[Senate Hearing 113-515, Part 10]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 10
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 9, SEPTEMBER 17, NOVEMBER 13, and DECEMBER 10, 2014
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Serial No. J-113-1
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Part 10
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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SEPTEMBER 9, 2014, 10 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 3
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
PRESENTER
Kirk, Hon. Mark, a U.S. Senator from the State of Illinois
presenting John Robert Blakey, Nominee to be District Judge for
the Northern District of Illinois.............................. 3
STATEMENTS OF THE NOMINEES
Witness List..................................................... 19
Alonso, Hon. Jorge Luis, Nominee to be U.S. District Judge for
the Northern District of Illinois.............................. 5
biographical information..................................... 20
Blakey, John Robert, Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 6
biographical information..................................... 73
Mazzant, Hon. Amos L., III, Nominee to be U.S. District Judge for
the Eastern District of Texas.................................. 6
biographical information..................................... 128
Pitman, Robert Lee, Nominee to be U.S. District Judge for the
Western District of Texas...................................... 7
biographical information..................................... 207
Schroeder, Robert William, III, Nominee to be a U.S. District
Judge for the Eastern District of Texas........................ 8
biographical information..................................... 276
QUESTIONS
Questions submitted to Hon. Jorge Luis Alonso and John Robert
Blakey by Senator Cruz......................................... 337
Questions submitted to Hon. Jorge Luis Alonso by Senator Grassley 317
Questions submitted to John Robert Blakey by Senator Grassley.... 321
Questions submitted to Hon. Amos L. Mazzant, III, by Senator
Grassley....................................................... 325
Questions submitted to Robert Lee Pitman by Senator Grassley..... 329
Questions submitted to Robert William Schroeder, III, by Senator
Grassley....................................................... 333
ANSWERS
Responses of Hon. Jorge Luis Alonso to questions submitted by:
Senator Cruz................................................. 345
Senator Grassley............................................. 338
Responses of John Robert Blakey to questions submitted by:
Senator Cruz................................................. 356
Senator Grassley............................................. 348
Responses of Hon. Amos L. Mazzant, III, to questions submitted by
Senator Grassley............................................... 358
Responses of Robert Lee Pitman to questions submitted by Senator
Grassley....................................................... 365
Responses of Robert William Schroeder, III, to questions
submitted
by Senator Grassley............................................ 372
LETTER RECEIVED WITH REGARD TO HON. JORGE LUIS ALONSO
American Bar Association, August 5, 2014, letter................. 380
LETTER RECEIVED WITH REGARD TO JOHN ROBERT BLAKEY
American Bar Association, August 5, 2014, letter................. 382
LETTER RECEIVED WITH REGARD TO HON. AMOS L. MAZZANT, III
American Bar Association, June 27, 2014, letter.................. 384
LETTER RECEIVED WITH REGARD TO ROBERT LEE PITMAN
American Bar Association, June 27, 2014, letter.................. 386
LETTER RECEIVED WITH REGARD TO ROBERT WILLIAM SCHROEDER, III
American Bar Association, June 27, 2014, letter.................. 388
C O N T E N T S
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SEPTEMBER 17, 2014, 10:05 A.M.
STATEMENT OF COMMITTEE MEMBER
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 391
PRESENTERS
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Amit Priyavadan Mehta, Nominee
to be District Judge for the District of Columbia.............. 392
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts presenting Allison Dale Burroughs, Nominee to be
District Judge for the District of Massachusetts............... 393
STATEMENTS OF THE NOMINEES
Witness List..................................................... 405
Burroughs, Allison Dale, Nominee to be U.S. District Judge for
the Northern District of Massachusetts......................... 395
biographical information..................................... 406
Davidson, Jeanne E., Nominee to be Judge of the U.S. Court of
International Trade............................................ 396
biographical information..................................... 460
Gilliam, Haywood Stirling, Jr., Nominee to be U.S. District Judge
for the Northern District of California........................ 397
biographical information..................................... 514
Mehta, Amit Priyavadan, Nominee to be U.S. District Judge for the
District of Columbia........................................... 398
biographical information..................................... 564
QUESTIONS
Questions submitted to Allison Dale Burroughs, Haywood Stirling
Gilliam, Jr., and Amit Priyavadan Mehta by Senator Cruz........ 621
Questions submitted to Allison Dale Burroughs by Senator Grassley 603
Questions submitted to Jeanne E. Davidson by Senator Grassley.... 607
Follow-up questions submitted to Jeanne E. Davidson by
Senator Grassley........................................... 617
Questions submitted to Haywood Stirling Gilliam, Jr., by Senator
Grassley....................................................... 609
Questions submitted to Amit Priyavadan Mehta by Senator Grassley. 613
ANSWERS
Responses of Allison Dale Burroughs to questions submitted by:
Senator Cruz................................................. 630
Senator Grassley............................................. 622
Responses of Jeanne E. Davidson to questions submitted by Senator
Grassley....................................................... 632
Responses of Jeanne E. Davidson to follow-up questions
submitted by Senator Grassley.............................. 637
Responses of Haywood Stirling Gilliam, Jr., to questions
submitted by:
Senator Cruz................................................. 652
Senator Grassley............................................. 643
Responses of Amit Priyavadan Mehta to questions submitted by:
Senator Cruz................................................. 662
Senator Grassley............................................. 655
LETTER RECEIVED WITH REGARD TO ALLISON DALE BURROUGHS
American Bar Association, August 4, 2014, letter................. 665
LETTER RECEIVED WITH REGARD TO JEANNE E. DAVIDSON
American Bar Association, August 19, 2014, letter................ 667
LETTER RECEIVED WITH REGARD TO HAYWOOD STIRLING GILLIAM, JR.
American Bar Association, August 19, 2014, letter................ 669
LETTER RECEIVED WITH REGARD TO AMIT PRIYAVADAN MEHTA
American Bar Association, August 4, 2014, letter................. 671
C O N T E N T S
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NOVEMBER 13, 2014, 12:21 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 677
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii...... 673
prepared statement........................................... 882
PRESENTERS
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina
presenting Loretta Copeland Biggs, Nominee to be District Judge
for the Middle District of North Carolina...................... 673
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina
presenting Loretta Copeland Biggs, Nominee to be District Judge
for the Middle
District of North Carolina..................................... 675
STATEMENTS OF THE NOMINEES
Witness List..................................................... 685
Azrack, Hon. Joan Marie, Nominee to be U.S. District Judge for
the Eastern District of New York............................... 677
biographical information..................................... 686
Biggs, Loretta Copeland, Nominee to be U.S. District Judge for
the Middle District of North Carolina.......................... 678
biographical information..................................... 747
Botticelli, Michael P., Nominee to be Director of National Drug
Control Policy................................................. 679
biographical information..................................... 868
prepared statement........................................... 878
Dillon, Elizabeth K., Nominee to be U.S. District Judge for the
Western District of Virginia................................... 679
biographical information..................................... 817
QUESTIONS
Questions submitted to Nominees Hon. Joan Marie Azrack, Loretta
Copeland Biggs, and Elizabeth K. Dillon by Senator Cruz........ 899
Questions submitted to Hon. Joan Marie Azrack by Senator Grassley 884
Questions submitted to Loretta Copeland Biggs by Senator Grassley 888
Questions submitted to Michael P. Botticelli by:
Senator Feinstein............................................ 900
Senator Grassley............................................. 896
Senator Hirono............................................... 902
Questions submitted to Elizabeth K. Dillon by Senator Grassley... 892
ANSWERS
Responses of Hon. Joan Marie Azrack to questions submitted by:
Senator Cruz................................................. 909
Senator Grassley............................................. 903
Responses of Loretta Copeland Biggs to questions submitted by:
Senator Cruz................................................. 918
Senator Grassley............................................. 911
Responses of Michael P. Botticelli to questions submitted by:
Senator Feinstein............................................ 945
Senator Grassley............................................. 930
Senator Hirono............................................... 942
Responses of Elizabeth K. Dillon to questions submitted by:
Senator Cruz................................................. 927
Senator Grassley............................................. 920
LETTER RECEIVED WITH REGARD TO HON. JOAN MARIE AZRACK
American Bar Association, September 22, 2014, letter............. 952
LETTER RECEIVED WITH REGARD TO LORETTA COPELAND BIGGS
American Bar Association, September 22, 2014, letter............. 954
LETTERS RECEIVED WITH REGARD TO MICHAEL P. BOTTICELLI
Alliance for Children and Families et al., October 23, 2014,
letter......................................................... 977
American Medical Association (AMA), November 12, 2014, letter.... 995
American Psychiatric Association (APA), October 8, 2014, letter.. 968
American Society of Addiction Medicine (ASAM), September 4, 2014,
letter......................................................... 958
Association for Medical Education and Research in Substance Abuse
(AMERSA), November 11, 2014, letter............................ 994
Beletsky, Leo, J.D., M.P.H., November 9, 2014, letter............ 987
Center for Children and Family Futures, October 15, 2014, letter. 974
Community Anti-Drug Coalitions of America (CADCA), September 19,
2014, letter................................................... 964
Faces and Voices of Recovery (FAVOR), November 5, 2014, letter... 985
Harm Reduction Coalition, November 12, 2014, letter.............. 996
Legal Action Center, November 10, 2014, letter................... 989
Lines for Life, November 10, 2014, letter........................ 991
Major County Sheriffs' Association (MCSA), November 12, 2014,
letter......................................................... 998
McAdams, Hon. Ben, Mayor, Salt Lake County, Utah, October 13,
2014, letter................................................... 973
National African American Drug Policy Coalition, Inc. (NAADPC),
November 11, 2014, letter...................................... 971
National Association for Alcoholism and Drug Abuse Counselors
(NAADAC), October 31, 2014, letter............................. 981
National Association for Children of Alcoholics (NACoA), November
7, 2014, letter................................................ 986
National Association of County and City Health Officials
(NACCHO),
September 16, 2014, letter..................................... 963
National Association of Drug Court Professionals (NADCP),
September 24, 2014, letter..................................... 965
National Association of Psychiatric Health Systems (NAPHS),
October 16, 2014, letter....................................... 975
National Association of State Alcohol and Drug Abuse Directors,
Inc. (NASADAD), September 9, 2014, letter...................... 959
National Council on Alcoholism and Drug Dependence, Inc. (NCADD),
September 29, 2014, letter..................................... 967
National Council for Behavioral Health, September 11, 2014,
letter......................................................... 962
National Criminal Justice Association et al., November 4, 2014,
letter......................................................... 984
National District Attorneys Association (NDAA), October 30, 2014,
letter......................................................... 980
National Family Partnership (NFP), November 10, 2014, letter..... 993
Partnership for Drug-Free Kids, September 26, 2014, letter....... 966
Partnership for Drug-Free Kids et al., November 10, 2014, letter. 992
Phoenix Multisport, September 10, 2014, letter................... 961
Sanford, Catherine ``Kay,'' MSPH, November 10, 2014, letter...... 988
Swanson, Richard R., Ph.D., November 3, 2014, letter............. 983
University of Vermont, Collegiate Recovery Community, October 8,
2014, letter................................................... 970
Vermont Recovery Network, October 17, 2014, letter............... 976
Zwick Healthcare Consultants, LLC, November 2, 2014, letter...... 982
LETTER RECEIVED WITH REGARD TO ELIZABETH K. DILLON
American Bar Association, September 22, 2014, letter............. 956
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York, prepared statement with regard to Hon. Joan Marie Azrack,
Nominee to be District Judge for the Eastern District of New
York........................................................... 1000
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia,
prepared
statement with regard to Elizabeth K. Dillon, Nominee to be
District Judge for the Western District of Virginia............ 1004
Markey, Hon. Edward J., a U.S. Senator from the State of
Massachusetts, prepared statement with regard to Michael P.
Botticelli, Nominee to be Director of National Drug Control
Policy......................................................... 1005
Warner, Hon. Mark R., a U.S. Senator from the State of Virginia,
prepared statement with regard to Elizabeth K. Dillon, Nominee
to be District Judge for the Western District of Virginia...... 1002
C O N T E N T S
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DECEMBER 10, 2014, 10:11 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 1015
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1009
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1007
prepared statement........................................... 1098
STATEMENTS OF THE NOMINEES
Witness List..................................................... 1031
Lee, Michelle K., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 1011
biographical information..................................... 1032
prepared statement........................................... 1093
Marti, Daniel Henry, Nominee to be U.S. Intellectual Property
Enforcement Coordinator, Executive Office of the President..... 1010
biographical information..................................... 1072
prepared statement........................................... 1096
QUESTIONS
Questions submitted to Michelle K. Lee by:
Senator Coons................................................ 1106
Senator Durbin............................................... 1103
Senator Grassley............................................. 1110
Senator Hatch................................................ 1113
Senator Leahy................................................ 1100
Questions submitted to Daniel Henry Marti by:
Senator Coons................................................ 1109
Senator Durbin............................................... 1105
Senator Grassley............................................. 1112
Senator Leahy................................................ 1101
ANSWERS
Responses of Michelle K. Lee to questions submitted by:
Senator Coons................................................ 1133
Senator Durbin............................................... 1129
Senator Grassley............................................. 1140
Senator Hatch................................................ 1146
Senator Leahy................................................ 1126
Responses of Daniel Henry Marti to questions submitted by:
Senator Coons................................................ 1123
Senator Durbin............................................... 1120
Senator Grassley............................................. 1114
Senator Leahy................................................ 1117
LETTERS RECEIVED WITH REGARD TO MICHELLE K. LEE
Application Developers Alliance, December 5, 2014, letter........ 1157
Asian/Pacific Islander American Chamber of Commerce and
Entrepreneurship (ACE), December 1, 2014, letter............... 1167
Davies, Susan M., et al., November 14, 2014, letter.............. 1160
Engine Advocacy, October 28, 2014, letter........................ 1158
Imada, Bill, December 1, 2014, letter............................ 1151
International Trademark Association (INTA), November 5, 2014,
letter......................................................... 1159
National Asian Pacific American Bar Association (NAPABA),
December 1, 2014, letter....................................... 1153
Takayasu, Sach, December 1, 2014, letter......................... 1149
LETTERS RECEIVED WITH REGARD TO DANIEL HENRY MARTI
American Intellectual Property Law Association (AIPLA), November
10, 2014, letter............................................... 1173
Copyright Alliance, November 14, 2014, letter.................... 1174
CreativeFuture, November 20, 2014, letter........................ 1176
Entertainment Software Association (ESA), December 9, 2014,
letter......................................................... 1179
Hispanic Bar Association of the District of Columbia (HBA-DC),
November 10, 2014, letter...................................... 1177
International AntiCounterfeiting Coalition (IACC), January 8,
2015, letter................................................... 1169
International Trademark Association (INTA), November 5, 2014,
letter......................................................... 1171
Motion Picture Association of America, Inc. (MPAA), November 7,
2014,
letter......................................................... 1172
National Music Publishers' Association (NMPA), October 31, 2014,
letter......................................................... 1170
United States Chamber of Commerce, December 9, 2014, letter...... 1180
ALPHABETICAL LIST OF NOMINEES
Alonso, Hon. Jorge Luis, Nominee to be U.S. District Judge for
the Northern District of Illinois.............................. 5
Azrack, Hon. Joan Marie, Nominee to be U.S. District Judge for
the Eastern District of New York............................... 677
Biggs, Loretta Copeland, Nominee to be U.S. District Judge for
the Middle District of North Carolina.......................... 678
Blakey, John Robert, Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 6
Botticelli, Michael P., Nominee to be Director of National Drug
Control Policy................................................. 679
Burroughs, Allison Dale, Nominee to be U.S. District Judge for
the Northern District of Massachusetts......................... 395
Davidson, Jeanne E., Nominee to be Judge of the U.S. Court of
International Trade............................................ 396
Dillon, Elizabeth K., Nominee to be U.S. District Judge for the
Western District of Virginia................................... 679
Gilliam, Haywood Stirling, Jr., Nominee to be U.S. District Judge
for the Northern District of California........................ 397
Lee, Michelle K., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 1011
Marti, Daniel Henry, Nominee to be U.S. Intellectual Property
Enforcement Coordinator, Executive Office of the President..... 1010
Mazzant, Hon. Amos L., III, Nominee to be U.S. District Judge for
the Eastern District of Texas.................................. 6
Mehta, Amit Priyavadan, Nominee to be U.S. District Judge for the
District of Columbia........................................... 398
Pitman, Robert Lee, Nominee to be U.S. District Judge for the
Western District of Texas...................................... 7
Schroeder, Robert William, III, Nominee to be a U.S. District
Judge for the Eastern District of Texas........................ 8
NOMINATIONS OF HON. JORGE LUIS ALONSO, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS; JOHN ROBERT BLAKEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF ILLINOIS; HON. AMOS L. MAZZANT, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TEXAS; ROBERT LEE PITMAN, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS; AND ROBERT WILLIAM
SCHROEDER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF TEXAS
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TUESDAY, SEPTEMBER 9, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin,
presiding.
Present: Senators Cornyn and Cruz.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. The Judiciary Committee will come to order.
We will consider five highly qualified nominees to the Federal
bench.
They are Jorge Luis Alonso, who has been nominated to be a
District Judge for the Northern District of Illinois; John
Robert Blakey, also nominated for the Northern District of
Illinois; Amos L. Mazzant, III, nominated for the Eastern
District of Texas; Robert William Schroeder, III, also
nominated for the Eastern District of Texas; and Robert Lee
Pitman, nominated for the Western District of Texas.
At these hearings, it is traditional for nominees to be
introduced before the Committee by Senators from their home
States. I will note that the Ranking Member will soon join us.
We are going to proceed with introductions. I am going to
start by introducing Jorge Alonso from Illinois, and then turn
to my colleague, Senator Mark Kirk, who will introduce Jack
Blakey. My colleagues from Texas, when they arrive, will make
their introductions.
I am pleased to introduce Judge Jorge Alonso before this
Committee. Judge Alonso has been nominated to fill the vacancy
in the Northern District of Illinois that will be opening up on
November 16, when Judge Ronald Guzman takes senior status.
Since 2003, Judge Alonso has served as an Associate Judge
for the Cook County Judicial Circuit. Currently in his third
appointed term, he presides over felony cases at the Cook
County Criminal Court Building.
As a State trial court judge, Judge Alonso has presided
over hundreds of cases that have gone to verdict or judgment,
including at least 88 jury trials. He also presides over the
Women's Justice Mental Health Call in Cook County. Judge Alonso
helped to create this program and it provides intensive support
and services to women in the justice system who have suffered
from trauma and addiction.
Prior to serving as a State court judge, Judge Alonso
served for 12 years as an Assistant Public Defender in Cook
County. He initially handled civil proceedings in the Child
Protection Division of the Public Defender's Office, and later
worked in the Juvenile Justice Division and the Felony Trial
Division. As a public defender, he participated in
approximately 30 jury trials and 150 bench trials.
In addition to his substantial courtroom and judicial
experience, he has an admirable record of service in the
Chicago community. Among his activities, he serves on the
boards of the Daniel Murphy Scholarship Fund, providing
scholarships and support to low-income Chicago students, and
the Cristo Rey Jesuit High School in Chicago's Pilsen
neighborhood. He also works as judicial interviewer with the
Lawyers Assistance Program, which assists members of the bar
who are struggling with mental health or addiction issues.
Judge Alonso received his undergraduate degree from the
University of Miami and his law degree here at the George
Washington University Law School.
To put it simply, Judge Alonso is an outstanding nominee.
He has the experience, the integrity, and the judgment to be an
excellent Federal Judge.
In Illinois, we have a bipartisan process which Senator
Kirk and I have initiated to select judicial candidates and
send their names to the White House. Under the system, I
recommended Judge Alonso for the Federal bench. I thank my
colleague, Senator Kirk, for signing a blue slip signaling his
support for that nomination.
Judge Alonso has a few more supporters in the audience. I
think I will let him acknowledge them when he comes to the
table, but we are glad that the entire family is here today.
I am going to turn to my other colleagues to introduce
nominees and since Senator Kirk was not only prompt, but early,
I am going to recognize him at this point.
Senator Mark Kirk.
PRESENTATION OF JOHN ROBERT BLAKEY, 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 am here to
recommend and to thank you and President Obama for bringing
forward Jack Blakey.
I am going to focus on Jack Blakey because it is a twofer.
We are getting Jack and his dad. His father, Robert Blakey,
worked for Senator McClellan of Arkansas in the late 70s and
wrote the RICO Statute. If there is any State in the Union that
needs experts on RICO, it is Illinois.
I just would thank you for having--I would say with Jack
Blakey we are putting a guy on the bench who is an experienced
Shakespearean actor who even performed in London--90 trials all
the way to the end, including bench and jury trials. He is
working for Anita Alvarez in a very senior leadership position
in Cook County, Illinois, a place you would know very well.
With that, I will conclude then. Thank you, Mr. Chairman.
Senator Durbin. Senator Kirk, thank you very much.
Mr. Blakey, thank you for being here and you will have an
opportunity to introduce your family when you are called.
The other nominees are from the great State of Texas. Who
is here to speak on their behalf but Senator John Cornyn. Take
it away, Senator.
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. I like the way you
said ``Great State of Texas.'' We agree.
I want to thank the Chairman for convening this hearing. We
have before us five nominees for the Federal bench, three of
whom have been nominated to fill vacancies in Texas.
