[Senate Hearing 113-515, Part 7]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 7
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
----------
JANUARY 8, JANUARY 28, FEBRUARY 11, AND FEBRUARY 25, 2014
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Serial No. J-113-1
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Part 7
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-515, Pt. 7
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 8, JANUARY 28, FEBRUARY 11, AND FEBRUARY 25, 2014
__________
Serial No. J-113-1
__________
Part 7
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
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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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JANUARY 8, 2014, 10:02 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois
presenting Nancy J. Rosenstengel, Nominee to be District Judge
for the Southern District of Illinois.......................... 6
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 8
prepared statement........................................... 293
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 7
prepared statement........................................... 288
Schumer, Hon. Chuck, a U.S. Senator from the State of New York
presenting John P. Carlin, Nominee to be Assistant Attorney
General, and Debo P. Adegbile, Nominee to be Assistant Attorney
General........................................................ 9
prepared statement........................................... 290
PRESENTERS
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin
presenting James D. Peterson, Nominee to be District Judge for
the Western District of Wisconsin.............................. 3
Johnson, Hon. Ron, a U.S. Senator from the State of Wisconsin
presenting James D. Peterson, Nominee to be District Judge for
the Western District of Wisconsin.............................. 1
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts presenting Indira Talwani, Nominee to be District
Judge for the District of Massachusetts........................ 4
STATEMENTS OF THE NOMINEES
Witness List..................................................... 33
Adegbile, Debo P., Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 12
biographical information..................................... 59
prepared statement........................................... 298
questionnaire update letter, January 6, 2014................. 122
Carlin, John P., Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 11
biographical information..................................... 34
prepared statement........................................... 296
questionnaire update letter, January 6, 2014................. 58
Peterson, James D., Nominee to be U.S. District Judge for the
Western District of Wisconsin.................................. 13
biographical information..................................... 125
questionnaire update letter, January 6, 2014................. 165
Rosenstengel, Nancy J., Nominee to be U.S. District Judge for the
Southern District of Illinois.................................. 14
biographical information..................................... 175
questionnaire update letter, January 6, 2014................. 216
Talwani, Indira, Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 15
biographical information..................................... 230
questionnaire update letter, January 6, 2014................. 277
QUESTIONS
Questions submitted to Debo P. Adegbile by:
Senator Cornyn............................................... 330
Senator Flake................................................ 336
Senator Grassley............................................. 300
Follow-up questions submitted by Senator Grassley............ 322
Senator Lee.................................................. 333
Senator Sessions............................................. 327
Questions submitted to John P. Carlin by Senator Grassley........ 312
Questions submitted to Nominees James D. Peterson, Nancy J.
Rosenstengel, and Indira Talwani by Senator Cruz............... 335
Questions submitted to James D. Peterson by Senator Grassley..... 316
Questions submitted to Nancy J. Rosenstengel by Senator Grassley. 318
Questions submitted to Indira Talwani by Senator Grassley........ 320
ANSWERS
Responses of Debo P. Adegbile to questions submitted by:
Senator Cornyn............................................... 379
Senator Flake................................................ 370
Senator Grassley............................................. 348
Follow-up questions submitted by Senator Grassley............ 448
Senator Lee.................................................. 376
Senator Sessions............................................. 372
Responses of John P. Carlin to questions submitted by Senator
Grassley....................................................... 338
Responses of James D. Peterson to questions submitted by:
Senator Cruz................................................. 463
Senator Grassley............................................. 459
Responses of Nancy J. Rosenstengel to questions submitted by:
Senator Cruz................................................. 469
Senator Grassley............................................. 465
Responses of Indira Talwani to questions submitted by:
Senator Cruz................................................. 476
Senator Grassley............................................. 472
LETTERS RECEIVED WITH REGARD TO DEBO P. ADEGBILE
American-Arab Anti-Discrimination Committee (ADC), January 6,
2014,
letter......................................................... 495
American Bar Association, January 13, 2014, letter............... 536
Bergeron, Katherine, and Leo I. Higdon, Jr., January 6, 2014,
letter......................................................... 497
Chenault, Kenneth, January 7, 2014, letter....................... 513
Days, Drew S., III, November 15, 2013, letter.................... 489
Fraternal Order of Police (FOP), January 6, 2014, letter......... 537
Godosky, David, Esq., January 7, 2014, letter.................... 515
Hertz, Randy, December 19, 2013, letter.......................... 491
Jeffries, Hon. Hakeem S., a Representative in Congress from the
State of New York, January 7, 2014, letter..................... 517
Johnson, Boyd M., III, January 8, 2014, letter................... 531
Leadership Conference on Civil and Human Rights, The, et al.,
January 7, 2014, letter........................................ 519
National Association for the Advancement of Colored People
(NAACP), January 7, 2014, letter............................... 526
National Disability Rights Network (NDRN), January 6, 2014,
letter......................................................... 501
National Fair Housing Alliance (NFHA), January 6, 2014, letter... 505
National Gay and Lesbian Task Force, January 7, 2014, letter..... 511
National Women's Law Center, January 6, 2014, letter............. 499
Panarella, Christopher C., and Nicholas J. Panarella, January 7,
2014, letter................................................... 522
People For the American Way, January 7, 2014, letter............. 509
Raskin, David, January 7, 2014, letter........................... 524
Schneiderman, Eric T., Attorney General, State of New York,
January 6, 2014, letter........................................ 503
Thompson, Kenneth P., January 10, 2014, letter................... 532
Vera Institute of Justice, January 8, 2014, letter............... 530
Waxman, Seth P., January 3, 2014, letter......................... 492
Wells, Theodore V., Jr., January 6, 2014, letter................. 507
Wilson, Benjamin F., et al., January 8, 2014, letter............. 528
Zilly, Pamela D., January 3, 2014, letter........................ 493
LETTERS RECEIVED WITH REGARD TO JOHN P. CARLIN
Chertoff, Michael, et al., December 13, 2013, letter............. 479
DeRosa, Mary B., January 7, 2014, letter......................... 487
Heymann, Philip B., December 18, 2013, letter.................... 481
Morell, Michael, October 27, 2013, letter........................ 478
Murphy, Timothy, December 18, 2013, letter....................... 482
Rowan, J. Patrick, January 3, 2014, letter....................... 485
Vladeck, Stephen I., December 20, 2013, letter................... 483
LETTER RECEIVED WITH REGARD TO JAMES D. PETERSON
American Bar Association, November 8, 2013, letter............... 539
LETTER RECEIVED WITH REGARD TO NANCY J. ROSENSTENGEL
American Bar Association, November 8, 2013, letter............... 541
LETTERS RECEIVED WITH REGARD TO INDIRA TALWANI
American Bar Association, September 24, 2013, letter............. 543
National Asian Pacific American Bar Association (NAPABA), January
8, 2014, letter................................................ 545
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York,
prepared statement with regard to Debo P. Adegbile, Nominee
to be Assistant Attorney General........................... 548
prepared statement with regard to John P. Carlin, Nominee to
be Assistant Attorney General.............................. 547
Kirk, Hon. Mark, a U.S. Senator from the State of Illinois,
letter with regard to Nancy Rosenstengel, Nominee to be a U.S.
District Judge for the Southern District of Illinois, January
8, 2014........................................................ 549
Phelps, Timothy, The Washington Post, ``Justice's Civil Rights
Nominee Has Resume That Includes `Sesame Street' and Voting
Rights,'' January 2, 2014, article............................. 551
Prince, Zenitha, The Afro-American, ``Debo Adegbile Nominated for
Nation's Top Civil Rights Post,'' November 17, 2013, article,
as cited in New Pittsburgh Courier............................. 554
C O N T E N T S
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JANUARY 28, 2014, 10:05 A.M.
STATEMENT OF COMMITTEE MEMBER
Flake, Hon. Jeff, a U.S. Senator from the State of Arizona....... 565
PRESENTER
McCain, Hon. John, a U.S. Senator from the State of Arizona
presenting Hon. Steven Paul Logan, Nominee to be District Judge
for the District of Arizona; John Joseph Tuchi, Nominee to be
District Judge for the District of Arizona; Diane J. Humetewa,
Nominee to be District Judge for the District of Arizona;
Rosemary Marquez, Nominee to be District Judge for the District
Of Arizona; Hon. Douglas L. Rayes, Nominee to be District Judge
for the District of Arizona; and Hon. James Alan Soto, Nominee
to be District Judge for the District of Arizona............... 558
STATEMENTS OF THE NOMINEES
Witness List..................................................... 575
Humetewa, Diane J., Nominee to be U.S. District Judge for the
District of Arizona............................................ 563
biographical information..................................... 683
questionnaire update letter, January 6, 2014................. 750
Logan, Hon. Steven Paul, Nominee to be U.S. District Judge for
the District of Arizona........................................ 561
biographical information..................................... 576
questionnaire update letter, January 6, 2014................. 624
Marquez, Rosemary, Nominee to be U.S. District Judge for the
District of Arizona............................................ 563
biographical information..................................... 793
questionnaire update letter, January 3, 2012................. 833
questionnaire update letter, January 6, 2014................. 824
Rayes, Hon. Douglas L., Nominee to be U.S. District Judge for the
District of Arizona............................................ 564
biographical information..................................... 843
questionnaire update letter, January 6, 2014................. 903
Soto, Hon. James Alan, Nominee to be U.S. District Judge for the
District of Arizona............................................ 565
biographical information..................................... 937
questionnaire update letter, January 6, 2014................. 985
Tuchi, John Joseph, Nominee to be U.S. District Judge for the
District of Arizona............................................ 562
biographical information..................................... 635
questionnaire update letter, January 6, 2014................. 674
QUESTIONS
Questions submitted to all Nominees by Senator Cruz.............. 1009
Questions submitted to Diane J. Humetewa by Senator Grassley..... 1000
Questions submitted to Hon. Steven Paul Logan by Senator Grassley 995
Questions submitted to Rosemary Marquez by Senator Grassley...... 1002
Questions submitted to Hon. Douglas L. Rayes by Senator Grassley. 1004
Questions submitted to Hon. James Alan Soto by Senator Grassley.. 1007
Questions submitted to John Joseph Tuchi by Senator Grassley..... 997
ANSWERS
Responses of Diane J. Humetewa to questions submitted by:
Senator Cruz................................................. 1028
Senator Grassley............................................. 1024
Responses of Hon. Steven Paul Logan to questions submitted by:
Senator Cruz................................................. 1014
Senator Grassley............................................. 1010
Responses of Rosemary Marquez to questions submitted by:
Senator Cruz................................................. 1034
Senator Grassley............................................. 1030
Responses of Hon. Douglas L. Rayes to questions submitted by:
Senator Cruz................................................. 1043
Senator Grassley............................................. 1036
Responses of Hon. James Alan Soto to questions submitted by:
Senator Cruz................................................. 1050
Senator Grassley............................................. 1046
Responses of John Joseph Tuchi to questions submitted by:
Senator Cruz................................................. 1022
Senator Grassley............................................. 1016
LETTERS RECEIVED WITH REGARD TO DIANE J. HUMETEWA
American Bar Association, September 20, 2013, letter............. 1059
Charlton, Paul K., January 23, 2014, letter...................... 1061
Gila River Indian Community, September 26, 2013, letter.......... 1067
Inter Tribal Council of Arizona, December 11, 2013, letter....... 1073
Native American Bar Association of Arizona (NABA-AZ), January 23,
2014, letter................................................... 1063
National Native American Bar Association, January 26, 2014,
letter......................................................... 1065
Norris, Ned, Jr., October 29, 2013, letters...................... 1069
LETTER RECEIVED WITH REGARD TO HON. STEVEN PAUL LOGAN
American Bar Association, September 20, 2013, letter............. 1053
LETTER RECEIVED WITH REGARD TO ROSEMARY MARQUEZ
American Bar Association, June 24, 2011, letter.................. 1074
LETTER RECEIVED WITH REGARD TO HON. DOUGLAS L. RAYES
American Bar Association, September 20, 2013, letter............. 1076
LETTER RECEIVED WITH REGARD TO HON. JAMES ALAN SOTO
American Bar Association, December 20, 2013, letter.............. 1078
LETTERS RECEIVED WITH REGARD TO JOHN JOSEPH TUCHI
American Bar Association, September 20, 2013, letter............. 1055
Native American Bar Association of Arizona (NABA-AZ), January 23,
2014, letter................................................... 1057
C O N T E N T S
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FEBRUARY 11, 2014, 9:01 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 1081
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina presenting Hon. Bruce Hendricks, Nominee to be
District Judge for the District of South Carolina.............. 1081
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 1082
prepared statement........................................... 1379
Schumer, Hon. Chuck, a U.S. Senator from the State of New York,
prepared statement........................................... 1378
PRESENTERS
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Hon. Robin Rosenbaum, Nominee to be Circuit Judge
for the Eleventh Circuit....................................... 1097
Rubio, Hon. Marco, a U.S. Senator from the State of Florida
presenting Hon. Robin Rosenbaum, Nominee to be Circuit Judge
for the Eleventh Circuit....................................... 1088
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina
presenting Hon. Bruce Hendricks, Nominee to be District Judge
for the District of South Carolina............................. 1085
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts presenting Mark Mastroianni, Nominee to be
District Judge for the District of Massachusetts............... 1083
STATEMENTS OF THE NOMINEES
Witness List..................................................... 1105
Caldwell, Leslie, Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 1092
biographical information..................................... 1334
prepared statement........................................... 1376
Hendricks, Hon. Bruce, Nominee to be U.S. District Judge for the
District of South Carolina..................................... 1091
biographical information..................................... 1195
questionnaire update letter, January 10, 2014................ 1256
Mastroianni, Mark, Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 1091
biographical information..................................... 1272
questionnaire update letter, January 6, 2014................. 1323
Rosenbaum, Hon. Robin, Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 1086
biographical information..................................... 1106
questionnaire update letter, January 6, 2014................. 1175
QUESTIONS
Questions submitted to Leslie Caldwell by:
Senator Feinstein............................................ 1383
Senator Grassley............................................. 1392
Questions submitted to Nominees Hon. Bruce Hendricks, Mark
Mastroianni, and Hon. Robin Rosenbaum by Senator Cruz.......... 1396
Questions submitted to Hon. Bruce Hendricks by Senator Grassley.. 1388
Questions submitted to Mark Mastroianni by Senator Grassley...... 1390
Questions submitted to Hon. Robin Rosenbaum by Senator Grassley.. 1385
ANSWERS
Responses of Leslie Caldwell to questions submitted by:
Senator Senator Feinstein.................................... 1434
Senator Grassley............................................. 1427
Responses of Hon. Bruce Hendricks to questions submitted by:
Senator Senator Cruz......................................... 1416
Senator Grassley............................................. 1411
Responses of Mark Mastroianni to questions submitted by:
Senator Senator Cruz......................................... 1423
Senator Grassley............................................. 1418
Responses of Hon. Robin Rosenbaum to questions submitted by:
Senator Senator Cruz......................................... 1407
Senator Grassley............................................. 1397
LETTERS RECEIVED WITH REGARD TO LESLIE CALDWELL
Ashley, Grant D., et al., January 31, 2014, letter............... 1451
Bayless, David, et al., January 21, 2014, letter................. 1449
Byrne, Lawrence, February 18, 2014, letter....................... 1446
Gorelick, Jamie, et al., December 30, 2013, letter............... 1443
LETTER RECEIVED WITH REGARD TO HON. BRUCE HENDRICKS
American Bar Association, June 27, 2013, letter.................. 1439
LETTER RECEIVED WITH REGARD TO MARK MASTROIANNI
American Bar Association, September 24, 2013, letter............. 1441
LETTER RECEIVED WITH REGARD TO HON. ROBIN ROSENBAUM
American Bar Association, November 8, 2013, letter............... 1437
C O N T E N T S
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FEBRUARY 25, 2014, 10:05 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1454
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 1453
PRESENTERS
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia
presenting
Hon. M. Hannah Lauck, Nominee to be District Judge for the
Eastern District of Virginia................................... 1457
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Tanya S. Chutkan, Nominee to be
District Judge for the District of Columbia.................... 1460
Udall, Hon. Tom, a U.S. Senator from the State of New Mexico
presenting John Charles Cruden, Nominee to be Assistant
Attorney General,
U.S. Department of Justice..................................... 1455
Warner, Hon. Mark R., a U.S. Senator from the State of Virginia
presenting Hon. M. Hannah Lauck, Nominee to be District Judge
for the Eastern District of Virginia........................... 1456
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts presenting Hon. Leo T. Sorokin, Nominee to be
District Judge for the District of Massachusetts............... 1458
STATEMENTS OF THE NOMINEES
Witness List..................................................... 1473
Chutkan, Tanya S., Nominee to be U.S. District Judge for the
District of Columbia........................................... 1465
biographical information..................................... 1536
Costa, Hon. Gregg Jeffrey, Nominee to be U.S. Circuit Judge for
the Fifth Circuit.............................................. 1461
biographical information..................................... 1474
Cruden, John Charles, Nominee to be Assistant Attorney General,
U.S. Department of Justice..................................... 1468
biographical information..................................... 1720
prepared statement........................................... 1753
Lauck, Hon. M. Hannah, Nominee to be U.S. District Judge for the
Eastern District of Virginia................................... 1466
biographical information..................................... 1574
Sorokin, Hon. Leo T., Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 1467
biographical information..................................... 1644
QUESTIONS
Questions submitted to Nominees Tanya S. Chutkan, Hon. Gregg
Jeffrey Costa, Hon. M. Hannah Lauck, and Hon. Leo T. Sorokin by
Senator Cruz................................................... 1770
Questions submitted to Tanya S. Chutkan by Senator Grassley...... 1759
Questions submitted to Hon. Gregg Jeffrey Costa by Senator
Grassley....................................................... 1755
Questions submitted to John Charles Cruden by:
Senator Cornyn............................................... 1768
Senator Grassley............................................. 1765
Questions submitted to Hon. M. Hannah Lauck by Senator Grassley.. 1761
Questions submitted to Hon. Leo T. Sorokin by Senator Grassley... 1763
ANSWERS
Responses of Tanya S. Chutkan to questions submitted by:
Senator Cruz................................................. 1788
Senator Grassley............................................. 1784
Responses of Hon. Gregg Jeffrey Costa to questions submitted by:
Senator Cruz................................................. 1781
Senator Grassley............................................. 1771
Responses of John Charles Cruden to questions submitted by:
Senator Cornyn............................................... 1814
Senator Grassley............................................. 1807
Responses of Hon. M. Hannah Lauck to questions submitted by:
Senator Cruz................................................. 1796
Senator Grassley............................................. 1790
Responses of Hon. Leo T. Sorokin to questions submitted by:
Senator Cruz................................................. 1803
Senator Grassley............................................. 1799
LETTER RECEIVED WITH REGARD TO TANYA S. CHUTKAN
American Bar Association, December 20, 2013, letter.............. 1820
LETTER RECEIVED WITH REGARD TO HON. GREGG JEFFREY COSTA
American Bar Association, December 20, 2013, letter.............. 1818
LETTERS RECEIVED WITH REGARD TO JOHN CHARLES CRUDEN
Altenburg, John D., Jr., February 24, 2014, letter............... 1845
Askman, David F., et al., February 24, 2014, letter.............. 1846
Balta, Wayne S., February 19, 2014, letter....................... 1840
Baker, Larry C., et al., February 20, 2014, letter............... 1842
Determan, Sara-Ann, et al., February 24, 2014, letter............ 1853
Dinkins, Carol E., February 3, 2014, letter...................... 1826
Edmonds, Elizabeth A., February 24, 2014, letter................. 1855
Fulton, C. Scott, February 24, 2014, letter...................... 1856
Penny, William L., et al., February 18, 2014, letter............. 1837
Percival, Robert V., et al., February 17, 2014, letter........... 1828
Suter, William K., February 24, 2014, letter..................... 1858
LETTER RECEIVED WITH REGARD TO HON. M. HANNAH LAUCK
American Bar Association, December 20, 2013, letter.............. 1822
LETTER RECEIVED WITH REGARD TO HON. LEO T. SOROKIN
American Bar Association, December 20, 2013, letter.............. 1824
ALPHABETICAL LIST OF NOMINEES
Adegbile, Debo P., Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 12
Caldwell, Leslie, Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 1092
Carlin, John P., Nominee to be Assistant Attorney General, U.S.
