But can you tell us as a 
panel, whether I am arguing before you or anybody else--well, 
take it out of the realm of me arguing--no matter who the 
person is arguing, no matter who the two sides are, no matter 
what the issue is, that you can take it squarely and say, ``I 
will make this on the merits and on the law''?
    Mr. Barron. Absolutely, Senator. The reason our rule-of-law 
system works as well as it does is precisely because the judges 
that people appear before have an obligation to set aside their 
personal views and decide it solely on the law, and it is what 
I am committed to doing and pledge would to do.
    Chairman Leahy. You also have to decide when you have a 
conflict of interest. I had a man who was a part-time 
Vermonter. While we had differing views of things, we became, I 
believe, good friends. There was an area where I disagreed with 
him, and that was later Chief Justice William Rehnquist. But 
prior to becoming Associate Justice on the Court, he served as 
Assistant Attorney General of the Office of Legal Counsel, and 
after he was confirmed as Justice, he participated in a case 
called Laird v. Tatum, where he cast the deciding vote in a 5-4 
decision and dismissed the plaintiff's claims regarding a 
domestic surveillance program.
    The reason I mention this, he refused to recuse himself 
even though he testified before the Senate Judiciary Committee 
defending the program as constitutional while he was the head 
of the OLC. So he had worked on this for some time, testified 
in defense of it, but then decided a case and whether it was 
constitutional or not.
    Now, many of us felt--and I heard this from both 
Republicans and Democrats--that this may have been a violation 
of judicial ethics.
    Now, I know you cannot disclose all the issues while you 
worked at the Justice Department, but what do you see as a 
recusal standard? What type of cases are you going to recuse 
yourself from?
    Mr. Barron. Senator, the standards have been set forth by 
Congress and then also set forth in the Canons of Judicial 
Ethics, and the standard is not just that there be no conflict 
but that there not even be an appearance of a conflict, and 
that would be the standard that I would honor in making these 
decisions, on executive branch lawyers' privilege to have the 
trust of making a variety of difficult decisions on very 
sensitive matters, and I think it is incumbent upon people who 
have those roles to take seriously, if they do have the honor 
of becoming a judge, to consider in the precise factual 
circumstances whether an appearance of a conflict would arise, 
and if it would, to recuse oneself from the case.
    Chairman Leahy. I know that we did not ask Chief Justice 
Rehnquist or Justice Scalia or Judge Bybee of the Ninth Circuit 
about all the cases they worked on in the OLC, nor are we going 
to ask you. But I think we have to look for the most 
transparency as possible.
    There was one very high profile--and I realize my time has 
gone over, but I just discussed this with Senator Grassley, and 
he has no objection. Because when you led the Office of Legal 
Counsel at the Justice Department, during that time the memo 
authorizing the targeted killings of U.S. citizens overseas was 
issued.
    Now, I have some serious concerns about the legal 
justification for such targeted killings. What is your view--
first, what is your view on the legal and constitutional 
grounds for the targeted killing of an American overseas using 
a drone? And, second, how imminent must the threat to national 
security posed by such an individual be in order to justify 
such a strike?
    Mr. Barron. Senator, thank you for the opportunity to 
address the questions that you have asked. On the advice that 
may have been given by the Justice Department, you know, 
because of classification issues and confidentiality 
obligations, I do not feel free to discuss that. But in terms 
of the legal principles and legal issues that one has to 
consider, I do have some things that I would like to say in 
that regard.
    It is as weighty an issue as arises in the legal system 
when a U.S. citizen is involved in an overseas operation, and 
the issue concerns the use of lethal force. And in thinking 
through those questions, there are three considerations, I 
think, that at a general level are critical.
    The first is to inquire into the source of authority that 
the President is relying on and, in particular, whether the 
President is relying on an authorization that Congress has 
provided in connection with an armed conflict so that the 
operation would be directed and not against a U.S. citizen 
abstractly but against a person who was thought to be an enemy 
in that armed conflict. It would also be critical to see 
whether Congress had in any manner, in any measure limited the 
scope of that authority through other statutes that, pursuant 
to their broad war powers, they may have enacted.
    And in construing those authorities, it would also be 
important to consider the laws of war that inform the statutory 
grants of authority that had been given to the President. But 
that is only on the authority side. There is also a question of 
constitutional guarantees that citizens enjoy, and----
    Chairman Leahy. And due process.
    Mr. Barron. And the constitutional guarantees are both 
substantive due process, procedural due process, Fourth 
Amendment concerns, and all of those have to be considered as 
to how they may apply in that circumstance.
    In considering those questions, there is a variety of 
things that are going to be relevant to it. It is an overseas 
operation in the circumstance that you are talking about, and 
it matters where it has happened and what alternatives might be 
available to the Government.
    You would want to know a whole bunch of factual 
circumstances about the nature of the circumstances on the 
ground, who the actor was, who might be the subject of such an 
operation. And I cannot stress that last point enough. The type 
of questions that you are asking about is a question that can 
only be answered, it seems to me, with the full understanding 
of the specific factual circumstances that are at issue. And 
the decision about it cannot stray from those factual 
considerations.
    And then the last point, Senator, would be that in all the 
authorities and limitations that I mentioned, one has to take 
account of the precedents and the body of precedents that has 
developed giving shape and content to what the meaning of those 
provisions are.
    Chairman Leahy. Thank you. Thank you very much.
    Senator Grassley, I thank you for your usual courtesy.
    Senator Grassley. Well, thank you very much.
    My first question is approaching the issue he brought up 
just from a different standpoint, more from how it got public. 
And I do not expect you to comment on the fact that I happen to 
believe that this administration is not meeting its most--its 
comment that it is going to be the most transparent in history, 
but it seems ironic that in some accounts, the administration 
has pursued leakers and the media that publishes classified 
information more aggressively than any other administration in 
history. At the same time, however, the administration appears 
to selectively declassify certain information based upon some 
argument of political considerations. So I think you know what 
I am getting at.
    I have some questions about the leaked Office of Legal 
Counsel memo on targeted killings. October 8, 2011, Dan Savage, 
New York Times, wrote an extensive article discussing the memo. 
February of this year, the Chairman and I sent a letter to the 
President requesting access to the memo. Eventually, as the 
Chairman noted, in April the administration made the memo 
available to Members of this Committee.
    According to the Times, you authored the memo. The Times 
article was highly detailed and makes it clear that the author 
had access to the classified memo. One commenter pointed out 
that Mr. Savage had had access to each discrete agreement, knew 
who the principal authors of that document were, and even knew 
the memo's page length.
    Please explain how Mr. Savage came to have access to this 
classified memo. And then I have a three-part along that line: 
A, who gave Mr. Savage access to the memo? B, whether or not 
any administration official was authorized to grant him access? 
C, whether or not any administration official gave access 
without authorization?
    Mr. Barron. Senator Grassley, I have no idea what source 
the reporter in question may have been relying on.
    Senator Grassley. Okay. I am going to continue my 
questioning, and that does not mean I do not believe what you 
just told me.
    Did Mr. Savage or anybody else from the New York Times 
contact you before publishing this story?
    Mr. Barron. Yes, Senator.
    Senator Grassley. Did you discuss any part of the memo with 
him?
    Mr. Barron. No, Senator.
    Senator Grassley. Have you spoken to Mr. Savage or anyone 
from the New York Times about this memo at any point before or 
after the New York Times published this report?
    Mr. Barron. No, Senator.
    Senator Grassley. Have you ever spoken to any reporter 
about this memo?
    Mr. Barron. No, Senator.
    Senator Grassley. Have you participated in any way in the 
unauthorized disclosure of the memo to any third party?
    Mr. Barron. Absolutely no, Senator.
    Senator Grassley. One scholar criticized the administration 
for ``their refusal to save''--let me start over--``their 
refusal to say anything about it''--meaning the memo--``and at 
the same time essentially conducting the foreign policy of the 
United States by leaked journalism.''
    What is the justification for giving this information to a 
reporter but not to the general public in a redacted format 
consistent with national security?
    Mr. Barron. Senator, I am not sure I am in a position to 
answer the question exactly as you posed.
    Senator Grassley. Why don't you ask the question of 
yourself and answer it, and I will see if that satisfies me.
    [Laughter.]
    Mr. Barron. Okay. I appreciate the chance to do that.
    Transparency is an important value. As your question 
suggests, classification is a critical value as well. As an 
attorney giving advice to the executive branch, the authority 
to decide when to declassify something or when to waive a 
privilege does not reside with the attorney. It resides 
ultimately with the executive branch itself. And I respect the 
process by which they make those decisions. As you suggest, 
they should be made with integrity.
    Senator Grassley. As I study this response you just gave to 
me, I may have a followup question for answer in writing.
    Now I want to go to another issue. You have been highly 
critical of previous administration approaches to the war on 
terror. In fact, in a 2006 radio interview, you were asked 
whether John Yoo, who worked in the same OLC office that you 
did, was a war criminal. You said, ``People who take positions 
saying that it is legal for U.S. personnel to engage in torture 
have to expect that they are going to be raising questions 
about whether they are authorizing war crimes.''
    You went on to say, ``It is not my place to say whether 
anyone committed crimes.''
    So in 2006, you suggested John Yoo may have authorized war 
crimes. Yet according to the New York Times, you authored a 
memo authorizing targeted killings of U.S. citizens abroad 
without due process. How do you distinguish between these two 
scenarios from a constitutional standpoint?
    Mr. Barron. Thank you, Senator. I think I should just say, 
since there is a reference to this memo that is coming up 
repeatedly, that because of the classification issues and the 
attorney-client privilege and other forms of privilege that 
apply, I do not want to be taken to be in any sense confirming 
the existence of the particular memo that was reported in the 
New York Times. But I say that only just to make that clear.
    On the question that you raise, I am familiar with the 
interview in which I said that I had every reason to believe 
that Professor Yoo was acting in good faith when he offered the 
legal judgments that he did. But I was objecting in particular, 
and did on a number of occasions, to one particular form of 
constitutional argument that was being made in that 
administration, and it was a view of the President's power to 
act in violation of a statute that Congress had enacted 
restricting the rights or the authorities of the President 
during wartime. I thought that that claim that the President 
alone was entitled to make those decisions was an overly broad 
claim, and that position ultimately was withdrawn, limited by 
attorneys within the Bush administration itself.
    Senator Grassley. Yes. So I think what I heard you say is, 
just what you said is that distinguishing between your position 
as you stated it in the radio program and your memo versus what 
you said. Is that what you just told me?