I want to congratulate each of those nominees and their
families for this great honor. I know you traveled a long way
and endured a lot of paperwork and other scrutiny to get where
you are. I want to just introduce these three nominees briefly.
Magistrate Judge Amos Mazzant is a fixture in the bar in
Sherman, Texas in the Eastern District. He graduated from the
University of Pittsburgh and Baylor Law School, and remained in
Texas after that.
From 1990 to 1992, Judge Mazzant clerked in Sherman for
U.S. District Judge Paul Brown. Since then he has made his
legal career there, including serving for the last 5 years as a
Federal Magistrate.
If confirmed, Judge Mazzant will serve in the courthouse
named for Judge Brown.
Robert Pitman is our U.S. Attorney in the Western District
of Texas. He has graduated from Abilene Christian University
and University of Texas Law School, and then clerked for a
Federal Judge.
Before assuming his current role, Mr. Pitman served for
many years as a Federal Prosecutor and Magistrate in the
Western District. He has earned accolades for his work at every
level, as well as the support of the local bar.
I was proud to support Robert for U.S. Attorney, and I am
proud to support him for the nomination at the Federal bench.
Trey Schroeder is a litigator in private practice in
Texarkana, Texas. I understand he is not a native Texan, but we
have always taken converts and people who got there as fast as
they could.
He graduated from the University of Arkansas and American
University's Washington College of Law. Since then he has had a
distinguished career, including work in the Office of the
Counsel to President, and as a law clerk on the U.S. Court of
Appeals for the Eighth Circuit.
He is currently a partner at Patton, Tidwell and Schroeder,
and his reputation in Texarkana is stellar.
Each of these three nominees are lawyers of the highest
caliber and the kind of individuals who should serve on the
Federal bench. That is no surprise because like your process,
Mr. Chairman, we have a bipartisan Federal Judicial Evaluation
Committee that has scrutinized these nominees and done an
outstanding job in making these recommendations to Senator Cruz
and myself, and working with the White House to get these
nominations where they are today.
The FJEC, as we call it, is a bipartisan blue ribbon panel
of some of the best lawyers and judges in the State of Texas.
They provide input on applicants to the Federal bench and we
work closely with the White House, as I said, to ensure that
the nominees in our State are the kind of men and women who
deserve the honor of these important jobs and lifetime tenure
that goes along with it.
I want to thank our volunteers who serve on the FJEC and
the White House Counsel's Office for their work with our
offices on these nominations. I am proud of the work that the
FJEC has done and the quality of these nominees. I look forward
to hearing from all of them. Thank you.
Senator Durbin. Thanks, Senator Cornyn. I will ask the
staff to put the name tags before the chairs so each nominee
will see where they are to approach in just a moment.
For the record, all of these nominees have gone through an
extensive process, an application, which is voluminous and then
review by committees in Illinois and Texas in this
circumstance. They have answered scores and scores of questions
about their background. So if the questioning today is brief,
it is not an indication that we think there is little to be
asked. A lot has all ready been asked and answered.
We will start by asking the nominees to each approach the
table and stand for a moment while I administer the oath
customary of the Committee.
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?
Judge Alonso. I do.
Mr. Blakey. I do
Judge Mazzant. I do.
Mr. Pitman. I do.
Mr. Schroeder. I do.
Senator Durbin. Thank you. Let the record reflect that all
five of the witnesses and nominees have answered in the
affirmative. We are going to give each of you a chance to say a
few words by way of opening, and start with Judge Alonso.
STATEMENT OF HON. JORGE LUIS ALONSO, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Alonso. Thank you, Senator. I would like to start by
thanking the Committee, the entire Committee for convening this
meeting. I would like to thank the Chairman, the Ranking
Member, and I would also like to thank you, Senator Durbin. I
would like to thank you for presiding and chairing today. I
would also like to thank you for your gracious introduction, as
well as, of course, for your recommendation and all of your
support.
Of course, I would like to thank President Obama for this
incredible honor of the nomination.
I do have family with me here today, as you alluded to. I
have my wonderful wife here, Amee Alonso, of 15 years. My
amazing daughters are here, Lila, Ursula, and Lulu. They are
here. They are in eighth grade and sixth grade, and they have
sacrificed a couple of days to be here.
I have got my mother here from Florida, Ursula Alonso, and
I would like to thank her for being here. I am so happy she is
here. And I would like to thank her for her support, her
guidance throughout all of these years.
I would be remiss if I didn't mention my father. We lost my
father some years ago, Pedro Alonso, but I would like to have
his name inserted in the record. And he would be thrilled to be
here, as thrilled as my mother is and the rest of my family.
Also here from Arizona are my wonderful in-laws, Robert and
Rosemarie Orlick. He is a retired engineer and a Korean War
Veteran.
I have family that couldn't make it here today that is
watching on the webcast and supporting me. I would like to
acknowledge my brother, Jose Alonso, who is an attorney in
Florida; my sister and her family, Dr. Susanna and Steven
Barski, and their wonderful daughters, Elia and Emily. And in
Arizona I have my sister-in-law and her family, Drs. Kathy and
Douglas Little. He is also a Colonel in the National Guard and
they have four wonderful children, Christopher, the oldest that
we are all very proud of, and the rest, AJ, Alexandra, and
Brendan who, of course, we are also proud of.
I would also like to just acknowledge all the support back
in Chicago, back home from my legal family, all of the
hardworking professionals that I have been fortunate enough to
serve with over the last 10 years, plus all of my fellow judges
in Cook County, all of the hardworking lawyers, and all of the
other individuals that have always supported me, clerks,
sheriffs, court reporters, interpreters, probation officers.
Thank you very much.
[The biographical information of Judge Alonso appears as a
submission for the record.]
Senator Durbin. Thank you, Judge.
Mr. Blakey.
STATEMENT OF JOHN ROBERT BLAKEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Blakey. Thank you, Mr. Chairman. Thank you for
presiding today. Thank you for your support and all of your
hard work on behalf of the Committee. Thank you too, Senator
Cornyn, for being here today.
I would like to thank the President and Senator Kirk. I am
humbled by their confidence in me and I appreciate their kind
words and support.
With me today is my wife, Christina. We have been married
almost 20 years and she certainly is a good example of good
judgment on my behalf in choosing to ask her to marry me.
My father is here, Professor G. Robert Blakey. My father-
in-law, Dan Saracino, is also here. And my four boys, Joseph
Blakey, Charlie Blakey, Daniel Blakey, and George Blakey are
all here as well.
And a dear friend of mine, Steve Nagorski, is also here. He
lives in the Washington area.
My brother Michael and my sisters, Liz, Marie, Katie,
Christie, and Megan are all watching from home. They are here
in spirit.
And my brother Matt and my mother have passed, but are also
here in spirit.
I look forward to the questions from the Committee and
thank you very much.
[The biographical information of Mr. Blakey appears as a
submission for the record.]
Senator Durbin. Thank you.
Judge Mazzant.
STATEMENT OF HON. AMOS L. MAZZANT, III, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS
Judge Mazzant. Thank you, Senator, and I want to thank the
Committee for convening the hearing. I want to thank the
President for the honor of this nomination. I want to thank
Senator Cornyn for his kind introduction, as well as both
Senator Cornyn and Cruz for recommending me to the President.
And I want to thank the Senators Federal Judicial Evaluation
Committee for recommending me to the Senators.
I have a large number of family that made the trip here
today. If you will indulge me, I will introduce them.
The love of my life, my wife Michelle of 24 years. She is a
kindergarten teacher in Sherman. My daughter, Caitlin would
have loved to have been here, but she is starting her freshman
year at Texas A&M and is watching via the webcast. My younger
daughter, Alex is here. She is missing high school. She is a
junior at Sherman High School.
My sisters are here, Cynthia Mazzant and Jim Colbert. My
younger sister Kristina Mazzant-Thorpe, and my nephew Zach. My
brother-in-law, Sam, is watching via webcast, as is my niece,
Taylor, who is also in college.
My father would have loved to have been here, but he and my
stepmother, Amos and Cookie Mazzant, are watching via the
webcast in Florida. And my brother Matt is--hopefully--he said
he would get up to watch from California, early. We will see if
he did or not later.
I have wonderful in-laws. They are here, Jeanne and Bill
Melfi; my brother-in-law, Todd and Melissa Melfi. My wife's
aunt Rosemarie Melfi is here. My wife's Uncle Donnie and Aunt
Jackie Melfi are here as well, as well as her cousin Marilyn
Coleman.
I also have some of my staff members here, Terri Scott, my
judicial assistant, as well as Debbie McCord, my courtroom
deputy and my career law clerk is watching via the webcast.
I have a number of lawyer friends that actually showed up
too, and I will just say their names really quickly, Alienne
Durrett, Bret Johnson, Kimberly Preist-Johnson, Roger Sanders,
Clyde Sigman, Judge Carol Sigman, all from Sherman or Dallas,
as well as Jim Carter who is from here in Washington, DC.
I would also like to acknowledge the judges of the Eastern
District who have been so supportive of me in this effort. I
want to acknowledge my mother who passed away 13 years ago, but
is here in spirit.
And then finally, I would like to just recognize Judge Paul
Brown who was my mentor and hired me as a law clerk and changed
my career 24 years ago, and we have several other law clerks
here that are in attendance. And I thank you.
[The biographical information of Judge Mazzant appears as a
submission for the record.]
Senator Durbin. Thank you very much.
Mr. Pitman.
STATEMENT OF ROBERT LEE PITMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TEXAS
Mr. Pitman. Thank you Chairman Durbin, Senator Cornyn. I
appreciate this opportunity to appear before you today. I
especially would like to thank Senator Cornyn for his generous
introduction and for his longstanding support.
I would like to thank both Senator Cornyn and Senator Cruz
for submitting my name to the President. And, of course, I
would like to express my appreciation to President Obama once
again for the proud honor of a nomination. The opportunity to
serve as U.S. Attorney has been the greatest honor of my life,
and I am humbled beyond words now to be considered for
appointment to the bench.
I would like to acknowledge several family members and
friends who are with me here today. Joining me today is David
Smith, on whose support, and encouragement, and wisdom I have
relied for over 20 years now.
Of my four brothers and sisters, one is with me today, my
eldest brother, Tim and his wife, Echo. The youngest of five
kids, I owe much to the guidance and love--albeit sometimes
tough love--of my elder siblings and I appreciate so much their
support throughout the process.
Echo's daughter, Rebecca Beyer, has joined us from New York
today. I am also very honored to have today supporting me,
several friends who have come from Texas. They are really like
family to me, and they have supported me, again, throughout
this process, John Dalton and Marilyn and Lex Henderson.
Finally, Mr. Chairman, I would like to recognize, for the
record, the outstanding men and women of the U.S. Attorneys
Office for the Western District of Texas with whom it has been
my honor to serve and who I believe represent the very best of
public service.
Thank you and I appreciate the opportunity to appear today.
[The biographical information of Mr. Pitman appears as a
submission for the record.]
Senator Durbin. Mr. Pitman, would that include your first
assistant?
Mr. Pitman. That does. My first assistant--for the record,
his name is Richard Durbin.
[Laughter.]
Mr. Pitman. Senator, I figured with a name like that, I
couldn't go wrong.
Senator Cornyn. No relation, I hope.
[Laughter.]
Mr. Pitman. He is a graduate of the University of Chicago.
Senator Durbin. Mr. Schroeder.
STATEMENT OF ROBERT WILLIAM SCHROEDER, III, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF TEXAS
Mr. Schroeder. Thank you, Senator Durbin, for chairing the
hearing today and for giving me the opportunity and the
privilege to be here. Thank you, as well, Senator Cornyn for
being here today. I want to thank Chairman Leahy and Ranking
Member Grassley for scheduling the hearing as well as the other
Members of the Committee for considering my nomination.
I would like to begin by thanking President Obama for
nominating me for this position. I am humbled by it. I am
grateful to you, Senator Cornyn and Senator Cruz for
recommending me to the President and for your support and the
support of your staffs throughout this process.
Thank you, Senator Cornyn, for your kind and generous words
today. I would also like to thank the Senator's Bipartisan
Federal Judicial Evaluation Committee for considering my
application and for its support of me as well.
I am fortunate today to be joined by my family and I would
like to introduce them. My parents, Mary and Bill Schroeder are
here. Just last month, they celebrated their 50th wedding
anniversary. They are two of the finest, hardest working people
I know, and I owe so much to both of them for their love and
support.
My mother-in-law, Nancy DeLamar, the best mother-in-law one
could hope for, and I am glad that she is here today. My
daughters, Eleanor and Francis are here. Their birthdays were
last week. They turned 15 and just started as freshmen at Texas
High School in Texarkana. Their mother and I are very proud of
them and the fine young women that they are becoming. I would
be remiss if I did not also tell you that they are both
excellent soccer players.
Finally, my wife, Megan--we were married 20 years ago this
summer. And as Senator Cornyn sometimes says about himself,
Megan is a recovering lawyer herself and I can assure you that
she is the smartest lawyer at our house. She is my best friend
and the love of my life.
I also have a couple of friends that I would like to
briefly acknowledge. My lifelong friend, Brad Davis, came from
Little Rock and I am glad to have him here. We have been
friends for more than 45 years.
One of my law partners, Kelly Tidwell, is here with his
son, Hutch, who is a tenth grader, also at Texas High School.
And I am glad that they were able to make the trip.
I also have several longtime friends from Washington who
were able to be here today, and I thank them as well. And
finally, friends, other family members, and colleagues from
back home watching on the webcast. I appreciate their support.
And my thanks to all of you and I look forward to answering
your questions.
[The biographical information of Mr. Schroeder appears as a
submission for the record.]
Senator Durbin. Thanks, Mr. Schroeder.
I am going to ask a generalized question to start with. I
am going to acknowledge the obvious. None of you would be
sitting here today if you didn't have the appropriate legal
credentials and experience. And now you are aspiring, for most
of you, to a new position in life, at least at the Federal
level, to be a judge.
In that position, you are going to be called on to use that
legal expertise, that experience, in a different way. My
experience--in the distant past when I practiced law--was that
you were looking for two things when it came to a judge, the
right temperament and fairness.
I have had a chance, having served here for a few years, to
interview a lot of people aspiring to the Federal bench, even
to the Supreme Court, and I have found it interesting how many
of them would come before me and say, ``Ignore what you read
about what I have done in the past. That really has nothing to
do with what I will do in the future. I am going to go right
down the center stripe of the highway. I used to be left-handed
all of my life. I can be right-handed too. I can do whatever it
takes to make sure that we apply the law fairly and accurately
and so forth and so on.''
Most of the time as I observe their records afterwards it,
it turns out to be less than truthful. What we are today is
what we were and what we learned in our life experience.
So I would like to ask each of you--for three of you there
is a life experience as a defender, as a prosecutor, and other
experiences. You have been in courtrooms, all of you, many
times in the fray representing litigants, prosecuting,
defending, some clerking for the judges who are observing this
process and trying to come to a fair outcome.
I would like to have each of you comment on these two basic
ideas of temperament in judges and fairness, what you have
observed and the standard you would hold yourself to.
Judge Alonso, start.
Judge Alonso. Thank you, Senator. In terms of temperament,
Senator, what I have tried to do over these past 11 years is I
have always tried to make sure that I am kind and respectful to
everyone that appears before me, litigants, attorneys, all of
the parties. I try to practice restraint at all times.
It is my sense that as judges we have to control the
courtroom, but I feel that if you can't control your own
emotions, it is very, very difficult to control the courtroom
or the emotions of other people that appear in front of you. It
is my feeling that they take their cue from you as the judge in
the courtroom.
I try always to be humble and I also try always to be
patient. I think that is a very important trait. I think only
when we are patient can we make sure that everyone feels like
they have had their say and have been heard.
Senator Durbin. Mr. Blakey, your background is largely as a
prosecutor. And to put it in context, if I am an impoverished
criminal defendant, minority, standing before you as my judge,
do I have a chance?
Mr. Blakey. Thank you for the question, Senator. Of course.
As a public servant for over 20 years, having done both
criminal and civil, having done prosecution and some criminal
defense issues, some issues with respect to being a law clerk,
I have always been committed--no matter who my client was--to
the rule of law. And if I am fortunate enough to be confirmed,
I would bring that to the bench and I would have not only the
temperament to apply the law fairly and to give dignity to each
person who came into the room, I would do it impartially.
I would never put my finger upon the scales of justice for
any party, whether it be the government or any particular
litigant. I would listen. I would be humble. And I would be
patient because in humility and patience and listening comes
very good results. It allows a person not only to know that
they have been heard, but that they have been understood.
Senator Durbin. Mr. Mazzant, I don't know the judges that
you have clerked for and worked with, but you have certainly
observed it from that side of the courtroom. What are your
thoughts on this?
Judge Mazzant. Thank you, Senator, for the question. I have
had a great role model with Judge Paul Brown. He epitomized
what a good judge would be, followed the rule of law, had a
great temperament, treating everyone with respect.
When I became a judge 10 years ago, and I served both as a
State judge and a magistrate judge for the last 5 years--I
followed that example, following that rule of law and treating
everybody that came before me with respect and fairness. And if
I am lucky enough to be confirmed, I would follow that same
pattern.
Senator Durbin. Mr. Pitman, as a U.S. Attorney, tell me how
you view your future role on the bench.
Mr. Pitman. Senator, having been an Assistant State's
Attorney and now a U.S. Attorney, I have certainly had the role
as an advocate, but I have made this transition before from
being an advocate to being a United States Magistrate Judge.
Making that transition from prosecutor to being a judge,
although it is a shift, it is somewhat different than being
another kind of advocate that goes to the bench because a
Federal prosecutor has the obligation of being an advocate, but
also of doing justice. And so I think because that has been an
added dimension of the job that I have had throughout my career
as an advocate, I have appreciated the fact that a big part of
that job was to be a gatekeeper and to watch out for people's
rights even if they were on the other side of the docket.
I did that, I believe, successfully when I made the
transition to be a United States Magistrate Judge. And I pledge
to you that I will understand the difference between being an
advocate, and I will understand that as a judge I will need to
be not only an impartial and neutral arbiter, but to be seen
and perceived as that.
Senator Durbin. Thank you.
Mr. Schroeder.
Mr. Schroeder. Thank you for the question, Senator Durbin.
I have had a diverse legal career. I had a couple of years
clerking for Judge Richard Arnold on the Eighth Circuit Court
of Appeals which was an amazing experience for me.
He had a profound commitment to the rule of law, and I
learned so much from him about the importance of preparation
and the importance of hard work, the importance of being kind
and courteous to litigants and counsel. I had a few years
working in the executive branch here in Washington, and I have
had 15 years of private practice in Texarkana.
My experience and the judges in both State and Federal
court that I have appeared before that I most admired were well
prepared, thoughtful, careful, people of modesty and humility
who recognize their role in the process and who recognize that
their role as the judge was an important role, but a limited
role. And their job and obligation was to carefully consider
the facts and apply the law to the facts of each case,
approaching each case fairly, impartially, and with an open
mind. And that is the kind of judge I would try to be.
Senator Durbin. Thank you and I find it interesting how
many of you have used the word ``humility.'' Humble is one of
the first words that comes to mind when you say ``United States
Senator.''
[Laughter.]
Senator Durbin. We have a lot to be humble about, I guess.
I acknowledge the presence of Senator Cruz and I will
recognize him immediately after Senator Cornyn.
Senator Cornyn. Well, thank you, Mr. Chairman. Mr.
Schroeder, you mentioned the fact that I was a recovering
lawyer, and as you know, I also spent 13 years on the State
bench, so I admit to being a recovering judge as well.
[Laughter.]
Senator Cornyn. I agree 100 percent with what Senator
Durbin said about we are all a product of our background and
upbringing and probably what we will do in the future--the best
indicator of that is what we have done in the past, but I also
would want to stress what some of you have acknowledged is that
your role as an Article III Federal District Judge is different
from any role that you have held in the past.
I know for the three nominees from Texas, you have gone
through a very extensive vetting process, FBI background check,
you have got public records that have been examined closely
and, as we said, to the FJEC's bipartisan evaluation. I feel
like I know a lot about each of you, and it is because of the
confidence that I have that I was very comfortable recommending
to the President each of you be nominated for these positions.
So I don't have a lot of questions, but I just want to ask
each of you--my experience has been that what litigants want,
what people who come into court want are basically three
things. They want somebody who will listen, somebody who will
treat them respectfully, and somebody who will follow the law.
I will start with you, Mr. Alonso, and we will go down the
line. Would each of you agree with that or disagree? And if you
agree with it, will you do it?
Judge Alonso. I agree with it. I think that is a great top
three. There are many skills that are necessary and that come
into play, but that is a great start, very important traits. I
have tried over the last 11 years to operate exactly that way,
and so happily in my case, you have my assurances, of course,
that I will continue to do that. Also we have, hopefully, the
evidence of the job that I have tried to do over these last 11
years as a judge in Cook County.
Senator Cornyn. Thank you.
Mr. Blakey. Thank you, Senator. Yes, I agree with you
emphatically. I believe that listening is perhaps one of the
key ones that you mentioned. Listening and engaging the
attorneys to find the critical legal and factual turns of a
case is critically important not only in getting a good result,
but getting the nuance of the result and the basis for the
result correct and for avoiding unjust results or unnecessary
costs or delay. So I agree with you completely.