Department of Justice.......................................... 11
Chutkan, Tanya S., Nominee to be U.S. District Judge for the
District of Columbia........................................... 1465
Costa, Hon. Gregg Jeffrey, Nominee to be U.S. Circuit Judge for
the Fifth Circuit.............................................. 1461
Cruden, John Charles, Nominee to be Assistant Attorney General,
U.S. Department of Justice..................................... 1468
Hendricks, Hon. Bruce, Nominee to be U.S. District Judge for the
District of South Carolina..................................... 1091
Humetewa, Diane J., Nominee to be U.S. District Judge for the
District of Arizona............................................ 563
Lauck, Hon. M. Hannah, Nominee to be U.S. District Judge for the
Eastern District of Virginia................................... 1466
Logan, Hon. Steven Paul, Nominee to be U.S. District Judge for
the District of Arizona........................................ 561
Marquez, Rosemary, Nominee to be U.S. District Judge for the
District of Arizona............................................ 563
Mastroianni, Mark, Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 1091
Peterson, James D., Nominee to be a U.S. District Judge for the
Western District of Wisconsin.................................. 13
Rayes, Hon. Douglas L., Nominee to be U.S. District Judge for the
District of Arizona............................................ 564
Rosenbaum, Hon. Robin, Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 1086
Rosenstengel, Nancy J., Nominee to be U.S. District Judge for the
Southern District of Illinois.................................. 14
Sorokin, Hon. Leo T., Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 1467
Soto, Hon. James Alan, Nominee to be U.S. District Judge for the
District of Arizona............................................ 565
Talwani, Indira, Nominee to be U.S. District Judge for the
District of Massachusetts...................................... 15
Tuchi, John Joseph, Nominee to be U.S. District Judge for the
District of Arizona............................................ 562
NOMINATIONS OF JOHN P. CARLIN, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE; DEBO P. ADEGBILE, NOMINEE TO BE
ASSISTANT
ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; JAMES D. PETERSON,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WISCONSIN;
NANCY J. ROSENSTENGEL, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF ILLINOIS; AND INDIRA TALWANI, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MASSACHUSETTS
----------
WEDNESDAY, JANUARY 8, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Schumer, Durbin, Whitehouse,
Franken, Coons, Blumenthal, Grassley, Sessions, Lee, and Flake.
Chairman Leahy. It seems that somebody has an important
phone call that they may want to--I do not want the hearing to
interrupt their phone call, if they would like to step outside
to take it. They may or may not be able to get back in. He said
subtly.
We have the two Senators from Wisconsin who are here, and I
know we have the nominee from Wisconsin, James Peterson. If the
Ranking Member has no objection, why don't we let Senator
Johnson and Senator Baldwin go first, because I know you have
other committees you are supposed to be at, so I appreciate
your being here, Senator Johnson. Go ahead.
PRESENTATION OF JAMES D. PETERSON, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
WISCONSIN, BY HON. RON JOHNSON, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Johnson. Chairman Leahy, Ranking Member Grassley,
Members of the Committee, thank you for the opportunity to come
before the Judiciary Committee to recommend Mr. James D.
Peterson to be the United States District Judge for the Western
District of Wisconsin.
Before going further, I would like to thank my colleague
Senator Baldwin and the individuals that served on our
bipartisan commission for all their hard work and cooperation
that resulted in the selection of this well-qualified jurist to
serve the Nation and the people of Wisconsin's Western District
well.
As many of you know, the Western District is currently
facing a judicial emergency. United States District Judge
Barbara Crabb has continued to serve on the bench despite
retiring 4 years ago, and I sincerely appreciate her dedication
to the State of Wisconsin during this vacancy. I have full
confidence that with Jim's expertise and experience he will now
be able to fill that void.
Jim has deep roots in Wisconsin, having earned a
bachelor's, master's, and a Ph.D. from the University of
Wisconsin-Madison before his first career as an associate
professor of film studies at Notre Dame University. After a
number of productive and successful years of academic life, his
restlessness for intellectual challenge was piqued when his
wife, Sue Collins, who is also here with Jim today, interested
him in the law as she was teaching legal writing at Valparaiso
University Law School. They both returned to the University of
Wisconsin where they each obtained their law degrees.
Mr. Peterson is currently the leader of the law firm
Godfrey and Kahn's intellectual property litigation working
group and has handled a wide variety of commercial and
constitutional disputes. He has also served as the local
counsel in nearly two dozen patent disputes in the Western
District of Wisconsin. In addition, he has appeared before the
Wisconsin Supreme Court, the Seventh Circuit Court of Appeals,
and the Court of Appeals for the Federal Circuit, which hears
appeals of patent cases from district courts across the
country. This experience is important in the Western District
of Wisconsin which oversees many complex intellectual property
cases. Since 2007, the Western District of Wisconsin was ranked
among the 25 most popular courts for patent litigation, largely
due to the court's speed, commonly referred to as ``the rocket
docket.''
Jim is also the author of numerous academic publications
which proved helpful to everyone involved during his
application process. Right after law school, he was firsthand
the challenges and requirements associated with being a judge
when he served as the law clerk to the Honorable David D.
Deininger of the Wisconsin Court of Appeals.
Jim has had a challenging and successful career as a legal
practitioner. I have no doubt he will as a Federal district
court judge excel in yet another career for which he is well
suited. Jim has my full support, and I am happy to recommend
him to the Senate for swift confirmation.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Johnson. You
and I have discussed the nominee before, and I appreciate your
being here.
Senator Baldwin, I am so happy to have you here also.
Please go ahead.
PRESENTATION OF JAMES D. PETERSON, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
WISCONSIN, BY HON. TAMMY BALDWIN, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Baldwin. Thank you. Good morning, Mr. Chairman and
Ranking Member Grassley. It gives me great pleasure to appear
before you this morning to introduce attorney James Peterson,
the President's nominee for the United States District Court
for the Western District of Wisconsin.
The filling of judicial vacancies has been a top priority
for me since even before I was sworn in to the U.S. Senator a
year ago. The people of Wisconsin deserve to have these
vacancies filled with highly qualified public servants who will
work hard for them in our judicial system. Jim Peterson will be
such a jurist when he is confirmed by the Senate.
I am proud to have worked together with Senator Johnson to
find common ground on this important issue for Wisconsin, and
together we have put in place a Federal judicial nominating
commission and a process for moving judicial nominations
forward. James Peterson was among those recommended by the
nonpartisan commission that we established last April.
In August, Senator Johnson and I submitted Jim's name to
the White House as a candidate to fill the open U.S. Federal
district judgeship for the Western District of Wisconsin. I
applaud the President's nomination of James Peterson to serve.
Mr. Peterson will make an outstanding Federal judge, and his
nomination marks an important step forward in fulfilling a
judgeship that has been vacant for nearly 6 years.
Jim's experience and expertise make him an outstanding
choice for this position, and I am proud to join Senator
Johnson in endorsing his nomination, and I am proud to come
before you today to introduce Jim Peterson.
Jim is a member of the intellectual property and litigation
practice groups in the Madison office of Godfrey and Kahn, and
he is a leader of the firm's intellectual property litigation
working group. For the last 14 years, his professional life has
been substantially devoted to practice for the firm and its
national clients in the United States District Court for the
Western District of Wisconsin.
In addition to his work in the Western District of
Wisconsin, he has appeared before the Wisconsin Supreme Court,
the Seventh Circuit Court of Appeals, and the Court of Appeals
for the Federal Circuit, which hears appeals of patent cases
from district courts across the country.
Jim is the president of the Western District Bar
Association. The mission of the association is to work with
attorneys, the court, and the public to facilitate the just,
speedy, respectful, and efficient resolution of all matters
before the court--qualities that have been the hallmarks of the
Western District of Wisconsin.
As you heard, he earned his J.D. from the University of
Wisconsin Law School in 1998, where he was an officer of the
moot court and a member of the Wisconsin Law Review and the
Order of the Coif. From 1998 to 1999, he served as a law clerk
to my friend and former colleague, Honorable David Deininger,
on the Wisconsin Court of Appeals. He is a member of the
adjunct faculty of the University of Wisconsin Law School,
having taught copyright law and public speaking workshops for
law students. And as you also heard, he received his Ph.D. in
communications from the University of Wisconsin in 1986.
Jim lives in my home town of Madison, Wisconsin, with his
wife, Sue Collins, who is also an attorney. I am very pleased
that she is here today, along with their two daughters, Lauren
Collins Peterson and Anna Collins Peterson; Anna's fiance,
Derek Behnke; and Jim's parents, James D. Peterson, Sr., and
Patricia Peterson.
Senator Johnson and I agree on James Peterson's nomination
to the U.S. District Court for the Western District of
Wisconsin, and I hope that our joint support sends a strong
message to this Committee and the entire Senate that he is the
right choice for this judgeship.
I urge the Committee and the full Senate to consider and
confirm his nomination without undue delay.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you, Senator Baldwin, and I
also appreciate the time you spent with me, as well as Senator
Johnson, on this nominee, and thank you.
Senator Warren, Senator Durbin has suggested you go first.
You have Indira Talwani to be U.S. district judge. Please go
ahead.
PRESENTATION OF INDIRA TALWANI, 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. Thank you, Senator
Durbin, thank you, Mr. Chairman, thank you, Ranking Member
Grassley, and Members of the Committee.
Chairman Leahy. Also, I should mention to Senator Baldwin,
you do not have to stay. I am not trying to get rid of you,
but----
[Laughter.]
Chairman Leahy. I know, like all of us, you have got about
12 other things you are supposed to be at. I appreciate your
support.
Senator Warren. So thank you very much, thank you, Mr.
Chairman. I am very pleased to be here this morning to
introduce Indira Talwani. She has bee nominated to fill a
judicial vacancy on the District Court for the District of
Massachusetts.
Ms. Talwani's nomination came to me after she was
recommended for this position by the Advisory Committee on
Massachusetts Judicial Nominations. The advisory committee is
comprised of distinguished members of the Massachusetts legal
community, including prominent academics and prominent
litigators and is chaired by the former Massachusetts District
Court Judge Nancy Gertner. The advisory committee's
recommendation reflects the strength of Ms. Talwani's resume,
the exceptionally warm reviews that she received from those who
have worked with her, and the firm conviction of the
Massachusetts legal community that she will make an excellent
district court judge.
Indira Talwani is the daughter of immigrants from India and
Germany. She graduated with honors from Harvard University and
was later named Order of the Coif at Boalt Hall School of Law
at the University of California-Berkeley. She is here today
with her husband, Tod; her daughter Natasha, and her son, Nico;
and her brother, Rajeev. I know they are all immensely proud to
be able to attend this hearing and provide their love and
support on this extraordinary day, as their son, Shelton, who
was unable to be here.
Immediately after graduating, Ms. Talwani spent a year
serving as a law clerk to Judge Stanley Weigel of the United
States District Court for the Northern District of California,
building practical experience that will serve her well as a
district court judge. She subsequently worked for several years
as an associate and later a partner at the firm of Altshuler,
Berzon, Nussbaum and Rubin in San Francisco before moving in
1999 to join Segal Roitman LLP in Boston, where she is
currently a partner.
Ms. Talwani has an impressive track record as a litigator,
having represented clients in matters before the Massachusetts
State trial courts and appeals courts, as well as the district
court to which she has been nominated, the Federal courts of
appeals, and the U.S. Supreme Court.
In addition to her broad credentials and wide litigation
experience, Ms. Talwani has developed particular expertise in
legal issues that relate to employment. She is the associate
editor of a treatise on the Family and Medical Leave Act,
compiled by the American Bar Association. Her work representing
an investment advisor whistleblower who was allegedly
retaliated against for reporting accounting irregularities to
her supervisor earned her the distinction of being named one of
Massachusetts Lawyers Weekly's top ten lawyers for 2010, and
she is currently assisting in the argument of that case before
the U.S. Supreme Court.
Ms. Talwani is also committed to public service, providing
pro bono representation to indigent clients. She has worked
with the Greater Boston Legal Services to ensure that low-
income clients have access to counsel.
Ms. Talwani's nomination is strongly supported by the Asian
American Lawyers Association of Massachusetts. Asian Americans
are a fast-growing segment of our State's population, and that
growth is reflected in our State bench, which currently has ten
Asian American judges. Remarkably, if she is confirmed, Ms.
Talwani will be the first individual of Asian descent to serve
on the Federal bench in Massachusetts.