    Mr. Barron. Senator, I cannot speak to the merits of the 
memo, but what I am saying is that the particular concern that 
I was raising was a concern about the President acting in 
contravention of a statute on the ground that Congress could 
not limit his wartime powers.
    Senator Grassley. To this very day, do you believe that 
Professor Yoo potentially authorized war crimes?
    Mr. Barron. Senator, I do not quite know how to answer that 
question in the following sense, which is I do not believe 
Professor Yoo, even though I disagree with his arguments, did 
anything unlawful in any respect. And if there is any 
suggestion that that is what I was suggesting, I regret it and 
do not take that as my position.
    With respect to the question you asked and the way you pose 
it, I am just hesitant to ask because I think it is hard to 
answer it without taking a position as to what the particular 
meaning of a criminal statute is in a particularized case. And 
I think given the position that I am before you seeking, I do 
not think it is appropriate for me to take a view on whether 
particular conduct was or was not criminal in a specific 
circumstance.
    Senator Grassley. I will have to quite in a couple of 
minutes because I am over the time that you--well, I will just 
stop whenever--I think it is about 2 more minutes.
    You have written about progressive and conservative 
constitutionalism. I would like to have you explain those terms 
and which of those terms best describes your own view.
    Mr. Barron. Senator, I am glad to have a chance to address 
the question. As I reviewed back on the writings, I confess it 
is not entirely clear what content those terms have. I think it 
is fair to say that in academic circles they are an attempt to 
give some label to what are widely understood divergences on 
the Supreme Court over a variety of issues in the split 
decisions, which often come out 5-4.
    As I noted in those articles, and others have, that is a 
kind of crude split. Justices do not invariably line up in any 
particular way. And as I reflect on those labels, I do not 
think they are particularly helpful in articulating anyone who 
is a judge, what their philosophy would be. It is not the role 
of a judge to come into it with a preconceived vision. What you 
are supposed to do is decide individual cases consistent with 
the facts and the law and the precedents that apply to them, 
and that is how I would approach it.
    Senator Grassley. I will stop with this last question.
    You have written that you were concerned with decisions 
that only looked at prior Supreme Court opinions, statutes, and 
regulations. You said that this kind of constitutional 
decisionmaking, one without looking to law reviews, literature, 
treatises, and such, can be ``awfully cramped and technical'' 
and that ``lost in this approach is any sense of a broader 
legal culture that produces authoritative legal statements or 
the way in which such legal statements in turn shape the 
culture.''
    What role would law reviews, literature, and treatises have 
in your judicial decisionmaking if you get to the court?
    Mr. Barron. Much less than law professors would wish, I am 
sure. And I want to just clarify on that comment. I am aware of 
the writing that you are talking about. It was a blog post, and 
in it I was making an observation, a very early observation 
about opinions from a Justice. And I noted in that same blog 
post that there was also much to be said for what I called, I 
think, in the blog post a ``just-the-facts, just-the-law 
approach.'' And it was really to raise that issue rather than 
to take a position on it.
    Certainly, as Justices sometimes do, treatises and law 
reviews can be relevant in the sense that they organize 
material, but they are not the authoritative sources of 
authority. The authoritative sources of authority are the text 
of the statutes, the text of the regulations, the text of the 
Constitution itself, and the material that gives insight into 
what the meaning of those was intended to be when they were 
enacted. And then, of course, the precedents, both the circuit 
court precedent that binds a circuit court judge and the 
Supreme Court precedent that binds all judges.
    Senator Grassley. I will submit questions for answer in 
writing.
    Chairman Leahy. Without objection.
    [The questions of Ranking Member Grassley appear as 
submissions for the record.]
    Chairman Leahy. Senator Lee.
    Senator Lee. Thank you very much, Mr. Chairman, and thank 
you, Professor, for being with us today.
    I want to start by picking up where Senator Grassley left 
off. So you would agree, then, that the only authoritative 
legal statements, generally speaking, that you look to as a 
judge would be those that are actually produced by one of the 
three branches of Government. Correct?
    Mr. Barron. I absolutely agree with that.
    Senator Lee. And yet that is not at all what you were 
saying in this blog post. I mean, what you were saying in this 
blog post is that lost in this approach, meaning lost in the 
approach taken by Chief Justice Roberts, whose opinion you were 
critiquing on that particular day, is any sense of the broader 
legal culture that produces authoritative legal statements, and 
so you were comparing and contrasting those two. And I 
understand that you are saying--you were raising a question, 
and you made some arguments for both sides. But I read through 
that post, and it looks like you made a lot more arguments on 
one side than the other. Regardless, you did indicate that you 
have your suspicions regarding this kind of practice, and you 
said, ``I have my suspicions that this kind of practice is 
intentional.''
    Do you approach this sort of thing with suspicion?
    Mr. Barron. Senator, far from it, and I think, you know, I 
have supplied the published opinions that I signed when I was 
at the Office of Legal Counsel, and among them is a best 
practices memorandum that I gave to the attorneys who worked 
for me, the career attorneys in the office, as well as the 
deputies. In that document I made clear that the traditional 
sources of meaning are what one looks to. When one is dealing 
with a statute, it is the text and the traditional tools of 
construction of that text. When it is the Constitution, it is 
the text and the purposes that underlie it. And in the opinions 
that I signed when I was in that office, those were the sole 
sources that I relied on for authoritative legal 
determinations.
    Senator Lee. Okay. So that is more the approach you would 
take if you were confirmed than the approach you suggested in 
this----
    Mr. Barron. Absolutely.
    Senator Lee. Okay. I want to turn next to an article you 
wrote in Dissent Magazine in 2005. It is called ``Reclaiming 
federalism.'' On page 66 of that article, you wrote as follows: 
``There is precious little in the Constitution's text or 
history of its adoption that compels the particular 
conservative allocation of national and local powers favored by 
the Rehnquist Court.'' Tell us what you mean by that, because 
as I see it, it is not just a feature. It was perhaps the 
single most important feature of the Constitution and to the 
generation that adopted it, that drafted it, that ratified it, 
was that we would have a national government whose powers would 
be few and defined, while those reserved to the States would be 
numerous and indefinite. This seems to be suggesting precisely 
the opposite.
    Mr. Barron. Senator, the reason that motivated me to write 
that article was that a number of professors were taking the 
position that the so-called federalism revival, Morrison and 
Lopez, were really inconsistent with the constitutional 
structure and that----
    Senator Lee. And should that----
    Mr. Barron. And I do not share that view, and part of the 
reason I was writing at that time was to make plain that it did 
not seem to me that one could just dismiss the Morrison and 
Lopez arguments, that there are limits to the scope of national 
power. And in my writings, I have tried to make sense of what 
those limits are under Lopez and Morrison and the importance of 
them.
    Senator Lee. Okay, but you did say in this that there is 
precious little in the Constitution or its history or its 
adoption that compels a particular conservative allocation of 
power between the Federal Government and State and local 
governments.
    Mr. Barron. I did--I did write that sentence----
    Senator Lee. Do you mean that?
    Mr. Barron. Could I just clarify that for one moment, which 
is, when I--the precise allocation, part of a point that I have 
made in that writing, but I think in another writing, was that 
the shape of the limits that the Court has imposed as a matter 
of federalism have changed at times. The National League of 
Cities approach is different than the approach that was set 
forth in Lopez and Morrison, and I do not think you could read 
the constitutional--I was arguing in those academic writings. I 
do not think you could read the Constitution to make it clear 
that National Cities was wrong versus Lopez was wrong. That was 
the point I was trying to make in that setting about what the 
shape of the doctrine would look like.
    But as to your basic point as to my beliefs, my personal 
beliefs would not be the guide for me as a judge, and my 
beliefs are that federalism is a critical component of our 
constitutional structure, and that any judge is bound by the 
precedents of the Court as articulated.
    Senator Lee. Okay. That is not consistent with the 
statement we just read, but let us move on. There is a 
different statement in the same article that I think sheds some 
further light on it. You conclude with the statement that, 
``federalism is what we make of it. Rehnquist and his 
conservative colleagues have been making the most of it for 
more than a decade. It is time for progressives to do the 
same.'' So when you say federalism is what we make of it, is 
federalism an ass that we drive to one way or another? Is 
federalism that which those wearing black robes happen to think 
that it ought to mean? Is it a means by which we achieve a 
particular outcome?
    Mr. Barron. Senator, I absolutely do not believe it is, and 
in that same piece, I made a point of saying that it has to 
have integrity as a doctrine and it cannot be just what is a 
good policy outcome. Judges should not be deciding issues in 
that regard. What their obligation is is to enforce federalism 
as manifest in the text of the Constitution and also in the 
precedents of the Court that have developed, and that is what I 
would do as a judge.
    Senator Lee. Are we going to have time for another round?
    Chairman Leahy. We may have to come back this evening, but 
yes, if you want one.
    Senator Lee. Could I have 2 more minutes on this round of 
questioning if we cannot get another round?
    Chairman Leahy. I am the easiest-going guy in the world.
    Senator Lee. You are, you are. And we all love you for it.
    Chairman Leahy. Go right ahead.
    Senator Lee. Thank you very much. We have a very benevolent 
Chairman. He is from Vermont, and the people of Vermont are 
well served by him.
    Chairman Leahy. He is saying that, hoping that with that 
endorsement there will be a recall petition on me in Vermont.
    [Laughter.]
    Chairman Leahy. Go ahead, Senator Lee.
    Senator Lee. Thank you.
    There is another document here in which you have written 
that, ``It has long been a precept of the progressive view that 
the Constitution is not frozen and even recent conservative 
judicial nominees seem hesitant to challenge that notion. Its 
provisions are in important respects simply too open-ended and 
forward-looking for that not to be the case, and the 
deficiencies of pure originalism are now too well known.''
    So do you--wouldn't you agree, though, Professor, that the 
whole point of having a Constitution is having some law that is 
in some very important, meaningful respects frozen--frozen and 
to a very significant degree taken off the table, rendered 
immune from the vicissitudes of changing public opinion, 
separated by a couple of degrees from changing public opinion 
and from the way voters vote? Isn't that the whole point of a 
Constitution, is to have something that is frozen?
    Mr. Barron. I do agree with that, and that is particularly 
true of a Constitution like ours, which is a written 
Constitution.
    Senator Lee. And yet you were saying that an approach that 
focuses on textualism and originalism, trying to focus on what 
the language itself said, says, and how it was understood at 
the time it was drafted and ratified, you were saying that that 
is sort of a cramped, overly inflexible sort of approach.
    Mr. Barron. Senator, if I can just elaborate on it a bit, 
there are many instances in which the original intention and 
the text of the Constitution compel an answer. And when it 
does, a judge has no warrant to go beyond it. Even when it does 
not clearly compel it because the Framers themselves seemed 