Judge Mazzant. Thank you, Senator. I agree with you
wholeheartedly and that is something that as a judge for the
last 10 years, as the magistrate judge sitting in Sherman for
the last five, that is what I try to do every single day with
every case, to follow those three precepts you set out.
Mr. Pitman. Senator, of course, I do agree with that. I
would add that it has often occurred to me as a judge and
someone who has practiced in Federal court all of my career,
that with life tenure comes a reciprocal obligation to treat
people respectfully, to have a strong work ethic and then to
respect the law because you are the face of the justice system.
And I pledge to you that I will do as I have done previously in
my career and be the judge that you have described.
Mr. Schroeder. Thanks for the question, Senator Cornyn. I
do agree with that and that is exactly the kind of judge I
would hope to be.
Senator Cornyn. If there was one other trait I would
mention, it would be patience. Because some of you have alluded
to the fact that with life tenure, sometimes people lose their
patience. They develop what is commonly called in the
profession ``robotis,'' which is a dangerous disease that
judges sometimes get.
When you don't have to stand for election, and you are
basically insulated from the kind of accountability that most
other public officials have, sometimes that can lead you down
the wrong path. But I feel confident based on the knowledge
that I have that certainly the Texas nominees--I take the other
nominees at their word that they will do those things, listen,
be respectful, follow the law, and hopefully demonstrate
patience and not develop that dreaded case of ``robotis.''
I just have one other question for all of you. I would like
to go down the row again. As a trial judge, do you believe that
is your responsibility to follow binding precedent by the Court
of Appeals and the U.S. Supreme Court, or do you feel like you
have some license or authority to make new law as a lower court
judge?
Judge Alonso. I feel that it is the job of the trial judge
to be bound and to follow the precedent that is set out by, in
our case if I was fortunate to be confirmed, the Seventh
Circuit and, of course, the Supreme Court of the United States.
Mr. Blakey. Yes, Senator, Federal courts are very important
courts, but they are courts of limited jurisdiction and they
have a role to play within divided government, and part of that
is that each member of the judiciary plays its role within the
framework that the framers have laid down. And binding
precedent and the authority of a superior court is critical to
the functioning of the judicial system. I agree completely.
Judge Mazzant. Thank you, Senator. I also agree with my
fellow nominees. As a magistrate judge, I am bound by the
authority of the Fifth Circuit and the Supreme Court and that
is what I do every day in my job currently.
Mr. Pitman. Senator, I do believe that is the role of a
district judge to follow precedent, and I pledge to you that if
confirmed, I will adhere to the precedent of the Supreme Court
and Fifth Circuit as I engage in the activities of judging.
Mr. Schroeder. Senator, I likewise agree. I think following
precedent is what brings stability and predictability to our
legal system and our system of justice and I would be strictly
bound by the Supreme Court and the Fifth Circuit.
Senator Cornyn. Mr. Chairman, I am happy to yield to
Senator Cruz who has joined me in making these recommendations
for the three judges from Texas to the President.
Senator Cruz. Thank you, Mr. Chairman. Gentlemen, let me
congratulate each of the five of you on your nominations.
I would note for the three nominees from Texas, that as
Senator Cornyn made reference, you have been through a vigorous
process beginning with extensive review and interviews by the
Federal Judicial Evaluation Committee which is a bipartisan
committee that Senator Cornyn and I have formed together
consisting of some of the most highly respected lawyers
throughout the State of Texas in a variety of fields of
practice, geographically diverse, and consciously bipartisan to
reflect that the bench is not supposed to be a partisan
endeavor. Upholding the rule of law and taking the oath as an
Article III judge requires a degree of confidence, a degree of
fidelity of law that should cut across party lines.
So I want to commend each of the three of you from Texas
because you would not be here had each of you not very much
impressed the members of that committee and had you not very
much impressed both Senator Cornyn and myself. We have had the
opportunity to visit with all three of you. You have impressive
professional credentials and a long career demonstrating the
fidelity to law that we expect from our judges. It is obviously
a unique and critically important responsibility that we
entrust upholding the law to a relatively small number of men
and women who take an oath to do so.
What I would like to ask each of the five of you is a
couple of questions. The first of all, simply how would you
describe your judicial philosophy?
Judge Alonso. Thank you, Senator. I would describe my
judicial philosophy as always being open-minded, fair, patient,
always listening until the end, always making sure that I am
not guessing what is going to come next. I wait with an open
mind and I exercise my judgment fairly and evenhandedly.
Mr. Blakey. Thank you for the question, Senator. I would
characterize my philosophy as a devotion to the law, a devotion
to the role that we play in society, that limited role, but
important role. In a variety of contexts, a great deal of power
is given, and to those who are given power, much is expected.
And I would apply law to the facts presented and I would do it
impartially with a great deal of hard work.
Judge Mazzant. Thank you, Senator, for your nice remarks
about the Texas nominees. My judicial philosophy is one that I
am bound to adhere to the rule of law, that I am going to
impartially consider the facts of the case, apply precedent to
those facts, and make a decision without any regard to any
personal views or feelings I might have. And that is what I
have done as a magistrate judge.
Mr. Pitman. Senator, at the risk of repeating, I will
reiterate that I believe that the judicial philosophy
appropriate for district judge is faithful adherence to the
rule of law and to the precedent of the Supreme Court and the
Fifth Circuit. And I assure you that that is the philosophy
that I will follow as a district judge if confirmed.
Mr. Schroeder. Thank you for the question, Senator. I think
that the role of the judge is to fairly and impartially decide
cases with the impartial application of the rule of law. As I
said before, I think that the role of the judge is limited. It
is important, but limited. Judges don't make law. They decide
concrete disputes in front of them, one case at a time with
attention to the facts and the arguments of the parties, and by
applying the law and precedent to those facts. And that is the
type of judge I would hope to be.
Senator Cruz. Thank you, gentlemen. Let me ask one
additional question. Again, to all five of you, which is how
would you define judicial activism and how would you
characterize the responsibility of a judge to avoid engaging in
judicial activism?
Judge Alonso. Thank you, Senator. I think that an activist
judge would be a judge who does not understand his limited
role. I think it is a judge who has an agenda, shall we say, a
judge who is deciding a case based on what he or she wants the
case to be about.
The opposite of that is a judge who exercises humility, who
understands this limited role, and who understands that he or
she has to decide the issues that are necessary to resolve the
dispute that is before that judge at that time.
Mr. Blakey. Thank you, Senator. I would define activism,
judicial activism as a judge who has not only stepped out of
his role as my colleague mentioned, which I agree with fully,
but someone who has turned the law to their own purpose rather
than serving the purpose of the law.
A very smart person can achieve any result if they are
willing to give up their service to the law, and I think that
is what activism is. You should serve the law, not vice versa.
Judge Mazzant. Thank you, Senator. I don't disagree with
anything that my fellow nominees said, but I would just add
that the simplest way is a judge who makes decisions based on
what they feel should be the result is judicial activism. That
is not what I would adhere to as a judge, and I will always
follow the rule of law, and am bound by that precedent.
Mr. Pitman. Again, Senator, at the risk of simply
reiterating and repeating, I do understand that term to mean a
judge who injects his or her personal beliefs or political
agenda into the decisionmaking process. I believe that that is
not the role of a judge, and it is not the mode that I would
employ in interpreting the law or in engaging in my other
duties as a judge.
Mr. Schroeder. Thank you, Senator, for the question. I
agree with what my fellow nominees have said. I think one way
to avoid that result is by focusing on the narrowest issues in
the case and deciding the case as narrowly as possible and not
deciding things that don't need to be decided.
Senator Cruz. Thank you very much, gentlemen.
Thank you, Mr. Chairman.
Senator Durbin. Gentlemen, I would like to ask a question
in the second round. From the beginning of this nation, the
drafting of the Constitution, we have grappled with one
fundamental issue, many, but this one recurs. The issue of race
and justice in America--a Constitution which acknowledged
slavery, a nation which as recently as a few weeks ago in
Ferguson, Missouri was reminded that it is still a challenge in
this modern America despite all the progress that has been
made, all the effort that has been put into it.
You are seeking an opportunity to serve as a member of the
Federal judiciary. It is likely that many of the criminal
defendants who come before you will be minorities. It is also
likely that many of them feel that this system is rigged
against them. Statistics in the past--and they do go back a few
years, so they may have changed some--suggest, for example,
that out of the 12 or 15 percent minority population in this
country, when it comes to arrest for drug crimes, it is 35
percent. When it comes to incarceration for drug crimes, it is
60 plus percent minorities who are being incarcerated.
How do you view--and I know you cannot address any specific
case, but how do you view this issue in terms of your
responsibility and if you wish to step out a little further,
and my responsibility on the legislative end of it, when it
comes to dealing with establishing or in some cases restoring a
sense of fairness in our system of justice when it comes to
minorities?
Let me start with Mr. Schroeder. This applies as well to
Illinois as well as Texas, so I am not singling out any State.
It applies to all of us.
Mr. Schroeder. Thank you, Senator, for the question. I
think you do it one case at a time. I think you approach every
case impartially and with an open mind, and you seek to do
justice in each case. I think that it is very important that
the way you run your courtroom makes clear to everyone that it
is a place where everyone is going to be treated fairly and
that people who come into the courtroom without regard to their
race or their gender or their socioeconomic status or their
station in life, that they are going to get a fair shake.
Senator Durbin. Let me take this to another level. You may
find it incredible that Senator Cruz and I would find agreement
on a basic issue, but we have on the Smarter Sentencing Act. In
that situation, we are trying to make sure that the mandatory
minimum sentencing under the Federal law gives judges more
discretion in a specific category of cases, drug offenses that
don't involve guns, gangs, or violence, to give more latitude.
One of the things that inspired me to move in this
direction was the judiciary, judges who came back after
applying our laws to their case and saying, ``Senator, this is
not fair. It is not just.'' They stepped out of their role as
strictly judges and became, at least, commentators on the state
of law.
So I ask you do you think that is part of your
responsibility?
Mr. Schroeder. Senator, thank you for the question. I think
it is your responsibility to understand the impact that any
individual result or judgment has in a case, and I think it is
important for you to try to treat everyone fairly and
impartially and obviously, I do not have great experience in
the criminal field. I have handled 15 to 20 cases over the
years. I did a fair amount of work in criminal cases when I was
a law clerk and I certainly understand the importance of
uniformity in sentencing and I think that is an important goal
to be achieved.
Senator Durbin. Mr. Pitman, you have had to live with these
laws that we've passed here and apply them as a prosecutor.
What are your thoughts on this issue of race and justice?
Mr. Pitman. Well beyond just that, Senator, I will say that
as you know, the Attorney General has proposed and implemented
the Smart on Crime Initiatives within the Department. And one
of the goals of that is to make sure that we are reserving--the
very serious sanctions made available to us under statutes
passed by Congress are reserved for the most serious offenders
and to scale the tools that we have at our disposal to make
sure that the law is enforced.
Getting back to your question about the profile of some of
the defendants that we deal with, one of my practices as a
magistrate judge was before I went out onto the bench, I
considered the fact that even if it was a very--what to me was
a very routine and perhaps not something that was going to be
on the front page of the paper, for the person standing there,
it was the most important thing in the world and that it
deserved my full attention. So I would make every effort not
only to go out and be fair and impartial and to treat everyone
the same regardless of their background, but to make sure that
they felt that way and they got the message from me that I was
taking their problem and their situation seriously. And I will
continue to do that if confirmed.
Senator Durbin. Judge Alonso, as a criminal judge in Cook
County, you have faced many criminal defendants. You know what
I am talking about on this issue of race.
Judge Alonso. Yes, I do, Senator. I think that in essence,
we always have this tension between wanting uniformity across
the system in sentencing, but we also want to make sure that
the judge has discretion.
So at the system, we look at all of these cases and we try
to figure out what category they fit in, but it really is an
impossible task. Every defendant in a criminal case is
different. Every case is different factually. So it is always a
challenge to remember that, to treat every case as the most
important case and not one of 400 cases, but just that case.
I think it is important to have discretion and to trust the
judge to exercise that discretion within certain limits, and it
appears to me that the recent adjustment in the Federal
sentencing provisions lands in a good place, starting with the
guidelines, but moving from there and giving more discretion to
the judges. I think it is important.
I think also that we see across the system more and more
talk about restorative justice and helping courts, or problem
solving courts. And when we have sentencing provisions that
don't allow us to take advantage of that in a situation where
we can identify a specific problem and we actually think we can
make a difference in this person's life, both to help the
defendant and to help us as a society so that there is not
recidivism, which is what we are trying to stop. I think it is
important to make sure that judge's hands are not handcuffed
and that the judge does have discretion in those situations to
give the appropriate sentence.
Senator Durbin. Mr. Blakey, I recently attended an
Innocence Project dinner in Springfield, Illinois where
formerly incarcerated people spoke. They had been found to be
innocent and had been incarcerated for long periods of time,
unjustly.
One of them, African American, said, ``They sat me down and
they said if you don't plead to this crime, here is what you
face. You face the possibility of a mandatory sentence and it
is stiff, and you are going to face a jury that may not be
friendly to an African American defendant. So do you want to
roll the dice here, or would you rather plead to a lesser
offense and get this behind you?'' And the man said, ``I have
no choice.'' He went to jail for something he had not done.
Have you run into this? What are your thoughts on this
circumstance?
Mr. Blakey. Senator, that is a horrific story and a failure
of the role of a prosecutor to be a fair administrator of the
law and to do so impartially. I also think it is important in a
prosecutorial role to be vigilant with respect to race
disparity and the way the criminal justice system is run. In
fact, as a Federal prosecutor and as a State prosecutor, I have
devoted much time to police corruption and civil rights
violations and have done a lot of work in that area. And it is
important to do that and to assess each case on an individual
basis and have a fresh look and an individual assessment so
that each individual is only charged with what they have done
and that as a prosecutor that your just sentence is the only
sentence that is going to be adhered to.
Senator Durbin. Mr. Mazzant, your thoughts on this issue?
Judge Mazzant. Thank you, Senator. As to the issue of
mandatory minimums, naturally in my purview as a judge, I am
not sure that is part of my job, but if this august body would
change the mandatory minimums, I will enforce the law as you
all change that, if that is changed.
As to how I deal with anyone who comes before the court, as
a magistrate judge, I do handle the pretrial criminal. So I do
all of the initial appearances and the motions prior to trial.
I make sure--and my goal would be that anyone who comes before
the court, by the time they are finished, they feel they got a
fair treatment before the court. And that is what I would try
to do.
Senator Durbin. I thank you very much. I know there is no
easy answer to the questions I have been asking. It is a
challenge to us on this side as it is to those on your side of
the table to restore that sense of justice and feeling of
fairness in our courts across America. We have a lot of work to
do.
I thank you all for being here today, thank your families
for attending at this hearing of the Senate Judiciary
Committee.
The record is going to remain open for a week. There may be
some additional information asked of you or questions sent your
way and I hope you can respond in a timely fashion.
I thank you all for being here today and the Committee
stands adjourned.
[Whereupon, at 10:52 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
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF ALLISON DALE BURROUGHS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MASSACHUSETTS; JEANNE E. DAVIDSON, NOMINEE TO BE JUDGE
OF THE U.S. COURT OF INTERNATIONAL TRADE; HAYWOOD STIRLING GILLIAM,
JR., NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA; AND AMIT PRIYAVADAN MEHTA, NOMINEE TO
BE DISTRICT JUDGE FOR THE DISTRICT
OF COLUMBIA
----------
TUESDAY, SEPTEMBER 17, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senators Grassley and Lee.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. I would like to welcome everyone to this
nomination hearing. There are two big announcements today.
Today is the 227th anniversary of the signing of the
Constitution in the United States in 1778. So it is a big day.
It is also a big day for this Committee because the Ranking
Member on my right--it is his birthday.
[Applause.]
Senator Grassley. Thank you.
Senator Feinstein. And the rumor mill has told me a story.
On every birthday he runs to the Capitol, and it is six miles.
This morning--and I am not going to tell you his age because we
are very close.
[Laughter.]
Senator Feinstein. Well, I am not going to tell you his
age, but he ran the six miles. That is what really deserves a
round of applause.
[Applause.]
Senator Feinstein. Now we will get down to business. I am
pleased to welcome Eleanor Holmes Norton from the House of
Representatives to be with us today.
Let me make just a brief introduction and then call upon
the Ranking Member. We have today three nominees to the United
States District Courts, one of them from California, as well as
a nominee to the Court of International Trade.
So I would like to ask Senator Grassley to make his opening
statement and then we will go to those introducing the nominees
and then we will go to the nominees.
Senator Grassley, happy birthday.
Senator Grassley. Thank you very much. Elizabeth Warren
sent me a letter yesterday.
Senator Feinstein. Oh, she knew. Maybe you are the source
of the rumor. Who knows?
[Laughter.]
Senator Grassley. Anyway. I have no opening statement. We
do not believe, at this point, any of these nominees are
controversial. You never know until you get through all of
these hearings and go through all of the papers and stuff, but
right now it looks like no controversy. That is why I do not
have an opening statement.
Senator Feinstein. Okay. We will go to introductory
statements, and if I may if you are not in a rush, I would like
to recognize the presence of the Delegate from the District of
Columbia. As I said to her privately, we welcome you here. I
have followed your career for many, many years and it is a very
impressive one.
So welcome, and we would be very happy to hear your
statement.
PRESENTATION OF AMIT PRIYAVADAN MEHTA, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON.
ELEANOR HOLMES NORTON, A DELEGATE IN
CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Madam Chair. I will
say that following is mutual.
Many happy returns, Senator Grassley.
I have been told to keep it very short. I agree with
Senator Grassley. There should be nothing controversial about,
certainly, my nominee.
I will say only that Amit Mehta will be the first person of
Asian Pacific background in the U.S. District Court for the
District of Columbia, and boy what does he come with, magna cum
laude graduate from Georgetown, Phi Beta Kappa, University of
Virginia Law School, Order of the Coif, clerked on the Ninth
Circuit, experienced now as a partner in a major law firm, and
before that criminal experience at the renowned public defender
service of the District of Columbia. He has got it all. It is a
whole package.
I strongly recommend him and we would be very proud to have
a young able judge like this on our U.S. District Court for the
District of Columbia.
Senator Feinstein. Thank you very much.
Now I would like to recognize the distinguished senator
from Massachusetts, Senator Warren.
PRESENTATION OF ALLISON DALE BURROUGHS, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS, BY HON.
ELIZABETH WARREN, A U.S. SENATOR FROM THE STATE OF
MASSACHUSETTS
Senator Warren. Thank you very much, Madam Chairman, and
happy birthday Ranking Member. Delightful to be here today.
Thank you for holding this hearing allowing me to be here
today. I am very pleased to have the chance to introduce
Allison Burroughs who has been nominated to fill a judicial
vacancy on the District Court for the District of
Massachusetts.
Ms. Burroughs is joined today by her husband, Mike; her
children, Jake and Harry; her sister, Carol; her niece, Haley;
and her mother, Rima. I know they are all tremendously proud to
have the chance to share this moment with her.
Now Ms. Burroughs' nomination came after she was
recommended for this position by the Advisory Committee on
Massachusetts Judicial Nominations. The Advisory Committee is
composed of distinguished members of the Massachusetts legal
community, including prominent academics and litigators and is
chaired by former Massachusetts District Court Judge, Nancy
Gertner. The Committee's recommendation reflects the broad
consensus of the Massachusetts legal community that she will be
a superlative member of the Federal bench.
Ms. Burroughs attended Middlebury College in Vermont and
law school at the University of Pennsylvania where she
graduated in 1988. She immediately began a 1-year clerkship
with Judge Norma Shapiro on the United States District Court in
Philadelphia beginning what has been a long and distinguished
career in public service.
After her clerkship, Ms. Burroughs went to the United
States Attorney's Office, first in Philadelphia and then later
back home in Boston.
For 16 years, Ms. Burroughs has worked as a Federal
Prosecutor and her record is one of significance, success and
extraordinary integrity. Allison won three Director's Awards
for superior performance as an Assistant U.S. Attorney.
I want you to hear this one--her first in 1994 recognized
her role in the investigation and prosecution of the Junior
Black Mafia, one of the most ubiquitous and dangerous
Philadelphia gangs in the 1980s and 1990s, a group believed to
have killed more than 40 people.
Her most recent 2004 Superior Performance Award recognized
another kind of work that Allison did, her critical role in the
Massachusetts U.S. Attorney's Office investigating and
prosecuting individuals who perpetrated a complex offshore tax
avoidance money laundering scheme.
Since 2005, Ms. Burroughs has worked as partner and a
defense lawyer in private practice in the firm of Nutter
McClennen and Fish. Her extensive experience both as a
prosecutor and a defense attorney gives Ms. Burroughs
significant insight into both law and the practicalities of our
adversarial system that will serve her well on the bench.
She has also devoted significant time to civic and
charitable work. She was founding member of Womanade, an
organization that focuses on philanthropy to support programs
that positively impact women and girls in the Boston area. She
is also the former president of the board and a longtime
trustee of Agassiz Village, a nonprofit camp for physically
challenged and economically disadvantaged inner-city kids.