Indira Talwani is a first-rate litigator with impressive
credentials. Her unique professional and personal background
will bring important perspective to the Federal bench in
Massachusetts. I am proud to have recommended her to President
Obama, and I look forward to her approval by this Committee and
her swift confirmation by the full Senate. Thank you very much.
Chairman Leahy. Well, thank you very much. I know that--I
say this as President Pro Tem, which means, as the Senator from
Massachusetts knows, I sometimes preside for about 1 minute at
the opening of the session and then somebody else takes over.
Senator Markey is currently presiding over the Senate so that I
can be here, and I know he joins with you, too, in the support
of this outstanding nominee. So thank you very, very much.
Senator Warren. Yes, he does, and thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Durbin, you have also an extraordinary nominee for
the Southern District of Illinois. Let me yield to you.
PRESENTATION OF NANCY J. ROSENSTENGEL, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF
ILLINOIS, BY HON. DICK DURBIN, A U.S. SENATOR FROM THE STATE OF
ILLINOIS
Senator Durbin. Thank you, Mr. Chairman. I am pleased to
introduce Nancy Rosenstengel to the Committee. She has been
nominated to serve as district court judge in the Southern
District of Illinois to fill the judgeship in East St. Louis
left vacant by the retirement of Judge Patrick Murphy in
December.
Ms. Rosenstengel knows the St. Louis courthouse very well,
currently serves as clerk of the court for the Southern
District, a position she has held since 2009. She is the chief
administrative officer for the court responsible for the day-
to-day management functions of the court, and she has received
widespread praise for her handling of this responsibility.
Previously she served for 11 years as judicial law clerk to
Judge Murphy, the judge she is nominated to replace. As Judge
Murphy's career law clerk, she assisted him in hundreds of
civil and criminal proceedings during all stages of litigation.
It is hard to imagine a better training for judgeship.
Ms. Rosenstengel also worked for 5 years in private
practice at the law firm Sandberg, Phoenix and von Gontard in
St. Louis, where she handled a broad range of litigation
matters.
Born in Alton, Illinois, currently lives in Belleville,
Illinois, received her B.A. cum laude from the University of
Illinois in Urbana-Champaign, her J.D. cum laude from Southern
Illinois University School of Law, Ms. Rosenstengel's
nomination is historic. No woman--no woman--has ever served as
an Article III Federal judge in the Southern District of
Illinois. Upon confirmation, Nancy Rosenstengel will be the
first, and I am sure she will do an outstanding job.
I want to thank my colleague Senator Mark Kirk for his
support of this nomination as well. In Illinois, we have a
bipartisan process for recommending judicial candidates to the
White House, and we have had a pretty good record of bringing
forward some outstanding nominees for very timely confirmation,
and I hope this will be no exception. I am sure it will not be.
Ms. Rosenstengel was recommended to me by a bipartisan
screening committee which we established, and they were proud
to recommend her name to me, and I was proud to recommend her
with Senator Kirk to the President. I look forward to working
with my colleagues to see that she moves through the
confirmation process swiftly. I know she will have a chance to
introduce her family with more specificity, but I want to thank
her husband, Jon, and her three children, Katie, Anna, and
Jack, for joining us. They are all welcome here today.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, and I appreciate what you and
Senator Kirk have done, and I think, Senator Grassley, you have
a statement from Senator Kirk.
Senator Grassley. Yes, thank you, Mr. Chairman. This will
be in support of the same nominee as Senator Durbin, so we will
put that in the record.
Chairman Leahy. Thank you. And I appreciate the strong
support of both Senator Durbin and Senator Kirk on this.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Now we mentioned the three judicial
nominees. We are going to have five nominees before us. Let me
speak about a couple of them.
Debo Patrick Adegbile--even though he works for me, I
always have trouble with that, and I apologize--is nominated to
be the Assistant Attorney General for Civil Rights at the
Department of Justice. He currently serves as Senior Counsel on
the Judiciary Committee, where he has done exceptional work and
has provided me with prudent counsel on many, many issues.
Like other Members of the Committee who have had staff
members nominated to positions in the administration or to the
judiciary, the nominations come with mixed emotions. As I am
sure Senators Hatch, Cornyn, Lee, and Schumer can attest, it is
no surprise when members of our staffs on either side of the
aisle are tapped by the administration for positions.
Anyone who knows this nominee appreciates that he is an
excellent choice to lead the Civil Rights Division at the
Department of Justice. He brings a wealth of experience. I
remember when he testified before the Committee as an expert on
voting rights in 2006. He has earned a reputation for his calm
demeanor and for working to build consensus. He is a careful
lawyer and a good listener. And these skills have made him one
of the country's most prominent appellate advocates. Former
Solicitor General Paul Clement under President George W. Bush
said the following about Debo: ``I have litigated both with and
against Debo and have heard him argue in the Supreme Court. I
have always found him to be a formidable advocate of the
highest intellect, skills, and integrity.''
Like Justice Thurgood Marshall, he served as Acting
President and Director Counsel at the NAACP Legal Defense and
Educational Fund and also as Associate Director Counsel and
Director of Litigation. He argued two significant cases on
voting rights during that time before the U.S. Supreme Court.
He also litigated in private practice at the well-known, highly
respected law firm of Paul, Weiss for 7 years.
Let me just tell you a little bit about him. He was born in
the Bronx to an Irish mother--thus the middle name, I expect--
and a father from Nigeria. He grew up in poverty and
experienced periods of homelessness. But through hard work and
grit, he graduated from Connecticut College and then earned his
law degree from the New York University School of Law. And I
might say this to his two lovely daughters I had a chance to
meet earlier. They may not appreciate it yet, but they will as
they get older. But his journey from the Bronx to this
nomination is a remarkable example of the American dream, one
of the best. I know he has been shaped by these experiences.
Today the Committee also welcomes John Carlin, who has been
nominated to serve as the Assistant Attorney General for the
National Security Division at the Department of Justice, an
increasingly significant position. And, of course, we have
heard Senators refer to the three U.S. district judges.
I am going to yield to the Ranking Member for an opening
statement, and then we will call the nominees up. And I know
Senator Schumer at that point is going to introduce John
Carlin.
Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. First, I, like my colleagues,
congratulate the nominees and the families that are proud of
their nomination who happen to be here with them today and
probably a lot of people that are proud of their nomination who
cannot be here today as well. We are considering three district
court nominees and two important Department of Justice
positions, one of these to the Civil Rights Division. That
Division has had its share of controversy lately. I have
reminded my colleagues of the predecessor's involvement of this
office orchestrating the quid pro quo between the Department of
Justice and the city of St. Paul where the Department of
Justice went to great lengths to get a case withdrawn from the
Supreme Court so that the legal theory known as ``disparate
impact'' would evade a Supreme Court decision. And, of course,
there have been very disturbing allegations of politicizing the
hiring process at the Civil Rights Division. In fact, March
last year, the Inspector General report criticized the Civil
Rights Division for using hiring practices, noting that the
primary criterion used by the hiring committee resulted in a
pool of candidates that was ``overwhelmingly Democratic/liberal
in affiliation'' from the IG report. So I have some concerns
with the way that the Civil Rights Division has been run.
Now, that has nothing to do with the nominee, but we do
have some concern about the nominee's legal experience, and we
have this letter from the Fraternal Order of Police, an
organization that is very well respected by both sides of the
aisle, submitting a letter strongly opposing the nominee for
the Civil Rights Division. The Fraternal Order of Police
represents 330,000 men and women who are on the front lines of
law enforcement, putting their lives on the lines to protect us
every day. So when they write to inform us of their ``extreme
disappointment, displeasure, and vehement opposition'' to the
nominee for the Civil Rights Division, I think that we should
give their concerns thoughtful consideration, and I am sure
that the nominee will be willing to address some of those
concerns and give his point of view on them.
I look forward then to hearing from the nominee on these
and other issues, and I would ask consent that that letter be
placed in the record.
Chairman Leahy. Without objection, so ordered.
[The letter appears as a submission for the record.]
Senator Grassley. And then the rest of my statement is in
regard to the work of the Committee. My colleagues have heard
that, so I will summarize that by simply saying that over the
course of the last 5 years we have been able to approve 217 of
the President's lower court judges and at this point
disapproved on the floor of only two, a 99-percent record.
The rest of my statement is in the record with more detail
on that point.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Chairman Leahy. And we will look forward to approving on
the floor the whole bunch of them that are still sitting there.
Senator Grassley. Yes, and you will have to work that out
with Reid and McConnell. That is a fact.
Chairman Leahy. I am going to--my religion believes in
miracles, but only to an extent. But, anyway, why don't I call
Mr. Carlin, Mr. Adegbile, Mr. Peterson, Ms. Rosenstengel, and
Ms. Talwani up here.
What I am going to do, before I yield to Senator Schumer,
if I just might ask all the nominees--I should have done this
before you sat down. Please stand and raise your right hand. Do
you solemnly swear that the testimony you will give in this
matter will be the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Carlin. I do.
Mr. Adegbile. I do.
Mr. Peterson. I do.
Ms. Rosenstengel. I do.
Ms. Talwani. I do.
Chairman Leahy. Let the record note that they all agreed to
that.
Senator Schumer, you wished to introduce Mr. Carlin.
PRESENTATION OF JOHN P. CARLIN, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, AND DEBO P. ADEGBILE, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, BY
HON. CHUCK SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and I thank you,
Senator Grassley, and other Members of the Committee. You know,
it is not uncommon for me to go from Committee to Committee in
the Senate introducing talented and public service-oriented New
Yorkers to my colleagues. As I am sure some of my colleagues
know, four of the five boroughs are represented--of New York
City, of course, are represented on----
Chairman Leahy. We do not have many boroughs in Vermont.
[Laughter.]
Senator Schumer. Are represented on the Supreme Court:
Justice Ginsburg from my home borough of Brooklyn; she went to
P.S. 238 where my wife went; Justice Scalia from Queens;
Justice Sotomayor from the Bronx; and Justice Kagan from
Manhattan. So it is not surprising today that we have two New
Yorkers poised to take important leadership positions at the
Department of Justice.
I first want to introduce John Carlin. Mr. Carlin is a
native of New York and nominated to be the Assistant Attorney
General for the National Security Division of DOJ. Mr. Carlin
graduated high school from Dalton in Manhattan, where I am
going this Friday to watch my niece in the eighth grade--she is
on the varsity basketball team, I have been told only the
second time that has been done. Who knows? The Dalton Tigers--
and earned his undergraduate degree from Williams College, his
law degree from Harvard Law School, and he was articles editor
of the Harvard Journal on Legislation.
After graduating from law school, Mr. Carlin dedicated his
entire career to the Department of Justice. He has served as
trial attorney for the Tax Division, an Assistant U.S. Attorney
for the District of Columbia, a senior adviser and chief of
staff to Robert Mueller, then Director of the FBI, and as the
Acting head of the National Security Division.
In the course of his career, he has prosecuted everything
from homicides to public corruption cases, and he has developed
a special expertise in something we dearly need, and that is in
cyber crime. It is probably the next redoubt for organized
criminals--the cyber world is the next redoubt for organized
criminals and terrorists. Mr. Carlin is recipient of the DOJ
Award for Special Achievement and has also been awarded the
prestigious Samuel J. Heyman fellowship for Federal Government
service, so over the course of 14 years in his legal career,
Carlin has quietly and capably served at the nexus of law
enforcement and intelligence.
I have more to say about Mr. Carlin, but I will conclude by
saying the most important thing. His wife, Sarah, and his cute
little daughter who I saw, Sylvie, is here; and his parents,
Patricia and Roy, who I hope, Mr. Carlin, are still residents
of New York. Good, good.
I would like to say a word, with the Chairman's indulgence,
on another New Yorker who he had the honor to introduce because
he served well on this Committee and we recognize Debo Adegbile
for the great work he did there. I just want to add my thoughts
to what Senator Leahy said.
The Civil Rights Division is the crowning jewel of civil
rights enforcement in this country. Under the capable
leadership of now Secretary Tom Perez, it recovered from some
of the dark days during the previous administration, and I know
that Mr. Adegbile has committed his entire career not just to
politics but to the enforcement of the very laws that his
Division protects as its core function, and his primary goal as
a lawyer has been to interpret and apply our country's long-
held anti-discrimination principles. He did a great job under
your leadership, Mr. Chairman. I am confident he will do a
great job in the Civil Rights Division. And he came up the hard
way. He even spent time in one of New York's most notorious
residences for the underprivileged, the infamous Martinique
Hotel. And he has come all the way from there to here, which is
a testament to his hard work and a beacon for the precepts of
equal opportunity that he will now enforce.
So I thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
I will put in the record from Senator Gillibrand the
introductions for Mr. Carlin and Mr. Adegbile, and those will
be placed in the record.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. Let me start first with each one of you,
and I will call on you if you have any comments, Mr. Carlin,
but I would also like you to introduce--I know that Senator
Schumer has, but introduce again whatever family members or
anybody else here. It will someday be in the Carlin archives,
and you will want to be able to refer to it.
STATEMENT OF JOHN P. CARLIN, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Carlin. Well, thank you, Chairman Leahy and Ranking
Member Grassley and distinguished Members of this Committee. It
is an honor to appear before you today, and I thank you for
considering my nomination. And thank you, Senator Schumer, for
your very kind introduction. Go, Tigers.
I would also like to thank the President for his confidence
in nominating me and the Attorney General for his support.
And, Mr. Chairman, I would like to introduce the members of
my family who are here today and thank them for their love and
support over the years: my wife, Sarah, and our daughter,
Sylvie; my parents, Roy and Patricia, who traveled here from
New York City yesterday in the 8 degree weather; my sister,
Jennifer, and my brother-in-law, Don; and my nephew, Daniel,
and niece, Katie, who came in from northern New Jersey.
I also want to thank my wife for her countless sacrifices
to allow me to pursue a career in public service, and thank my
parents who have taught my sister and me the important lesson,
both by example and by word, of dedication, discipline, and
always trying to do what is right.
With the support of all of my family and their
selflessness, I have been able to choose the path that has led
me here today.
And I would like to thank the people from the National
Security Division and the friends who have come here today to
show their support.
It has really been a privilege to spend my entire legal
career with the Department of Justice and to witness a time of
enormous transformation after the terrible events of September
11th. As with so many Americans, I and my family recall vividly
the events of that day, the horror of senseless murder and the
dark cloud of ashes that hung over New York City for all too
long. My brother-in-law was across the street, working at the
time, from the Twin Towers, and my father was in the subway
underneath. And I remember as our family called each other to
determine that each one of us was safe. We were lucky.
Our mission at the National Security Division is clear:
Prevent future terrorist attacks while preserving our civil
liberties. It is a special honor and privilege to be considered
for a position charged with leading the Division that this
body, Congress, created to unite all the Department of
Justice's national security elements, to bring to bear all
tools in the fight against terrorism and other threats against
national security.
Serving as the Acting Assistant Attorney General for
National Security for approximately the last 10 months, I have
been both humbled and driven by the responsibilities and
mission that you have entrusted to the position. This mission
builds upon the lessons we have learned through our evolving
approach to national security over the past years, and my
experience has taught me about the transformative power of
lawyers in a government based on the rule of law and the sense
of duty and mission that comes with it.
For more than a decade, I have learned from and worked
alongside some legendary public servants as the United States
undertook fundamental changes in our approach to combating the
threat of terrorism and other emerging national security
challenges and, in particular, working with FBI Director Bob
Mueller as his counsel and later as his chief of staff to help
the Bureau evolve from a law enforcement agency into a threat-
based, intelligence-driven national security organization.
Here at the National Security Division, we must apply and
are applying those lessons both to meet the growing national
security cyber threat and to continue to evolve to meet other
national security threats. And if I am fortunate enough to be
confirmed, I look forward to continuing this important
evolution.
Thank you again for the opportunity to appear before you
today and for your consideration, and I look forward to
answering your questions.
[The biographical information of Mr. Carlin appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Mr. Adegbile, would you please--I have already met your
family, but there are other members of your family, too. Would
you introduce everybody here from your family? And then I will
yield to you for any statement you may wish to make. Press the
button.
Mr. Adegbile. Excuse me.
Chairman Leahy. There you go.
STATEMENT OF DEBO P. ADEGBILE, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Adegbile. Thank you, Senator. I am joined today by my
wife, Susan Haskell, whose love, kindness, and strength
sustains me and helps make me a better person. We are joined
also by our two lovely daughters, Sela and Devan. Sela and
Devan are the joy of our lives, and Susan and I could not be
more proud of them.