divided on the issue, the precise technology that they were 
talking about at that time is so different than the technology 
that has developed, the obligation of a judge is to use as the 
foundation point of the analysis what evidence there is of what 
was the purpose and intention of the Framers; but there are 
circumstances in which the Court itself has made clear in which 
the practice of the branches over time with respect to an open 
issue can be determinative of legal decisionmaking. That is a 
point that has been made in the war powers context many times. 
It does not mean that the original intentions do not matter. It 
just means that when there is a general provision and the 
purposes it is hard to know from looking solely to those 
sources, as Justice Jackson said in the wartime context, they 
can be as hard to figure out as the dreams of Joseph, that we 
have no choice but to see how the branches themselves have 
operated over time. But that is a particular aspect of our 
constitutional jurisprudence, and, of course, the precedents of 
the Court guide judges as to when to use that mode of analysis 
as opposed to the originalist analysis you are discussing.
    Senator Lee. Thank you, Professor, and I thank the 
benevolent Chairman.
    Chairman Leahy. Senator Cruz, you are next for the 
benevolence.
    Senator Cruz. Well, thank you, Mr. Benevolent Chairman.
    Professor Barron, thank you for being here. Welcome. You 
and I have known each other a long time. We went to law school 
together, and we have always gotten along well. And I would 
note, then as now, that you have always been a man of the left, 
and you have emphatically and effectively advocated positions, 
very liberal positions, both as a policy matter and a legal 
matter. And I respect that consistency.
    I would be less than candid if I did not confess that I 
have concerns that that life of advocacy is not consistent with 
the role of a lifetime Federal judicial appointment, and so I 
would like to spend some time discussing that. And I would like 
to just start with a general question. Do you embrace the 
notion of a living Constitution?
    Mr. Barron. As I said to Senator Lee, what I understand the 
Constitution to be is a written Constitution whose words cannot 
be changed by a judge and are in that sense frozen. And to the 
extent that the original intentions are not knowable in certain 
contexts or cannot be resolved clearly, the Court and the 
precedents of the Court make clear that in some instances it is 
appropriate to look to the practices of the branches to give 
shape and meaning to them.
    Senator Cruz. So is that a yes or no on a living 
Constitution?
    Mr. Barron. I think it is a no in the way that, if I am 
understanding, you are asking whether I agree with what a 
living Constitution is.
    Senator Cruz. You have also written in defense of what you 
have characterized as a progressive view of the Constitution, 
which is an altogether appropriate view for someone in the 
academy to advocate. But you have discussed that progressive 
view of the Constitution not from the perspective of an 
academic but from the perspective of how courts should enforce 
it. And, indeed, you have written in favor of what you 
described as ``the progressive potential of a significant 
wielder of power,'' the courts. And you went on to embrace the 
notion that the courts should, as you described it, 
``conscientiously arrive at progressive constitutional 
outcomes.'' And I would like to ask if those are still your 
views and if you think it is appropriate for courts to 
conscientiously arrive at progressive constitutional outcomes.
    Mr. Barron. If the idea is that the task of a judge is to 
come to that outcome because it is a progressive outcome, I 
most emphatically disagree with that position. Any outcome that 
is reached has to be based not on the progressive or 
conservative impulses of the judge that they may have had in a 
life before they were a judge. The only thing that can be 
determinative is the legal position. And if I may, to try and 
give you some confidence that I truly do mean that, I guess I 
would point to a couple of things, which is the quality and 
content of the opinions that I wrote when I was entrusted with 
making decisions as a legal adviser on sensitive matters, and 
then in addition, I was gratified by the letters in support of 
my nomination by people who I think quite clearly reject the 
idea of a living Constitution, who know me from a variety of 
circumstances, and believe that the way I would conduct myself 
as a judge is in accord with what I am saying to you today.
    Senator Cruz. I would note that one criticism that has been 
leveled at you is that you were highly critical of Executive 
power when it was administered by a Republican, George W. Bush, 
and then very defensive of Executive power when it was 
exercised by Democratic President Barack Obama. And some have 
suggested that suggests less than consistency or the 
impartiality that we would hope to see in a Federal appellate 
judge.
    In your view, are there instances in which President Obama 
has exceeded his Executive authority?
    Mr. Barron. Senator Cruz, I do not feel I am in a position 
to comment on that beyond the circumstances in which I gave 
advice about the particular questions that were presented to 
me.
    Senator Cruz. Let me help you on that. Setting aside your 
time at OLC, where you had the responsibility as a lawyer, I am 
asking for your view as an academic and commentator. When 
George W. Bush exceeded his legal power and ordered the State 
courts to obey the World Court, I spoke out loudly against that 
and, indeed, litigated the position against the President 
before the Supreme Court. I am asking, Have you publicly 
criticized President Obama in your capacity as an academic for 
ever exceeding Executive power?
    Mr. Barron. I have not written about Executive power since 
returning to academia, if I recall. But can I just answer the 
thrust of the question? Because I do think this is important.
    There was a lot of criticism lodged against the prior 
administration by academics. The particular criticism that I 
lodged was one in particular, and it concerned the authority of 
the President of the United States as commander-in-chief to act 
in the conduct of war unrestricted by statute. That was the 
subject of the constitutional analysis--or it was not an 
analysis. It was the academic writing that I devoted myself to 
figuring out what the answer to that question was. But I tried 
to be tailored; though I felt strongly about that particular 
issue, that was the particular claim that I was focused on.
    Senator Cruz. And if I may ask one final question. What is 
your view of the critical legal studies movement in the legal 
academy?
    Mr. Barron. Senator, I have not thought about the critical 
legal studies movement in a long time. I just--in all honesty, 
I know it was a movement that, I think by the time you and I 
were in law school, was--``dead'' is probably an unattractive 
word for it from the eyes of the people who were part of it, 
but I have no view about it.
    Senator Cruz. Thank you, Professor Barron.
    Chairman Leahy. I just want to put into the record--we have 
had a lot of letters as part of Mr. Barron's nomination, but 
among those, some from former Reagan administration Solicitor 
General Charles Fried, former George W. Bush administration 
head of Legal Counsel Jack Goldsmith, and I would just note 
that Professor Goldsmith writes, ``David is one of the smartest 
lawyers I know and has deeply learned the law. He also has a 
great lawyer's capacity to see a problem from all angles, to 
see non-obvious connections between legal principles, and 
understand the second- and third-order effects of legal 
decisionmaking. These are all very important qualities in 
successful judging.'' And without objection, we will put those 
letters and the others in the record.
    [The letters appear as submissions for the record.]
    Chairman Leahy. Senator Grassley.
    Senator Grassley. On May 16, 2003, you and other law 
professors wrote to then-Senators Bill Frist and Tom Daschle 
regarding the use of the filibuster. In that letter, which I 
will make part of the record, you stated that the filibuster 
``reflects the Senate's longstanding respect for minority views 
and underscores the unique role of the Senate as a part of 
American democracy.''
    You also wrote that, ``With regard to nominations to an 
independent branch of Government, such as the judiciary, the 
filibuster encourages the President to find common ground with 
the Senate on nominating individuals who can garner 
consensus.''
    [The letter appears as a submission for the record.]
    Senator Grassley. Do you still agree with your assessment 
in that letter? And explain your answer.
    Mr. Barron. I do, Senator.
    Senator Grassley. Thank you. Well, I guess I better leave 
it there.
    [Laughter.]
    Mr. Barron. Perhaps that gives some confidence that I am 
willing to make statements against interest, but . . .
    Senator Grassley. Yes. Now, I am going to lead into 
something that you think I am going to ask your opinion on what 
some other judges have said. That is not my motive, but I want 
to give background for a question.
    In 2011, the D.C. District Court ordered the Justice 
Department to release emails regarding then-Solicitor General 
Kagan's involvement with Obamacare litigation. In 2010, then-
Solicitor General Kagan wrote you an email when you were Acting 
Assistant Attorney General for the Office of Legal Counsel. In 
that particular email, she asked whether you had seen former 
Judge Michael McConnell's ``piece in the Wall Street Journal.'' 
She was referring to a March 15th op-ed in the Wall Street 
Journal in which Judge McConnell discussed the 
constitutionality of a proposal by House Democrats to avoid any 
additional votes on Obamacare legislation. The idea was to 
circumvent the vote on the exact language of the bill as passed 
by the Senate.
    In response to that email, you replied, ``Yes. He is 
getting this going.'' Presumably that was in caps.
    Number one, what did you mean by that, ``He is getting this 
going''?
    Mr. Barron. Senator, I want to just be hesitant in 
answering you for the only reason that I am not sure if that 
email has been publicly disclosed, and I would hate to say 
anything that might waive a privilege that I am not in a 
position to be able to waive. One possibility is I could----
    Senator Grassley. It is public.
    Mr. Barron. So one possibility is I could try and give you 
an answer in a written followup, if I could see the email.
    Senator Grassley. That is okay.
    Mr. Barron. Okay. I appreciate that. Thank you.
    [The information referred to appears as a submission for 
the record.]
    Senator Grassley. But on the same line then, I have an A 
and B. Did you provide political guidance or legal counsel, 
either formally or informally, to anyone in the pending 
Obamacare legislation? I am not asking for you to disclose the 
specific counsel, advice, or opinion you may have offered, but 
I am asking you to identify what issue you may have addressed. 
Specifically did you provide, formally or informally, any 
advice on the following topics: the constitutionality of 
Obamacare; and, B, an assessment or judgment regarding possible 
litigation based on any proposed or actual procedural event 
that occurred in either chamber concering Obamacare?
    Mr. Barron. Senator, I appreciate the question, but I 
really--I think I can say this: It is the ordinary task of the 
Office of Legal Counsel to review legislation that is pending 
in Congress. But as to the substance of any information or 
advice that I gave while serving as an executive branch lawyer, 
I just do not feel that I am at liberty to say that without 
waiving a privilege that is not mine to waive.
    Senator Grassley. Thank you.
    Chairman Leahy. On the question of the Affordable Care Act, 
the Supreme Court has ruled on it, has it not?
    Mr. Barron. It has, Senator.
    Chairman Leahy. And you are bound by that ruling no matter 
how--whatever you felt one way or the other prior to the time 
of the ruling. Is that correct?
    Mr. Barron. Absolutely.
    Chairman Leahy. Thank you very much. No further questions. 
We stand in recess.
    [Whereupon, at 3:31 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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 NOMINATIONS OF HON. CYNTHIA ANN BASHANT, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE SOUTHERN DISTRICT OF CALIFORNIA; HON. JON DAVID LEVY, NOMINEE 
                      TO BE DISTRICT JUDGE FOR THE
DISTRICT OF MAINE; THEODORE DAVID CHUANG, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE DISTRICT OF MARYLAND; GEORGE JARROD HAZEL, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; AND DANIEL D. CRABTREE, 
                               NOMINEE TO
                   BE DISTRICT JUDGE FOR THE DISTRICT
                               OF KANSAS