Agassiz Village was founded by Allison's grandfather, a Russian
immigrant who sold newspapers on a Boston street corner before
putting himself through law school.
Ms. Burroughs has received numerous honors recognizing her
skills as a litigator, including multiple listings as a
Massachusetts Super Lawyer and is a superlatively talented
lawyer with a demonstrated commitment to public service.
I am proud to have recommended her to President Obama. I
look forward to her full approval by the Committee and her
swift confirmation by the full Senate.
Thank you very much for letting me be here today.
Senator Feinstein. Thank you very much, Senator. If you
would like to be excused--I meant to say that to Delegate
Norton--but you are certainly able to. Thank you for taking the
time.
Senator Warren. Thank you, Madam Chairman.
Senator Feinstein. I appreciate it.
It is my pleasure to introduce Haywood Gilliam, Jr. He is a
nominee I recommended to the President after my bipartisan
screening committee--similar to what Senator Warren has in
Massachusetts--gave him a strong recommendation.
Mr. Gilliam's wife, Estela; daughter, Maya--nine years old,
whose favorite author is a man by the name of Jackson. I told
her I am from the ``Little House on the Prarie'' school, so I
did not recognize him. He does mythology; right, Maya? So she
is here.
Mr. Gilliam's father is here. He was trained as a thoracic
surgeon in the United States Army. I would like to thank him
for his years of service on active duty as well as reserve
duty.
This is a distinguished practitioner at a major firm,
Covington and Burling, and a former Federal Prosecutor. He
graduated magnum cum laude from Yale in 1991, earned his law
degree from Stanford in 1994, was an article editor for the
Stanford Law Review.
After graduation, he clerked for Judge Thelton Henderson of
the Northern District of California. From 1995 to 1998, he
worked as an associate at the law firm of McCutchen, Doyle,
Brown and Enersen. He joined the United States Attorney's
Office in San Francisco in 1999, serving until 2006. He was the
Chief of the Securities Fraud Section from 2005 to 2009.
He has handled several securities fraud cases as well as
cases involving immigration fraud, health care fraud,
commodities price manipulation and narcotics possession with
intent to distribute.
In 2006, he rejoined his prior firm, at that time called
Bingham McCutchen as a partner. In 2009, he joined Covington
and Burling where he has been a partner for the last 5 years.
He is focused on corporate and individual clients facing
investigation by the Federal Government. At Covington and
Burling, he is the vice chair of the firm's white collar
defense and investigations practice group which includes dozens
of partners.
So you can see he has had both sides of the question with
respect to securities fraud, both as a U.S. Attorney and as a
corporate defense lawyer. He has served on the District Court's
Merit Selection Panel for magistrate judges, chairing it 2013,
on the Stanford Law School Board of visitors from 2010 to 2012,
and he serves on the board of Vincent Academy, a charter school
in west Oakland.
So for his family, you should know that your father and
your son has an outstanding record of academic success, legal
practice, and community involvement. I am confident he will
serve with distinction as a district court judge.
Let me add just a few words about Jeanne Davidson who has
been nominated to serve on the Court of International Trade.
This court has exclusive jurisdiction to hear important cases
arising out of international trade, such as customs disputes.
Jeanne Davidson, the nominee, earned her bachelors from UC
Berkeley and her law degree from New York University of Law.
For three decades, she has served in the Civil Division of the
Department of Justice where she has held a variety of
supervisory positions, some involving international trade. The
American Bar has given her the highest rating of well-
qualified.
So now I would like to call forward the nominees, have them
sworn in, and give them a chance to do very brief opening
statements and then we will begin our questions.
If you would raise your right hand, please and affirm the
oath as I tell it. I do solemnly swear that I will support the
Constitution of the United States in all cases, so help me God.
Ms. Burroughs. I do.
Ms. Davidson. I do.
Mr. Gilliam. I do.
Mr. Mehta. I do.
Senator Feinstein. Thank you very much. The normal rule is
5-minute rounds. So I would like to begin with Ms. Burroughs
and go right down the line with a brief opening statement and
then ask Senator Grassley to be the first one to ask questions.
Please, if you will. You need your mic on.
Ms. Burroughs. I do not think you can be a judge unless you
are smart enough to figure out how to turn it on.
[Laughter.]
Senator Feinstein. Sometimes that means you are just very
brilliant.
STATEMENT OF ALLISON DALE BURROUGHS, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MASSACHUSETTS
Ms. Burroughs. I would like to thank the Committee for
inviting me here today. Senator Grassley, happy birthday. I was
gratified to hear you say we were noncontroversial and I hope
none of us do anything today to change your mind about that.
I would also like to thank Senator Warren for her kind and
generous introduction as well as Senator Markey for his
support. I would be remiss not to also thank the Massachusetts
Selection Committee and its Chair, Nancy Gertner, who I know
worked very hard to get this right. And of course, my thanks to
President Obama for his nomination.
I am very fortunate to have many friends here today and
others watching on the webcast, including my colleagues at
Nutter McClennen and Fish. Friends in this room who were
generous enough to make the trip from Boston include Amy
Holman, Al Ulatom, Mark Kmetz, John Levy, and Mathilda Willey.
My wonderful family is also here or watching and I am
grateful for their support as well. There is one family member,
though, that is not here and is very much on my mind today. My
father died this summer during the selection process and
shortly before I was nominated.
There is no one that wanted this for me more than he did,
and no one that would have gotten more of a kick out of being
here today than he would have. I miss him and very much wish he
could be here, but I am fortunate to have my fabulous mother,
Rima Burroughs here, my sister, Carol, her husband, Brett, and
their children Eli, Tessie, and Topher are watching or at least
will be when school is out for the day.
My niece Haley, who is a high school senior is here today.
I know she is hoping to get an interesting college essay out of
her experience in Washington. My brother, her father, Warren
Burroughs, Jr., her mother, Cindy, and her sister Linsey, along
with my other siblings, Cathy and John are also watching today.
John's wife, Anita as well as my Aunt Jean and her family.
My husband, Mike Leslie's family is also watching, his
parents, John and Susan, his brothers, Bill and John and their
families. And last, but certainly not least, I want to mention
my husband Mike Leslie and our boys Jake and Harry who are
sitting in back and are 4-years old.
My husband is also a lawyer and I know he too feels very
honored and humbled to be a part of this proceeding today. I
think that Jake and Harry are enjoying their first trip to
Washington, although Harry did tell me he was looking forward
to my concert today and I can only hope he is not disappointed.
[Laughter.]
Ms. Burroughs. I thank you, again, for your consideration
and I look forward to your questions.
Senator Feinstein. Thank you very much.
[The biographical information of Ms. Burrough appears as a
submission for the record.]
Senator Feinstein. Ms. Davidson.
STATEMENT OF JEANNE E. DAVIDSON, NOMINEE TO BE JUDGE OF THE
U.S. COURT OF INTERNATIONAL TRADE
Ms. Davidson. Good morning. Thank you, Senator Feinstein,
for chairing this hearing and for your kind introduction. I
would like to thank the Committee for holding this hearing and
I would like to thank President Obama for the honor of
nominating me to the Court of International Trade. I also would
like to wish Senator Grassley happy birthday.
I would like to thank all of my friends and family who
could not be here today, but are watching on the webcast in
California, New York, Maryland, and in the District all in one
fell swoop. Thanks to all of you for your support.
With one exception, I will limit my introductions to people
who are here today. The exception is my parents. They were
California natives and members of the greatest generation. My
father served in World War II, in the Navy, and then was in the
Naval Reserve until he retired. My mother was a public school
teacher in California.
With me today are two family members who flew all the way
from California, my son, my greatest achievement in life,
Jeremy Davidson Hoffman. He obtained his bachelor's and
master's degree in computer science at Stanford University and
is now a senior software engineer at Google.
My brother, Dr. John Michael Davidson, served in the Army
during the Vietnam war era and then went on to obtain a
doctorate in physics and for 35 years worked at the Jet
Propulsion Laboratory in Pasadena where I can only describe his
job as rocket scientist.
My sister, Mary Elizabeth Davidson, is here today with her
husband Matthew Seiden. They met almost 45 years ago when they
were both serving in the Peace Corp in Brazil. Their son, Gabe
Seiden, is here today. He also served in the Peace Corp many
years later in Guatemala and is the proud father of Zev and
Jacob Seiden.
I would like to recognize some family friends, Virginia Lum
and Dr. Robert Young, originally from the State of Hawaii, but
now from the State of Maryland. My colleagues from the Federal
Circuit Bar Association, of which I am privileged to serve as
the president, currently, are here today and I welcome their
support.
Finally, I would like to recognize the lawyers from the
Department of Justice, many of them are here today, with whom I
have had the privilege of serving for almost 30 years and who
are extraordinary, dedicated, talented group of lawyers. I
would particularly like to mention those from the National
Court Section in the Office of Foreign Litigation.
Thank you very much.
Senator Feinstein. Thank you. You have pretty much filled
up the place.
[The biographical information of Ms. Davidson appears as a
submission for the record.]
Senator Feinstein. Mr. Gilliam.
STATEMENT OF HAYWOOD STIRLING GILLIAM, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT
OF CALIFORNIA
Mr. Gilliam. Thank you, Senator Feinstein. Thank you very
much for your kind introduction and for recommending me to
President Obama. I deeply appreciate the trust that you have
placed in me.
Thank you to Ranking Member Grassley and the rest of the
Committee for holding today's hearing. I am honored to be here
today to answer your questions.
I thank President Obama for placing his trust in me by
nominating me to this very important position.
I would like to acknowledge my family who have traveled
here today. My wife, Estela Lopez Gilliam--Stella and I met
when we were young lawyers speaking to a class of tenth
graders--who were reading ``To Kill a Mocking Bird''--about our
jobs as lawyers. I can tell the young lawyers here always take
the chance to do volunteer work when you can because it paid
off for me. We celebrated our 12th anniversary this past June.
My daughter, Maya Pearl, is here as well. Maya is a fourth
grader at Hillcrest Elementary School in Oakland, California.
She is very excited about the opportunity to visit the
Smithsonian this week and we are hoping that her teachers give
her extra study credit for that.
My parents, Dr. Haywood Gilliam, Sr. and Audrey Gilliam
have traveled from Alameda, California to join me today. I
appreciate their support.
I would like to also acknowledge four people who are not
here, but who are very much here with me in spirit, and that is
my grandparents John and Pearl Bryant and Marvin and Emma
Gilliam. I know that if they were here, they would be very
proud. I can say with certainty without the love and support
and encouragement of my family members, there would be no way
that I could be sitting here before you as a nominee to the
Federal bench.
Finally, I would like to recognize those who are joining us
today on the webcast, especially the folks in California who
got up very early to view these proceedings. Thank you to
everyone watching on the webcast.
Thank you, again, and I very much appreciate the
opportunity to be here before you today.
Senator Feinstein. Thank you, Mr. Gilliam.
[The biographical information of Mr. Gilliam appears as a
submission for the record.]
Senator Feinstein. Mr. Mehta.
STATEMENT OF AMIT PRIYAVADAN MEHTA, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
Mr. Mehta. Thank you, Senator Feinstein. I would also like
to thank the Chairman and the Ranking Member for convening the
meeting today. I wish Senator Grassley a happy birthday. I
would also like to thank Senator Feinstein for chairing the
meeting.
I would like to thank Congresswoman Norton for her kind
introductory remarks as well as her faith in me, and nominating
me to the President as well as her nominations commission for
considering my application and recommending me to the
Congresswoman. I would also like to thank President Obama for
the honor and the privilege of the nomination. I thank him very
much for the trust that he has placed in me.
I would like to acknowledge my family and friends who are
here today, starting with my wife and best friend, Caroline
Mehta. We have been married for 9 years and without her, I
certainly would not be here today.
My daughter, Devan, who is 7 years old--she is a second-
grader at John Eaton Elementary here in Washington, DC. She is
here and this is her first true civics lesson. My son Kian, who
is 3 years old is here as well.
My Parents, Priyavadan and Ragini Mehta are here from
Baltimore, Maryland. My parents came to this country 42 years
ago. My presence here today is a testament to them as well as
the opportunities that this country has afforded my family.
My sister, Sheetal Prasad, is here from New York city. I
would like to acknowledge my in-laws, my wife's parents,
Charles and Susan Judge, who could not be here today. My wife
is fond of saying that I have already met the most important
Judges in my life, and she is right about that.
My dear friends are here, my law partners and dear friends
William Taylor, Roger Zuckerman, and Susan Taylor. I would also
like to acknowledge my friends Marybeth Rathman, Ephraim Leavy
and Michael Zamor who are here as well.
Last, I would like to thank Este Berwinkle for being here.
Ms. Berwinkle is staying with our family from South Africa for
the year and this is a nice way for her to see how the American
judicial and Congressional process work.
Thank you.
Senator Feinstein. Thank you very much.
[The biographical information of Mr. Mehta appears as a
submission for the record.]
Senator Feinstein. We will now go to questions. I will ask
our distinguished Ranking Member, Senator Grassley, to begin.
Senator Grassley. Well, thank you. I usually only ask one
or two questions of each of you here orally. I submit questions
for response in writing and sometimes when those come back, we
ask for further elaboration on some of the questions. So do not
be surprised if you get questions in writing and maybe even
followups.
I am going to start with Ms. Burroughs. I have three or
four questions of which I am only going to ask one, but they
deal with the issue of the death penalty.
In the case of the Boston bomber, you wrote that a decision
to forego the death penalty ``would have required political
courage''--just a short explanation of what you meant by the
statement.
Ms. Burroughs. Thank you for giving me an opoortunity to
address that topic. The marathon bombing case was, obviously, a
high profile case in Boston. It struck at an iconic event in
both Boston and in the United States. There is obviously a lot
of strong emotion over what should happen to the defendant in
that case.
Because it was so high profile and the crime so atrocious,
including the taking of a life of a small child, to forego the
death penalty in that case, I believe, would have required
political courage of a different sort than, perhaps in a more
run of a mill, gang kind of case.
Senator Grassley. And just a short answer to this question.
Do you hold any personal views regarding the death penalty that
would make you unable to impose it if the law required it?
Ms. Burroughs. No, Senator, I do not.
Senator Grassley. All right. Now I am going to go on to Ms.
Davidson.
In a 2004 panel you said, ``your credibility before the
court is your most important asset as a lawyer.'' If confirmed,
how would you evaluate the credibility of lawyers who appear
before you?
Ms. Davidson. Thank you, Senator. If confirmed, I would
prepare very carefully and very thoroughly for every case that
came before me, and I would evaluate the credibility of the
lawyers based upon their candor in making their arguments to
the court, whether their arguments were well-based in the
record and in the law, in the Constitution, the statutes, the
decisions of the Supreme Court.
Senator Grassley. Thank you.
Mr. Gilliam, you would not know this, but I spend a lot of
time considering points of view of whistleblowers. So you have
had an interest in that. In your capacity as a partner of a law
firm, you represented clients during governmental
investigations. You have written extensively on how to conduct
investigations and how to deal with whistleblowers. What is
your view in the role of whistleblowers?
Mr. Gilliam. Thank you, Senator. Whistleblowers have a very
important role under the law. A number of statutes that I deal
with routinely--for example, the False Claims Act, have
expressed provisions that provide for whistleblowing. I think
that those statutes are clear. They set out the proper process
by which whistleblowers can bring claims and by which those
claims would be adjudicated.
Were I to have the honor of being confirmed as a District
Court Judge, I would follow those precedents in individual
cases.
Senator Grassley. Mr. Mehta, you have, I think, had almost
an entire career as a defense attorney. If confirmed, you will
have to make a transition from an advocate to impartial judge.
I am not questioning whether you can do that, but what do you
expect will be the most difficult of that transition if it is
difficult for you? It may not be. I am not assuming it would
be, but I want to know how you would make that transition.
Mr. Mehta. Senator, I think every part of the transition
will be difficult. The position of Federal judge is one that is
extraordinarily demanding and obviously quite different than
that of the role of the advocate. It is critically important
for any Federal judge to be impartial, come to any case with an
open mind and particularly in criminal cases it is critically
important to be an open-mind with respect to both the
Government's position as well as that of the defendant. I can
assure you, Senator, that I will approach the position in that
way, impartially, fairly, and honestly.
Senator Grassley. Thank you, nominees. Thank you, Madam
Chairman.
Senator Feinstein. Thank you very much, Senator Grassley.
You have asked the death penalty question I was going to ask of
Ms. Burroughs.
I would like to ask each person to quickly go down the line
and say why they believe they are--Senator Grassley must excuse
himself. There is a Committee hearing, of this Committee, on
the subject of net neutrality. So I will just perk along.
I would like each one of you to tell us why your believe
that you are well-qualified for the job, how you will handle
your caseload which can be very high, and how you feel about
being a District Court Judge and what that means. This is not
an appellate court. It is a district court.
So perhaps I can begin. Mr. Gilliam, you are for our
district court.
Mr. Gilliam. Thank you, Senator Feinstein. I believe that
in my career I have had a broad range of experience that will
prepare me well if I am fortunate enough to be confirmed as a
district judge.
I began my career as a law clerk for a Federal judge in San
Francisco and had the opportunity to see the judicial system
from that perspective and have the experience of neutrally
evaluating cases and recommending an outcome, not as an
advocate, but as a neutral assistant to the judge.
I have represented parties in criminal and civil matters in
my career. I have served as a prosecutor for a number of years,
and I have also handled matters as a defense counsel on behalf
of clients of different types.
I think all of those experiences have prepared me well to
evaluate and understand the perspectives of the different
participants in the system and reach decisions that are based
solely on the controlling law and the fact of any given case.
The role of the district court is to follow precedent, apply it
to the case before me, and reach a decision that is based on
nothing other than those considerations. I think that my career
has well-prepared me to do that.
In terms of caseload management, briefly, I think that is
critical for a district judge. In our district, it is very
common for judges to issue case management orders very early in
the case, set out a reasonable schedule and expect the parties
to adhere to it unless there is a good reason to depart from
it, and especially to urge the parties to meet and confer early
in the process to narrow the issues and work out whatever
issues they possible can without the intervention of the court.
I think that that is a powerful tool for managing a
caseload and a docket. I would intend to implement those sorts
of procedures were I to be a district judge.
Senator Feinstein. Thank you very much.
Ms. Burroughs.
Ms. Burroughs. Thank you, Senator. Like Mr. Gilliam, I have
had a varied career in the law. I have been a law clerk, a
prosecutor, and now a defense lawyer in a major law firm.
I love being in the courtroom. I love trial work. I am
firmly committed to the principles of our judicial system, that
cases are decided by neutral, impartial open-minded, fair
judges. I am very interested in being a part of that process.
I am very thrilled about being a district court judge for
the reasons I just stated. I love being in a courtroom. I love
the woof and warp of it. I love the human drama in there.
The Judge that I clerked for, Judge Norma Shapiro once told
me that jurors got it right 95 percent of the time. I think it
is more like 98 percent of the time. I think that is
unbelievable, and I think about the challenge of getting 12 of
my friends to agree to anything, much less a room full of
strangers agreeing to something. So I think that our system of
justice is really amazing and I am very excited about being a
part of the institution that can continue those very wonderful
traditions.
In terms of case management, I would also mange my docket
proactively. I am a believer that justice delayed is, in fact,
justice denied. I would try and move my docket along as quickly
as possible, consistent with fairness and making sure that
everybody has an adequate chance to be heard on all of the
issues.
Senator Feinstein. Thank you very much.
Mr. Mehta.
Mr. Mehta. Thank you, Senator. I too have been fortunate to
have had a varied career. I have served both in the public
sector and worked in the private sector as a criminal defense
attorney. I have also had the opportunity to have served--to be
an advocate in civil cases, both on the plaintiff side and on
the defense side. I have also been fortunate enough to do some
appellate work, and I also have clerked.
I think those experiences provide a strong foundation for
the challenges that will lie ahead as a Federal district judge
if I am so fortunate to be confirmed.
In terms of the caseload question, like my fellow nominees,
I would take that, obviously, quite seriously. It is critically
important that a Federal judge at the district court level move
cases along. It is critically important that judges come in day
after day and commit themselves to the hard work of making
decisions so that the parties before them and the public have
the confidence that the judicial process is working and working
efficiently.
I too look forward, if I am so honored to be confirmed, to
be part of the institution. It would be no greater honor in my
career than to serve the people of the District of Columbia in
that capacity.
Senator Feinstein. Thank you very much. Let me just ask you
one question. Now you have been a criminal defense lawyer for--
now that is a critical role, obviously, but for a long time. Do
you feel you can look with an open mind at the facts on both
sides?
Mr. Mehta. I do, Senator Feinstein. I recognize that my
role as an advocate on behalf of defendants is a very different
role than the one I would play as a jurist.
A jurist must be impartial, must be fair, and open-minded
to all the parties in every kind of case that comes before him
or her. Certainly in criminal cases I would do that. The
government has a very strong interest on behalf of the people
in any courtroom in any criminal case. I would give that
interest as much due consideration as that of the defendant.
Senator Feinstein. Thank you very much.
Ms. Burroughs. Oh wait. We did that. Sorry, Ms. Davidson.
Ms. Davidson. Yes. Thank you, Senator.
Senator Feinstein. For the court. The court you are going
to be serving on is a little bit different. Perhaps, you would
tell us what you anticipate and how you would handle it.