We are also joined by my mother-in-law, Carol Haskell, a
person of tremendous grace and love for her family.
Chairman Leahy. And I would note for the record that your
wife is a graduate of the University of Vermont. I just thought
I would throw that out.
[Laughter.]
Senator Schumer. Where was she raised?
Chairman Leahy. Never mind.
[Laughter.]
Mr. Adegbile. Connecticut, for the record.
Chairman Leahy. Senator Blumenthal sat up on that one.
Senator Blumenthal. I will await my turn, Mr. Chairman.
Mr. Adegbile. In addition, Senator, there are many friends
here spanning from my years in grade school through law school.
I am joined by former and present colleagues, and I thank them
all for their attendance, whether or not that attendance was
compelled.
Thank you, Chairman----
Chairman Leahy. We will submit all their names for the
record later on.
Mr. Adegbile. Thank you, Chairman Leahy, for your
leadership of this Committee. Thank you, Ranking Member
Grassley, for your long service to this Nation. And thank you
to all the Members of the Committee.
I also would like to thank President Obama for the
nomination and the President and Attorney General Holder for
the opportunity, if confirmed, to serve our Nation as Assistant
Attorney General.
I have a deep appreciation for the opportunities America
provides. I know, too, that the road to opportunity can be long
and difficult. I have faced the challenges and learned from
them. I have learned that that which binds is stronger than
that which threatens to divide us.
I have benefited from the transformative power of
educational opportunity. I know firsthand that in our country,
with the benefit of education, steadfastness, and a bit of good
luck, the circumstances of one's birth need not limit one's
aspirations or achievements.
I have an unshakable belief in the value that we assign to
civil rights. At the very outset, our Constitution sets as its
goal as building a ``more perfect union,'' words that are both
inspirational and aspirational.
The Civil Rights Division, through the laws it enforces,
protects all of us. The commitment and expertise of the public
servants in the Division have dramatically and demonstrably
improved our country. We are a stronger Nation today for these
efforts. And yet our past successes should not limit our future
achievements. We can do more to protect civil rights, we must
do more to protect civil rights, and the Division stands ready
to protect the civil rights of all Americans.
I have seen the impact that enforcing civil rights can have
on real people's lives. Improved employment options, greater
access to educational opportunity, removal of unnecessary
barriers for people with disabilities, and ensuring fuller
access to the political process, among other efforts, make
lives more fulfilling.
If confirmed, I will commit to lead the Division with
fidelity to its mission and with the sensitivity, fairness, and
integrity that civil rights work, effective civil rights work,
requires.
It is my great privilege to appear before you this morning,
and I look forward to your questions.
[The biographical information of Mr. Adegbile appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much.
Mr. Peterson, please go ahead, and if you have family you
would like to introduce, please feel free to.
STATEMENT OF JAMES D. PETERSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WISCONSIN
Mr. Peterson. Thank you, Chairman Leahy and Ranking Member
Grassley and all the Members of the Committee, for considering
my nomination. I want to thank the President for nominating me,
and I want to particularly thank Senators Baldwin and Johnson
for their kind remarks and especially for their work with the
nominating commission to fill not only this vacancy but some
others in Wisconsin and the Seventh Circuit.
I would like to introduce some members of my family. With
me today is my closest adviser and outstanding attorney, my
wife of 32 years, Susan Collins. I am also pleased that our
daughters could be here. Our daughter Lauren traveled from the
borough of Manhattan to be here today, Lauren Peterson. Our
younger daughter, Anna Peterson, came with us from Madison, and
with her also is the newest member of our family, her fiance,
Derek Behnke.
I also want to acknowledge my sister, Lisa, and my brother,
Wes, who cannot be here with us today, but I am sure they will
watch the webcast.
The last important guests that I would like to introduce
are my Mom and Dad, James D. Peterson, Sr., and Patricia
Peterson. I know they are proud of me, but I wanted to take
this opportunity to tell you how proud I am of them. They
worked very hard to make sure that my brother and sister and I
had the benefit of an education from the University of
Wisconsin. They did not have the benefit of that education, but
they were smart, they worked hard, and they both went on to
outstanding professional careers, and they were able to retire
early and are now enjoying a long and well-deserved retirement
in the great State of North Carolina. I want to let you know
that they have truly lived the American dream, and they have
been an inspiration to me my entire life. Thank you, Mom and
Dad.
And with that, Senators, I welcome your questions.
[The biographical information of Mr. Peterson appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
And, Ms. Rosenstengel.
STATEMENT OF NANCY J. ROSENSTENGEL, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS
Ms. Rosenstengel. Good morning. I would like to thank
Senator Durbin for the introduction and Senator Kirk for his
role in this process.
I thank President Obama for the nomination and Chairman
Leahy, Senator Grassley, and the entire Committee for giving me
the opportunity to appear here today and for considering my
nomination.
With me today is my husband, Jon Rosenstengel. We have been
married for 17 years, and he has always been very supportive of
my career, and for that I am very grateful. Together we are
raising three beautiful children while balancing our legal
careers, which is some days an easier task than others.
I am blessed to have my children with me here today. My
daughter Kate is 15 and a sophomore at Mascoutah High School in
Mascoutah, Illinois. We strategically placed her between the
other two to referee if necessary. My daughter Anna will turn
14 tomorrow, and I am excited that she will always remember
celebrating her 14th birthday in our Nation's capital. And last
but not least, my son, Jack, is 11 and he is in fifth grade at
Mascoutah Elementary School.
Also, I would like to acknowledge those who could not be
with me here today but I am sure are watching on the webcast:
my mother, Joyce Neimayer, in Glen Carbon, Illinois; my mother-
in-law, Janet Rosenstengel, in Belleville, Illinois; my
brothers-in-law and sisters-in-law, Jeff and Lee Bonnefield,
Jeremy and Cian Rosenstengel, and our nieces and nephews, Jim,
Jerry, Julie, and Rachel; my aunt and uncle, Lolly and Ron
Davies, who are watching from Casa Grande, Arizona; and Jon's
cousins, who I grew up with, who are all lawyers, watching in
Dallas, Denver, and Chicago; as well as Jon's aunt and uncle,
Jerry and Kathy Bonnefield; and many other friends of ours in
southern Illinois who I will not begin to try to mention; and
likely the entire court family in the Southern District.
I thank you again for the opportunity to appear here today,
and I look forward to answering your questions.
[The biographical information of Ms. Rosenstengel appears
as a submission for the record.]
Chairman Leahy. Well, thank you very much.
And, Ms. Talwani, please, if you have family members you
wish to introduce here?
STATEMENT OF INDIRA TALWANI, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS
Ms. Talwani. Yes, thank you, Chairman Leahy, thank you,
Ranking Member Grassley, and to this Committee for holding this
hearing on such an early date in January. Senator Warren, I
appreciate the very, very kind introduction and the
recommendation, and to President Obama for this incredible
honor.
I have with me a number of my family members: first and
foremost, my husband, Tod Cochran. We have been married for
almost 27 years. He is the love of my life. Our three children,
two of whom are here: Natasha, Shelton, and Nico. Natasha is a
master's student at Clark University, and she is student
teaching right now--not this moment. She is sitting here behind
me, but she is a student teacher at University Park Campus
School, and her tenth grade high school class is watching
today's hearing. My son Shelton is a biochemistry major at
Amherst College and was unable to come, but is watching. And
Nico, our 10-year-old, is sitting behind me.
My brother, Rajeev, traveled here from Los Angeles, and I
really appreciate that, on incredibly short notice. My other
brother, Sunjay, in Helena, Montana, was not able to come but
is watching.
My uncle and aunt, Pradeep and Anita Talwani, from South
Carolina, traveled up; my cousin, Rohit Talwani, from Maryland;
and my niece, Bonnie Doyle, and I should mention was a clerk on
the Vermont Supreme Court, so we are making our Vermont
connections, but traveled down here----
Chairman Leahy. It does not hurt.
[Laughter.]
Ms. Talwani. She traveled down here from New York.
My biggest thanks and appreciation go to my parents. My
father and mother taught me so much about hard work, integrity,
the value of family. They celebrated their----
Chairman Leahy. Take your time.
Ms. Talwani. They celebrated their 55th anniversary last
year before my mother passed away. And my father is the one
person who is upset at this early hearing because he is
attending the Indian Geophysical Union meeting in Hyderabad,
India, as we speak, and was unable to make it here on this
notice. But there, too, I believe the American delegation is
watching us from Hyderabad.
Others who could not come I owe appreciation to: my
parents-in-law, sisters-in-law, brothers-in-law, nephews,
nieces, cousins around the country; and my friends and law
partners and colleagues from Massachusetts for these past 15
years, and California, the 10 years of practice before I
returned to Massachusetts.
Thank you very much for this opportunity.
[The biographical information of Ms. Talwani appears as a
submission for the record.]
Chairman Leahy. I am glad we are webcasting so your husband
can see it--I mean, your father can see it, and I also have to
think how proud your mother would be, too.
Let me begin the questions with Mr. Adegbile. You have had
this distinguished career at a top law firm, also at the NAACP
Legal Defense and Educational Fund. We have heard one--a noted
Republican Solicitor General who has praised you. You have
testified before this Committee. You have worked for this
Committee on these issues. How do your personal and
professional experiences prepare you to lead the Civil Rights
Division at the Department of Justice?
Mr. Adegbile. Thank you, Senator. I think about the extent
to which America has provided me with great opportunities, the
extent to which people who have come before me removed barriers
so that I could thrive and work hard and, given the chance,
serve other people. My experiences have called me toward
service in different contexts, and the thing that I think is so
wonderful about the work of the Civil Rights Division is that
in many ways it is about opportunity and fair play.
I would commit myself, if confirmed, to advancing those
causes through the laws that the Civil Rights Division advances
every single day.
Chairman Leahy. You know, Senator Grassley has referenced a
letter, which is part of the record now, and one I have
received, too. I worked a great deal with law enforcement over
the years, having served 8 years in law enforcement myself. And
they raise the question of the 1981 murder of a Philadelphia
police officer. I think we all agree that this was a horrific
crime, and the slaying of Officer Daniel Faulkner caused
immeasurable loss for Officer Faulkner's family and his fellow
officers. Whenever a law enforcement officer is killed, it
affects all of us who depend upon the police for protection and
leadership in our communities. I find it particularly poignant,
having spent 8 years working with police officers.
So I would like you to explain the role that LDF played in
the case, and just for background, in 1982 Mumia Abu Jamal was
convicted by a jury of murdering Officer Daniel Faulkner, and
he was sentenced to death. In 2001, a Federal judge in
Philadelphia overturned the death sentence--not the conviction
but the death sentence--because the original trial court gave
jury instructions on the requirements to issue a death sentence
that violated what the Supreme Court had laid down in their
precedents. And I understand that between 2008 and 2011, your
name appeared on three appellate briefs that LDF filed in
appeals in this case.
So can you clarify, one, whether the appellate briefs filed
by LDF and signed by you in this case disparaged the fallen
officer or argued any of the facts surrounding the murder?
Mr. Adegbile. Absolutely. Those briefs, Senator, made no
negative comment about the tragic loss of Officer Faulkner. It
is a tremendous loss to lose a civil servant, a public law
enforcement officer serving the people. And I would never
personally or professionally say anything negative about that
horrific loss. My sympathy goes to his family, to the community
in Philadelphia, and it would be completely contrary to my
person to make any negative comment about that particular
situation.
Our work when I was a lawyer--and this is when I was at
LDF--the work involved a legal issue relating to jury issues.
It was about the legal process, and it was years after the
conviction had been entered by the lower court. It was on an
issue of whether or not the jury had properly been instructed,
and ultimately several Federal courts found that the jury had
not been properly instructed, and there was, in fact, a
constitutional violation. It was on that basis that the death
sentence was thrown out and Mr. Abu Jamal was resentenced to
life without parole.
But it is important, I think, to understand that in no way
does that legal representation, zealously as an advocate, cast
any aspersion or look past the grievous loss of Sergeant
Faulkner.
Chairman Leahy. Okay. You know, like many others on this
panel, as a lawyer, I have defended cases and then subsequently
as a prosecutor prosecuted cases. I think we all agree that in
any issue you should have advocates on both sides. Is that
correct?
Mr. Adegbile. Absolutely. That is what our system calls
for.
Chairman Leahy. And when you argued this case before the
Supreme Court, you had advocates on the other side arguing the
other way. Is that not correct?
Mr. Adegbile. That is correct. And in briefs. I did not
actually argue the case.
Chairman Leahy. I mean in the briefs.
Mr. Adegbile. That is correct.
Chairman Leahy. But you had others on the other side. Thank
you. So how do you respond to those who criticize your
involvement in this case?
Mr. Adegbile. Senator, what I understand about these types
of cases, death penalty cases, is that they are the most
harrowing cases. In every circumstance somebody has been
killed, and that sends ripples through families, through
communities, and through societies. So these are the hardest
cases.
But our commitment in the Constitution is to follow our
procedural rules even in those hardest cases, perhaps
especially in those hardest cases, so that all of our rights
can be vindicated. But I completely understand how difficult
these cases are, and I have experienced that difficulty as a
lawyer, and I take nothing away from the people who come to
these cases and wonder how can somebody stand in the shoes and
represent somebody. But that is what we commit ourselves to
under our Constitution.
Chairman Leahy. Thank you. I have exceeded my time, and I
will yield to Senator Grassley, and Senator Coons has offered
to take over the Chair for me as I have to go to another
hearing. But thank you very much, and I can assure you that I
support your nomination. I support the nomination of all five
of the nominees who are here before us. I think the country is
fortunate to have people of the quality of the men and women
before us ready to serve.
Senator Grassley. I am going to start with Mr. Carlin and
refer to the President's Review Group of Intelligence and
Communication Technology and the report that was recently
issued. Many of the group's recommendations would affect the
way in which national security investigations are conducted.
One example, the review group's recommendations would require a
judge to approve all national security letters before they are
sent. This would obviously be a dramatic change.
Number one question: What would the operational effect of
this recommendation be on national security investigations?
Mr. Carlin. Thank you, Ranking Member, for your question.
The President's review group has submitted a series of
recommendations. I know the administration is considering and
the President is considering those recommendations and also
hearing from a variety of others, including meeting with
Members of the Senate and hearing from the intelligence
community heads and hearing from other groups, such as the
Privacy, Civil Liberties, and Oversight Board, as we try to
wrestle with, in a time of changing technology, how do we
ensure that we accomplish our core mission of keeping the
American people safe while at the same time preserving our
treasured values of civil rights and civil liberties. They made
a whole slew of recommendations. There are a lot of different
thoughts in one way or the other.
Senator Grassley. Well, maybe you are telling me you do not
know the effect that the recommendations have on the operation
of our national security investigations. Is that what you are
saying, you do not know what the impact of those
recommendations would be?
Mr. Carlin. I think they are still studying and coming to a
conclusion as an administration. When I worked at----
Senator Grassley. Well, you are saying they are coming to a
conclusion about what the administration might recommend. My
question is, in regard to the group's recommendations, if those
were carried out, what would be that impact on the national
security investigations?
Mr. Carlin. Yes, sir. So I think they are still working out
all of the ramifications, but I will say this in terms of the
recommendation that you raise regarding national security
letters, which is that during my time at the FBI and in my
experience at the National Security Division, the type of
information that you can obtain from those letters is often a
critical building block in order to then obtain additional
evidence to use more intrusive methods that have a higher
standard, such as a probable cause standard. And so whatever
changes we do make or contemplate, we should think carefully
and make sure that we preserve the nimbleness and agility that
we need to respond quickly to fast-moving national security
threats while at the same time trying to preserve civil
liberties.
Senator Grassley. I think you can give a more definite
response here, and I appreciate the last three or four
sentences you gave. That is very important information.
Was the National Security Division given an opportunity to
respond to this recommendation before the review group issued
its report? And did you or anyone from the National Security
Division ever meet with the review group? And if you did, how
many times and for how long?
Mr. Carlin. I would say--thank you for that question
because I think it is important before adopting recommendations
to ensure that there is a thorough process and we hear from all
elements from the intelligence community and law enforcement
and national security community as well as others. The----
Senator Grassley. Hence my question. Did they seek your
advice before they issued a report?