                              ----------                              


                      THURSDAY, DECEMBER 19, 2013

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to other business, at 10:25 
a.m., in Room SD-226, Dirksen Senate Office Building, Hon. 
Sheldon Whitehouse, presiding.
    Present: Senators Whitehouse, Feinstein, Schumer, Durbin, 
Blumenthal, Grassley, and Lee.
    Senator Whitehouse. Let me call the hearing to order, if I 
may, and welcome the colleagues who have come to introduce and 
speak for their nominees. And let me begin, if I may, by 
recognizing the senior Member of the Judiciary Committee 
present on our side, Senator Feinstein, the distinguished 
Chairman of the Intelligence Committee, to make some remarks 
concerning Judge Bashant.

    PRESENTATION OF HON. CYNTHIA ANN BASHANT, NOMINEE TO BE 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, BY HON. 
 DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. I 
really appreciate this, and I thank my colleagues for allowing 
this as well.
    I would like to introduce Judge Cynthia Bashant, who has 
been nominated to serve on the United States District Court for 
the Southern District of California. That is the court in San 
Diego. She is a product of a bipartisan judicial selection 
committee, and they have given her a very strong 
recommendation. I think when you learn of her experience you 
will see why.
    She earned her bachelor's degree from Smith in 1982, her 
law degree from the University of California, Hastings College 
of the Law in 1986. She spent 3 years practicing civil 
litigation at the law firm of MacDonald, Halsted and Laybourne, 
which later became part of the firm Baker and McKenzie.
    In 1989, Judge Bashant joined the United States Attorney's 
Office in the Southern District of California, where she tried 
at least 15 cases in Federal court. She prosecuted numerous 
important cases, including a major drug-trafficking case that 
involved the Sinaloa drug cartel, a 1,600-foot tunnel under the 
southern border, 23 defendants, wiretaps in Chicago, San 
Antonio, Los Angeles, and San Diego, and she got a conviction.
    She prosecuted an individual who was responsible for 
robbing more than 20 banks, a local record in San Diego at the 
time. The defendant was convicted, and the Ninth Circuit upheld 
the conviction.
    She prosecuted the first Federal interstate domestic 
violence case in the Southern District of California and one of 
the first in the Nation. The defendant was accused of luring 
his wife, who had just filed for divorce, into their car, after 
which he took her to Mexico against her will and committed acts 
of domestic violence against her. This was precisely the 
situation we meant to address in a criminal provision of the 
Violence Against Women Act. The defendant pled guilty.
    Judge Bashant served as Deputy Chief of the Narcotics Unit 
in San Diego from 1995 to 1997 and as Chief of Border Crimes 
Unit from 1997 to 1998.
    She has won numerous awards for her performance in the 
United States Attorney's Office, including the Director's Award 
for Superior Performance, the Victim Witness Award, and special 
commendations several years in a row.
    In 2000, she was appointed to the San Diego Superior Court, 
where she has served with distinction for the last 13 years, 
and presided over more than 1,000 cases that have gone to 
verdict or judgment, including more than 100 criminal jury 
trials. She spent 4 years in criminal, more than 5 years 
presiding over juvenile dependency cases. She has been a leader 
of the San Diego Superior Court for the last 5 years, serving 
on the Court Executive Committee from 2008 to 2013, and as 
presiding judge of the juvenile court from 2009 to 2012.
    Judge Bashant has also been an active part of the San Diego 
community. She has done many things. She is highly respected. 
As you can see, Mr. Chairman, this judge is superbly qualified 
to be a Federal judge. And I thank you for the privilege.
    Senator Whitehouse. Thank you very much, Senator Feinstein.
    I will next recognize the very distinguished Chairman of 
the Appropriations Committee, who has not one but two terrific 
nominees who she will speak for. Senator Mikulski.

 PRESENTATION OF THEODORE DAVID CHUANG, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF MARYLAND, AND GEORGE JARROD HAZEL, 
 NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY 
                        HON. BARBARA A.
      MIKULSKI, A U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Mikulski. Thank you very much, Senator Whitehouse, 
and I want to thank the Members of the Judiciary Committee for 
allowing this hearing to go forth today, because my two 
nominees are really American success stories, and their 
families have traveled extensively in order to be here, along 
with their children, to see this process unfold. So we 
appreciate this.
    I have had the opportunity to recommend several judicial 
nominees over my career in Congress, and I and Senator Cardin 
take our responsibilities of advise and consent very seriously. 
Our criteria is that our nominees must have absolute integrity, 
judicial competence and temperament, a commitment to the core 
constitutional principles, and a history of civic engagement in 
Maryland. I believe it is important that candidates have deep 
connections to both the legal community and the greater 
community. The people that I am recommending to the Committee 
today to support President Obama's nomination meet and exceed 
these standards.
    First I would like to talk about Mr. Theodore Chuang, a 
graduate of Harvard University, both as an undergraduate and 
the Harvard Law School. He has extensive legal experience, 
serving first--an extensive background in private practice with 
firms like the Wilmer, Cutler, Pickering, Hale firm. But he has 
also been outstanding in the field of public law, clerking for 
Judge Dorothy Nelson to working at the United States Department 
of Justice Civil Rights Division in housing and law 
enforcement, a U.S. Attorney, and even doing a stint in 
Congress with the House Committees on Oversight and Government 
Reform and Energy and Commerce. He is now currently serving as 
the Deputy General Counsel of Homeland Security overseeing many 
very important Federal legal issues and compliance. So he has 
an extensive background.
    At the same time, he brings quite a compelling life story. 
His family came to America from Taiwan. They came very 
modestly, as most of our families do come from abroad. It is 
the typical and what we hope continues to be the typical 
American success story. They opened a pizza shop in New 
Hampshire, hard work, long hours, dedication to this country 
and that their children get an education. And now when you talk 
to Mr. Chuang as a second-generation, he wants to give back to 
the country that gave so much to he and his country. He has 
done that both as a professional and also pro bono work, 
working for the Asian Pacific American Legal Community, the 
nonprofit legal service organization that helps so many Asian 
Americans and immigrants with limited English proficiency. And 
he brings again a complete dedication to public service, to the 
Constitution of this United States, and to maintain and be a 
proper judge in our third branch of Government.
    I think he would make a terrific judge. He comes with a 
great education, a great legal background, and a real 
commitment to the community. And I know he and his family that 
he will introduce, you will be very excited to hear them.
    I would also like to bring to the Committee's attention Mr. 
George Hazel. He, too, has a compelling personal narrative, 
growing up in not the most easy circumstances. He is a graduate 
of Morehouse University and comes with, as I said, an extensive 
legal background.
    One of the things that we talk about in his legal 
background is though he could be at some of the toniest law 
firms in Maryland, he is currently serving as the Chief Deputy 
State's Attorney for Baltimore City, in which he oversees 
really tough felony units. But what he brought there was a 
spirit of reform. We had a State's Attorney's Office that was 
old, dated, and needed reform. He has come to this and really 
has helped modernize and make sure that the bad guys are 
prosecuted but at the end of the day they felt that they got a 
fair trial and a fair shake from their own Government.
    He also worked as an Assistant U.S. Attorney, and he also 
worked as a U.S. Attorney. His commitment to justice and 
personal integrity are outstanding. He is deeply involved with 
his church. He is deeply involved with his community. And I 
think when you hear him present his own case to you, you are 
going to see that, in addition to being a U.S. Attorney in both 
the district, working again for a very leading law firm like 
Weil, Gotshal and Manges, that he will be a great judge. He 
brings legal background, community involvement, and a real 
commitment to equal justice under the law.
    I would like to now have Senator Cardin be able to testify.
    Senator Whitehouse. Thank you, Chairman Mikulski, and we 
know how very busy you are. Now that we have a budget, the role 
of the Appropriations Committee is vital, and the time pressure 
on you is immense, so please feel free to take your leave of 
this Committee as your schedule demands.
    I will now recognize Senator Cardin to add whatever he 
wishes to your thoughtful and thorough remarks.

 PRESENTATION OF THEODORE DAVID CHUANG, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF MARYLAND, AND GEORGE JARROD HAZEL, 
 NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY 
   HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF 
                            MARYLAND

    Senator Cardin. Well, first, Chairman Whitehouse, it is 
good to be back to the Judiciary Committee. It is good to be 
here with my colleague----
    Senator Whitehouse. It is nice to have you back.
    Senator Cardin. It is good to be here with my colleague 
Senator Mikulski.
    I notice we have five nominees for the district court, and 
I thank all of them for their willingness to be able to step 
forward to serve in the public. It is not an easy time, and 
obviously the process is not easy, and I thank all five of them 
for their willingness to serve in the public at personal 
sacrifice, and their families for being willing, because this 
is a family effort, and we thank the families.
    Let me just also comment briefly. I am sure it is true in 
Maine, I am sure it is true in Kansas and California. The 
process that Senator Mikulski as the senior judge has put 
together to screen----
    Senator Mikulski. I am not the senior judge.
    [Laughter.]
    Senator Cardin. Senior Senator. Excuse me--the senior 
Senator has put together in order to screen candidates for a 
judgeship is one that I am very proud of. It allows us to put 
out a way in which we can get the best talented, the most 
competent people to go through the process to apply for 
judgeships. And I am just very proud to be part of that, and I 
want to thank Senator Mikulski for the manner in which she has 
done that. And the proof is the two people that we present to 
you today: George Hazel and Theodore Chuang. Both are eminently 
qualified, both are of unquestioned credibility and integrity, 
and both will make outstanding members of the District Court of 
Maryland.
    Senator Mikulski has already talked about both these 
individuals. George Hazel is being appointed to fill the 
vacancy of Judge Williams, who took senior status in May of 
this year, so it is important to get these confirmations 
advanced. He is a graduate from Morehouse College, got his J.D. 
from Georgetown University Law Center. He became a Government 
prosecutor as an Assistant U.S. Attorney in the District of 
Columbia. He also, as Senator Mikulski pointed out, is 
currently in the State's Attorney's Office of Baltimore City, 
where he is the Chief Deputy Assistant State's Attorney. That 
is hard, hard work, dealing with the most difficult parts of 
our criminal justice system in an urban center. He helps 
oversee 200 prosecutors and 200 support staff, and he has 
fought tirelessly to keep our community safe and make them even 
safer.
    Theodore David Chuang also brings very impressive 
qualifications. He is being appointed to fill the vacancy of 
Judge Titus, who will take senior status next month. So both of 
these are very timely. Mr. Chuang got his J.D. in 1994 from 
Harvard Law School, his B.A. from Harvard University. He began 
his career as a law clerk for Judge Dorothy Nelson of the 
United States Court of Appeals for the Ninth Circuit. He has 
served this country in so many different capacities, at the 
Department of Justice, U.S. Attorney, but I particularly want 
to mention that he served as Deputy Chief Investigative Counsel 
for the U.S. House Committee on Oversight and Government Reform 
from 2007 to 2009. So he has served in the legislative branch, 
and he has served also in the executive branch, and he brings a 
wide range of experience.
    Let me just share with you, on all the nominees that come 
forward, I ask the question about their pro bono and their 
commitment to access to justice. In Mr. Hazel and in Mr. 
Chuang, we have two individuals who have demonstrated their 
understanding of access to justice in what the have done in 
their own life.
    Mr. Hazel has assisted members of his church pro bono in 
helping them with their legal issues, and Mr. Chuang has also 
been very impressive in what he has done on the Board of 
Directors of the Asian Pacific American Legal Resource Center. 
That group provides legal representation and referral services 
involving domestic violence, family law, immigration law, 
employment law, and a variety of other areas. So, Mr. Chairman, 
Senator Grassley, we strongly recommend these two nominees, 
that they be favorably recommended to the full Senate and 
confirmed by the full Senate.
    Senator Whitehouse. Let me thank you, Senator Cardin, and 
also make clear both you and your senior Senator if you wish to 
go on to the other pressing business that you face. There is no 
need for you to remain here, and we appreciate your testimony 
in support of your candidates.
    And now I have the pleasure to recognize Senator Collins of 
Maine to speak on behalf of her candidate.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Chairman, I know this is unusual for a senior Senator 
of a State to defer to the junior Senator of the State, but 
Senator King has a long relationship with our nominee, having 
appointed him to Maine Supreme Judicial Court. So I would 
respectfully ask that he be recognized first, and then I would 
give my comments after him.
    Senator Whitehouse. Without objection.
    Senator King, you are recognized.