Ms. Davidson. Yes. Well many of the considerations are the
same, so the question applies almost equally to the Court of
International Trade.
I am qualified to be a judge in that court because I am
extremely familiar with international trade law as a result of
my practice over many years. I am qualified to be a judge
because I have been both in private practice and at the
Department of Justice. I have appeared before numerous judges
personally, both at the trial and the appellate levels. So I am
very comfortable in the courtroom and I know what the
transition will be like to move to the other side of the bench
and to assume the very different role as a judge.
I also have worked with bar associations throughout my
whole career where often I am one of the very few government
lawyers in the bar association and I have listened carefully to
the concerns of private counsel and found that often our
underlying interests are not all that different. And at the
Department of Justice a large part of my role as a supervisor
is evaluating the Government's arguments and critiquing them
and serving as a moot court judge for younger lawyers who are
going to court. So I am very familiar with questioning the
Government's arguments.
In terms of caseload, I know from my practice and from my
work with the private bar how important it is to have an
expedited review system for courts to resolve cases promptly in
the commercial world, in the criminal world, in every aspect of
the law. I would be very conscious of that.
I think I could bring to the Court of International Trade
some new ideas for case management and technology that I have
gained through my work in other courts. As a trial court judge,
I would view my role in addition to the role of every judge of
being fair, impartial, objective--I also would view my job as
making sure that the record was fully developed, cognizant that
the case might go up on appeal. So I would want to be sure that
I completely understood the arguments that the parties were
making and the issues that were raised and that the record was
complete and clear in case the court went up on appeal.
Finally, as a national court, the Court of International
Trade has jurisdiction over the entire country, and I would be
cognizant that it is not just a court that sits in New York and
decides cases in New York, but must look throughout the
country. I am familiar with that role because I also work in
other national courts, the Court of Federal Claims and the
Court of Appeals for the Federal Circuit.
So the national courts have a different role than the
district courts. I would be very cognizant of that
responsibility to look throughout the United States and not
just within the courtroom in New York.
Thank you.
Senator Feinstein. Thank you.
I think as Senator Grassley has said, this is not a
controversial panel. It is a well-qualified panel of
individuals who have sufficient background, history,
commitment, and particularly in the law. I want people to know
that this is a relatively short hearing as these things go, but
that is not to say that you each have not been scrupulously
evaluated by staff who go through volumes of paper. Even the
slightest little thing can be brought to our attention. I think
the statements you made are really cognizant of the roles that
you will go into and very well handled.
So I am just going to say we will do our best to get this
before the full Committee as soon as possible, and hopefully
confirmed also as soon as possible. So thank you everybody,
families, everyone for coming.
I would like to just announce that the record will be held
open for 1 week. Thank you very much.
The hearing is adjourned.
[Whereupon, at 10:46 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
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. JOAN MARIE AZRACK, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF NEW YORK;
LORETTA COPELAND BIGGS, NOMINEE TO
BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA; ELIZABETH
K. DILLON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
VIRGINIA; AND MICHAEL P. BOTTICELLI, NOMINEE TO BE THE DIRECTOR OF
NATIONAL DRUG CONTROL POLICY
----------
THURSDAY, NOVEMBER 13, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 12:21 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono,
presiding.
Present: Senator Grassley.
OPENING STATEMENT OF HON. MAZIE HIRONO,
A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Hirono. The hearing of the Judiciary Committee will
now come to order. I do apologize to our nominees and Senator
Burr, Senator Grassley and others for this delay. I thank you
very much for your patience.
Senator Burr, we can start with you. I will forgo my
opening statement.
[The prepared statement of Senator Hirono appears as a
submission for the record.]
PRESENTATION OF LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, BY HON.
RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Chairman Hirono, thank you very much and let
me just thank the Committee for holding this hearing with these
nominees.
Madam Chairman, I am here to support and to voice a strong
support for Judge Loretta Biggs. She is a North Carolinian with
the professional integrity and legal experience that makes her
an outstanding candidate to serve on the Federal bench. I feel
confident that the community will come to the same conclusion
after reviewing all of the documentation about this exceptional
nominee.
Not only is she exceptional from the standpoint of her
service on the bench and in law, she has been active in her
community and I know her active role has made the Piedmont
Triad of North Carolina a much better place to live. Countless
others have benefited from her wealth of legal knowledge. She
has also served as an adjunct professor at Wake Forest
University Law School.
In this regard, I find it reassuring to know her legal
knowledge merged with the academic genius usually attributed to
Demon Deacons. Without doubt, North Carolina is better off
because of this.
I would like to highlight, very quickly, a few points of
Judge Biggs' resume which I believe signal a unique and highly
accomplished career and make her an excellent candidate for the
Federal bench.
She served as a Federal and State prosecutor. She is
admitted to practice in all North Carolina courts, the Supreme
Court, the U.S. Court of Appeals and the U.S. District Courts.
She has significant experience in both public and private
practice, from the general counsel's office of a fortune 500
company to the Assistant D.A. position in my home county of,
Forsyth County.
She began her service as a judge in 1987 when she was
appointed to the 21st Judicial District Bench in North
Carolina. She served in the U.S. Attorney's Office for the
Middle District of North Carolina where she coordinated crime
prevention efforts. While there she helped develop the model
for Juvenile Crime Prevention Councils that are currently being
used statewide by the North Carolina Department of Safety to
reduce and prevent juvenile crime.
In 2001, she was appointed to serve on the North Carolina
Court of Appeals. In addition to her professional achievements,
she has also received numerous awards for her service and
commitment to the community. These include the YMCA Public
Leadership Award, the Visionworks Humanitarian Award, the Dream
Catchers Award, the Tar Heel Girl Scouts Council, the Community
Service Award, Family Services of Forsyth County, the Strong
and Smart and Bold Award, Salvation Army Girl's Club, Woman of
the Year in the Winston-Salem Chronicle and Best Choice Center
Wall of Fame.
Madam Chairman, let me reiterate my support for Loretta
Biggs as a nominee for the Federal bench. I believe she has the
necessary experience, the temperament and the judgment required
for the bench, as well as the character that we all look for in
judicial nominees.
I believe this Committee will agree with me that Loretta
Biggs is well qualified to serve on the Federal bench. But let
me assure you and those Members who are not here today, this is
a fine woman. This is a woman that we can be proud of, a woman
that will not only perform in a professional manner, but she
will represent the decision of this President and of this
Congress in her nomination in a very distinctful way.
I thank the Chair.
Senator Hirono. Thank you Senator Burr.
Senator Hagan, we will give you a moment to settle in and
then please proceed with your testimony in support of Ms.
Biggs.
PRESENTATION OF LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, BY HON. KAY
HAGAN, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Hagan. Thank you Madam Chairman. I also want to
thank all of the Members of the Judiciary Committee and I am
greatly honored to be able to join you today with my colleague,
Senator Burr, to introduce an exceptional candidate for the
U.S. District for the Middle District of North Carolina, Ms.
Loretta Biggs.
I appreciate the opportunity to be here to speak about Ms.
Biggs exemplary experience and contributions to public service
during her 35 years of service as an Appellate Court and a
State Trial Court Judge, a Federal and State Prosecutor and a
successful attorney in private practice.
I first want to recognize Ms. Biggs' daughter, Jahmela; her
brother, William Miller; her friend, Larry Biggs; and former
North Carolina Supreme Court Justice, Patricia Timmons-Goodson.
I am delighted that you were all able to join us today. I also
want to recognize Ms. Biggs' mother, the late Ernestine Miller,
whom she credits for every achievement in her life and who is
with us in spirit today.
I also, at this time, want to thank Judge James Beaty, Jr.,
who assumed senior status in the Middle District earlier this
year. Judge Beaty served honorably for 20 years in the Middle
District, including 6 years as Chief Judge. I am so grateful
for his dedicated service to our State.
Loretta Biggs is currently a partner at the law firm of
Allman, Spry, Davis, Leggett and Crumpler in Winston-Salem,
North Carolina where her practice includes litigation,
mediation, arbitration of complex family law cases and
interstate and international child abduction cases. She was
formerly the managing partner at Davis, Harwell and Biggs where
her specialties included family law, complex civil litigation,
and appellate practice. She is a North Carolina Board Certified
Family Law Specialist and Board Certified Family Law Financial
mediator and a Fellow in the American Academy of Matrimonial
Lawyers, one of the highest honors a family law litigator can
claim.
Ms. Biggs was previously an Associate Judge on the North
Carolina Court of Appeals where she authored over 175 opinions
and participated in approximately 300 additional opinions,
including criminal and civil substantive law and procedural law
issues. Prior to her appointment to the Court of Appeals, Ms.
Biggs was Executive Assistant, U.S. Attorney for the Middle
District of North Carolina where she oversaw the planning and
coordination of all crime prevention and reduction efforts of
the U.S. Attorney's Office and developed the model for the
Juvenile Crime Prevention Councils that are now operating in
all 100 counties in North Carolina.
She was recognized for her work at the U.S. Attorney's
Office in 1999 as one of only three recipients in the country
of the United States Attorney General's Award for Outstanding
Contributions to Community Partnerships for Public Safety. From
1987 to 1999, Ms. Biggs served as a District Court Judge for
the 21st Judicial District of North Carolina, having first been
appointed by the Governor and subsequently winning two local
elections to retain her seat.
She got her start in public service as an Assistant
District Attorney in Forsyth County and began her legal career
at the in-house counsel's office at Coca-Cola. She also served
as an adjunct professor at my alma mater, Wake Forest
University School of Law, where she taught at the legal clinic
and began a mentoring program for black law students at the
school.
Ms. Biggs has been recognized among the Best Lawyers in
America since 2006 and the Super Lawyers since 2007. In 2007,
she was also one of the Top 50 Women Lawyers in the Super
Lawyers publication.
In addition to her professional honors, she has also been
recognized for her outstanding community service, having earned
such recognitions as the YMCA Public Leadership Award, the
Visionworks Humanitarian Award, the Community Service Award
from the Family Services of Forsyth County and the Salvation
Army Girls Club Strong, Smart and Bold Award.
Ms. Biggs graduated with Honors from Spelman College in
1976 with a Bachelor of Arts Degree. She went on to earn her
Juris Doctorate from Howard University School of Law in 1979,
where she was fifth in her class and the Deputy Article Editor
for the Howard University Law Journal.
I believe that Ms. Biggs' experience, acuity, leadership
and deep roots in her community make her an exemplary choice
for the Middle District of North Carolina. If appointed, she
will be the only African American to sit as a U.S. District
Judge in Winston-Salem. Her extensive legal experience and
dedication to public service demonstrate her imminent
qualifications for service on the Federal bench and I am
confident that she will make an outstanding judge for the
Middle District.
I thank you, Madam Chair, for holding this hearing today
and allowing me to speak to Ms. Loretta Biggs' abilities. I
wholeheartedly support the nomination of Loretta Biggs and look
forward to working with you to confirm her to this position as
swiftly as possible. Thank you, Madam Chair.
Senator Hirono. Thank you, Senator Hagan and thank you
Senator Burr. I realize that you have other business to attend
to, so thank you very much for your presence here.
We do have other Senators who are inadvertently delayed,
but I did want to mention that Senator Gillibrand was going to
introduce Judge Azrack, Senator Warner to introduce Ms. Dillon,
Senator Kaine to also introduce Ms. Dillon and Senator Markey
to introduce Mr. Botticelli. Their testimony in support of
these nominees will be entered into the record of this hearing.
[The prepared statements of Senator Gillibrand, Senator
Warner, Senator Kaine, and Senator Markey appear as submissions
for the record.]
Senator Hirono. At this time I would like to ask the table
to be cleared so that our nominees can come to the table. While
this is happening, I would like to introduce my statement for
the record--but to say that all of our judicial nominees are
filling emergency positions, so this hearing is very important.
[The prepared statement of Senator Hirono appears as a
submission for the record.]
Senator Hirono. Before we get to our nominees, I would like
to turn now to Ranking Member Grassley for his opening
statement, if any.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. For the same reason that you put your
statement in the record, I am going to put my statement in the
record.
I would announce for the judicial nominees, I am not going
to ask questions to be answered today, I am going to issue
statements for the record that I would like to have answered in
writing, but when we get around to asking questions, I would
like to have a short discussion with the Drug Czar.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Hirono. Certainly.
Will all of our nominees come to the table. I would like
you all to rise and raise your right hand for the oath. Do you
solemnly swear that the testimony you are about to give the
Committee will be the truth, the whole truth and nothing but
the truth so help you God?
Judge Azrack. I do.
Ms. Biggs. I do.
Ms. Dillon. I do.
Mr. Botticelli. I do.
Senator Hirono. Thank you. Let the record show that the
nominees have answered in the affirmative.
We will start with opening statements from all of our
nominees. We will start with you, Judge Azrack.
STATEMENT OF HON. JOAN MARIE AZRACK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Judge Azrack. Thank you, Senator. I want to thank you and
the Committee for convening this hearing today and for inviting
me to attend. I want to thank Senator Gillibrand for
recommending me to the President and of course, I want to thank
President Obama for nominating me for this position.
I would like to take a moment and introduce my family who
is here. I would not be here without their love and support.
My husband, William Ballaine, is here. My daughters, Katie
Ballaine and Annie Ballaine are here. Katie Ballaine is 23. She
is a 2013 graduate of Yale University now working in New York
City for NBC. Annie came down from New Haven last night. She is
a junior at Yale.
My first cousin, Patricia Loeb is here--who is like a
sister to me. A dear friend, Kerry Docherty, and former law
clerk is also here. My intrepid and loyal three law clerks came
down very early this morning, so chambers is closed today--Bob
Terranova, Charlotte Petilla and Diana Srebenik. I want to
thank them all for being here with me.
My brother is watching on the webcast as are many members
of my Eastern District Court family and I thank them for their
support as well.
Before I close, I want to acknowledge two very important
people in my life, my parents, John Azrack and Theresa Wieland
Azrack, who died some years ago. I know they are with me in
spirit and I know they are up there somewhere bursting with
pride at me sitting here before a U.S. Senate Committee being
considered for a Federal judgship.
Thank you.
Senator Hirono. Thank you and welcome to all of your
family.
[The biographical information of Judge Azrack appears as a
submission for the record.]
Senator Hirono. Ms. Biggs.
STATEMENT OF LORETTA COPELAND BIGGS, NOMINEE TO
BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
NORTH CAROLINA
Ms. Biggs. Thank you, Senator. First of all, I do want to
thank you for--I know, on a very busy day--conducting this
hearing. To our Ranking Member of the Judiciary Committee,
Senator Grassley, I thank you, sir, for being here.
I do want to thank both of my home-state Senators, both
Senator Hagan and Senator Burr. I am humbled by their
undaunting support of me through this nomination and now
through this confirmation process.
I do want to thank the President for the nomination. I am
very proud to be here. I do have with me here today my
daughter, Jahmela, who took the redeye from Los Angeles to
ensure that she would be here with her mom, seated here.
I have my brother here, William Miller, from Atlanta,
Georgia. And I have my dear, good friend, Larry Biggs, here
along with me.
We also have the Special Assistant to Former North Carolina
Supreme Court Justice, Justice Timmons-Goodson, Cheryl Cozart
who is here in support of me as well as Justice Timmons-
Goodson.
By webcast, I would like to acknowledge my son, Jolonnie;
his wife, Kelsie; and our 1-year-old grandson, Jamison Walter.
I would also like to acknowledge my sister and brother-in-law
in Atlanta, Antoinette Sewell and her family. I would like to
acknowledge my brother and sister-in-law--my brother, retired
Air Force in Moreno Valley, California, as well as his three
children, my nieces and nephews. I would like to acknowledge my
in-laws, Louise and Earl Newsom from Williamston, North
Carolina, who have been very active in my life.
I would like to thank all of my friends, all of my
colleagues, all of my family for supporting me throughout my
career. As Senator Hagan mentioned, I would do a special thank
you to my mother, Ernestine Lucretia Miller who is no longer
with us, but has been my guardian angel throughout my life and
continues to be here in her spirit.
Thank you so very much for this opportunity.
[The biographical information of Ms. Biggs appears as a
submission for the record.]
Senator Hirono. Thank you very much.
And now Ms. Dillon.
STATEMENT OF ELIZABETH K. DILLON, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF VIRGINIA
Ms. Dillon. Thank you Ranking Senator Grassley, presiding
Senator Hirono, and this Committee for allowing me to be here
today. I would like to convey my thanks to Senators Warner and
Kaine for their recommendation to the President and of course,
I am deeply honored by the nomination by President Obama and
thank him.
I would also like to introduce and give thanks beyond
measure to my family who are here with me today, my husband,
Barry Dillon; my daughters, Katie and Anne. Katie is a graduate
student studying speech and language pathology. Anne is a
junior in college studying human relations and anthropology.
Also with me today I have family friends Ben Strickler and
Steward Hundley who are both young men interested in government
and happen to be studying and working in Washington, DC, right
now.
Watching by webcast today I have my proud parents, Kay
Shields, my mother; Ted Hillman and his wife, Bernie--my
father. My parents instilled in me a love of learning that
continues to benefit me today.
I would like to thank my mother-in-law for all of her
support, Lucille Dillon, in spirit, my father-in-law, A.W.
Dillon. Also my sisters, Joannie Dunn and Laura Heitzman who
helped me hone my verbal skills at an early age. My sisters-in-
law Debbie Dillon and Janet McClain and all of their families.
Also everyone at my law firm and my many special friends that
are supporting me today.
Thank you.
[The biographical information of Ms. Dillon appears as a
submission for the record.]
Senator Hirono. Welcome to all of you.
Mr. Botticelli, you have a different role here. You are not
a judicial nominee and you have submitted your testimony, so
perhaps you would like to take 5 minutes or so to give your
testimony to this Committee.
STATEMENT OF MICHAEL P. BOTTICELLI, NOMINEE TO BE THE DIRECTOR
OF NATIONAL DRUG CONTROL POLICY
Mr. Botticelli. Great. For the sake of dialogue and
discussion, I will submit my formal statement for the record to
really preserve time.
But I do want to thank you, as Chair of this Committee, and
Ranking Member Grassley. It is an incredible honor for me to be
in front of you today.
I would also like to acknowledge Senator Markey for his
willingness to introduce me and for his support. I have the
privilege when he was in the House to be one of his
constituents when I lived outside of Boston, so I have a long
association with him.
I really want to thank President Obama for nominating me
for this position. It is a tremendous honor for me to be here.
I would like to introduce and acknowledge my husband, David
Wells for his love and encouragement. I know that I would not
be here today without his love and support.
Watching by way of webcast, my two older brothers who are
instrumental in guiding me to this point and continue to
provide support and guidance for me. I am also joined here
today by many friends and colleagues that I have known for a
long time who have given me a tremendous amount of guidance and
support not only during my time at ONDCP, but also my time at
the State level.
I would also like to recognize my parents who are no longer
here. My parents were first-generation Italian immigrants and
to have their son nominated to this position, I cannot thank
them enough for all of the hard work and sacrifice that they
gave me and my brothers to be in this position where we are
today.
And finally, I would like to thank my staff at ONDCP, many
of whom are here today. I really have the privilege and honor
of representing their fine work as we think about protecting
the American people from drug use.
Thank you.
[The biographical information and prepared statement of Mr.
Botticelli appear as submissions for the record.]
Senator Hirono. Thank you very much. And just for purposes
of clarification, Mr. Botticelli, you are being nominated to be
the Director of the National Drug Control Policy.
At this point, the Committee will open for 5 minutes of
questioning by myself and the Ranking Member Grassley.
As our judicial nominees have come all this way, I know
that Senator Grassley will be submitting his questions for the
record for your response for the record. I would just like to
ask each of you, very briefly, to tell us a little bit about
what you see as the challenges in serving as a Federal District
Court Judge. We realized that you have diverse experiences as
judges and in the private sector, but if each of you could just
briefly share with this Committee what you see as the
challenges in serving as a Federal Court Judge.
Let us start with you.
Judge Azrack. Thank you, Senator.
The challenges I see are the challenges I have been
confronting for 23 years as a United States Magistrate Judge in
the Eastern District of New York. That is making sure that
everyone who comes into my courtroom is respected, their views
are heard, they are given their day in court, they feel as if
our justice system is working for them and that I hear their
case and base my decision on existing law, applying the
existing law to the facts and give them a ruling promptly and
with clarity so that when they leave my courtroom, they
understand--even if they may not have prevailed--they
understand why I did what I did and they leave with some
enduring confidence in our system.
Ms. Biggs. The challenges that I would see are ensuring
that every person that comes before the court understands that
the court is a vehicle through which they can ensure that their
claims are heard, that their claims are heard by a
knowledgeable judge, that their claims are handled in an
efficient way, that they have a full opportunity to have those
claims heard in a very fair and impartial way.
It is critical that each person that comes into our Federal
courthouse believes that the court will hear them, allow their
attorneys to try their cases in the best way that they know how
and that there will be a deliberate and speedy trial.
Thank you.
Ms. Dillon. Thank you, Senator, for that question.
The challenge I see is to honor and have the outmost
respect for the tremendous responsibility placed on a person in
the position of district court judge. From that respect flows
all of those other things, the respect for the rule of law, the
respect for the litigants and the respect for the lawyers
appearing in that court, a sense of fairness and impartiality
and that transition from advocate to judge to fair and
impartial decisionmaker. I pledge to this Committee that I have
that utmost respect and recognize the tremendous responsibility
placed on that position.