Mr. Carlin. I personally did not meet with the review
group. There were individuals from the National Security
Division who met with the group. I do not have the exact time
for you here, sir, in terms of how long they spent with the
group. I do not recall a discussion with them about the
particular issue that you raised, the national security letter
issue.
Senator Grassley. Okay. I am glad that--for you, Mr.
Adegbile, I am glad that Senator Leahy asked the question he
did; I was going to ask. In regard to lawsuits that are pending
from your Division, which you are not head of yet, but in
regard to voter ID, if confirmed, do you plan to allow States
to require voters to identify themselves to prevent the fraud
that we have seen?
Mr. Adegbile. Thank you for your question, Ranking Member
Grassley. My understanding of the role of the Assistant
Attorney General for Civil Rights is that the Assistant
Attorney General works to evaluate laws where there are claims
of civil rights violations. And so it is not, as I understand
it, the role of the Assistant Attorney General to determine in
the first instance how States run their voting systems. It is
only in the context of a particular law that is passed that
then occasionally becomes subject to review either because of
the way in which it was passed or because of its impact.
Senator Grassley. Thank you.
Senator Coons [presiding]. Thank you very much, Senator
Grassley.
Senator Whitehouse.
Senator Whitehouse. I believe others were here first, but I
am happy to proceed if--are we going by seniority? If so, I
will proceed. My questions are for Mr. Carlin. But before I ask
my question of Mr. Carlin, Ms. Talwani, what time do you think
it is in Hyderabad right now?
Ms. Talwani. It is about 9\1/2\ hours, 10\1/2\ hours----
Senator Whitehouse. In the evening, so not too bad. It is
afternoon. They are not up at 2 in the morning. Well, our best
wishes to the Hyderabad watchers.
Mr. Carlin, we have talked about cyber, and I would like to
kind of reprise a little bit of that conversation. My first
concern is that we have had a number of members of the Obama
administration say that the attacks through our cyber system on
private corporations for the purpose of stealing their
intellectual property to distribute to competitor corporations
in the home country of the attacker is a very, very significant
drain on our economy and, indeed, it has been described as the
``biggest illicit transfer of wealth in the history of
mankind.''
Given the scope of that ongoing criminal activity, I am
concerned that the Department of Justice has not yet brought a
single case arising out of a pure cyber intrusion against an
American company for the purpose of stealing the American
company's intellectual property. And there are clearly
diplomatic concerns involved in taking such an action. There
are clearly intelligence concerns that need to be addressed in
terms of how the case is brought forward to protect sources and
methods that may have supported the development of the case,
and I get that. But I would like to hear your assurance that
you will be more energetic about pursuing that kind of a case
and working through the difficulties rather than allowing the
Department to be defeated by those difficulties.
Mr. Carlin. Thank you, Senator, for your question and for
your leadership on issues having to do with the national
security cyber threat. You have my absolute assurance and
pledge that I will do all I can, if confirmed for this
position, to ensure that we do confront that threat by using
all tools in the toolbox, and that includes bringing, when we
can, Article III criminal prosecutions. And since my time at
the Division and building on my time as a prosecutor
prosecuting cyber cases and my time at the Bureau working with
Director Mueller to transform the Bureau to confront that
threat, and subsequently at my time at the Division, my top
priority for the Division as Acting Assistant Attorney General
has been to transform the Division and to evolve the Division
so we can meet the national security cyber threat by having
dedicated national security cyber prosecutors working day in
and day out to make sure that we can hold nation states or
others accountable when they are stealing secrets from our
corporations.
Senator Whitehouse. Good. Well, I appreciate that, and it
is just one Senator's point of view, but I would rather have
the State Department have to have the problem of cleaning up a
little bit than to have the Department of Justice have the
problem of doing nothing about this massive hemorrhage of
American value and this massive criminal attack sponsored by a
foreign nation. So thank you for that.
My second question is that I do not yet believe that our
institutional structure for addressing this massive new threat
is fully mature. I have been tracking this for months now, and
there are constantly new initiatives and new programs that are
emerging, and I understand that it is a continuing work in
progress, and I want to make sure that part of your work is to
try to look ahead, not just to the concerns of the moment but
to what the cyber threat is going to look like in the years
ahead and what sort of a structure in law enforcement is the
appropriate structure to meet it. I do not believe we are there
yet. I do not think you believe we are there yet. But I do want
to hear you discuss what kind of energy you will put into that
type of thinking and that topic, because I know it is going to
be very easy to get into the cases and to get into the details
and to forget the fact that at some point, as we are morphing
our way toward a more robust and stable anti-cyber attack
structure, we have got more work to do.
Mr. Carlin. I do share your concern, Senator. The threat is
here, and it is growing, and we can anticipate it will continue
to grow over the years to come. I think the Government has
taken significant steps to try to transform to meet that
threat, but there is much more that we can and should do. And
at the National Security Division, we just recently have tried
to uncork the ingenuity and thoughts and talents of the U.S.
Attorneys across the country, all 94 U.S. Attorney's Offices,
by having special training and having people dedicated to
handling, on the one hand, sensitive sources and methods that
you need to be able to handle in national security threats and,
on the other hand, the specific expertise on how to handle
cyber intrusions while at the same time working with the FBI to
try to ensure that matters that are being viewed as
intelligence are shared with prosecutors so that, if there are
Article III options, they can be preserved for later down the
road--the same type of thinking that we have used in our
transformation to face the terrorist threat. And I do believe
that, in addition to working case by case, we need to continue
to work as a Government and with this body on what the best
approach, strategic approach is overall going forward.
Senator Whitehouse. Thank you.
Mr. Chairman, thank you. Let me also just take this
opportunity to thank you and Senator Blumenthal for the very
strong effort that was put into trying to come up with a cyber
bill that would help this work forward. And I know that you and
Senator Blumenthal and other Members of this Committee are
very, very committed to making sure that our cyber structure is
the right structure in the long term to address this threat.
And so I think Mr. Carlin can expect continued interest from
this Committee in that subject, and I do want to thank Senator
Blumenthal and Senator Coons for their leadership.
Senator Coons. Thank you, Senator Whitehouse, and thank you
for your tireless work on keeping us safe from the cyber
threat.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. And I thank all
of you and congratulations on being nominated to august Federal
positions. I know your families are proud of you, and we all
recognize the challenges you are facing, and I am sure you will
be able to meet those, if confirmed.
Let me ask you, Mr. Carlin, just yesterday in The
Washington Post, there was an article by Adam Goldman: ``U.S.
officials suspect that a former Guantanamo Bay detainee played
a role in the attack on the American diplomatic compound in
Benghazi, Libya, and are planning to designate the group he
leads as a foreign terrorist organization, according to
officials.''
``Militiamen under the command of Abu Sufian bin Qumu, the
leader of Ansar al-Sharia in the Libyan city of Darnah,
participated in the attack that killed U.S. Ambassador
Christopher Stevens and three other Americans, U.S. officials
said.''
``In 2007, Qumu was released from the U.S. prison at
Guantanamo Bay, Cuba, and sent to Libya, where he was detained.
The . . . government released him [a year later] in 2008.''
Do you recognize there is a need in a time of war to detain
hostile combatants until the war is over?
Mr. Carlin. Yes, sir. We are a Nation that is still at war,
and pursuant to this body's Authorized Use of Military Force, a
war specifically against al Qaeda, the Taliban, and its
associated forces. And at the National Security Division it is
a threat and a responsibility we take seriously day in, day
out. There is a determined enemy who wants to attack and bring
harm to the United States both here and to our citizens abroad,
and we need to use all of the tools that you grant us in our
toolkit to deter and disrupt those who would try to cause us
harm.
Senator Sessions. I absolutely agree that you should use,
it is your duty to use the lawful tools you have been given to
protect the people of the United States and our Ambassadors
from attacks. And it is disappointing to see that this releasee
was a leader actually in that attack, and we have had others
that have been released also returning to the fight.
And so you have that responsibility, and I sense that you
understand it. Is that correct? And you will be willing to
speak out against those who do not understand those
responsibilities and do not understand traditional rules of
warfare?
Mr. Carlin. Yes, sir, we certainly do understand that
responsibility, and in my role, and if confirmed, I will
provide my honest and frank guidance to any consideration on
any national security threat.
Senator Sessions. And you will, when necessary, object or
make known your objection if someone above you desires to do
otherwise?
Mr. Carlin. Sir, as a lifelong Government servant, I think
we have a duty and we arrive at the best decisions when people
who are asked for their opinion give a frank and honest opinion
for those internal deliberations.
Senator Sessions. Thank you. I appreciate that, and I will
expect that you will do that, protecting the people of the
United States as the law allows you to do.
Mr. Adegbile--is that correct?
Mr. Adegbile. That counts, Senator.
Senator Sessions. Close enough.
[Laughter.]
Senator Sessions. Close enough for Government work. You
will answer when called that.
You have been a long-time counsel at the NAACP Legal
Defense Fund, which has a historic record of advocacy and
defense of civil rights and has achieved much respect in those
efforts over the years. But it is a leading advocacy
institution also. Civil rights can be stretched, it appears to
me, to cover political agendas sometimes and go beyond what
true civil rights are and can be used as a mechanism to advance
a political agenda. I am sure you would essentially agree with
that concern.
Recently Attorney General Holder, before the Mexican
American Legal Defense and Educational Fund, said this:
``Creating a pathway to earned citizenship for the 11 million
unauthorized immigrants in this country is essential. The way
we treat our friends and neighbors who are undocumented--by
creating a mechanism for them to earn citizenship and move out
of the shadows--transcends the issue of immigration status.
This is a matter of civil and human rights.''
Do you believe that an individual who entered the country
unlawfully has a civil right to citizenship in America?
Mr. Adegbile. Senator, my understanding is that the
Congress sets the laws with respect to immigration, and only
after those laws are set, if certain of the laws are designated
for enforcement responsibility to the Civil Rights Division,
would the Civil Rights Division act in that scenario.
Senator Sessions. Well, your boss-to-be, Attorney General
Holder, has said plainly, it seems to me, that persons who
violate the United States immigration laws and who enter the
country have a civil right to even citizenship. Do you agree
with that or not?
Mr. Adegbile. Well, I am just hearing this statement now,
and I take it that what may be at the source of the Attorney
General's comment is that in certain circumstances people who
are vulnerable or not properly documented can be preyed upon
because of their status, and there are certain circumstances in
which such people would need the protection of law enforcement
and others to make sure that their rights are not violated as
human beings and as persons under the Constitution.
Senator Sessions. Peter Kirsanow, who is a member of the
U.S. Commission on Civil Rights, did a blog recently that said,
``To equate amnesty for breaking the Nation's immigration laws
with civil rights betrays an incoherent and ahistorical
understanding of the civil rights movement. Law-abiding black
citizens in the United States were not seeking exemption from
law. They were seeking the application of such laws in the
manner that were applied to whites.'' Would you agree with that
statement?
Mr. Adegbile. I can commit to you that my understanding of
our long history is that many groups have come to hold up the
Constitution and try to narrow the space between the practice
on the ground and our high goals that we set for ourselves. And
if confirmed as Assistant Attorney General for Civil Rights, I
assure you that I will give fidelity to the law and enforce the
laws as they are given by this Senate and the House of
Representatives and duly signed by the President.
Senator Sessions. Well, my time is up. Thank you, Mr.
Chairman.
Senator Coons. Thank you, Senator Sessions.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Mr. Adegbile----
Mr. Adegbile. That is full credit, Senator.
[Laughter.]
Senator Franken. As a Nation, we have made great strides on
the road toward equality for LGBT citizens, and the Civil
Rights Division of the Department of Justice has been
instrumental in that progress. But there is still work to be
done. Every day, students who are or are perceived to be
lesbian, gay, bisexual, or transgender are subjected to
bullying and harassment in our schools. In fact, one out of
every three LGBT students in our country reports having missed
a day of school recently because he or she felt unsafe in
school.
I have introduced legislation in the Senate, the Student
Nondiscrimination Act, to ensure that LGBT students have the
same rights against discrimination as other students have.
If you are chosen to be head of the Civil Rights Division,
how will you work with schools to address the discrimination
that LGBT students so often face?
Mr. Adegbile. Thank you, Senator. This is a very important
issue. I have sitting behind me my two daughters who are
school-aged, and it is something that we talk about a fair
amount. Bullying can really reduce the opportunity of children
to learn and, as you have described, even lead kids not to want
to go to school. I commit to you that, if confirmed as
Assistant Attorney General, I will focus on the laws and
enforce them vigorously in all areas. The educational area is
something that is part of the soaring story of American justice
and of civil rights, and as we learn it, as new statutes are
passed, I think it is important to focus on them and enforce
them where applicable on the facts and the law.
Senator Franken. Well, I hope through this measure, which
has the support of every Member of the majority of this
Committee and on the HELP Committee, I hope we are able to do
that, because through the Civil Rights Act in 1964 we protected
people by virtue of their race or color, to the Americans With
Disabilities Act we have given those kind of rights to people
with disabilities. To me the LGBT community now deserves the
same kind of rights.
Mr. Carlin, if you are confirmed to this position, you will
hold one of the Nation's most important positions on national
security. Senator Grassley talked about the President's review
group on surveillance, and they made some recommendations. And
I did speak to the group. I know that your Department has but
you have not. They made some major recommendations about how
our Nation's surveillance programs should be reformed, and I
know that your answer to Senator Grassley was that you are kind
of reviewing this and this is being reviewed in the Department.
But among other things, the group urged the passage of
legislation to give the American people more information about
the total number of Americans that, this information, are being
caught up in these surveillance programs and to give the
American people more information about that. I have a
bipartisan transparency bill that would do just that.
Do you agree, Mr. Carlin, with the President's review group
that the American people need to have more information about
our Nation's surveillance programs?
Mr. Carlin. Thank you for that question, Senator, and for
your leadership on the issue of transparency in terms of our
use of national security authorities. The law enforcement/
national security community and our Government need the support
and trust of the American people to do our jobs day in and day
out, and so I think it is, as the President said, incumbent
upon us to be as transparent as we can while preserving the
sensitive sources and methods, to be as transparent as we can
with the American people so that they have that trust and
confidence.
And so as we discussed when we met, I think we need to work
and, if confirmed, we would work within the National Security
Division to try to ensure across the board that, when we can,
we can share as much information as possible with the American
people.
Senator Franken. And do you think that possibly we have
been erring on the overly conservative side in terms of
transparency and that the recommendations of the President's
review group are going in the right direction?
Mr. Carlin. I will say this: I think there has been an
unprecedented effort over the last several months or close to a
year to declassify thousands of pages of previously classified
documents in order to share information, and that as we look
forward and try to hit the right balance between the steps that
we need to take to protect us from national security threats,
which are real and present, while at the same time both
ensuring that we preserve our treasured values in terms of
civil liberties and civil rights, and also that we maintain the
confidence of the American public. We are at a stage right now
where we need to take, it seems, additional steps to assure
that the public on the tools that we are using, and I think we
are rightly headed in that direction.
Senator Franken. Well, thank you. My time has expired.
Thank you for your answers.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Franken.
Senator Blumenthal.
Senator Blumenthal. Thank you. Let me begin by thanking all
of the nominees for your public service and your willingness to
devote yourselves to continued public service, and my thanks
also to your families who have shared and will continue to
share that burden of long hours and sometimes little
appreciation from the public for the work that you do.
I want to say to the judicial nominees that your work is so
critical to the credibility and trust of the public in our
justice system. You will be the voice and face of justice to
countless individuals who come before your court and who will
seek redress and justice from you. And as one who has been in
the Federal courts for several decades, I appreciate the very
hard work that you will devote to this immensely important
task. And I look forward to supporting you and hope that I am
not premature in congratulating you but thanking you for the
great work that you are going to do.
To Mr. Adegbile, I congratulate you on your Connecticut
connection through Connecticut College. I am not going to sing
the fight song here, as Senator Schumer no doubt could for
Dalton. But I want to first of all ask you about the NAACP
Legal Defense Fund and other organizations like it that play
such a critical role in our justice system, and most
particularly during what Senator Schumer rightly referred to as
``a dark period'' when the Civil Rights Division was not as
active as it has been under President Obama.
Could you tell me about the partnership that you foresee
between the Civil Rights Division and those organizations if
you are confirmed?
Mr. Adegbile. Certainly. Thanks for the question, Senator.