  PRESENTATION OF HON. JON DAVID LEVY, NOMINEE TO BE DISTRICT 
              JUDGE FOR THE DISTRICT OF MAINE, BY
HON. ANGUS S. KING, JR., A U.S. SENATOR FROM THE STATE OF MAINE

    Senator King. Thank you. Thank you, Senator Collins.
    I must say, this is the first time I have sat on this side 
of the table. It is more fun sitting up there, I think.
    Senator Whitehouse. We have questions for you.
    [Laughter.]
    Senator King. That is what I am afraid of.
    I am here to present the nomination of Justice Jon Levy, 
who is now an Associate Justice of our Maine Supreme Court. He 
was one of my first judicial appointments as Governor of Maine 
in 1995, and I think it is important to say that I never knew 
him before he went through our judicial selection process. He 
was not a contributor, a political supporter, or a friend, but 
he was found, in effect, by our judicial selection as an 
outstanding legal practitioner. I appointed him to Maine's 
District Court, which is one our trial-level courts, and within 
just a few years he became chief justice of that court, which 
indicated his leadership.
    Subsequently, in 2002, I was fortunate enough to be able to 
appoint him to our Maine Supreme Judicial Court, and he is the 
first person in the history of Maine to go directly from the 
district court to our Supreme Court without serving as a 
superior court justice.
    Most simply put, he is a judge's judge. He is incredibly 
smart, analytical, has good judgment, is decisive--which is an 
important quality in a judge; he is not afraid of making 
decisions--and also has a wonderful judicial temperament. I 
observed this in action as I went to our hearing of our Supreme 
Court about 5 years ago when he was presiding over the 
admission of new lawyers, and so I sat in the back of the 
courtroom and watched him work through this process, and was 
respectful, courteous, not intimidating, but at the same time 
dignified and analytical. And it was very impressive, as I 
remember vividly as a young lawyer the unpleasantness of 
appearing before a judge who would be intimidating or sort of 
hard to--be undignified, and Justice Levy has avoided that.
    He has enormous respect among the bar and the bench in 
Maine. I am going to submit letters for the record, including 
one from our chief justice, who talks about his enormous skill 
that he has demonstrated now in over 10 years on that court. In 
fact, her principal comment is that she is a little irritated 
that we are taking him away from her court. And if you knew 
Leigh Saufley, you would know that that is exactly--she says 
what she means. But support from lawyers, from other judges, 
our former Attorney General.
    As I say, Jon Levy is a judge's judge, and he has the 
breadth of experience that I think is really important to be 
appointed to a trial-level court. He has been a private 
practitioner for a dozen years, a trial-level court judge for 7 
years, and an appellate judge. So he really has an enormous 
breadth of experience, and he has the combination of 
intellectual ability which is positively dazzling combined with 
a temperament that is courteous, thoughtful, relates to the 
issues of the litigants, and has really done a wonderful job in 
Maine.
    My leadership philosophy can be summed up in one sentence. 
It is to hire good people and take credit for what they do. And 
in Jon Levy's case, that is exactly what I did twice. I am 
honored that the President has chosen to put his name forward 
for this important district judgeship in Maine and am delighted 
to be able to provide my most enthusiastic support.
    And I would ask unanimous consent that the letters I 
mentioned be submitted for the record.
    Senator Whitehouse. Without objection, they will be.
    [The letters appear as submissions for the record.]
    Senator Whitehouse. Thank you very much, Senator King.
    And we turn now to your senior Senator, Senator Collins.

         PRESENTATION OF JON DAVID LEVY, NOMINEE TO BE
          DISTRICT JUDGE FOR THE DISTRICT OF MAINE, BY
 HON. SUSAN M. COLLINS, A U.S. SENATOR FROM THE STATE OF MAINE

    Senator Collins. Thank you, Mr. Chairman, Senator Grassley. 
As you have just heard, Justice Levy has had a long and 
illustrious career as an attorney and a judge in the State of 
Maine. Senator King has pointed out that he was the one who 
started Justice Levy on the judicial track, where he currently 
serves as an Associate Justice on the Maine Supreme Judicial 
Court, a position that he has held for more than a decade.
    While I know that Senator King has outlined Jon's many 
qualifications, let me just add a little more background for 
the benefit of the Committee.
    Justice Levy in law school was an editor of the Law Review. 
He clerked for a judge in the Southern District of West 
Virginia. In 1981, he was appointed to the position of Special 
Monitor in the U.S. District Court for Southern Texas, a 
position that signaled the court's confidence in his legal 
abilities early in his career.
    In 1982, Jon and his wife had the good sense to relocate to 
the State of Maine, where he entered private practice in the 
town of York. Although his practice spanned a range of civil 
and criminal matters, he quickly distinguished himself in the 
area of family law. In fact, Jon literally wrote the book on 
family law. In 1988, he authored ``Maine Family Law,'' which 
has become the resource for practitioners.
    As both an attorney and a judge, Jon has remained very 
active with the local bar associations and several State 
committees working to improve the administration of justice in 
our State. He was selected by his peers to serve as president 
of the York County Bar Association back in 1991 and received 
its Outstanding Member Award in 2006 as well as the Maine State 
Bar Association's Family Law Achievement Award in 2001.
    As Chair of the Maine Justice Action Group, Justice Levy 
championed initiatives to improve pro bono representation for 
Maine's elderly and low-income citizens as well as affordable 
representation for other Mainers in need of legal assistance.
    In the same vein, he helped launch the Katahdin Council 
Recognition Program, an annual statewide program that honors 
Maine attorneys who provide more than 50 hours of pro bono 
service per year. Justice Levy has also advocated for these 
efforts at the national level and this past August was 
appointed to serve as a judicial member of the American Bar 
Association's Standing Committee on Legal Aid and Indigent 
Defendants.
    Justice Levy's work with both juvenile justice and drug 
courts has helped to shape the judicial process in our State. 
In 1997, he started the York County Juvenile Court Pilot 
Project, a program that brings together judges, lawyers, 
prosecutors, police officers, and social service workers to 
redefine and shape how justice is administered to young people. 
Drawing on his experience with the juvenile system, he also 
helped to initiate the juvenile drug treatment court in York 
County.
    Justice Levy's extensive experience as a State judge and in 
private practice make him extremely well qualified for Maine's 
Federal district court. His contributions to Maine's legal 
community and the juvenile justice system will give him a very 
valuable perspective on the Federal bench.
    Mr. Chairman, Senator Grassley, I am confident that, if 
confirmed, Jon Levy will serve the people of Maine and this 
Nation with great intelligence and integrity and impartiality.
    Thank you.
    Senator Whitehouse. Thank you very much, Senator Collins, 
and thank you again, Senator King. I know that the press of 
business on you both is very intense, so please feel free to 
excuse yourselves from this Committee hearing, and thank you 
very much for your testimony in favor of your candidates.
    Which brings us to Senator Moran of Kansas. Senator, please 
proceed.

         PRESENTATION OF DANIEL D. CRABTREE, NOMINEE TO
  BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS, BY HON. JERRY 
              MORAN, A U.S. SENATOR FROM THE STATE
                           OF KANSAS