Also, with the Western District of Virginia, I will tell
you that I have a special place in my heart for that court. It
is a welcoming court.
We recently lost Judge Turk, one of the senior judges, at
age 91 years old who was very active in the court and has
taught every litigant and every lawyer who has appeared before
him that with responsibility comes the duty to be fair and
impartial and kind. I would hope that I could do the same.
Thank you.
Senator Hirono. Thank you. I have a question for Mr.
Botticelli. We know that opioid addiction is on the rise and
the result is an increase in overdoses, death and costs.
I cosponsored the TREAT Act, which I believe you are
familiar with, earlier this year which would expand the number
of patients that a provider can treat for opioid addiction as
well as the type of providers eligible for providing this kind
of treatment. Can you comment on how you think the TREAT Act
fits into a national plan for dealing with opioid addiction?
Mr. Botticelli. Senator, as you indicated, we have been
significantly concerned about the dramatic increase in opioid
use, both prescription drugs and heroin use throughout the
country and as you indicated, the devastating impact that that
has had on mortality.
The recent yearly data show that 110 people are dying every
day of a drug-related overdose. These are deaths that are
entirely preventable.
In 2011, our office sponsored a prescription drug abuse
plan that we are making significant progress on. One of those
principles I think is very much in keeping with the intent of
your legislation, that we have effective medications that we
know are highly effective, not only in treating opioid use
disorders, but preventing mortality. So we are very supportive
of looking at ways that we can work with our Federal agencies
and State and locals to increase access to these lifesaving
medications.
Part of what I started as Deputy Director was convening a
treatment workgroup of all of our Federal partners to look at
not only how could we increase access to treatment that we know
is effective, but especially focused on increasing access to
all of the FDA approved medications for opioid use disorder. We
would be happy to work with you to look at how we can continue
to focus our efforts on making sure that people with those
disorders have access to those lifesaving medications.
Senator Hirono. My 5 minutes are up.
Senator Grassley, would you like to proceed?
Senator Grassley. Thank you. Just let me explain to our
judicial nominees so you do not think you are less important.
Normally, I would be asking questions orally and I am not today
because we got started so late. It is neither one of our
faults. As you probably know, it was the caucuses for the
Democrat and Republican parties that help us up.
So I am going to just ask of Mr. Botticelli. You have been
a leading voice against legalization of recreational marijuana.
First of all, I would thank you for that. Could you explain why
you are against legalization and tell us what the latest
scientific studies have shown about the effects of marijuana
use on young people's brains, a potential for facilitating
addiction.
Mr. Botticelli. Thank you Ranking Member Grassley. As you
indicated, we have been opposed to legalization efforts and
that is a direct result of the abundant scientific evidence we
have about the public health harms and public safety harms
around marijuana.
We know that about 1 in 11 people or 9 percent become
dependent on marijuana when they use it on a regular basis. And
we know that the earlier people use and the earlier youth use,
the more likelihood they have in developing a more significant
substance use disorder.
While we have made progress in many of the areas on
reducing drug use in the United States, marijuana is,
unfortunately, not one of them. We have more youth in the
United States now who are smoking marijuana than they are
tobacco. That is directly tied to the lack of risk that youth
have in the United States of using marijuana and that is
directly tied to the messages that youth are getting both in
terms of legalization efforts as well as medical marijuana,
that these substances are not harmful.
Part of what I do when I go across the country is talk to
youth about the messages that they hear. We have made
considerable progress on tobacco and youth will tell you that
it is harmful.
But I am really disturbed by what they say to me about
marijuana and they see it as benign and in some cases they see
it as healthful because of a medical community prescribing this
medication. So we have significant issues all ready with
marijuana and we are really concerned about the
commercialization of marijuana and what that is going to mean
in terms of increased access to youth.
Senator Grassley. Some have said that legalization of
marijuana should only be a first step, that the use of other
drugs like cocaine, heroin, and methamphetamine should be
legalized. Now you have publically described--and you have got
to be complimented for doing this--your courageous story,
personal story of recovering from addiction.
Are you in favor of legalizing the use of these drugs and
what would legalizing use of these drugs do to public health,
especially those at risk of addiction?
Mr. Botticelli. We do not support that and I do not support
that. As you indicated, Senator, I only have to look back at my
own story around addiction and recovery to know the devastating
impact that alcohol and other drugs have on people.
I know that that is entirely preventable and I know that
legalization is not the solution to our problems. We also know
that many of the folks who are promoting legalization of
marijuana see this as a first step and they want to legalize
other drugs which we think is entirely antithetical to a public
health approach. We want to make sure that we are preventing
drug use from happening. We want to make sure we have safe
communities that are free from these substances to improve the
probability that our youth are going to make healthier choices
in their lives.
So I do not see legalization of marijuana or any other
drugs as enhancing that public health approach and have
significant concerns about the availability of these substances
and what it says to the youth of our country.
Senator Grassley. We have a situation where a person by the
name of Vinita Gupta has been nominated as Acting Assistant
Attorney General for Civil Rights. In addition to being in
favor of marijuana legalization, she has written that ``states
should decriminalize simple possession of all drugs'' with
emphasis upon ``all drugs.''
So based on your recent statement, I assume it is your view
that Ms. Gupta's recommendation would be disastrous for public
health if adopted.
Mr. Botticelli. I cannot speak to exactly what her
positions are, other than what I have read in the paper. I will
tell you that this Administration remains firmly opposed to
legalization and other liberalization of our drug policies.
Again, that is not coming from an ideological perspective. It
is really based on the robust scientific evidence that we have.
Senator Grassley. Sure. My last question, and it follows
on----
Senator Hirono. Feel free to.
Senator Grassley. Thank you. It follows on with your
discussion of opioids, but a little bit different.
The Administration's most recent prescription drug
prevention plan, issued April 2011, the plan focused on
prescription opioids. One of its goals was to reduce deaths
associated with these drugs. Since then we have seen an
epidemic of prescription drug abuse develop even in my State
and in many parts of the United States.
So my last question is, do you think the plan needs to be
revised in any way in light of the alarming developments over
the last 3 years and if so, would you plan to issue one?
Mr. Botticelli. Let me share with you what I think has been
some significant progress that we have made since we
implemented many of the strategies of that plan.
So most recent data suggests that the misuse of
prescription pain medication among youth and young adults has
been dropping and for the first time in 15 years, we actually
saw a decrease in prescription drug-related mortality. So we
know and we are cautiously optimistic that our plan is taking
root and taking hold.
One of the things that has been a significant concern for
us--although a smaller level--has been the dramatic increase
that we have seen in heroin and heroin use rates. To really
reflect that, our most recent 2014 National Drug Control
Strategy talks about our continued efforts, both in terms of
demand reduction and supply reduction efforts specifically
focused on the heroin issue. We know that many newer users to
heroin actually start their opioid addiction on prescription
pain medication. So we know we have to keep up our efforts on
that front and augment our plan to really focus on the heroin
issues that we are now seeing taking hold across the country.
Senator Grassley. I thank you for your questions. And I
thank the other people for answering them in writing.
Senator Hirono. Thank you Senator Grassley. I will submit a
few more questions for Mr. Botticelli, if you can respond for
the record.
I would also like to enter into the record numerous letters
of support for Mr. Botticelli.
[The letters appear as submissions for the record.]
Senator Hirono. I would like to thank all of you and your
families and friends for being here and being available to
respond to our Committee.
The record will remain open for 1 week for submission of
written questions for the witnesses and for the submission of
other materials.
With that, this hearing is adjourned.
[Whereupon, at 12:56 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
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND
TRADEMARK OFFICE, AND DANIEL HENRY MARTI, NOMINEE TO BE U.S.
INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE OF THE
PRESIDENT
----------
WEDNESDAY, DECEMBER 10, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:11 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman, presiding.
Present: Senators Durbin, Whitehouse, Klobuchar, Franken,
Blumenthal, Hirona, Grassley and Hatch.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. I was just apologizing to Senator Hatch for
being late because of a family semi-emergency. I am so glad
Michelle Lee and Daniel Marti are here today. These are
nominees to two very important leadership positions. They are
charged with supporting our Nation's creators and artists and
inventors.
Those are categories that showcase the best of America and
they also need to be protected. I take a strong personal
interest in these positions, both as the leader of this
Committee and as the Senator from Vermont who is Dean of the
Senate. These are important things.
In our State of Vermont, we have a diverse range of
artists, writers and creators. We are a State of only 625,000
people, but every year it ranks among the most innovative
States, has the highest patents per capita of any State. We
know firsthand that creators and innovators are the lifeblood
of this country. They fuel our imagination. They create jobs.
They contribute billions of dollars to the economy.
It is probably the fact that we have had such creators in
Vermont that we have always--even during the recent recession,
some call it depression, we maintain the lowest unemployment
rate in the country. The two nominations we are considering
today play a central role promoting this important work.
Intellectual Property Enforcement Coordinator or IPEC was
created by legislation I authored in 2008. It was reported by
this Committee and then in a Senate, sometimes called divisive,
it passed the Senate unanimously. Our objective was to take a
comprehensive approach to intellectual property enforcement
within the U.S. Government.
IPEC plays a valuable role bringing together members of the
Internet ecosystem, addresses a complex problem of online IP
theft. Earlier this year, Senator Grassley and I sent a letter
to President Obama urging him to nominate someone to fill this
position. It had been vacant for over a year. Today's
confirmation hearing is an important step in filling the
vacancy following the calls of Senator Grassley and myself.
Compared to the IPEC, the position of the Director of the
Patent and Trademark Office is not so new. Our Nation's first
official charged with granting patents was Thomas Jefferson.
That is kind of a proud lineage to be in--when he was Secretary
of State.
By serving America's innovators, the PTO helps Vermonters
and citizens across the country build their businesses. Three
years ago Congress came together to pass the Leahy-Smith
America Invents Act. It is the greatest transformation to our
patent system in over 60 years, not my words, but the words of
most who followed it.
The Committee worked for 6 years to pass that landmark
legislation bringing our patent system into the 21st century.
AIA sought to improve patent quality, creating new and more
efficient administrative proceedings at the PTO and I want to
hear more from Mrs. Lee about these and other efforts as the
PTO continues its work delivering the promise of AIA.
I am pleased in the funding bill released last night, we
were able to assure that the PTO receives a budget of $3.46
billion, reflecting the amount that it collects for user-fees
that are strengthened by the Leahy-Smith bill. Full funding of
PTO should remain a priority and we have to do more work to
strengthen our patent system. I think that is something that
Senator Hatch, Senator Grassley and I would all agree on.
We have been working over the past 18 months to address
misconduct by bad actors who are abusing the patent system. Let
me state that I will work with my colleagues on both sides of
the aisle next year to address these so-called patent trolls
who send threatening letters to small businesses in Vermont or
Utah or anywhere else. They tie up companies across the country
in bad faith lawsuits. They hamper innovation and harm our
economy. We dedicated months of committed work to make some
bipartisan progress this year and I am told by the new
leadership of the Committee we will continue to do that.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
I know that Senator Grassley has been delayed on an
Agriculture matter which is important to both our States.
Senator Hatch, did you want to make any comments?
OPENING STATEMENT OF HON. ORRIN HATCH,
A U.S. SENATOR FROM THE STATE OF UTAH
Senator Hatch. Let me just say that I am pleased that these
two nominees are here and that we are moving ahead. These are
very important positions in our country and they are sorely in
need of management so I am grateful to both of you for being
willing to serve and we will have some questions for you, but
that is par for the course.
Thanks for being willing to serve and we appreciate the
effort. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Daniel Marti is the managing
partner of the Washington, DC, office of Kilpatrick Townsend
and Stockton. He has spent his entire legal career specializing
in intellectual property law, focused in trademark law. I am
going to hear from both witnesses, but do you have members of
your family here, Mr. Marti?
Mr. Marti. I do.
Chairman Leahy. So they will someday be in the Marti
archives, that they will know who was here, would you please
introduce them.
Mr. Marti. Yes, with pleasure. My entire family is here,
joining me and supporting me today on this important day. I
have my mother and father, Enrique and Patricia Marti from
Florida who just came in last night; my beautiful wife, Lauren;
our two children Myles and Alyssa; my sister, Patty and her
son; and my sister, Andrea, from Boston could not make it, but
hopefully she is following online.
Chairman Leahy. We have a tad bit of snow up northeast
here.
Mr. Marti. Yes.
Chairman Leahy. I am hearing from a couple of my neighbors
in Vermont.
Michelle Lee currently serves as the Deputy Director of the
U.S. Patent and Trademark Office. She was the first Director of
the Silicon Valley Satellite Office to the PTO. She has served
on the PTO's Public Patent Advisory Committee. She was Deputy
General Counsel, head of patents strategy at a little startup
company called Google.
Ms. Lee, do you have members of your family here?
Ms. Lee. I do, Senator Leahy. I have the privilege of
having with me my husband, Christopher Shen; our 4-year-old
daughter, Amanda Mavis; and my mother, Agnes Lee from Palo
Alto, California.
Chairman Leahy. Well, welcome to Washington. You must be
awfully proud of your daughter, your wife and your mother. She
is thinking hmm [indicating]. Our youngest was that age when I
was sworn into the Senate. My parents were more impressed than
he was at the time.
[Laughter.]
Chairman Leahy. So let me start. Who would like to go first
with their statement? Mr. Marti, do you want to?
STATEMENT OF DANIEL HENRY MARTI, NOMINEE TO BE U.S.
INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE
OF THE PRESIDENT
Mr. Marti. Thank you Chairman Leahy, Ranking Member
Grassley and distinguished Members of this Committee. I am
honored to have the opportunity to be considered by this
Committee as the President's nominee to serve as the
Administration's Intellectual Property Enforcement Coordinator
or IPEC. I would like to thank the President for his confidence
in my ability to serve in this important post and I thank
Victoria Espinel for her remarkable leadership and service
during her time as the first IP Enforcement Coordinator.
As I mentioned a minute ago, I am joined here and supported
today by my entire family including my 6-year-old daughter,
Alyssa, and 9-year-old son, Myles, who may be the only children
in their elementary school who speak about intellectual
property matters while swinging from the monkey bars on the
playground. I also would like to specifically acknowledge and
thank my beautiful wife, Lauren, for her love and support. I
know it may be often said, but it has never been more true, I
am a better man because Lauren is in my life.
This opportunity to serve my country is truly humbling.
I am a first-generation American born in Washington, DC, of
Spanish and Chilean parents who came to this country speaking
little English. My father, Enrique, chose to leave the seminary
in Germany where he was studying to be a Jesuit priest so he
could teach philosophy and theology at a university in
Washington, DC.
My mother, Patricia, has dedicated her life to making sure
that my two sisters and I have the chance to follow our
educational and professional pursuits wherever they would lead.
Their real sacrifices have allowed me to be here before this
distinguished Committee, and for that I am immensely grateful.
I currently serve as a managing partner of the Washington,
DC, office of Kilpatrick Townsend and Stockton, which has one
of the largest IP practices of any law firm in the country. I
have devoted the entirety of my professional practice to
matters concerning intellectual property enforcement.
My clients have included companies in the fields of
technology, banking, consumer products, entertainment media and
sports, fashion and luxury goods, hospitality and gaming, and
food, beverage and agriculture. Through these and other client
representations, I have developed a deep and broad view of IP
rights and IP policy.
If confirmed, I will work to achieve a thoughtful and
strong intellectual property system that encourages innovation,
creativity and fair competition based on the rule of law. An
effective intellectual property enforcement strategy must
consist of a comprehensive and multifaceted approach to this
dynamic issue, one that is well-positioned to anticipate and,
indeed, respond to the evolving nature of intellectual property
issues.
An intellectual property enforcement strategy should, for
example, involve sustained coordination among Federal agencies
and enhanced sharing of information, focused diplomatic
efforts, including engagement with trading partners, the use of
trade policy tools and IP related training and capacity
building, private sector voluntary best practices, the adoption
of technological solutions and public awareness, education and
outreach, to name a few.
I will work to promote our ongoing efforts to protect
intellectual property from unlawful infringement both home and
abroad. These efforts will involve a broad range of
stakeholders, including Congress, Federal Agencies, the private
sector and public interest groups.
Each of these stakeholders and the views and positions they
represent will be key resources for me in pursuing the goals of
my office. America's great spirit of innovation and creativity
has been a primary driver of our economic growth and national
competitiveness. Intellectual property is also critical to our
balance of trade and intellectual property-intensive industries
represent a substantial portion of our gross domestic product
and support millions of jobs.
Congress and Members of this Committee, in particular, had
the vision to create the IPEC position in order to elevate the
coordination of IP efforts across the United States and indeed
internationally. And if confirmed, I look forward to building
on the success and the momentum of the office and to carry
forward the efforts of the United States Government's economic,
criminal and national security agencies engaged in intellectual
property policy and enforcement.
Thank you, again, for the opportunity to appear before you.
I look forward to answering your questions.
Chairman Leahy. Thank you very much. Thank you for
mentioning your parents' journey to this country. My paternal
grandparents came to this country also not speaking the
language, raised six children, started a wonderful business in
Vermont and got to see their grandson come to the U.S. Senate.
So we are, as I often add, a Nation of immigrants and better
for it.
[The biographical information and prepared statement of Mr.
Marti appear as submissions for the record.]
Chairman Leahy. We have been joined by Senator Grassley who
was tied up, necessarily, at the Agriculture meeting. Did you
want to say something and then I was going to have Ms. Lee
speak?
Senator Grassley. No. Let her speak and then before I ask
questions, I will do a short opening statement.
Chairman Leahy. Well, thank you very much.
Ms. Lee, please go ahead.
STATEMENT OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S.
PATENT AND TRADEMARK OFFICE
Ms. Lee. Thank you. Chairman Leahy, Ranking Member Grassley
and distinguished Members of the Committee, thank you for the
opportunity to be here before you today. I am honored and
grateful to President Obama for nominating me for such an
important position and to Secretary Pritzker for her past and
ongoing support.
With me here today, as I mentioned and without whom I would
not be here today, are my husband, Christopher Shen; our 4-
year-old daughter, Amanda Mavis; and my mother, Agnes who
traveled from Palo Alto, California.
I was born and raised in the Silicon Valley, the daughter
of an immigrant family that settled in a place that turned out
to be one of the most innovative regions in our country, if not
the world. My father was an electrical engineer. We spent our
weekends and evenings tinkering, working together to fix or
build things like a Heathkit handheld radio.
In fact, all of the dads on the street that I grew up on
were engineers, innovators in the truest sense of the word. It
was not uncommon for them to work for companies founded by a
person with a clever invention who patented that idea and who
obtained venture capital funding to bring that technology to
the marketplace. Some of the companies succeeded. Some of them
did not. But for those that did, they created good jobs for
families such as mine and in some cases, new products and
services that revolutionized the world and the way in which we
live.
Seeing the process up close and personal growing up made a
lasting impression on me. I wanted to contribute and to enable
others to contribute to innovation. It is why I studied
electrical engineering and computer science and later
intellectual property law with a goal of representing
innovative companies.
While working at MIT's Artificial Intelligence Laboratory
and HP's Research Labs as a computer programmer, I witnessed
innovation at its inception. It was an exciting experience and
one that I will never forget and that still informs my work to
this day.
Later as an attorney, I worked on patents and patent
strategy for a then small company that grew into a Fortune 500
Corporation in the span of eight short years. Along the way, we
built the company's patent portfolio from a few handfuls of
U.S. patents to over 10,500 patents worldwide and in the
process, I used many of the services offered by the USPTO.
Through my experiences as in-house corporate counsel and
before that as a partner in a Silicon Valley law firm, I
represented a wide range of innovators, from independent
inventors to Fortune 500 companies. I came to understand and
practice many areas of intellectual property law and almost
every aspect of patent law including writing patents, asserting
patents, defending against patent infringement and licensing,
buying and selling patents.
I understand and appreciate from a business perspective the
important value and uses of intellectual property for
innovators and to our country. During the past 3 years, through
my service on the USPTO's Patent Public Advisory Committee,
then as the Agency's first Silicon Valley Satellite Office
Director and now during the past year as the Deputy Under
Secretary and Deputy Director, I have been leading the agency
and have worked with a broad range of stakeholders from almost
every industry, gaining first-hand understanding of the USPTO,
its strengths, challenges, potential and opportunities.
I have seen and worked with the impressive talent of the
dedicated USPTO team. It is clear to me how the USPTO's work
benefits our Nation's innovation. I believe the USPTO must
remain focused on reducing backlog and pendency while
maintaining the highest level of quality of both patents and
trademarks.
Given the increasingly global economy, it is also
imperative that American companies have access to effective,
cost-efficient and strong intellectual property protection
overseas. In my current role, I have had the privilege of
working on many of these initiatives and if confirmed, would
continue to work on these important goals.
I believe that our intellectual property laws and the USPTO
play a critical role in advancing America's technological
competitiveness, which is so necessary for our country's
continued economic growth. If confirmed by the Senate, I commit
to bring to bear all of my energy, creativity and intellect to
protect and strengthen the intellectual property system that
has served our country so well. Thank you.