So civil rights organizations play a vital function as private
attorneys general to enforce many of the statutes in the civil
rights pantheon that allow individuals or groups to bring cases
to vindicate the principles of the law. The understanding has
been that while the Justice Department is terrific and central
to the effort, in certain circumstances more resources are
needed, and we cannot have too much equality is part of the
concept.
There needs to be a conversation between groups and the
Justice Department. However, in my role, if confirmed as
Assistant Attorney General, I am crystal clear that I will step
over from being an advocate for a particular group and
particular clients to enforcing the laws of the United States.
And so what I would expect is that there will be open streams
of communication within the bounds of ethical rules and
considerations, but that the goal is to enforce the laws of the
United States within our best judgment and with the advice of
the long-serving, able public servants in the United States
Department of Justice.
Senator Blumenthal. Thank you.
Mr. Carlin, I know you are familiar with the
recommendations made by the President's Panel on Intelligence
Reform, and in particular, as you may know, I have proposed
that there be a constitutional advocate to protect privacy
rights and civil liberties and that there be a more adversarial
process before the Foreign Intelligence Surveillance Act Court
as well as a different method of appointing that court to make
it more transparent and accountable, to make sure that the
court really functions as a court, hearing both sides not just
one side, not just the Government's side but also an advocate
to really represent the contrary side when there are questions,
important questions, of law or fact to be decided.
I wonder if you could give me your views on that aspect of
the President's panel.
Mr. Carlin. Well, thank you, Senator. I think that in terms
of the Foreign Intelligence Surveillance Court, there are
certain cases that involve significant interpretations of the
law where the court may decide that it would benefit from the
view of another party, and that we have discussed and I think
the Deputy Attorney General has testified before that it would
be open to proposals along that line to both ensure a full
briefing before the court and also to provide that sense of
trust and accountability to the American people for the
decisions that are ultimately made.
Senator Blumenthal. And would you not agree that the
advocate ought to be involved in deciding whether a particular
request for a warrant or other surveillance or search raises
that kind of significant issue? In other words, it should not
be just the court that decides the advocate is involved but the
advocate as well?
Mr. Carlin. So I think that the President and the
administration are still studying a variety of ideas and inputs
from different groups on that issue, and what they are seeking
to do in terms of an ultimate determination is to try to reach
the right balance between the really unique and distinctly
American system that we have set up that involves all three
branches of Government for the conduct of our foreign
intelligence activities. It was dating back to 1978 and the
original passage of FISA. We have been searching in the current
debate to look for other models or systems across the world,
and we have not found one that----
Senator Blumenthal. Well, we do have a distinctly American
judicial system that involves, in fact, hearing both sides of
the argument in open court, especially when there are searches
and seizures. One of the reasons why that distinctly American
system developed in rebellion against the English was secret
courts doing general warrants. And so I would submit
respectfully that that distinctly American system involves
exactly what the President's panel recommended, namely, an
advocate, an open system where possible, more transparency, as
Senator Franken has suggested, and hope that you will consider
supporting that kind of proposal.
I want to thank both Mr. Carlin and Mr. Adegbile for your
service, your extraordinary service over many years already,
and the continued service that you will provide for our Nation.
Thank you.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Blumenthal.
While I appreciate that we have had a broad and vigorous
exchange of views with Mr. Carlin and Mr. Adegbile, I am going
to turn to our judicial nominees, if I might, for a few
moments. But first I simply wanted to say that I strongly
endorse Senator Blumenthal's leadership on suggesting that we
would strengthen transparency in the performance of the FISA
Courts by having a public advocate. I think that is a strong
proposal, and I think both Senator Franken and Senator
Whitehouse and Senator Blumenthal raised important points about
transparency, accountability, and about the cyber threat and
defending American innovations and inventions. And hopefully we
will have a few minutes to explore some other areas of great
interest to me, and I am grateful to all of you for your public
service and to your families for supporting you through this
hearing and through what I am sure have already been long and
challenging careers in public service that will hopefully
continue for quite some time.
So if I might, Ms. Talwani, Ms. Rosenstengel, and Mr.
Peterson, if you would just in order describe your judicial
philosophy for this Committee, please?
Ms. Talwani. I am not used to labeling it as a ``judicial
philosophy,'' but I feel very strongly about the role of a
district judge and a district court, which is to decide that
case that is in front of the judge right then based on the
applicable law. And that is what I intend to do.
Ms. Rosenstengel. Thank you. I would agree with Ms. Talwani
and say that my judicial philosophy would be to follow the rule
of law at all times and to decide cases and issues before me
promptly without bias, sympathy, or prejudice.
Mr. Peterson. I also agree that I do not have a judicial
philosophy in the sense of the concept that I have some
preconceived approach to deciding the results of any particular
case. As a district court judge, if I were confirmed, I would
do my best to comply with Rule 1 of the Federal Rules of Civil
Procedure, which suggests, indeed requires that we do all we
can to secure the just, speedy, and in expensive resolution of
matters. So I would have a philosophy as a district court judge
that people would get early trial dates, the trial dates would
be firm, I would work hard to decide motions promptly, and so
people would get a decision that is thorough, well reasoned,
understandable, and prompt.
Senator Coons. Admirable. It would be great if this
institution was also thorough and prompt.
If I might, working backward, Mr. Peterson, Ms.
Rosenstengel, and Ms. Talwani, what do you see as your role in
ensuring fair and equal access to justice in this country for
the litigants who might appear before you in your court?
Mr. Peterson. I think one of the great virtues of our
American justice system is that once you get into a court,
particularly a Federal court, it does not matter if you are
rich or poor or have resources. You get the same kind of
decision regardless of your resources.
I think the district courts have an important role in
ensuring that people who might not be able to afford lavish
representation or even sometimes basic representation get a
fair hearing despite that. So, for example, in the Western
District of Wisconsin, we have very able pro se clerks that
handle cases that are brought by unrepresented individuals, and
those individuals, despite lack of counsel, get a very thorough
and fair hearing.
Ms. Rosenstengel. I would like to echo Mr. Peterson's
remarks. I would say that it is important as a judge, and I
would if confirmed, give every case the same consideration and
be available for the parties and the lawyers on the case. And
as Mr. Peterson said, it is important to make sure that those
who do not have the same resources as others may have access to
justice.
One of the things I have done as the clerk of court is to
develop a panel of lawyers to represent indigent people before
the court so that we have a panel of people we can represent
and to assist those so that they have an equal footing as any
other litigant would in the court.
Senator Coons. Thank you, Ms. Rosenstengel.
Ms. Talwani.
Ms. Talwani. I would just add that litigation is incredibly
expensive, and I would be very conscious of the time that cases
take and how that burdens both parties, and try to move cases
expeditiously, have firm case management procedures, and just
try to ensure that litigation is not more expensive than it
needs to be.
Senator Coons. A last question, if I might, for our
judicial nominees, and also for Mr. Adegbile. Our legal system
relies fundamentally on active advocacy before the bench on
parties who heighten the differences and, thus, zealous
advocacy. You bring a variety of strengths and skills and
backgrounds to your potential service on the bench. How would
you distinguish between a period when you were before the bench
as an advocate and the period you might soon enter where you
are serving on the bench? Or how would you differentiate your
experience and service as an effective advocate for LDF and now
as someone charged with enforcing law for all the people of the
United States? If we might, Ms. Talwani, and then move to our
left.
Ms. Talwani. Thank you. There is no question that the roles
are very, very different. If confirmed, I would strive to
ensure an absence of bias in decisionmaking, that decisions are
based on the facts and the law best applicable. It differs from
the role of an advocate where you can be open to different
possible views but you do not have to sit and make the final
decision which is necessarily the one that you would say will
be right at the end. And I believe it is a very different role,
and I would strive, if confirmed, to ensure the most objective
decisionmaking possible.
Senator Coons. Thank you, Ms. Talwani.
Ms. Rosenstengel.
Ms. Rosenstengel. I agree that it is a very different role.
As an advocate, you know your client's position and advocate
that strongly and maybe anticipate the other side, but do not
study it as well.
As a judge, it is the judge's responsibility to understand
both sides of the argument, to research everything presented to
the judge, and come to a fair resolution of the case. The bulk
of my career has been approaching issues from an impartial
standpoint and trying to understand both sides, and I think
that is important and something that, if confirmed, I would
respect and follow.
Mr. Peterson. I have been an advocate. That has been an
important part of my role as a lawyer. But I have also been a
counselor, which I think in many cases an even more important
role for my clients. And as a counselor, I help them not
advance a particular position in a forum, but to help them
deliberate about what really is the right thing to do. That I
think is excellent preparation of the role of the judge. And so
if I am confirmed, I think it is a transition from advocate to
a more deliberative decider. I think it is a transition that I
would be ready and well prepared to make.
Senator Coons. Thank you.
Mr. Adegbile.
Mr. Adegbile. I think it is fair to say that in both
contexts, representing your clients zealously and ably is
important. That is consistent in both contexts. What is
different is that as a law enforcement officer for the United
States of America, the portfolio is much broader; the range of
statutes that you are called upon to enforce touch a wide array
of aspects of life in our great Nation. And it is very
important in both contexts, I guess, to make sure that the
institutional integrity is there so that you can do your job
effectively, and also to have an eye toward the people that you
are trying to serve.
If lucky enough to be confirmed as Assistant Attorney
General, the people that I will be serving are the people of
the United States of America.
Senator Coons. Thank you.
Senator Grassley.
Senator Grassley. I am just going to question the judge
nominees at this point, but I do have some followup questions
that I am going to submit in writing for the Justice Department
nominees.
[The questions of Ranking Member Grassley appear as
submissions for the record.]
Senator Grassley. I am going to start with Mr. Peterson.
You have done some pro bono work on behalf of the Freedom from
Religion Foundation, filing a Supreme Court brief in two
Establishment Clause cases, McCreary and Van Orden. You have
argued against Ten Commandments display on Government
properties. In one case, you argued that a particular display
had the effect of ``casting non-believers as outsiders to the
political community.'' I am not here to question your belief in
regard to that, but since you are going to be a judge and be
impartial, I have a two-part question:
How does that statement affect your view? And what
assurances could you give the Committee that you would be fair
to all litigants who come before you and, in particular, those
of religious faith who may be concerned about your advocacy on
behalf of non-theism?
Mr. Peterson. The first part of the answer is really very
simple. My personal views would play no role whatsoever in my
decisionmaking on constitutional issues involving any aspect of
the First Amendment or any other constitutional provision.
My work on behalf of the Freedom from Religion Foundation
was on behalf of a former and long-time client of the firm. It
was not pro bono work. It was engaged work that we had done. My
firm has a long history of advocating on behalf of the First
Amendment interests of a wide variety of clients across the
political spectrum. I consider it a great honor to have worked
on matters that are of great importance on the First Amendment.
As I said, we have represented the whole political spectrum
on those issues, and I would take every case as it comes and
decide it according to the law. The position that we advocated
on behalf of the Freedom from Religion Foundation was
vindicated in one of the Supreme Court cases, rejected in
another. Those decisions are by definition right. They are from
the Supreme Court, and I would follow them to the letter, sir.
Senator Grassley. Thank you.
I will now go to Ms. Rosenstengel. From your resume, there
is some--it is quite obvious, and not to discriminate against
you on this basis, but somewhat limited experience as a
practicing attorney, appear to have no experience with criminal
law, so a two-part question:
Describe how you would prepare yourself for the job of
district court judge. And then as a law clerk, what qualities
did you admire about the judge you worked for, and how would
you be different from that person?
Ms. Rosenstengel. Thank you, Senator, for the question.
First, how would I prepare myself? I would study the
Federal Rules of Civil Procedure and Criminal Procedure. Again,
I was very familiar with them as a law clerk. During you time
as clerk of court, I have stayed abreast of Seventh Circuit and
Supreme Court jurisprudence, and I would continue to do that.
The quality I admired most about Judge Murphy, the judge
for whom I clerked, was he was very decisive. he worked hard.
He held hearings on all dispositive motions and had the parties
and the lawyers before him, and that is something that I would
hope to follow. I think there is a lot of value to having the
lawyers in court. He was very firm about setting deadlines and
expecting lawyers to meet them, and that is also a trait that I
would hope to follow.
Senator Grassley. And for you, Ms. Talwani, you have been
an advocate throughout your career, including with some labor
organizations. How will you make the transition from being an
advocate in the way you were--and I do not disparage that--to
being an impartial mediator?
Ms. Talwani. Thank you for that question. I would start by
saying that I very much understand how different the roles are,
and I also realize an importance in the practice, the advocacy
that I did, that I was able to represent parties both as
plaintiffs and as defendants. In representing unions, there
have been cases where, for example, the union would not take an
employee's case to a grievance because it was, in the union's
view, without merit, and the employee will turn around and sue
both the employer and the union. And so I have seen cases from
both sides, despite our institutional clients being unions over
many of these years.
That said, I am very aware of having represented particular
clients, particular types of matters, and realized that I need
to ensure that I do not make assumptions, that I am aware of
any potential bias, and that I am very, very rigorous in being
objective about the cases in front of me.
Senator Grassley. Okay. Are there any characteristics of
any Federal judges that you would seek to avoid if you were
confirmed?
Ms. Talwani. Yes.
[Laughter.]
Senator Grassley. Maybe an example or two without naming
the judge?
Ms. Talwani. I think impatience from the bench is
counterproductive. I think that a judge needs to enforce order
and civility, but I do not think that judges should in any
circumstance be overly--or should be disrespectful at all to
the people who appear in front of them.
I guess the other thing I will be very careful of is
interjecting reasonings and decisions that have not had an
opportunity for exploration through the adversarial process,
where a judge comes up with their own solution to the problem--
which may be appropriate. There may be, for example, a
jurisdiction issue that the parties did not consider. I will
endeavor, if that comes up, to ensure that the parties have an
opportunity through the adversarial process to address those
issues.
Senator Grassley. Thank you.
Thank you, Mr. Chairman. Congratulations to all of you.
Senator Coons. Thank you very much, Senator Grassley. And
to Mr. Carlin, to Mr. Adegbile, to Mr. Peterson, to Ms.
Rosenstengel, to Ms. Talwani, and to your families and
supporters, thank you so much for your appearance before this
Committee today.
We will keep the record open for a week for those Members
of the Committee who have questions they would like to submit
in writing but who were not able to join us today.
With that, this hearing is hereby adjourned.
[Whereupon, at 11:47 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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. STEVEN PAUL LOGAN, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF ARIZONA; JOHN
JOSEPH TUCHI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA;
DIANE J. HUMETEWA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; ROSEMARY MARQUEZ, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; HON. DOUGLAS L.
RAYES, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; AND
HON. JAMES ALAN SOTO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
ARIZONA
----------
TUESDAY, JANUARY 28, 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. Mazie Hirono,
presiding.
Present: Senators Hirono and Flake.
Senator Hirono. The Committee will come to order. Good
morning, everyone. We are expecting Senator McCain to come, and
when he does, I will certainly acknowledge and defer to him for
his introductions.
In fact, here he is. Speak and you shall be answered. Good
morning, Senator McCain.
Senator McCain. Good morning. Thank you.
Senator Hirono. Yes, and I just called the hearing to
order. I am pleased to call this nomination to order. I would
like to welcome each of the nominees, their families, and
friends to the U.S. Senate and congratulate all of you on your
nominations. And, of course, I would like to once again welcome
Senator McCain and my colleague on the Committee, Senator
Flake, who will be the Ranking Member this morning.
Would you like to introduce Senator McCain? I would like to
defer to you, Senator Flake.
Senator Flake. I appreciate the nominees coming, and
spouses and family members and friends. A full room. It is not
often you get to introduce six nominations of one State and
just have one State here at the hearing, too. So this is great.
We have been waiting in Arizona for a long time for this, and
so we are excited to have you all here.
I will go ahead and ask Senator McCain if he wants to give
brief remarks and introduce each of the nominees, and then we
will go from there, and thank you all again for being here.
Thank you, Senator McCain.
PRESENTATION OF HON. STEVEN PAUL LOGAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA; JOHN JOSEPH TUCHI, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; DIANE J.
HUMETEWA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
ARIZONA;
ROSEMARY MARQUEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT
OF ARIZONA; HON. DOUGLAS L. RAYES, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA; AND HON. JAMES ALAN SOTO, NOMINEE
TO
BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA,
BY HON. JOHN McCAIN, A U.S. SENATOR FROM THE STATE OF ARIZONA
Senator McCain. Well, thank you, Madam Chairman, and thank
you for your kind words. I would like to thank Chairman Leahy
and Ranking Member Grassley for their hard work in bringing
these well-qualified nominees to the Committee for its
consideration. I am proud to have a partnership with Senator
Flake in this process, and I believe that today is a great day
for Arizona.