    Senator Moran. Chairman Whitehouse, thank you very much, 
Ranking Member Grassley, Senator Klobuchar. It is an honor to 
be here in front of this Committee today. I am very pleased to 
be here with the purpose of outlining to you the support that 
Senator Roberts and I have for Dan Crabtree as a result of 
President Obama's nomination of him to be a Federal district 
judge in our State.
    I have known this nominee for more than 30 years and have 
worked hard to see that we have good nominees and that good 
nominees are confirmed. I am particularly pleased that this 
hearing is occurring today and want this process to work in a 
very straightforward manner with great integrity.
    I consider, as I would guess all of my colleagues do, one 
of the highlights, one of the greatest opportunities and 
responsibilities as a Member of the U.S. Senate to assist in 
finding qualified individuals to serve as judges. And we have 
worked closely with the staff of the White House, the 
administration, in accomplishing that goal in this and other 
positions associated with our State. And I am very pleased that 
Dan Crabtree has received the nomination of the President, and 
I ask this Committee and the full Senate to confirm his 
nomination.
    As I look at individuals that I would want to serve in a 
capacity of providing justice, Dan Crabtree meets all those 
criteria and excels in every category. Certainly I think in all 
aspects of life one's personal characteristics are perhaps the 
most important thing about that person, and so I would want a 
judge that has integrity and compassion for others, that is 
respectful, that understands the importance of trying to find 
the right answer to every circumstance, and in the case of a 
judge, I want somebody who understands the desirability of 
justice, that all people are treated fairly, that the law is 
evenly applied. And as a human being, I have no doubt that Dan 
Crabtree meets that criteria.
    Of course, for a judge, you would want someone with 
significant legal expertise and intelligence. And, again, Dan 
Crabtree's intellect, his thoughtfulness, his experience all 
lend themselves--if someone in their 50s can be wise--and I 
hope that they can--Dan Crabtree certainly qualifies as 
somebody with wisdom.
    His legal experience following his graduation from law 
school was at a firm titled Stinson, Mag and Fizzell, now 
Stinson Morrison Hecker. It is one of the premier firms in 
Kansas City, and Dan has been with that firm since he arrived 
as an associate and became a partner. In that experience, he 
has received significant recognition for his legal skills and, 
as recently as 2013, in the publication Best Lawyers, was the 
Lawyer of the Year in 2013 as a lawyer participating or 
actively engaged in antitrust law. And the following year, 
2014, he was Kansas City's Best Lawyer in Banking and Finance 
Litigation. I am proud of that recognition, and it exemplifies 
again what the community and the legal community see in Dan 
Crabtree.
    I also know Dan as a father and a husband, and I am 
delighted that his wife, Maureen, and daughter, Colleen, are 
here. Colleen is a seventh grader. I was worried yesterday when 
this hearing was delayed that she would have to return to her 
middle school for the Christmas program and miss the 
opportunity to see her father testify and seek confirmation of 
this Committee for this very important position.
    It just seems to me that, as a member of the bar and a 
Member of the U.S. Senate, as an American citizen, as a Kansas 
citizen, I want to do my part to make certain that the judicial 
positions in our State and across our country are filled with 
highly qualified, exceptionally intelligent, wise individuals 
filled with character and integrity, and I have no doubt that 
this applicant meets every one of those criteria, and I look 
forward to his confirmation.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you very much, Senator Moran.
    The process that we go through traditionally involves the 
input of United States Senators to make recommendations to the 
President for these nominees, and that is a very important part 
of the process, and it is exemplified by those Senators coming 
forward to speak publicly about the nominees that they have 
recommended. So it has great impact, and I appreciate that all 
of my colleagues have been here today, and I would now dismiss 
the panel, and we will call up the nominees.
    Please be seated. I will make a brief opening statement and 
then turn to the distinguished Ranking Member for his opening 
statement, and then we will swear you in and turn to each of 
you for your statements, and then there will be a round of 
questioning.

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

    Senator Whitehouse. I want to welcome each of you to the 
Senate Judiciary Committee. I want to welcome your family 
members and friends who are here to the U.S. Senate. I want to 
thank my colleagues for lifting the procedural barrier to the 
hearing yesterday so that we can proceed forward now. And I 
would say that I think all of us in the Senate believe that 
voting to confirm an individual to the Federal bench is one of 
the most important and lasting decisions that we can make.
    Every day we see Federal judges make decisions that affect, 
sometimes in dramatic ways, the lives of our constituents and 
our fellow Americans. As they wield that extraordinary power, 
judges must respect the role of Congress as the duly elected 
representatives of the American people. They must decide cases 
based on the law and the facts. They must not prejudge any case 
but listen to every party that comes before them with equal 
attention. They must respect the precedent that the higher 
courts have left them. And they must limit themselves to the 
issues that the court properly must decide in that case.
    I hope very much that each judicial nominee we hear from 
today understands the importance of those principles.
    Judicial nominees also must have the requisite legal skill 
to serve as a Federal judge, and I am delighted to see that 
each of today's nominees has a very impressive record of 
achievement. As a result, I believe that each of the nominees 
deserves prompt consideration. We need good judges in place for 
our system of justice to function and continue to be a system 
of justice that is an example to the rest of the world.
    With that, I will turn to our distinguished Ranking Member, 
Senator Grassley.

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

    Senator Grassley. I am just going to highlight part of my 
statement and put the entire statement in the record. You folks 
that are here today would be attending our 18th judicial 
nomination hearing this year, which has been for a total of 62 
judicial nominees. You hear sometimes that there is 
unprecedented obstruction going on in the Senate toward this 
President's nominees. We have approved 215 of the President's 
lower-court nominees since he became President. We have 
disapproved of three--I mean five, of which three of those have 
since been approved. That is a 99-percent approval rating, so I 
do not think that there can be any accusation of 
``unprecedented obstruction.'' And also, if there is any 
reference to vacancies, today in the court system they do have 
to be--there does happen to be 89 vacancies, but there has only 
been 43 nominees submitted to the Senate for consideration of 
those 89 vacancies. So 48 percent are vacant because the 
President has not yet sent up a nominee.
    In addition to what I just said, I will put my statement in 
the record. Thank you.
    [The prepared statement of Ranking Member Grassley appears 
as a submission for the record.]
    Senator Whitehouse. Rather than belabor these proceedings 
with an ongoing discussion on that subject, let me just say 
that for present purposes we may agree to disagree on that 
subject. But we can reserve that discussion to another forum.
    Senator Grassley. We can, but you understand that in the 
previous meeting, somebody else put up the word 
``unprecedented,'' and I am responding to that.
    Senator Whitehouse. Understood. Understood.
    Senator Grassley. And I would rather not, so if you do not 
want the discussion, let us never talk about it.
    [Laughter.]
    Senator Whitehouse. I welcome all of you here. I know 
that--first let me start by asking you to stand and be sworn. 
Let me do that piece of business.
    Do you affirm 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. Crabtree. I do.
    Judge Bashant. I do.
    Justice Levy. I do.
    Mr. Chuang. I do.
    Mr. Hazel. I do.
    Senator Whitehouse. Thank you very much. Please be seated. 
We are just going to go right across the row with no particular 
order other than who is where on the table, so let me start and 
invite Judge Bashant--have I pronounced that correctly?
    Judge Bashant. That is fine.
    Senator Whitehouse. Fine or correct?
    Judge Bashant. ``Bashant.''
    Senator Whitehouse. ``Bashant.''
    Judge Bashant. Yes.
    Senator Whitehouse. Okay--Judge Bashant to make her 
statement and recognize which family members or friends you 
would care to. Please proceed.

         STATEMENT OF HON. CYNTHIA ANN BASHANT, NOMINEE
         TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT
                         OF CALIFORNIA

    Judge Bashant. Thank you. First of all, I want to thank 
Senator Feinstein for her kind remarks and for recommending my 
nomination to the President. And I want to thank the Judiciary 
Committee for going forward with the hearing today and both of 
you Senators for being here. I know it is a busy time of year, 
and I appreciate your time.
    I want to give a special thank you to friends and family 
who have been supporting me through this process.
    First of all, to my husband, Kevin Hyle, who is back in 
California holding down the fort; and to my son, Brian Hyle, 
who has been here in Washington for the past couple of days 
supporting me, and I hope is boarding a plane at Dulles as we 
speak to go back to California, and I know he is very chagrined 
not to be here. To my daughter, Anna Hyle, who is taking her 
last final exam of the semester at Colgate University as we 
speak. And to my parents, who are back in California, Dr. and 
Mrs. Gordon and Nancy Bashant. Again, my mother is very unhappy 
that she is not here, and I know she wishes she could be here 
in person.
    I want to thank my sister, Kathy Knapp, who took the train 
down from Connecticut yesterday and was here all afternoon--and 
we had a nice dinner together--and took the train back last 
night, so I am sorry she cannot be here. She had to go back to 
her family, and she, I am sure, is watching the Web cam with my 
brother-in-law, Jeff Knapp, and my two sweet nieces, Emily and 
Katie, who are beaming that I have mentioned their names today.
    To my other sister, Dr. Wendy Bashant, who is the dean of 
students at UC-SD Marshall School, and her husband, Dr. David 
Bittleman; to my in-laws in Kansas City, Missouri; and to the 
many people who provided texting support over the past 24 
hours, particularly my colleagues on the superior court bench; 
and to my son's roommate at Vassar College who held a--he is a 
political science major, and he held a confirmation hearing 
party at Vassar College yesterday afternoon with a live Webcast 
so they could know more about the confirmation process, and in 
the process they learned all about the 2-hour rule and maybe 
more about politics than they cared to, but I thought it was a 
good experience. I appreciate their enthusiasm and excitement 
about the process.
    Finally, I want to thank President Obama. I am honored by 
the nomination and, if confirmed, I hope I can live up to the 
faith he has placed in me.
    [The biographical information of Judge Bashant appears as a 
submission for the record.]
    Senator Whitehouse. Thank you very much, Your Honor, and 
let me offer a general apology on behalf of the Senate as an 
institution to all of those who were inconvenienced by 
yesterday's activities. That is just an unfortunate byproduct 
of an unfortunate circumstance that we find ourselves in right 
now, but those who took the trouble to travel yesterday I think 
are entitled to an apology from us for the sudden change in 
timing of the hearing that they in some cases traveled great 
distances with some inconvenience to attend. But it is good to 
be going forward now.
    So let me turn to Judge Levy.

           STATEMENT OF HON. JON DAVID LEVY, NOMINEE
         TO BE DISTRICT JUDGE FOR THE DISTRICT OF MAINE

    Justice Levy. Thank you, Mr. Chairman, Ranking Member 
Grassley. It is an honor to be here. I am very grateful to the 
Committee for convening this hearing.
    I would like to begin by expressing my gratitude to 
President Obama for the honor of this nomination. I am also 
very grateful to Maine Senator Susan Collins and Senator Angus 
King for the strong support they have given me throughout and 
for their kind words this morning.
    My wife, Miriam Levy, was unable to be here this morning. I 
know that she is watching over the Web. She is a psychologist 
in Portland, Maine, and that is where she is right now. And we 
are the proud parents of two daughters, neither of whom could 
be here this morning either.
    Our daughter Anna recently graduated from the University of 
Chicago with a master's degree in international relations, and 
she just got married. And so we have a brand-new son-in-law, 
Adam Prager, whom we are all very proud of.
    And my other daughter, Rachel, just graduated from 
Northeastern with a degree in environmental science, and she is 
now working in education.
    With me today I have several guests. My sister and brother-
in-law, Jan and Ken Fein, came from New York; my cousin, 
Leonard Taylor, from Maryland; and my very good friend, Ann 
Newman, is here. She is also from Maryland.
    I have many friends and colleagues and family members who 
are watching over the Web this morning. Of course, all of my 
colleagues from the Maine judicial branch, the appellate 
judges, the State judges, all of our clerks, marshals, 
administrators, the people that make justice happen who I wish 
to acknowledge.
    And, finally, I would like to acknowledge Judge John T. 
Copenhaver, Jr. Judge Copenhaver is a U.S. District Judge in 
the Southern District of West Virginia who I clerked for out of 
law school. He is my professional mentor. It has been his 
example that has inspired me throughout my career.
    Thank you.
    [The biographical information of Justice Levy appears as a 
submission for the record.]
    Senator Whitehouse. Thank you very much, Judge Levy.
    And let me now turn to Mr. Chuang. Welcome to the 
Committee. Please proceed with your statement.