[The biographical information and prepared statement of Ms.
Lee appear as submissions for the record.]
Chairman Leahy. Thank you very much, Ms. Lee. That is most
impressive. Again, like Mr. Marti, you speak of the
contribution made to our country by those who come to our
country, like my grandparents or my great, great grandparents.
Senator Grassley has joined us. Did you wish to say
something?
Senator Grassley. Why do you not ask your questions and
then I will give my statement and ask my questions.
Chairman Leahy. That would be fine. Thank you very much.
After I ask my questions--because I have to go, also something
involving Agriculture, I am going to leave the gavel in the
competent hands of Senator Whitehouse.
Ms. Lee, 3 years ago we acted to modernize the patent
system. We passed the, as I mentioned earlier, the Leahy-Smith
America Invents Act. Now the PTO has already received over 2000
petitions for the AIA post-grant proceedings. The proceedings
were designed to create an efficient forum, as you know, to
provide a fast and cost-effective resolution for all
challengers and patent holders.
How is PTO implementing those provisions? What effect have
you seen on patent quality since they were enacted?
Ms. Lee. Thank you very much for your question, Senator
Leahy. The PTO has been and has implemented three post-grant
proceedings that resulted from the America Invents Act. They
have been exceedingly popular with our stakeholders. In fact,
in the last fiscal year, we received more than three times the
anticipated number of filings.
It has proven to be a cost-effective, faster method of
resolving the issue of patent validity and the participants get
the benefit of a panel of three technically trained
adjudicators, jurists, deciding their cases. So they have been
very popular.
That said, the USPTO and if confirmed as Director, I would
continue to work to improving those procedures. In fact, very
recently we had an outreach to the Nation to get input on how
we can further improve those proceedings.
Chairman Leahy. Thank you very much. Mr. Marti, I was
thinking of Victoria Espinel's tenure, the first IPEC, the
office made great strides in voluntary agreements between
stakeholders. You know from your own practice of law if you can
find voluntary agreements, it is a lot quicker than having to
litigate something.
You have the important role there in addressing problems of
counterfeiting, IP theft online. Last month, I sent a letter to
the major credit card companies urging them to do more to
prevent use of their payment networks for illegal activity. My
staff has had some very good conversations with them. Visa, for
one, has taken proactive steps with respect to a number of
cyberlockers engaged in online piracy.
Once the IPEC position is filled, I want them to continue
these discussions and I would hope that IPEC would renew the
office's work with advertising networks that are inadvertently
sending money to illegal websites. How do you intend to build
upon the agreements we have because it was one thing in the old
Bonnie and Clyde days, somebody to drive up to the bank and
steal it. Now, as you know, we are talking about billions of
dollars that can be moved back and forth illegally. How would
you work on this?
Mr. Marti. Thank you, Senator. I agree that threats to the
US IP interests are immense and growing both in size and scope.
The private sector must be part of the solution. Intellectual
property enforcement is a multipronged approach and voluntary
initiatives are an important part of that approach.
I look forward to working with the private sector to
continue the good work of the office and continue to assess
those voluntary initiatives from the past years and where
improvements need to be made, certainly look forward to
proposing some additional improvements to existing voluntary
initiatives and looking for new ones. Particularly on the point
that you mentioned, making sure that we can cut off funding
from rogue sites, from infringers, from criminal enterprise,
and part of that is going after the money through payment
processors and also through the ad networks that also direct
payments to these rogue websites.
Chairman Leahy. Thank you. As you know, we can pass
legislation, we can bring the lawsuits, but if you can work out
the agreements, it is a lot quicker and they can usually be
tailored to the problems we need. So I would encourage that.
Speaking of legislation, over the past 18 months, as I
mentioned earlier Ms. Lee, we have been trying to develop
legislation to curb some of those people who are abusing the
patent system. I still want to get through some patent troll
legislation, for example.
We have had some very positive steps. We have improved
transparency. We have taken steps against bad faith demand
letters. We have protected the end users. We tried to address
frivolous lawsuits through targeted reforms.
What do you think are the most valuable strategies we could
use to go after the bad actors, but at the same time to protect
the people the patent system is setup to protect, the
legitimate patent holders and those who want to legitimately
get a patent?
Ms. Lee. Thank you, Senator Leahy. That is a very good
question and it is something that I have been giving a lot of
thought to.
I think to strengthen the patent system we need to have
change from really all aspects of our patent ecosystem.
Legislation is certainly a piece of it. We are seeing a lot of
changes now in the courts in terms of heightened discretion for
attorneys fees and heightened definiteness requirements.
I will say, Senator Leahy, the USPTO has taken on a lot of
initiatives including an enhanced patent quality initiative,
including making the patents that we issue clearer by having
examiners putting more statements on the record so litigants
are not litigating the same issue again years down the road. So
through all of these efforts, I think what we need to do is we
need to look at all of the issues, listen to our stakeholders
and work with all of you to achieve the right balance for a
meaningful and impactful patent reform.
Chairman Leahy. Well, thank you. I will put the last of my
questions in the record. I am glad that you are here and I
think it is an important position and as Senator Grassley and I
said in our letter to the President, it should be filled.
[The questions of Chairman Leahy appear as a submission for
the record.]
Chairman Leahy. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you very much. I want to do an
opening statement and then I will have 5 minutes of questions
as well.
I want to congratulate Ms. Lee and Mr. Marti for your
nominations to serve as Director of the Patent Office and
Intellectual Property Enforcement Coordination. You both have
strong qualifications, a proven record in the field of IP law
and are well respected among that IP community. Both the Patent
and Trade Office and the Office of IPEC need strong and
accountable leadership, so I am pleased that the President has
submitted your nomination.
The United States is at the forefront for innovating,
creating and developing new technologies. Intellectual property
supports technological advances in innovation. Intellectual
property also plays a critical role in job creation and
economic growth and balance of trade. In fact, the entire U.S.
economy relies on some form or another of intellectual property
because virtually every industry either produces or uses it.
We need to ensure that intellectual property rights are
protected here in the United States and abroad. Improved
coordination between our government agencies will strengthen
enforcement of our intellectual property laws. Enhanced
cooperation by different industry stakeholders will also help
protect our intellectual property. In addition, we need to be
doing our best to utilize limited resources in the most
efficient way possible and reduce wasteful duplication.
The bottom line is that if we want the United States to
remain a world leader in innovation and creativity, we must
have a system in place that respects and enforces our IP laws.
Consequently, now more than ever before, the Patent Office and
the IPEC need strong capable leadership. These offices play a
crucial role in promoting American innovation and economic
prosperity, so there is simply too much at stake to settle for
anything less.
Speaking specifically to Ms. Lee, you have been nominated
to a tough position, the continued implementation of the
America Invents Act, clearing out the backlog of patents and
trademark applications and putting a stop to abusive patent
litigation are just a few of the many challenges facing that
agency. Further, we have learned about time and attendance
fraud, preferential hiring practice and other mismanagement
issues at the PTO.
These are very concerning findings and they will be
corrected, I am sure, with your leadership. That is what I am
hopeful about.
Mr. Marti, you also are nominated to a position that will
require a lot of smarts to bring together differing agendas and
priorities. Your predecessor did a good job at working with the
private sector to reach voluntary agreements on how to protect
intellectual property against bad actors, but there is still
much to be done. I am sure that you know that you have your
work cut out for you.
So I look forward to hearing more about how you both intend
to lead these two important offices. I would like to have a
paragraph here on the process. I would like to say a few words
about what we are doing today in today's hearings.
I think everybody in the room today, including the
nominees, understand that there is not enough time for these
nominations to be confirmed before we adjourn. We also know, of
course, that when the new Congress is sworn in, this Committee
will have new Members and those Members should have an
opportunity to participate in a hearing. I expect that next
year those new Members will have that opportunity.
So I wanted to make sure that the nominees are on notice
about that and don't have any false expectations. And what I
just said here at the tail end is not meant to detract from
what I said about your qualifications and the fact that we are
glad that the President nominated you.
Chairman Leahy. If the Senator would yield? I would hope
that would mean that in January we would be moving on them
because these have been vacant for some time as you and I said
when we wrote to the President.
Senator Grassley. Yes. I hate to be too advanced in what is
going to happen, but I think it is a reasonable request and I
think it is probably one that can be handled.
Chairman Leahy. Thank you.
Senator Grassley. I have questions. I am sorry. You got me
all nervous there.
[Laughter.]
Chairman Leahy. If I got Senator Grassley nervous, it is
the first time in his life anybody has made him nervous. And
the fact that he and I have been friends for 30 years, I don't
think I make him nervous.
Senator Grassley. All right. I'm going to start with Ms.
Lee--well, no. This will be for both of you.
Mr. Marti, as you know, we have been working on patent
reform legislation to deal with trolls. In your opinion, are
they a problem? If confirmed, would you work with us on trying
to resolve this issue and craft strong comprehensive
legislation? Then I will have a question for Ms. Lee. Go ahead,
Mr. Marti.
Mr. Marti. Thank you, Senator Grassley. Abusive litigation
is certainly a problem. I think we can all agree that a strong
and well functioning patent system is something that is in this
country's best interests and certainly if confirmed, I look
forward to working with you, this Committee and with Congress
to address abusive litigation of any sort. Thank you.
Senator Grassley. Ms. Lee, kind of a gentle question, but
an important one, what do you see as the most significant
challenge facing the PTO?
Ms. Lee. I think it is the PTO's obligation to issue the
very best quality patents possible. I think we have taken huge
strides in reducing our backlog and pendency. Since January
2019, we have reduced the backlog in pendency by 20 percent
despite on average 4 percent year-over-year increases and
filings. So I think the next priority, the very next priority
beyond that is making sure that we issue the very best quality
patents and we have steps well on the way to handle that.
Senator Grassley. Yes, and I should have asked you the same
question that I asked Mr. Marti. Is patent troll a problem, and
if confirmed, would you work with us on helping deal with that
issue, possible legislation?
Ms. Lee. Yes, absolutely. There continues to be a problem
with abuse of patent litigation and I believe that there can
and should be further legislative improvements and I very much
look forward to working with all of the Members and all of our
stakeholders to striking the right balance.
Senator Grassley. All right. Mr. Marti, your predecessor
made significant progress in bringing stakeholders together to
address the problem of Internet piracy through voluntary
initiatives. However, there is still a lot to be done. What
voluntary initiatives would you view as most critical in
addressing Internet piracy and let me also ask the fifth
question at the same time, what do you see as the most
significant challenge at IPEC?
Mr. Marti. Yes, thank you Senator Grassley. As I previously
mentioned, what is important and effective IP strategies, it is
a multipronged strategy. There must be varies initiative that
we undertake. Here the private sector must be part of the
solution. I absolutely look forward to carrying on the good
work of the office and believe that voluntary initiatives have
a very important role in our fight against online piracy.
Specifically when it comes to online initiatives, the
office's past initiatives that target payment processors with
the transactions, monetary transactions to rogue websites, to
criminal enterprises is of utmost importance that we get it
right, that it is effective. If more needs to be done, then we
need to do that.
Similarly, where money comes through by the ad networks,
that is another area where voluntary initiatives have proved to
be useful and if confirmed, I look forward to assessing those
initiatives and seeing if additional advancement can be made.
Senator Grassley. Ms. Lee, I get a lot of information and
ask a lot of questions from IG reports. The IG report
concerning time and attendance problems at the PTO stated that
``The multiple hurdles and approval levels required to follow
through with a time and attendance case along with senior
management's reluctance to sustain proposed disciplinary or
adverse action is a likely factor in the perception that the
time and attendance abuse is overlooked and that it is
fruitless to request any kind of records as part of an
investigation. This leads to an erosion of supervisors
following up with employee misconduct.''
Do you agree with the finding of the IG report and if so,
what specific hurdles would you work to remove as the Director
of PTO to ensure that misconduct is appropriately addressed?
Ms. Lee. Thank you, Senator Grassley, for allowing me to
address your concern and to answer your question.
Let me just say that my senior leadership team and I take
the allegations and the findings in the report very seriously.
We appreciate the work of the OIG and we are working closely
with the IG's Office to discuss and implement many, if not all,
of their recommendations.
Although these events occurred before my arrival at the
USPTO, know that I will take all reasonable actions to
strengthen the operations of the PTO, curtailing abuse of time
and attendance and strengthening the telework program.
To give you a sense, as I understand, when these issues
came to the attention of PTO management, they immediately took
action to implement additional controls, policies, procedures
and training. Upon my leadership, I asked my team to double
down on their efforts to find ways to prevent time and
attendance abuse. So in September, we just provided additional
training to all patent managers on time and attendance abuse.
I have also established to cross-agency bureaus to prevent
abuse and intervene early and to review the entire employee
disciplinary process for consistency in application of our
processes and I am also pleased to report that we have recently
engaged the National Academy of Public Administration to review
the entire Telework Program and its controls and to suggest
additional best practices that we can implement to make sure
that we have a telework program that is the gold standard.
Senator Grassley. Mr. Chairman, could I ask one more
question, then I will quit?
Senator Whitehouse. Of course.
Senator Grassley. All right. A follow-up on what you just
told me and I do not question everything you said that you have
done already, but specifically have there been any terminations
of PTO supervisors or other agency employees as a result of
alleged time and attendance abuse? If so, what role did you
play in the disciplinary process? You probably have not heard
me say, but I have said many times, that if there is abuse of
the nature that we are talking about here, if heads do not
roll, nothing really changes.
Ms. Lee. Thank you, Senator. There have been terminations.
They occurred before my arrival at the office. However, I will
say that if I find time and attendance abuse at the agency, we
will take all appropriate actions and that includes anything
from termination to suspension to letters of reprimand,
whatever is appropriate given the circumstances.
Senator Grassley. I will have questions for answer in
writing. That will be the last of my questions today.
Senator Whitehouse. All right. Thank you Senator Grassley.
Senator Hirono.
Senator Hirono. Thank you Mr. Chairman. I congratulate both
of our nominees for what I hope will be your confirmation to
these important positions.
I do have questions for Ms. Lee. You would be the first
woman and the first person of color to head the Patent Office
and that is historic. You, obviously, come to this path with a
lot of background. I noted that particularly on the issue of
patent trolls which this Committee spent a lot of time on, it
is a matter of listening to the stakeholders and striking the
appropriate balance. I appreciate that kind of perspective very
much because I think that is the challenge in addressing the
patent troll issues, is balancing what we should do because one
person's patent troll is another person trying to protect his
or her patent.
Having said that, I know that you were the Director of the
Silicon Valley Office and there are a number of satellite
patent offices and I presume that one of the reasons that these
satellite offices were opened was so that the Office of PTO
could more directly work with the applicants, people who are
submitting their applications. What have the satellite offices
been able to do, particularly, to support the small inventors?
Ms. Lee. Thank you, Senator Hirono, for your question. I
did have the pleasure of serving as the first Silicon Valley
Satellite Office Director. To really create the vision of what
would these satellite offices that you, Members of Congress,
with your foresight created--and let me just say Senator, those
are incredible offices both in terms of providing the services
of the USPTO to our local innovation communities.
We have small startups, small entrepreneurs who do not have
the resources to come to Washington to interview their patent
applications or to learn about the patent rules or to provide
input on what the PTO does. Now with these four satellite
offices located throughout the country in Denver, Dallas,
Detroit and the Silicon Valley, what it means is that all of
our innovators, large and small now have easier access to both
the educational content that we provide. We hear their input
more directly, they are able to examine or interview their
cases either via video or in person and that makes a huge
difference. That means we issue better quality patents more
quickly. So I think there's all upside to the satellite
offices. And I can go on and on but I will stop right there.
Senator Hirono. As a result of these satellite offices, are
you getting more applications from the small inventors or has
that been pretty much a stable situation or are these offices
really focused much more on the quality of the patent
applicants?
Ms. Lee. So they are just coming online so it is too soon
to say how many more but we have a lot of education and
outreach. So we are talking to small inventors on the ground,
informing them and educating them about the patent process and
the advantages of and the services that we offer. So I
anticipate that we will be getting more, but I also anticipate
that we will be able to issue better quality patents faster
because they are more informed about our process. We understand
their technology better and all of that just leads to----
Senator Hirono. Is there any plan to open more satellite
offices? We would like one in Hawaii.
[Laughter.]
Senator Hirono. As would everybody else here probably, in
their States.
Ms. Lee. I appreciate the question, Senator Hirono. I don't
know of any current plans and I know we are very busily working
to implement and open the four satellite offices of which we
have all of them open in temporary locations and two open in a
permanent and we are looking to open the other two permanently.
Senator Hirono. Well, you come from a family of engineers
and you, yourself, have a background in science and technology,
so that is one of the ways that our country can remain
competitive. Are there things that PTO is doing to support STEM
education for our young people?
Ms. Lee. Yes. Thank you, Senator Hirono, for the question.
I care deeply about STEM education to our youngsters and the
USPTO has a whole range of initiatives, including for example,
I had the pleasure--and one of the most pleasurable
opportunities I had was going down to Camp Invention which was
an elementary school program in Alexandria, Virginia. We
basically partner with Invent Now. We have school aged
children, ages 12 and under, and they are basically given
literally a pile of junk, boxes, motors, wheels and they are
asked to create something and write their inventions down in a
notebook and really provide a patent disclosure.
So I think getting more women and all aspects of our
society involved in STEM, having come from that background, is
hugely beneficial to our country, our economy and the USPTO has
many initiatives underway, including things like Camp Invention
and including an effort to have a Girl Scout patch for IP and
innovation. So I am very pleased about those efforts and I look
forward to continuing and expanding those efforts.
Senator Hirono. Thank you. Thank you Mr. Chairman.
Senator Whitehouse. I now turn to Senator Hatch who is a
distinguished leader on these intellectual property issues and
is my Co-chair of the Antipiracy Caucus. Senator Hatch.
Senator Hatch. Thank you so much, Mr. Chairman. I also
appreciate your leadership in these areas.
Ms. Lee, some have argued that 35 U.S.C. 101 which
governs patent eligibility should be reformed for the good of
the patent system. Could you tell me your thoughts on that
particular issue?
Ms. Lee. Thank you, Senator Hatch, for your question. The
case law is undergoing a lot of change in the area of patent
eligible subject matter. The Supreme Court has issued many
rulings. We are in the process of interpreting those rulings
and issuing guidance and as to whether or not a legislative
solution is appropriate, I think we should be open to and if
confirmed, I wouldn't be open to evaluating everything
including legislation on that issue and others because it is
really the totality of all of these issues that will make a
difference I think.
Senator Hatch. We need your help on that if it comes to
that, but you can make a lot of internal changes that would
help there too, it seems to me. For the better part of the
year, Congress worked toward a legislative solution to combat
patent trolls which has been raised here. I am determined with
many of my Committee colleagues to make such patent reform a
priority early this next year.
Just tell me what you think USPTO's rule should be in this
process and do you agree that the USPTO does not have subject
matter expertise or jurisdiction over proposals to reform
pleading standards, discovery, fee-shifting and recovery of
awards?
Ms. Lee. Thank you, Senator Hatch, for your question. By
statute, the Director of the United States Patent and Trademark
Office is to advise the President through the Secretary of
Commerce on Domestic and certain international intellectual
property matters and policy matters.
At the request of Members of Congress, we do provide input,
but that is at the request.
Senator Hatch. Do you agree that USPTO does not have
subject matter expertise or jurisdiction over proposals to
reform pleading standards, discovery, fee-shifting and recovery
of awards, all legal issues?
Ms. Lee. We work with our stakeholders, we get their input
and at your request, we facilitate and help you in your
efforts.
Senator Hatch. What are your thoughts about the proposed
shift from the broadest reasonable interpretation, the BRI, at
the USPTO's Patent Trial and Appeal Board to a district court
style claim construction? And I might add, how does changing
the BRI standard help in combating patent trolls?
Ms. Lee. Thank you very much for the question, Senator
Hatch. That was one of the issues that was considered in the
last round of patent reform discussions and it is the standard
by which the USPTO interprets the scope of the claims and the
question is sort of how broad or narrowly--the broader the
interpretation, the more one can uncover. So again, I think
this is a very important topic and it is one of the many topics
that if we move forward in the 114th Congress, which I
understand that is likely to happen, that we look forward to
having conversations with our stakeholders about that and with
all of you and working together with all of you on that.
Senator Hatch. Well, thank you. In view of the Supreme
Court's recent decision in Alice Corporation v. CLS Bank
International, do you know when the USPTO plans to issue
concrete guidelines to examiners? And as I am sure you can
appreciate, there is a mounting backlog of applications caused
by this delay.
Ms. Lee. Thank you, Senator, for the question. When CLS
Bank came out around the summertime, we immediately issued some
preliminary guidance and since then, we have been receiving
input from the public on that guidance and we are working very
hard. We have reviewed it and we have updated our guidance, in
fact, as recently as last Friday, there was a new case law
development from the Federal Circuit and we have incorporated
that into our guidance and I am pleased to say that it is
working its way to the Federal Register notice for publication.
The public will be able to see it. We look forward to working
with the public to receive their comments on our updated
guidance.
Senator Hatch. Right. Mr. Marti, we congratulate you on
this as well as Ms. Lee. These are very important positions and
I look upon them as extremely important, myself.