You will be hearing today from six nominees to the United
States District Court for the District of Arizona. As the
Committee well knows, this is a court that has been under great
strain recently. While it has been consistently ranked as one
of the top ten busiest courts in the country, it has been
strained by a series of recent vacancies. Of the 13 authorized
judgeships in this court, 6 are currently vacant. For that
reason, the District of Arizona has been declared a ``judicial
emergency.''
To fill these longstanding vacancies, I considered the
views of a nonpartisan Judiciary Evaluation Commission that
Senator Flake and I were heavily engaged in, and the President
ultimately nominated a diverse and historic slate of State
court judges, former prosecutors, and other fine Arizona
citizens. Whether in combat zones overseas, among some of
Arizona's great Native American tribes, or in courtrooms
zealously advocating the interests of the people within their
communities, each of these nominees has shown in their own
unique way that they understand what it means to serve.
Each also understands the magnitude of the commitment they
would undertake if they are confirmed to do justice, and each
has evidenced the judicial temperament and professional
demeanor needed to serve on the bench ably and with integrity.
None of those qualities is apparent in Senator Flake or me.
With this in mind, it is my honor to introduce you to first
Judge Steven Paul Logan, who is nominated to the District of
Arizona Phoenix Division. Judge Logan currently serves as
magistrate judge on that court. For over a decade, Judge Logan
was an Assistant United States Attorney where he prosecuted a
wide range of cases, ranging from immigration violations to
murder for hire and public corruption. During that time he
served three tours with the Marine Corps in Afghanistan and
Iraq, where we originally crossed paths during my visit to
Fallujah in 2007.
During those deployments, Judge Logan served as senior
defense counsel and senior legal mentor to the Afghan National
Army, among others. Judge Logan's service to our country
continues today. He is currently a colonel and serves on the
Navy-Marine Corps Court of Criminal Appeals. Judge Logan's
experience as a military trial judge, immigration judge, and
Federal magistrate judge uniquely qualifies him to serve as an
Article III judge in the District of Arizona.
Second is John Joseph Tuchi, who has been nominated to the
District of Arizona in Phoenix. After law school, he clerked
for Judge William Canby of the U.S. Court of Appeals for the
Ninth Circuit. In private practice he gained experience in
intellectual property and complex commercial litigation as well
as appellate law.
As a career Federal prosecutor in Arizona, he spent his
life fighting on the side of victims and currently serves as
Chief Assistant United States Attorney. His dedication to
public service, extensive trial experience, and practice before
Federal courts will prove valuable if he is confirmed to the
Federal District Court in Arizona.
It has been said that the Arizona bench ``would be enriched
by a member who reflects the community it serves.'' With that
in mind, I am particularly excited about our third nominee,
Diane J. Humetewa, also to the District of Arizona in Phoenix.
Ms. Humetewa's nomination is truly historic. Being a member of
the Hopi Nation, if Ms. Humetewa is confirmed, she would be the
first Native American woman to ever serve on the Federal bench.
Ms. Humetewa's service to the Hopi Nation, which includes work
as a prosecutor and an appellate judge to the tribe, runs deep
and has remained a cornerstone of her career. She is also a
long-time advocate for victims' rights, which can be traced
back to her service as a victim advocate before she attended
law school.
During law school Ms. Humetewa spent a semester working as
an intern on the Senate Committee on Indian Affairs and after
law school returned to DC to work on my staff on that
Committee, this time as Deputy Counsel. Her distinguished
career at the Department of Justice includes work as a special
assistant to the Office of Tribal Justice. In 2007, I
recommended her for nomination as U.S. Attorney for the
District of Arizona, where she served for 2 years with
distinction. Today Ms. Humetewa works as special advisor and
counsel at Arizona State University.
Fourth, I would like to introduce you to Rosemary Marquez.
Ms. Marquez, who is nominated as district judge to the Tucson
Division, has worked as a prosecutor and a public defender in
Pima County and later as a Federal public defender. Since 2000
she has worked in private practice with a focus on Federal
criminal defense. Ms. Marquez's extensive experience in border
districts and her Hispanic heritage will be invaluable assets
to the Federal court in Tucson where a large portion of the
docket is devoted to immigration-related issues.
Our fifth nominee is Judge Douglas Rayes, nominated to the
Federal court in Phoenix. Judge Rayes currently serves as
Maricopa County Superior Court Judge, a position he has held
since 2000. At that court he has presided over thousands of
cases in family law, criminal law, and complex civil
litigation. He has also held a number of leadership positions
devoted to training and equipping fellow judges and improving
processes in the court. He has an impressive background
handling personal injury, medical malpractice cases, and police
disciplinary matters during his 18 years in private practice
representing both plaintiffs and defendants in complex matters.
Finally, I would like to introduce you to Judge James Alan
Soto, who is nominated as district judge to the Tucson
Division. He gained extensive experience in private practice on
a diverse array of cases ranging from criminal defense to civil
litigation and commercial law. He ran his own practice for much
of that time. As a native of Nogales, Arizona, a deputy city
attorney for border communities, and as a long-time judge in
Santa Cruz County, Judge Soto has extensive experience in the
legal issues unique to our border, including cases involving
immigration, drug trafficking, and various aspects of the
Fourth and Fifth Amendments. Judge Soto's ability to understand
the very real implications of immigration law and those who
live and work on the Mexico-Arizona border will be of great
value to the Federal bench in Arizona.
These are, of course, only snapshots of each of these
nominees and their backgrounds. No remarks can do these
nominees, their integrity, or their potential to serve ably and
with distinction on the United States District Court for the
District of Arizona service. But I hope my remarks are helpful,
and I thank these nominees and their families for their
willingness to continue serving the Nation, this time in the
Federal judiciary.
With that, I commend them to you for your consideration and
encourage their swift confirmation by the full Senate.
Thank you, Madam Chairman.
Senator Hirono. Thank you very much, Senator McCain.
Senator McCain. And I again want to thank my partner,
Senator Flake, who I think, given his experience and background
and knowledge, has made a very important contribution to our
partnership with so many others who have, a consensus
nomination, approved and suggested these nominations.
Thank you, Madam Chairman.
Senator Hirono. Thank you so much. Aloha.
Senator Hirono. There are currently 95 district and circuit
vacancies in the Federal judiciary. More than 10 percent of
lower Federal courts are now or will soon be vacant, and as we
heard from Senator McCain, this is very much the case in
Arizona. More than a third of these vacancies are judicial
emergencies.
Indeed, if confirmed, all six of the nominees before the
Committee today will be filling a judicial emergency for the
District of Arizona. These vacancies have been open in one case
for as long as 1,273 days. I applaud the efforts of my
colleagues Senator Flake and McCain in working in a bipartisan
fashion with the White House to fill these vacancies.
Our Federal district and appellate courts hear tens of
thousands of cases each year ranging from criminal prosecutions
to complex environmental and consumer protection litigation.
But in order for Americans to receive swift access to justice,
these vacancies must be filled. The number of criminal cases
has increased 70 percent in the past decade. Because Federal
judges are required to give priority to criminal cases over
civil ones, judges are forced sometimes to delay civil cases,
often for years. This means long delays for American
individuals and businesses seeking their day in court.
This hearing is an important step in the process of working
to confirm judges in an expeditious manner and ensuring that
the courts are able to do the work the American people require
of them. I look forward to the Senate's swift action on the
President's nominations, and at this point if the nominees
could come forward, I will be swearing you in.
Can you raise your right hands, please? Oh, I will wait
until you finish.
Thank you. Do you solemnly swear that the testimony you are
about to give to the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Logan. I do.
Mr. Tuchi. I do.
Ms. Humetewa. I do.
Ms. Marquez. I do.
Judge Rayes. I do.
Judge Soto. I do.
Senator Hirono. Thank you. Please be seated. And let the
record show that the nominees have answered in the affirmative.
I would now invite the nominees to say a few words and to
recognize their loved ones and supporters, and we will start
with Steven Logan, and we will move through.
STATEMENT OF HON. STEVEN PAUL LOGAN, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA
Judge Logan. Good morning, Madam Chair Hirono and Ranking
Member Flake. I thank you for the invitation this morning. It
is a real honor.
I would also like to thank President Obama for the
nomination and Senator McCain for his kind words and along with
Senator Flake for their assistance in getting all of us here
today.
I would like to thank my family. I would not be here
without such a great family. And my mother, May--she could not
make it this morning--and my late father, David, I think they
would be very proud, and I thank them for instilling in all of
their children the values that, if you study, if you are
respectful and dedicated, you can achieve all of your dreams.
I would like to thank my wife, Raynette. Without her love
and support, I would not be here right now.
I would like to thank my four children. My oldest child,
Rae, she is actually in attendance today. She is here from
Portland, Oregon. My second child, Mariah, she is a junior at
Marquette University. She could not make it. She is up there
studying, hopefully.
My third daughter, she is a senior in high school, and
hopefully she is back home studying.
And my fourth child is a little boy. His name is Jaden, and
he is a little 8-year-old, and I hope he is doing okay in
school today.
I would like to thank my siblings. My oldest brother,
David, is here from Simi Valley, California, and I also have my
brother Danny in attendance with his lovely wife, Torri. They
are here from San Antonio, Texas. And my sister, Donna, and my
brother Tim could not make it. They had some work commitments.
I have to thank my mother-in-law, Dr. Veronica Lindo, for
assisting us with watching our youngest child while we are out
of town, and I also would like to thank my Federal court family
back in Phoenix. I thank my permanent law clerk, Molly
Weinstein; my judicial assistant, Joanna Rosales; as well as my
courtroom clerk, Marion Holmes.
And last, but not least, I would like to thank all of those
servicemembers that I have served with for 24 years,
particularly my brothers and sisters in the United States
Marine Corps.
Thank you for your invitation. I look forward to your
questions.
[The biographical information of Judge Logan appears as a
submission for the record.]
Senator Hirono. Mr. Tuchi.
STATEMENT OF JOHN JOSEPH TUCHI, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Mr. Tuchi. Good morning, Chairwoman Hirono. I want to thank
you and Ranking Member Flake for convening the hearing and the
Committee for all of their work to make the hearing possible.
Thank you to Senator McCain for the kind remarks about all
of us, and thank you to President Obama for the nomination. It
is truly a humbling thing to happen to somebody.
I am very proud and pleased to have several members of my
family that were able to come and share the day and the
experience with me. I will briefly introduce them:
My wife, Maria, who is sitting right behind me, and my wife
of 25 years who is in her own right a superior court judge for
the last 19 years in Arizona.
Our children, Alex and Katie. Alex is 15 and Katie is 9,
and maybe we are little more lax than the Logan family about
letting them not study for a couple of days while they are
here.
[Laughter.]
Mr. Tuchi. But they are going back tonight.
My mother and father, Patricia and Ben Tuchi, are also
here, were able to make the trip from Tucson, which makes me
very, very happy and grateful; as well as my brother, Matt, who
brought his family. His wife, Alison, and my nephew, Ben, and
niece, Grace, are here as well.
Finally, in my family, my Uncle Jim Tuchi came in from New
Jersey, and my Aunt Barbara Tuchi came from California.
And, last, we have two very close friends, people I have
known since I was a baby, family friends Hiram and Inez Perez.
Thank you for being here.
I look forward to answering your questions.
[The biographical information of Mr. Tuchi appears as a
submission for the record.]
Senator Hirono. Thank you very much.
STATEMENT OF DIANE J. HUMETEWA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Ms. Humetewa. Good morning, Chair Hirono, Ranking Member
Flake. I want to thank you and the Committee for considering my
nomination along with the colleagues I have beside me.
I also do want to express my deep gratitude to President
Obama for the nomination. I am deeply honored and privileged to
have that nomination.
I also want to say thank you to Senator McCain for his kind
remarks about me, and together he and Ranking Member Flake for
convening the committee that vetted me and put my name forward
for the potential nomination.
I am very happy to be joined here by family members,
friends, and former colleagues. My husband, Kevin, is here,
along with my mother-in-law, Lynn. My sister and brother-in-
law, Donna and Wilfred Kaye, have also traveled to be with me
here today.
Family friend Alfred Lomahquahu as well as several of my
former colleagues, Julie and Cindy, are in the audience today.
My parents, Don and Ella Humetewa, could not travel to be
here, but they are hopefully seated in front of a computer
somewhere on the Hopi Indian reservation watching this via
webcam, in addition to a number of colleagues, former
colleagues, friends, and associates who are watching these
proceedings via webcam.
I thank the Committee for its patience and for continuing
to move ahead on our nominations, and I look forward to
answering questions.
Thank you.
[The biographical information of Ms. Humetewa appears as a
submission for the record.]
Senator Hirono. Thank you very much.
STATEMENT OF ROSEMARY MARQUEZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF ARIZONA
Ms. Marquez. Thank you, Madam Chair and Ranking Senator
Flake, and thank you to the entire Committee for their
consideration of my nomination.
I would also like to thank Senator McCain for his kind
words and President Obama for the honor of this nomination.
I am also very happy that my parents are here today. I
would like to introduce them to you: my mother and father,
Catalina and Miguel Marquez Hurtado. They are the reason why I
am here today. My mother immigrated to the United States when
she was just 16 years old. She came to the United States from
Mexico by herself, and her and my father have worked tirelessly
to make sure that their daughters receive an education and are
able to achieve the American dream. So I am very thrilled to
have them here with me today.
Also here are my other set of parents, my in-laws, Helen
Kroese and Kenneth Kroese, and they traveled here from Phoenix,
Arizona.
Also here is my sister, Leticia Marquez. She is an attorney
in Tucson.
And my husband, Kurt Kroese, he is also an attorney in
Tucson, and he is here today. Frankly, without their love and
support, this also would not be happening today. So thank you.
My two beautiful children, Kenneth Kroese and Matias
Kroese, are here today. Last year, they were fortunate enough
to witness my sister argue before the U.S. Supreme Court, so
hopefully they will find this just as entertaining.
Dale Baige is here. I believe he made the red-eye trip, a
friend of ours from Phoenix, and I would like to thank him for
coming.
I would also like to thank my brothers-in-law, Andy Kroese
and Keith Kroese. I believe they are watching also on the
webcast. And our other family and friends who have been very
supportive, Scott Biagi, Lindsey Biagi, and I could go on and
on, but thank you all for their support, and thank you for
considering my nomination.
[The biographical information of Ms. Marquez appears as a
submission for the record.]
Senator Hirono. Thank you.
Mr. Rayes.
STATEMENT OF HON. DOUGLAS L. RAYES, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA
Judge Rayes. Thank you, Madam Chairman Hirono. Thank you
for holding this hearing and thank you, Senator Flake, for
appearing and being here for the hearing as well.
I want to thank Senator McCain for his kind words and
President Obama for this nomination to this important position.
With me today are my family: my wife, Sheri, seated behind
me. Without her I would not be here today. We have been married
35 years, in Charlottesville courthouse when I was in the Army
JAG school.
Also are my children: my oldest son, Josh, is a second-year
law student at ASU; my daughter works in Boulder, Colorado, in
IT sales. My two younger sons are twins. They are at ASU. One
is in undergraduate school and also works in the airline
industry, and my other son runs for the ASU track team.
With me also is my sister, Emily, Dr. Emily Rayes from
North Carolina. She came here with her husband, Bill. Excuse
me. Her name is no longer Rayes. It is Drinkard. I am sorry.
And my cousin, Nick Rayes, and his wife, Carol.
We also have friends here, Nina and Bob, and a friend from
Phoenix, David Lee.
Back home watching on webcam are my staff and colleagues
and many friends there as well as my mentors throughout the
course of my career: Pat McGroder, Ralph Blake, and Joe Gama.
I also want to mention my dad and mom. They are not able to
make it here. They are in Globe, Arizona, hopefully watching us
on the webcam. And my parents-in-law are watching in Cedar
Rapids.
[The biographical information of Judge Rayes appears as a
submission for the record.]
Senator Hirono. Thank you.
STATEMENT OF HON. JAMES ALAN SOTO, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Judge Soto. Good morning, Senator Hirono and Senator Flake,
and thank you very much for presiding over this hearing.