          STATEMENT OF THEODORE DAVID CHUANG, NOMINEE
       TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND

    Mr. Chuang. Thank you very much. Mr. Chairman, Ranking 
Member Grassley, thank you very much for the opportunity to 
appear before this very distinguished Committee.
    I would like to begin by thanking the President of the 
United States for the high honor of this nomination. I would 
also like to thank Senator Mikulski and Senator Cardin for 
recommending me to the President, for supporting me throughout 
this process, and for the very generous introductions they 
provided today.
    I would also like to thank the Senate Judiciary Committee 
itself not only for holding this hearing and for considering my 
nomination, but also because 25 years ago this coming summer, I 
had the privilege of coming to Washington, DC, as a college 
student and serving as an intern on this Committee. That was a 
formative experience for me. That was one of the reasons that I 
chose to pursue a career in the law and in public service. And 
so I thank this Committee for the role it played in setting me 
on a path to come back here before you today.
    I would like to also introduce family and friends who have 
joined me here today.
    First, let me introduce my wife, Jacinta, who has been my 
partner in life and in raising our family for the past 15 
years. She is also an inspiration for my professional career 
because she is an accomplished attorney who has devoted her 
entire career to serving the public interest and the community, 
and in so doing has set an example which I strive to follow in 
making sure that in whatever I do professionally I am also 
doing some good for our country and for our community.
    I would also like to introduce our two daughters: Kalia, 
who is 12 years old and in seventh grade; Kiara, who is 9 years 
old and in third grade. They are both in the Montgomery County 
Public Schools.
    Senator Whitehouse. And who, for the record, are behaving 
wonderfully.
    [Laughter.]
    Mr. Chuang. Thank you.
    Also, I am very appreciative of having my sister Karen 
Chuang Harris here, who came from California. It means a lot to 
me that she made the trip. And I would like to say hello to her 
husband, Scott, and her daughter, our niece, Caitlin, who may 
be watching on the Webcast.
    I would also like to say hello to my mother-in-law and 
father-in-law, also in California, who are watching on the 
Webcast.
    I have a few cousins who are here today. David Su, Jennifer 
Hu, Stephanie Hu and her husband, Bill, are here today. I 
appreciate that very much.
    I also have some friends, a very close friend, my oldest 
friend in the world with whom I have been friends since fourth 
grade, Chris Weaver, is here. Tacey Yune is here, a friend from 
here in Washington, DC.
    And I would also like to recognize several friends and 
relatives who had been here yesterday and have been unable to 
return today, including my cousin Jessica Mach and her husband, 
Arthur, and their children, Kate and Christopher; my very good 
law school friend, Brian Caplan, who came down from New Jersey; 
a friend from college, Brian Sonnfield and his wife; and also a 
friend from Washington, Chris Carter.
    Finally, I would like to end by introducing my parents, 
Ying and Kari Chuang, and I would like to note that this has 
been a very special year in the life of our family for reasons 
unrelated to today's proceeding, because it was 50 years ago 
this past summer that my father first set foot on American soil 
in search of American freedom and the American dream. And it 
was 40 years ago this very month that my mother and father 
stood up in a courtroom and took the oath as United States 
citizens. Those moments have always inspired me and driven me 
to want to serve this great Nation and give back to this Nation 
that has given so much to our family, and I know that no matter 
what happens with this nomination, those will always be the 
proudest moments in the history of our family.
    Thank you, and I look forward to answering your questions.
    [The biographical information of Mr. Chuang appears as a 
submission for the record.]
    Senator Whitehouse. Thank you, Mr. Chuang.
    Mr. Hazel, you are welcome in this Committee and welcome to 
proceed with your statement.

           STATEMENT OF GEORGE JARROD HAZEL, NOMINEE
       TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND

    Mr. Hazel. Thank you, Senator. First I would like to just 
say thank you to this Committee for holding this hearing, 
certainly special thanks to the Chairman and Ranking Member for 
your attendance here today.
    I would certainly like to say thank you to the President 
for nominating me to the Federal bench. It is certainly the 
greatest honor of my professional life thus far, and so it is 
with great gratitude that I wish to extend my thanks for that.
    I would also like to thank Senator Mikulski and Senator 
Cardin for recommending me to the President. I also thank them 
for their very generous and kind words today.
    I do have a few family members here with me today that I 
would like to introduce.
    First, to my far left is my wife of 10\1/2\ years, Nikki 
Hazel, who is joining us here today. Our children, George 
Joshua and Lauren Grace, are in school today, thus staying on 
track for their perfect attendance awards.
    [Laughter.]
    Mr. Hazel. My mother, Brenda Hugo Hazel, has come down from 
New Jersey to attend this hearing. My father, George A. Hazel, 
was not able to make it here in person. I am sure he is 
watching on the Webcast from his home in Las Vegas, Nevada. 
And, finally, my uncle, Raymond Huger, is joining us here 
today, and so I appreciate him attending as well. I certainly 
know that and want to recognize I have many in Baltimore, DC, 
New York, and other places joining us both in spirit and 
through the Webcast today, and so I certainly also say hello to 
them.
    Thank you.
    [The biographical information of Mr. Hazel appears as a 
submission for the record.]
    Senator Whitehouse. Thank you very much, Mr. Hazel.
    Mr. Crabtree, welcome. Please proceed with your statement 
and welcomes.