Let me just ask you one question. As you may know, there is
strong bipartisan bicameral support for creating a harmonized
uniform Federal standard for protecting trade secrets.
Here in the Senate, Senator Chris Coons and I introduced
the Defend Trade Secrets Act and in the House, Representative
George Holding introduced the Trade Secrets Protection Act. Now
through our collective efforts, we have shed light on an often-
overlooked form of intellectual property.
If confirmed, we will need your support in pushing this
critically important legislation forward next Congress. Can I
count on you to help us do that?
Mr. Marti. Yes, Senator. As a practitioner in the private
sector, I appreciate the fact that trade secrets is often
overlooked. Infringement of any intellectual property, but
particularly trade secrets, is a threat to dichotomy, the news
that we have been seeing trickling out, unfortunately it seems
like week, after week, after week of U.S. innovation being
stolen is an issue that needs to be addressed and addressed
aggressively and if confirmed, I look forward to working with
Congress in an appropriate manner.
Senator Hatch. Mr. Chairman, if I could just ask a followup
on that. The lure of advertising revenue continues to fuel
online piracy across the globe. Now a recent study examined 600
websites around the world dedicated to the theft of
intellectual property. The study concluded that the websites
generated an estimated $227 million per year in advertising
revenue.
Now for sometime the International Creativity and Theft
Prevention Caucus, on which I serve as the Co-Chairman, has
called on the advertising industry to cutoff these profits and
cripple the capabilities of these bad actors on the internet.
Now through voluntary best practices, we have seen progress
in combating online piracy. Have you given much thought to how
you might collaborate with industry stakeholders to keep
advertising dollars off of illegitimate websites?
Mr. Marti. Yes, thank you, Senator. Companies do not want
to see their own ads appear on these rogue websites and the ad
networks do not want to place them there. So it is important
that we get together will all stakeholders, that includes
internet companies, the ad networks, the payment processors to
understand how we can have an effective and meaningful solution
to make sure that these ads are not placed there in the first
place.
The IPEC Office did move forward with voluntary initiatives
and I think that is an important first step, but there
certainly are some additional steps to go.
If confirmed, I look forward to assessing the existing
voluntary initiatives in this space and bringing these and new
stakeholders back to the table and see what more can be done to
ensure that we stamp out payments to these rogue websites.
Senator Hatch. Well, thanks to both of you and thank you,
Mr. Chairman. I appreciate that.
Senator Whitehouse. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to both of you. I am excited for you for your new jobs. It
could not be more important.
Senator Franken and I have a State where we have one
company where we actually have more patents than they have
employees, that would be 3M. So they have a patent for each
employee.
We care a lot about intellectual property. Making things,
inventing things is one of the reasons that we actually have
the lowest unemployment rate in our metro area of any metro
area in the United States. And our unemployment rate for our
State is down to 3.9 percent. I believe it is really--given
that we do not have some major energy source, like our
neighbors in North Dakota--it is a combination of a diverse
economy but it is also a lot about this idea that you can come
up with new technology and invent new things and cross new
frontiers and that is what has made this country's economy
strong. So that is why I see your jobs as so important.
Ms. Lee, some of my colleagues have addressed the issue of
excessive litigation in the patent troll issue. I appreciated
the work of Senator Leahy on this and I was in the group that
was trying to craft a bill so that we could go forward. It was
disappointing to me that we were not able, despite Senator
Leahy's valiant efforts, to get that done and I hope that we
are going to get it done in the future.
Prior to your current service with the Patent and Trademark
Office, you served as Deputy General Counsel at Google. How did
that experience inform your outlook on issues faced at the PTO?
And I think you know that while some patent holders are big
tech companies like Google, others are industries that are
smaller and how do you work with some of the other industries
around besides tech?
Ms. Lee. Thank you, Senator Klobuchar, for your question. I
guess I would say that my background and experience is very
diverse. I have been in the intellectual property field my
entire career, going on 25 years now. I have worked for a whole
range of interests. I have asserted patents where a small
innovator came up with an invention, invested money in it,
developed a company around it and found a big company
infringing it. I have represented defendants in patent
litigation cases. I have bought, licensed, sold and wrote
patents, so I would like to think that all of those experiences
through a wide range of industries come to bear and would help
me do my job if confirmed as director of the USPTO.
Senator Klobuchar. All right. Thank you. As part of the
America Invents Act, there is a grace period for public
disclosure of inventions prior to the filing of a patent
application. But I know that intervening disclosures by third
parties can have an impact on the grace period. Do you have any
comments on the practice and do you see any changes that are
needed?
Ms. Lee. It is an issue that we are looking at and that we
were discussing with our counterparts across overseas as well
as with our stakeholders. So I think I would like to have
further conversations on that, but I know it is an important
issue. If confirmed, I look forward to digging into it more
deeply and coming up with a sensible proposal.
Senator Klobuchar. Thank you. I appreciate that. The
Supreme Court considered a number of different patent cases in
the last term on issues from fee-shifting to patent eligible
subject matter. How will these decisions impact your work and
how is the PTO working to apply the Alice decision and the
follow-on case in the Federal Circuit, DDR Holdings ?
Ms. Lee. Yes, the Supreme Court has been very active in
patent cases, including panel eligible subject matter and we
have to give guidance to 8000 of our examiners as they examine
patents on a daily basis. So this is a very real issue for the
United States Patent and Trademark Office and as soon as that
one came down from the Supreme Court, we issued preliminary
guidance. As I had mentioned earlier, we put that out for the
public comment. We have received those comments. We have
updated the guidance and I have signed and the public should
expect to see a Federal Register ``Notice'' on our updated
guidance on patent eligible subject matter, including on the
implications of the Alice case. So we look forward to working
with the public on an ongoing basis to iterate, to get it right
provided we stay within the confines of the case law and the
laws of Congress.
Senator Klobuchar. Okay. That is a good idea. There has
been a lot of discussion about the backlog of patent
applications at the PTO. I know that some progress has been
made. What more can we do to reduce the backlog and do you view
this issue mostly as an issue of resources and fees or are
there other things that can be done?
Ms. Lee. Thank you, Senator Klobuchar, for that question.
Members of Congress have been good enough with their foresight,
through their America Invents Act, to give us fee-setting
authority. So we now are in a position where we get the full
amount of our estimated fees via appropriations this year and
hopefully in subsequent years as well. So that has helped
tremendously.
What do we intend, if confirmed, to do to reduce the
backlog further? I will say that, as I mentioned earlier, there
has been a 20 percent reduction despite a 4 percent year-over-
year increase in filing, but we are hiring additional examiners
including through our satellite offices. This is the first time
in U.S. history where we can hire talent outside of the DC area
and there is lots of technical talent in all of the regions
where the satellite offices are.
Senator Klobuchar. Surprise.
[Laughter.]
Ms. Lee. So it is a real advantage, I think, for the agency
in terms of reducing the backlog.
Senator Klobuchar. I had never thought that through. That
is a very good idea.
Ms. Lee. Right. So hiring and being efficient in our
prosecution and working with our stakeholders, we look to
further reduce the backlog.
Senator Klobuchar. And I am just going to leave you with
one example and you do not have to really respond to it, but
that I heard at a roundtable I did last year on patent issues
and trying to get the reform done. This was with patent
stakeholders in Minnesota and it is about an infusion pump used
to administer critical medicines to patients, including
premature babies. The maker of these pumps has been sued by a
patent troll who is claiming that the infusion pump infringes
on a fuel delivery system that is intended for tractor-
trailers.
So I just want to leave you with that. We can send you the
details, but those are the kinds of things were seeing all of
the country and whatever ideas you have about how we deal with
this, I just do not want to slow down what I see as an
increasing economic boom when it comes to new inventions and
making things again in America. So thank you very much.
Senator Whitehouse. Senator Franken.
Senator Franken. Thank you. I just want to make something
clear that Senator Klobuchar talked about. 3M does not have a
patent on each employee.
[Laughter.]
Senator Franken. It is not that kind of company. We have
one for every employee.
Senator Klobuchar. Good. Thank you for that. I appreciate
that.
Senator Franken. You are welcome.
Senator Klobuchar. And he invented the Post-it Note. No,
I'm kidding.
[Laughter.]
Senator Franken. Well, that is an issue I have with 3M. Mr.
Marti, congratulations on your nomination. Part of the mission
of IPEC is to address the problem with counterfeit medicines
that may enter the US supply chain. This is an area I have
worked on in the HELP Committee. I helped write a bill on
compounded medicines. That bill was combined with another bill
on the drug supply chain, and I was actually proud that we got
that done in the law.
Now, counterfeit drugs are those that are produced and sold
unlawfully with the intent to deceive consumers about the
drugs' origin, authenticity or effectiveness. These drugs pose
real health risks. They may be contaminated or contain the
wrong active ingredient or none at all. They may have the right
active ingredient but the wrong dose.
Partly because of the legislation that I mentioned, the FDA
has been actively working on this issue and drug manufacturers
and distributors are increasingly investing in countermeasures
such as authentication technologies to try to minimize the
impact of counterfeit drugs. Mr. Marti, what do you see as
IPEC's role and what steps would you anticipate taking on this
important issue?
Mr. Marti. Thank you, Senator Franken. I share your view. I
am troubled by the significant threat that counterfeit
pharmaceuticals pose to the American consumer.
Intellectual property theft is troubling, but when it deals
with issues like pharmaceuticals and frankly, even automotive
parts, electronics that pose a threat to the health and safety
of our citizens, more needs to be done. IPEC, I believe, serves
a very important role to help coordinate these functions. As
you are aware, my predecessor focused on some voluntary
initiatives including CSIP, the Center for Safe Internet
Pharmacies.
In 2013, CSIP members took down or blocked 5 million sites
that were violating policies relating to the sale of
prescription drugs. And more recently, CSIP participated with
FDA and law enforcement officers to shut down more than 18,000
illegal pharmacy websites. It is that type of sharing of
information and coordination across Federal Governments and
across Federal Agencies that is necessary to combat this
serious issue.
Senator Franken. Well speaking of shutting down websites--
this is something maybe we can work together on outside of this
hearing--we had an attempt a while ago, and it has been
mentioned here a couple of times, intellectual piracy and we
have touched on voluntary actions on intellectual property and
on websites that sell intellectual property. Do you see any
role, possibly, in again coming back to legislation to do
something to create some framework to use the law to stop that?
Mr. Marti. Thank you, Senator. If confirmed, I look forward
to carrying out the statutory responsibilities at the office
that is helping to coordinate the effective enforcement of
intellectual property. That does require a multipronged
approach and for us to look, as you mentioned, certainly at
voluntary initiatives but also many other aspects. To the
extent that there may be additional legislative solutions to
some of these issues, then I look forward to partnering with
this Committee and with Congress to do so.
Senator Franken. I would like to talk to you about that.
Ms. Lee, also congratulations. You said your goal is to
reduce the total time that patent applications are pending to
approximately 21 months by 2018. What are the main steps you
will take to accomplish that and how will you balance those
efforts with the important work you have been leading to
improve quality standards for those examinations?
Ms. Lee. Thank you, Senator Franken, for the question. We
will increase our hiring. Last year, we hired 1000 examiners
and we are projected to hire at least 750 in 2015, including,
as I had mentioned, through our satellite offices.
We intend to continue with what we call efficient
prosecution which is, the examiner identifies all grounds for
rejection upfront and early so that there can be a more
informed discussion earlier on. We intend to encourage and
promote additional interviews between applicants and the office
to, again, more quickly identify what is the patent eligible
subject matter and issue the patents more quickly.
We are also working with our international counterparts on
worksharing. So there is a lot of redundancy in what the patent
offices do throughout the world and we are not rubber stamping
it, but we can certainly benefit by leveraging some of the work
that they have done and then adding more to it.
So those are some of the initiatives we have underway and
if confirmed, I would look forward to continuing and expanding
to reduce the backlog and pendency.
Senator Franken. Thank you.
Senator Whitehouse. Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman and thank
you for chairing this hearing.
I never took a patent law course in law school. I remember
there was one fellow there who was an engineer who said he was
going into patent law and I had to ask somebody what that
meant. So I do not profess to be an expert, though I sit on a
panel that is supposedly charged with the responsibility of
evaluating and changing, if necessary, the patent law.
The first round in 2011, when we did the America Invents
Act, was an eye-opener for me. I went back to my State of
Illinois, which is very diverse in terms of manufacturers and
universities and inventors and so forth, and I was determined
to make sure that whatever I did met with their approval
because I think it is an important part of the growth of the
American economy.
So they proposed a number of amendments to the original
act. I worked with the Chairman, added those amendments in good
faith and then proceeded to vote for the bill. They all called
me and just went ballistic, said why did you vote for that
bill? And I said it included the changes you wanted. They said,
but it is a bad bill. It is one of those eye-opening moments
when you say I wonder if there is a good bill out there
somewhere.
The America Invents Act passed. I understand it was the
first major patent reform in over half a century. I do not know
if that is accurate, but I will take that at face value. Now a
few years later, we were asked to amend it again. I stepped
back and said this time I am going to invite the world to come
in and tell me what they think about the change. The world
showed up and told me, for the most part, they thought it was
unnecessary and premature.
This morning I received a letter, maybe others did as well,
from a diverse coalition. This coalition included major
universities, the Association of American Universities, Public
and Land-grant Universities, University technology managers,
American medical colleges, the biotech industry organization,
the Innovation Alliance, the medical device manufacturers,
pharmaceutical research and manufacturers, and others signed a
letter and basically said slow down. Things are changing
dramatically.
Let me read one paragraph of that letter. I would like, Ms.
Lee, if you would respond to it. After summarizing all of the
things that have occurred over the last 7 years, ``Taken
together these judicial and administrative developments and the
plunge in patent litigation rates have fundamentally changed
the landscape which patent legislation should be considered. As
Congress considers potential changes to the patent system that
threaten the constitutionally guaranteed property rights of
innovators, it must assess the full affects of the AIA, changes
to the Federal Rules of Civil Procedure's, case law
developments and administrative developments.'' They are urging
caution. We are in a time of change, from their point of view.
Do you agree?
Ms. Lee. Thank you very much, Senator Durbin, for your
question. I could not agree more. The patent landscape that we
are living in, the patent environment is extremely dynamic.
Probably the issues mentioned in your letter, changes occurring
in the courts, lots of changes occurring at the U.S. Patent and
Trademark Office as well.
We implemented the AIA post-grant review proceedings. They
are very popular. Stakeholders are filing petitions. So all of
this needs to be taken into account as we carefully and
cautiously determine what additional changes need to occur. And
changes can occur through any number of channels. They can
occur judiciously, they can occur legislatively and they can
occur administratively through the Patent Office, through the
FTC.
But I look forward to, if confirmed, working together with
all of the stakeholders and all of the Members of Congress to
strike that balanced meaningful reform.
Senator Durbin. Ms. Lee, what is a patent troll? As I go
around and speak to people involved in this, many people call
them advocates. Others call them trolls. Some say it is a
systematic exploitation of our existing system. Others say the
only way to protect intellectual property is litigation,
particularly, when it is David versus Goliath. What is your
definition of patent troll and do you see this as a problem?
Ms. Lee. So thank you for the question, Senator. I do not
think it is productive to define patent troll. I think people
have different definitions. I think the important thing is to
focus on abusive behavior and work together to find out what we
can do to curtail abusive behavior.
Senator Durbin. Do you note the change in patent
litigation, the rate of patent litigation being filed?
Ms. Lee. I understand that there is a study that has been
conducted. It is based upon a limited time period. I think we
should definitely be keeping our eye on that because as I said,
the patent landscape is very dynamic. There are lots of changes
occurring including many at the PTO. So I think we absolutely
need to keep our eye on this one.
Senator Durbin. Thank you. Thank you, Mr. Chairman.
Senator Whitehouse. Ms. Lee, Mr. Marti congratulations on
your appointments and congratulations on the exemplary
performance through a tedious hearing of Amanda, Alyssa, and
Myles. As a parent, I appreciate how well behaved they have
been through what must be a really tedious time for them.
We have a number of letters supporting your nominations,
including for Mr. Marti, letters from the International
Trademark Association, the Chamber of Commerce, the Copyright
Alliance, the Motion Picture Association of America, the
National Music Publishers Association, and the American IP
Lawyers Association. For Ms. Lee, from the International
Trademark Association, the American IP Lawyers Association,
Engine Advocacy, the Asian-Pacific Islander American Chamber of
Commerce and Entrepreneurship Group and 39 general councils and
chief legal officers of American companies coordinated through
the National Asian Pacific American Bar Association as well as
a group of 220 attorneys, academics and executives in the high-
tech pharmaceutical and biotech and semiconductor fields. So
without objection, those will all be put into the record.
[The letters appear as submissions for the record.]
Senator Whitehouse. Mr. Marti, one of the things about
being a Senator is you get a 6-year term and you get a certain
amount of time in. I can remember Ms. Espinel coming here some
time ago to talk about the progress that she intended to make
on dealing with the criminal activity that steals American
intellectual property, particularly entertainment content, and
provides it to viewers and that they were going to work really
hard with other American corporations that were supporting that
activity to try to knock it down.
So while we were having this hearing, I picked up my iPad
and I went to Google and I Googled pirate movie and Google gave
me the Pirate Bay, which is an illegal enterprise operating out
of Sweden. And if you go to the page where you would get access
to the pirate content, it says ``Get Access Now'' and
underneath it you have the flags of Visa, of MasterCard, of
American Express, of Cirrus and of PayPal. And below that, it
tells you all of the devices that it works on and shows you the
logos of Apple, Android and so forth.
It looks to me like this criminal activity is still being
wrapped around with the apparent support of a wide variety of
American corporations. Explain to me how there has been
progress made.
Mr. Marti. Thank you, Senator. Criminal actors, criminal
enterprises have no limit.
Senator Whitehouse. They actually do. There are ways in
which these companies could go to court and try to knock this
stuff down. There are ways in which prosecutors can have
discussions with companies about aiding and abetting offenses
and about being accessories to offenses. There is a lot that
can be done in this area, it seems to me.
Mr. Marti. Absolutely. I fully agree. What I meant to say
is that these criminal enterprises will continue to put up some
sites and wrap themselves with some level of authority by
putting up some logos of some companies and pretending to be
something they are not. So it does require a forceful and
coordinated IP enforcement effort to continue to go after site,
after site, after site that does engage in criminal activities.
Senator Whitehouse. You were the former counsel to Google
in these areas, were you not, Ms. Lee?
Ms. Lee. I was deputy general counsel and head of patents
and patent strategy.
Senator Whitehouse. Does Google have the capability to know
that it is alerting users to pirate websites and find a way to
take them down? That would seem to be within its technical
capacity.
Ms. Lee. So, Senator I do not know the answer to that
question. I do not know the answer to that question.
Senator Whitehouse. You would think that if you guys were
really pushing this issue very hard she would know the answer
to that question, having been deputy general counsel to Google.
So I hope that this effort will get some added momentum.
There are people whose jobs depend on this and there are
industries that will succeed or fail based on our ability to
have the rule of law prevail in this area and the vacancy that
has existed in this position now for more than a year is not
your fault, but it is not a signal of great attention. And when
I am looking at the exact kind of website that Ms. Espinel
talked about trying to get rid of through a voluntary process,
it causes me some real concern about whether that voluntary
process is actually working and getting the attention that it
deserves.
Mr. Marti. Senator, progress has been made but there is
certainly more work to be done and if confirmed, I look forward
to carrying out the statutory responsibilities of the office.
Thank you.
Senator Whitehouse. The last thing that I will mention is
that we had long conversation about the intellectual property
theft that was taking place, not so much of entertainment
content, but of technical specifications, chemical formulas,
manufacturing processes and so forth, largely China driven.
That appears to be their policy, to increase their technical
and manufacturing capacity by stealing from American companies
largely through a cyber means of access.
The Department of Justice finally brought an indictment
against PLA officials and that seems to have had a somewhat
salutary effect. Would you comment on what you see as the
effect of the DOJ indictment of the Chinese officials who are
actively engaged in stealing American intellectual property for
the purpose of advancing Chinese business interests?
Mr. Marti. Thank you, Senator Whitehouse. Yes, the theft of
this type of data, technical know-how, trade secrets undermines
national security and puts jobs at risk. The IPEC office, under
statute cannot direct law enforcement action, but certainly can
help coordinate, bring to light and help share information
across some Federal Agencies.
From where I sit in the private sector, I certainly have
read and spoken to some clients about those indictments. Like
you, many of them cheered the indictments as showing that the
U.S. is serious and will not tolerate this type of very
critical and serious threat. Certainly others in industry show
some concern that there might be some retaliation when the
Government takes these actions.
I trust that the Department of Justice and the Federal
Government have taken all of these issues into account and felt
that it was still necessary to call out these bad actors who
have been engaged in trade secret misappropriation and IP
theft.
If confirmed, I look forward to working with those in other
agencies for an effective IP policy going forward.
Senator Whitehouse. Good. Well, I wish you both well as you
go forward. I think it was very good to see bipartisan support
and you also saw key and substantive interests in the areas
that you will be entering, so get ready. And we hope that if
your nominations cannot be cleared in this particular Congress,
that they will be taken up and rapidly cleared in the Congress
ahead of us.
Thank you for your time. The hearing record will stay open
for 1 week and I wish you both well. Congratulations.
[Whereupon, at 11:29 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
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