            STATEMENT OF DANIEL D. CRABTREE, NOMINEE
        TO BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS

    Mr. Crabtree. Thank you, Senator, and thank you, Senator 
Grassley and Members of the Committee, for inviting me here 
today.
    I express my gratitude to President Obama for the honor of 
this nomination. I am especially grateful to Senator Moran and 
Senator Roberts for their support through this process. I am 
particularly grateful for Senator Moran taking time to come 
over today and speak on my behalf.
    With your permission, I would love to introduce my family 
to you.
    Senator Whitehouse. Of course.
    Mr. Crabtree. The row of dark-haired women all belong to 
me. First, my wife of 29 years, Maureen Mahoney, she is a 
distinguished lawyer for children in our home State, and she is 
my best friend and my closest adviser, and it means the world 
to me for her to be here today.
    Our daughter, Colleen, a seventh grader, has graciously 
rearranged her final exam schedule to be with us today, and I 
might say that she took her civics exam on Tuesday, so she, 
too, is prepared for some questions.
    [Laughter.]
    Mr. Crabtree. And my sister-in-law, Molly Mahoney, now a 
resident of Philadelphia, but there is a lot of Kansas in her, 
and she came down from Philadelphia for the hearing today.
    I do want to recognize my colleagues at my law firm in 
Kansas City, Stinson Morrison Hecker, who I trust some are 
watching over the Webcast, and the others are probably doing my 
work for me.
    And, last, I just would like to honor my parents. They are 
no longer in this world, but I am mindful, especially today, of 
all that they have done for me and my brother, Mike, and I just 
would like to honor them by placing their names, Charlie and 
Lois Crabtree, in the record.
    Thank you very much for inviting me, and I look forward to 
your questions.
    [The biographical information of Mr. Crabtree appears as a 
submission for the record.]
    Senator Whitehouse. Thank you very much, Mr. Crabtree.
    For the record, I have been notified that the minority 
party intends to invoke the 2-hour rule again. That is the bad 
news. The good news is that we have 45 minutes left, so unless 
there is a sudden flood of Judiciary colleagues, we will be 
well done before that time horizon is reached. And for those of 
you who feel that there is a small turnout with just the 
Chairman and the Ranking Member here, trust me, that is a good 
sign. And I hope it is a signal of continuing smooth sailing 
for these nominees through an increasingly tempestuous process, 
and certainly we would like very much to make sure that all of 
you are confirmed speedily.
    You may have listened to my opening statement. I have a 
relatively standard question that I ask of all of the nominees 
that represents what I think to be the basic parameters for 
appropriate conduct of judicial responsibilities. They include 
that judges must respect the role of Congress as 
representatives of the American people; that you all decide 
cases based on the law and the facts; that no one prejudge any 
case; and that you provide an equal and fair ear to every party 
that comes before you; that you will respect the precedent that 
should guide your decisionmaking; and that you as judges would 
limit yourselves to the issues that are properly before you.
    I trust that each of you agree with those principles, but 
if anybody does not, I would be eager to hear from them now as 
to where they disagree.
    The record will reflect no disagreement with those, which 
is terrific.
    There is another issue that I think it is important for 
judicial nominees to address, and it is particularly important 
for you who will be district court nominees, and that is the 
important role of the jury not just in our system of justice 
but also in our system of Government. Those of you who are 
students of history will know that the jury was an essential 
part of the core political structure that was brought over from 
England. The jury has its roots back in the 12th century. And 
when our relations with the Crown became strained, one of the 
key causes of that strain was the effort by the Crown to limit 
American access to American civil juries.
    The casus belli of the Revolution included that denial, 
that effort to restrict. The jury was prominent in all of the 
expressions by the Founding Fathers and that revolutionary 
generation who pledged their lives, their fortunes, and their 
sacred honor to that battle, to protect the civil jury, to see 
that it was maintained, and they did so for, I think, a pretty 
good reason. And I could hazard my own ideas, but I do not need 
to because I can turn to people like de Tocqueville and 
Blackstone, whose knowledge and expertise is pretty much 
uncontested.
    De Tocqueville described the jury as ``one of the means of 
the sovereignty of the people'' and ``an essential institution 
of Government.''
    Blackstone describe it as ``a means for resisting the 
encroachments of the wealthy and the powerful,'' which is an 
interesting observation because much of the Constitution is 
dedicated to protecting the individual from abuse of the power 
of Government.
    The jury rather uniquely has, according to Blackstone, the 
additional responsibility to protect the ordinary individual 
from the more wealthy and powerful citizens, as he described 
it. And since we live in a time in which the most wealthy and 
powerful citizens of the United States tend to be corporate 
citizens and we also live in a time when the corporate 
citizenry is embarked pretty enthusiastically in an effort to 
diminish and deprecate the civil jury and access to it, I think 
it is important that we bear in mind that there is more to a 
civil jury than just a fact-finding appendage of the court, 
that it has a long tradition from the very founding of this 
Republic, that it has an essential role within our separation 
of powers, the markedly American system of Government that we 
enjoy, that has protected us through civil wars and world wars 
and great depressions and all kinds of upheavals, and, 
therefore, it is entitled to special, I think, solicitude.
    And I would like to ask each of you for a comment on how 
you would see the role of the jury in your courtroom. We will 
begin with Judge Bashant.
    Judge Bashant. Well, as a trial court judge for the past 13 
years, I have had the opportunity to preside over quite a few 
jury trials, and I believe there is something special about 
requiring 12 people from different backgrounds to come together 
and discuss things and reach a verdict. I am a fan, I am 
supportive of the jury system. And I would continue to be 
supportive if confirmed as a district court judge.
    Senator Whitehouse. Thank you very much.
    Judge Levy.
    Justice Levy. Senator, the jury trial is really a central 
feature of our justice system as the Founders envisioned it, 
enshrining the right both in civil cases and criminal cases in 
the Bill of Rights. It is really central to our notion of what 
justice is. It seems to me that it is critically important that 
members of the public play that role, be in courthouses and be 
decisionmakers.
    It is important for judges. I think judges are very much 
continually educated and affected by the public decisionmaking 
process that they steward, that they witness, in effect.
    And I think it is also important for citizens. It is really 
one of the most important responsibilities of an American 
citizen, is to serve on the jury and have that experience of 
direct democracy in the truest sense. Absolutely critical.
    Senator Whitehouse. Thank you, Judge Levy.
    Mr. Chuang.
    Mr. Chuang. Senator, I have always believed in the 
essential goodness and fairness of the American people, and the 
experiences I have had as a prosecutor trying cases before 
juries has validated that belief. I have always found juries to 
be very conscientious, dedicated, and serious about the work 
that they need to do.
    I have also come to understand how much of an important 
part of the American system of checks and balances a jury is. 
And certainly if I am confirmed to be a judge, I would do 
everything I could to ensure that that system continues in the 
courtroom that I serve in or within the system in general.
    Senator Whitehouse. Thank you.
    Mr. Hazel.
    Mr. Hazel. Senator, it is my feeling that juries in many 
ways are, in fact, the backbone of our judicial system. From my 
experience as a trial lawyer, I have always been impressed at 
how 12 people from various backgrounds, often with little or no 
experience in the matters which they are dealing with, are able 
to come together, listen conscientiously to the evidence, 
gather together, and then reach a verdict. Some of the greatest 
lessons I have learned as a lawyer have come from conversations 
I have had with jurors at the end of trials.
    So I can certainly assure you, Senator, that I share your 
concerns, I share your thoughts and views of the importance of 
the jury system.
    Senator Whitehouse. And, finally, Mr. Crabtree?
    Mr. Crabtree. Senator, I agree with much of what my fellow 
panelists have said, and I will not repeat it here. I will 
simply add that one of the more rewarding experiences I have 
had as a citizen was being called to jury duty in my home 
county of Wyandotte County, Kansas, and being selected to serve 
and watch from the inside and see the collective wisdom of a 
jury of 12 at work and watch the seriousness of purpose that 
people brought to the task.
    Senator Whitehouse. Thank you all very much.
    I turn to our Ranking Member, Senator Grassley.
    Senator Grassley. Mr. Crabtree, a process question. I would 
like to have you explain what steps you took to ensure that you 
did not practice the unauthorized practice of law during the 
period of time after you took the Kansas State bar exam in 1982 
and your taking the oath in 1988.
    Mr. Crabtree. Yes, Senator, thank you for permitting me to 
explain. I took the bar, the Kansas bar exam in February 1982, 
thinking that someday I might return to my home State. I was 
already admitted to practice and practicing in Missouri when I 
took the exam. At that time a lawyer whose office was located 
outside the State of Kansas, whether a member of the Kansas bar 
or not, could not practice in Kansas and could not appear. And 
so that rule changed in January 1988 when lawyers who were 
members of the Kansas bar but had offices elsewhere were 
permitted for the first time to appear in Federal court. And so 
I went ahead and completed the process and signed the rule of 
attorneys and took the oath and was admitted.
    During that period of time, I was practicing predominantly 
in the State of Missouri where my office was located, and I do 
remember appearing in two Kansas cases, appearing under the 
supervision of Kansas local counsel and following the 
procedures that the court used at that time.
    Senator Grassley. A similar question for you, Mr. Hazel. 
You became Deputy State Attorney in December 2010. It is my 
understanding you had not been barred or licensed to practice 
law in Maryland. I do not know exactly when you were admitted 
to the Maryland bar. But could you also explain for the 
Committee the steps that you took to ensure that you did not 
practice the unauthorized practice of law during that period?
    Mr. Hazel. Thank you for the opportunity to address that 
issue, Senator. When then State's Attorney-Elect Glenn 
Burnstein and I first met to discuss the prospect of my moving 
from the U.S. Attorney's Office to take the position of Deputy 
State's Attorney in Maryland, one of the very first things we 
discussed was the fact that at that time I was a member of the 
Virginia bar, I was a member of the DC bar; I was not then a 
member of the Maryland bar. So we took time and did some 
research to see what was required and what was not required. 
The first thing we learned is that a Deputy State's Attorney 
does not have to be under law a member of the State bar of 
Maryland.
    We then began to discuss the parameters of what my job 
would and would not entail, and I did not appear in court, I 
did not sign documents, I did not appear in front of the grand 
jury.
    I did consult on cases. One of the things that we had 
looked at in our research is that under the Maryland Rules of 
Professional Conduct for Lawyers, as long as I was doing that 
in association with attorneys who were members of the bar 
themselves and who were themselves actively involved in the 
case, that that was permitted under the Maryland rules. So 
those were the steps we took and ultimately decided that the 
way in which we were handling the situation was appropriate.
    Senator Grassley. Okay. Mr. Chuang, I am going to ask about 
something that you wrote in 1999, a profile about your former 
boss, Judge Nelson, Ninth Circuit. In this profile, you wrote 
that, ``Some of Judge Nelson's most noteworthy opinions embody 
the principle that the courts must be vigilant in protecting 
the rights of weaker minority interests when they have been 
unjustifiably violated by the most powerful majority 
interest.''
    Would you take this approach to the administration of 
justice in your courtroom if you are confirmed?
    Mr. Chuang. Senator, thank you for the question. The 
approach I would take would be, regardless of who the parties 
are, to look at the law and the facts of the case and to apply 
the law to that case without any outside considerations. I 
definitely understand that there are cases in which the 
different parties come from different places in society, but 
the role of a judge is to make a decision evenhandedly based 
solely on the law and the facts, and that is how I would 
approach any case.
    Senator Grassley. On a 2006 panel that you participated in, 
one of your talking points was that, ``In its legitimate zeal 
to root out white-collar crime, the Government has overreached 
with its tactics.'' Could you elaborate on what you meant by 
that statement?
    Mr. Chuang. Senator, if I recall, the panel discussion at 
the time was one that occurred when I was in private practice 
serving as a white-collar criminal defense attorney. I believe 
the references involved some of the efforts by the Justice 
Department at that point in time to seek to use the--to 
persuade parties to waive the attorney-client privilege in 
order to gain cooperation, particularly corporate parties. And 
I know that in the defense bar at the time there was a 
prevailing concern that that was invading the importance of the 
attorney-client privilege.
    I would note that during the 3 years I served as a defense 
attorney, I did learn the perspectives from that side, but 
having also served for 6 years as a prosecutor, I have always 
seen both sides of cases and issues, and I would venture to say 
that when I was a prosecutor, I probably advocated from a 
different perspective on that very same issue.
    In general, I think the fact that I have served both as a 
prosecutor and a defense attorney has given me a very broad 
perspective on major issues of criminal law and would help me 
to be fair and objective and balanced in making decisions, if 
confirmed to be a judge.
    Senator Grassley. Judge Levy, you are probably going to 
hate me if I bring up something you write in 1983, but you 
wrote an article about Judge Bork, and I have got a lot of 
questions on that, but I am only going to ask a couple.
    You said, ``Judge Bork's philosophy of original intent''--
you referred to it as a ``fallacy.'' You have been a judge for 
a number of years. How does your judicial philosophy differ 
from Judge Bork's, assuming you stand by your article about 
Judge Bork at that particular time?
    Justice Levy. Thank you, Senator.
    Senator, the U.S. Supreme Court has in recent years been 
very clear that it is a proper and, in fact, very important 
tool of constitutional construction to consider the original 
public meaning of the text of the Constitution when 
interpreting and applying the Constitution. And I want to 
assure you and the Committee that I will honor that precedent, 
as I have honored precedent throughout the 18 years that I have 
been a judge, and will apply that precedent as indicated by the 
court.
    With respect to the article that you refer to and Judge 
Bork, Judge Bork at the time was really one of the first and 
leading proponents of originalism but focused on original 
intent, and that led him to take issue with a number of 
established Supreme Court precedent that was really the subject 
of my letter, which was the reason for me writing that letter.
    And certainly with the many, many years now that have 
passed and having been a judge now for 18 years, the world 
perhaps is not quite as black and white to me as it was in 
younger days, and it seems to me that a judge should consider 
all useful tools of constitutional construction as authorized 
by the Supreme Court, including the intent of the Framers, in 
construing the Constitution.
    Senator Grassley. Another question that might be more 
appropriate to what you are doing now as an Associate Justice: 
You advocated for Government-provided counsel for low-income 
litigants in civil matters, saying, ``Where basic human needs 
are at stake, regardless of forum, it is, therefore, essential 
that all individuals be afforded access to publicly financed 
counsel to represent them.''
    I think this is a simple question. Was this opinion based 
upon the Maine Constitution, the U.S. Constitution, or were you 
just making a policy pronouncement?
    Justice Levy. Thank you, Senator. Senator, I am not sure 
what speech or article you might be referring to, so I am not 
certain of the context. But I will say that, yes, for a number 
of years now I have chaired the commission in Maine which is 
concerned with access to justice in the civil courts of Maine. 
And so I have been very involved in promoting pro bono 
representation by the private bar and in assisting and 
supporting the legal aid programs in Maine that do provide 
assistance.
    And our experience, of course, is that justice is served 
when people have representation, they make better decisions, 
and justice is more likely to be achieved.
    Senator, I have not advocated for a constitutionally 
supported basis for providing representation in civil matters. 
We have been advocating for it as a matter of both legislative 
policy and as a matter of the private bar's commitment to 
providing pro bono work. And so I have not articulated or 
expressed a position with respect to a constitutional right to 
civil counsel, nor would I because as a judge that issue could 
be presented to me. It has not. But I have not publicly 
supported a constitutional right, a general constitutional 
right to counsel.
    Senator Grassley. Judge Bashant, you have been active in 
abortion issues and things of that nature. I have got some 
quotes here I will not go into, but could you please explain to 
me what the constitutionally excepted restrictions on the right 
of abortion are from your point of view?
    Judge Bashant. I believe that the Supreme Court has ruled 
that in certain limited circumstances a woman does have a right 
to choose abortion. If I were confirmed as a district court 
judge, I would follow that Supreme Court precedent.
    Senator Grassley. I think I am done. Thank you all very 
much.
    Senator Whitehouse. I thank all the witnesses for being 
here. The record will remain open for an additional week, and 
the hearing is adjourned.
    [Whereupon, at 11:34 a.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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