I would also like to thank Senator Leahy and Ranking Member
Grassley for expediting the nomination hearings for the
contingent from Arizona. And I certainly appreciate that, and I
thank all Members of the Committee.
I would like to pay a special thanks to Senator McCain and
to Senator Flake for coming together and working with the
administration to come up with a slate of nominees to serve
what is an important process in Arizona. As you know, there is
a shortage of Federal judges in Arizona, and it was their
coming together and arriving at a consensus that expedited this
process. I would also like to thank Senator McCain for his very
kind words in his introductory remarks.
I would also like to thank the President of the United
States for his confidence in me and nominating me to this very,
very important position.
I have a number of family members that are here with me
today. My wife of 39 years, a little longer than Doug, is
seated directly behind me. She just retired as a school teacher
after many years as a teacher.
I also have my three children here, and my oldest son is
married, and my daughter-in-law is here. My oldest son, David,
and his wife, Eugenia, live in Brooklyn, New York, and they
have traveled down to Washington for the hearing today.
My other son, Matthew, resides in Tempe, Arizona, and my
daughter, Julia, resides in Phoenix, Arizona, and they have all
traveled here today.
I have a younger brother--I refer to him as ``my baby
brother'' because he is quite a bit younger, but he is here
with us today. He is an attorney in Phoenix and practices law
in Phoenix. I have other brothers and sisters who could not
make it here today but who are watching the proceedings today
through the webcast.
I would be remiss if I did not mention my parents and my
grandparents, who, as I grew up, provided a lot of inspiration
to me. They taught me the value of hard work and commitment,
and they taught me the importance of truth and integrity, and I
think their inspiration to me and the lessons they taught me
have served me well during my life.
I look forward to answering any questions that you might
have for me.
[The biographical information of Judge Soto appears as a
submission for the record.]
Senator Hirono. Thank you very much.
Before we start with our 5 minutes, or a little bit longer,
of questions, Senator Flake would like to say a few words.
OPENING STATEMENT OF HON. JEFF FLAKE,
A U.S. SENATOR FROM THE STATE OF ARIZONA
Senator Flake. Well, thank you all for being here, and I
appreciate Senator McCain coming in and making the
introductions. And I do not need to go through everybody's bio
again, but I just want to say what a pleasure it has been to go
through this process. I am new to the Senate, have just been
here a year, and it is pretty unprecedented to have six
nominees at one time come together, and so it was really a
baptism by fire in this process for me.
I would like to thank--both Senator McCain and myself
enlisted a number of people in Arizona to make suggestions and
to vet the nominations and to go through this process, and they
did a lot of the hard work, and also our staffs as well. This
is, like I said, a big chore. These are lifetime appointments.
It is an important step, and we want to be thorough in this
process, and I believe that we were.
As I mentioned, it has been great to go through your bios
and I can tell you, with this group sitting in front of us, it
is a diversity of education and experience that will serve the
court well and the State well.
I have to say, I was in Tucson and gave a speech before the
Federal Bar Association there, and Judge Collins was there, the
Acting Chief Justice, and he did bring up an objection that has
been raised to Judge Soto, but it is only from the people in
Santa Cruz County who are very upset----
[Laughter.]
Senator Flake [continuing]. That you will be leaving them.
You have done such fine work there. But looking at your bios,
like I said, a diversity of experience and background that will
do well.
Ms. Humetewa actually is the only one who has a degree from
both ASU and U of A. That sounds like a politician's resume to
not anger anybody in Arizona.
[Laughter.]
Senator Flake. Is that right?
Ms. Humetewa. No, no. I am a two-time ASU grad.
Senator Flake. Oh. Who is the--oh, Mr. Tuchi, okay. All
right.
[Laughter.]
Senator Flake. There is a politician's resume. I am
surprised you did not do a seminar at NAU just for balance
throughout the State. But, no, that is great. I really look
forward to your answers here and look forward to the process.
Chairman Leahy and Ranking Member Grassley have expedited this
as quickly as possible while being thorough as well. And so we
are pleased with this process and look forward to your answers.
Thank you.
Senator Hirono. Thank you very much, Senator Flake.
I would like to echo acknowledging the diversity that is
represented in our nominees this morning. Senator Flake, not to
be--and I would like to acknowledge that we have somebody here
who is married to someone from Hawaii--not that that is going
to make a difference in my judgment of all of you, and that is
Mr. Logan, correct?
Senator Flake. You just sailed through.
[Laughter.]
Senator Hirono. And for both Senator Flake and myself, this
is our first year serving on this Committee, and it is
wonderful to see such a diverse group of nominees and to have
all from one State, I think this is the first time this year--
or last year, as we have been serving on this Committee, that
this has happened, and it is because of the bipartisan focus on
expediting your nominations.
So we will start with 5 minutes of questioning, and if
Senator Flake would like a few more minutes, we can certainly
do that.
I will start with Ms. Humetewa. Am I pronouncing your name
correctly?
Ms. Humetewa. ``Humetewa,'' yes. Thank you.
Senator Hirono. I think it is really critical that our
judiciary be as diverse as possible to represent the diversity
in our country, and you would be the first American Indian to
sit on the Federal bench. Is that correct?
Ms. Humetewa. As I understand it, Chair Hirono, upon
nomination I did learn that I would be, if confirmed, the first
female Native American to serve in the judiciary.
Senator Hirono. I know that you have worked with the Hopi
tribe. How do you think that your experience with that would
help you as a Federal district judge?
Ms. Humetewa. Thank you for the question, Chair Hirono.
Yes, the work that I have performed for the Hopi Tribal
Government was twofold:
First, I served for about 5 years as an appellate court
judge, and there I only handled civil matters. And in that
capacity, I was responsible for applying the Hopi Tribal
Constitution, and by the Constitution and the Hopi law and
ordinances, you then have to analyze each case based on
traditional customary law, and if there was no traditional
customary law, you look to the State or Federal law.
So oftentimes, because the court was in its infancy, we
would have to apply the Civil Rules of Procedure. We would also
have to look to State courts and their decisions. But I think
in that capacity, learning how to be objective, making sure
that the litigants before you--and oftentimes we did work with
pro se litigants, and making sure that they had access to the
court and that we treated them patiently and respectfully; and
often we would have to turn around our decisions within a 2-day
period, and that in and of itself was, I think, a lesson that I
learned in terms of being expeditious yet diligent in terms of
applying the law.
Here, of course, if confirmed, I would be applying the
United States Constitution, our Supreme Court and Ninth Circuit
precedents. So I think it has prepared me a great deal.
Senator Hirono. Thank you.
Ms. Marquez, you have demonstrated a commitment to pro bono
work throughout your career, and you have been recognized for
your advocacy in that regard. Can you share some brief thoughts
about how important pro bono services are, especially in these
difficult economic times?
Ms. Marquez. Absolutely. My commitment to pro bono work has
been unwavering throughout my career. I do feel that I have
been very fortunate to be in the position where I can assist
others through legal representation, and oftentimes I have done
so because of the nature of the case or certainly just because
the person needed representation.
It is my belief that equal access to justice is very
important, and without it our legal system would not be able to
work. And in order for that to happen, all lawyers have a
responsibility to provide legal services or to work in whatever
legal capacity they can to make sure that others do have access
to our judicial system.
Senator Hirono. Judge Soto, you co-authored an article I
mentioned. I thought you had written it, but you said you co-
authored it. It is entitled, ``Let's Keep Politics Out of the
Judiciary.'' Can you just give us briefly why you were moved to
write such an article and what your views are?
Judge Soto. Sure. Thank you, Senator Hirono. I co-authored
that article with retired Arizona Chief Justice Ruth McGregor,
who is a former English teacher, and I will tell you that I did
the initial draft and sent it to her, and she used her red
pencil extensively to mark up my initial draft electronically.
But sometime in the 1970s, the Arizona voters adopted a
constitutional provision that provided for how judges were to
be selected in the State of Arizona. That proposition crafted a
very delicate balance between the very--between the different
branches of Government, and the result of that was a judiciary
that I think is recognized across the country, and in some
cases internationally, where there has been a recognition that
the system has worked well, that the Arizona judges are of high
quality, of high integrity. Judge Rayes next to me is an
example of that. And that system has worked very well for
almost 40 years.
A couple of years ago, there was a ballot--a proposition
that was put on the ballot that would have affected the balance
that was carefully crafted in the 1970s. I felt strongly about
it, even though it would not have affected me. I am a judge in
a small county, and I have to run for election every 4 years.
So it was not something that personally impacted me, but I
thought it was a bad idea, quite frankly, and the former Chief
Justice McGregor agreed with me. So we co-wrote that article
because we thought that the result of the proposition,
Proposition 115 that went on the ballot, would affect that
delicate balance that had served Arizona so well. And I think
the voters agreed. They rejected that proposition by a 3:1
margin.
Senator Hirono. And so in Arizona, you have some of your
judges are elected and some are----
Judge Soto. Yes.
Senator Hirono [continuing]. Through a nominating process.
Judge Soto. It is a bifurcated system. The Arizona Supreme
Court and the courts of appeals as well as the larger, more
populous counties, such as Maricopa County, Pima County, and
now Pinal County all have a merit selection process that they
go through, and then the other 12 counties of Arizona, judges
have to stand for election every 4 years.
Senator Hirono. As a note, Hawaii probably is one of a
minority of States where none of our judges run for office.
They are all nominated through a process.
Senator Flake, would you like to proceed?
Senator Flake. Thank you.
Judge Logan, you served in the military for an extended
period of time and have much experience there. You have also
worked on the civilian side, somewhat civilian side, as an
immigration judge, a judge in immigration cases, and also a
U.S. magistrate judge in the District of Arizona. How will this
experience, both in the military and serving on immigration
cases, help you in this role?
Judge Logan. Senator, thank you for the question. With
every job I think you learned a lot of different things, and
the time I have spent in the United States Marine Corps over 23
years, you have different jobs in roughly every 2 or 3 years in
terms of what your responsibilities are. As a military
practitioner as well as judge in the military, and then a
Federal prosecutor and a U.S. magistrate judge, there are a lot
of things that you learn about how the process works best.
Judicial temperament, if I am confirmed, will be something
that I believe is very important to continue with, because it
is a very, very stressful process, and it is very, very
important to the people that appear in court.
When you have a situation where a person, whether it is a
civil case or a criminal case, sometimes it is the most
important thing that is going on in their lives. I think the
different jobs that I have had as an immigration judge, a
military judge, and a defense counsel and prosecutor qualifies
me for this position, if confirmed, because I have seen a lot
of the cases that the Federal district court will handle. I am
at the courthouse right now, and I am a lower level judge as a
magistrate judge, but we have access to a large percentage of
what they handle on the district bench.
So I think the jobs that I have held in the past will be of
great assistance, Senator.
Senator Flake. Thank you. The most important question, I
think, for any judicial nominee is what your judicial
philosophy is with regard to whether you will demonstrate
judicial restraint or be seen as an activist judge. We all know
that, as Montesquieu wrote, ``There is no liberty, if the power
of judging is not separated from the legislative and executive
powers.''
How would you describe your judicial philosophy?
Judge Logan. Well, I think it is very, very important to be
fair and impartial. I know that there was a question earlier
about diversity, and I think the nominees this morning show
what kind of diverse environment we have in Arizona. But in
terms of what type of judge, if confirmed, I will be the type
of judge that listens to both sides of the aisle. It is very
important that you make reasoned decisions about how you apply
the rules to the facts of the case.
The rule of law in the United States is very, very
important. I have seen what happens in a country, two countries
in particular, when there is no rule of law that is active. I
will do everything I possibly can, if confirmed, to make sure
that I listen to the litigants, that I make sure that I do the
necessary research, and get my rulings correct the first time.
Senator Flake. Thank you.
Mr. Tuchi, in your role at the U.S. Attorney's Office, you
have worked with both tribal and Federal agencies to improve
criminal prosecutions in much of Indian country. As you know,
last year Congress enacted a law that would in limited
circumstances extend jurisdiction of tribal courts over non-
Indians.
To what extent do you believe the whole panoply of rights
in the Bill of Right would apply to non-Indian defendants who
are being tried in tribal court? Do you have some experience in
that? And what are your feelings going forward?
Mr. Tuchi. Yes, thank you, Senator. I believe you are
referring to the re-enactment of the Violence Against Women Act
and the expanded jurisdiction afforded to those tribes who will
opt in and make certain changes and enhancements to their own
judicial systems.
It is yet to be seen how that will all work out because no
tribe has completed the steps yet, although several are very
close. But having spent a great deal of time over the last
couple of years as the tribal liaison in the U.S. Attorney's
Office, I have gotten to visit with the leadership of most of
the 22 tribes, federally recognized tribes in Arizona, to
discuss both this and the Tribal Law and Order Act that went in
3 years earlier that slightly expanded jurisdiction for those
tribes who wanted to do that in some areas.
And to answer your question most directly, Senator, I think
that the requirements that all tribes who wish to take
advantage of this jurisdiction will be required to meet in
terms of greater due process for the defendants, and licensed
judges, State bar licensed judges and defense attorneys will
make a large difference in balancing out the experience that a
criminal defendant would have in a jurisdiction like that. And
I think that is how it will go.
Senator Flake. Ms. Humetewa, do you have any thoughts on
that?
Ms. Humetewa. I do not have anything particular to add to
Mr. Tuchi's answer. I think it remains to be seen. I think
every tribal government is examining whether or not to
implement provisions of those laws and to, I think, weigh
whether or not they will impact or change their systems of
justice. So I think it is--both of those laws are still in
their infancy, and I think implementation is fairly early.
Senator Flake. Thank you. In 2003, you helped prepare a
report for the Native American Advisory Group of the U.S.
Sentencing Commission. The advisory group was formed in
response to concerns that Native American defendants were
treated more harshly in the Federal sentencing system than if
they were prosecuted under respective State laws. The report
highlighted a number of different areas where the advisory
group found the problem to exist.
Do you believe the problems highlighted in the report still
exist? And what can be done to remedy them?
Ms. Humetewa. Thank you for the question, and, yes, I was a
part of the ad hoc working group. I think there were 13 members
who worked on that report and culled through research.
To answer the question, I have been not active in
prosecution or applying the guidelines since about 2007 when I
took the U.S. Attorney position. And at that time there have
been, as you know, changes and modifications to the Sentencing
Guidelines. But I do know that in the research that we looked
at, we did find areas where there were disparities, and I think
primarily in the assault statutes that apply to Indians in
Indian country, that there were--we found at least in comparing
the data that was before us, the penalties were harsher to
Indians who committed various assaults in Indian country than
non-Indians who might be tried and convicted in State courts.
So I think one of the values of that report is it provided
guidance to the Sentencing Commission to seek tribal
consultation when modifications to the Sentencing Guidelines
are being considered.
Senator Flake. Well, thank you. I grew up in northern
Arizona, in Snowflake, next to the Navajo Indian reservation,
close to the Hopi Indian reservation as well, and I just have
to say for your parents watching at home this webcast, they
must be extremely proud, as the whole State is and the country,
for, you know, the trailblazing way that you are going through
this, to be the first Native American woman to serve on the
Federal bench. It is a great thing, so if nominated--or, I am
sorry, if confirmed, I should always qualify. But thank you for
being here.
Ms. Humetewa. Thank you, Senator.
Senator Flake. Ms. Marquez, there has been much discussion
about liberty and fundamental rights. It is an ongoing debate
we have had in this country for a long time. Can you describe
the framework the Supreme Court uses to analyze whether a
particular liberty is a fundamental right? For example, what
powers do you believe the Tenth Amendment to the Constitution
guarantees to the State? What is the difference between
fundamental rights and liberty?
Ms. Marquez. Thank you for the question. I do believe that
the Supreme Court has analyzed what would constitute a
fundamental right and under what situation, what type of
scrutiny would be used in analyzing what constitutes a
fundamental right. And certainly, if confirmed, I would follow
the Supreme Court precedent and the Ninth Circuit precedent in
applying the law to certain facts of each case and in
determining what would constitute a fundamental right.
Certainly, as we know, if a law infringes upon a right that
affects liberty, then certainly that would require higher
scrutiny. And I would be very mindful and review all Supreme
Court precedent and apply that when making that decision. Thank
you.
Senator Flake. The Commerce Clause, do you believe the
Commerce Clause applies to non-economic activity?
Ms. Marquez. Well, the Supreme Court has limited the powers
of the Commerce Clause and where it applies and when it does
not. So, if confirmed, then I would follow that precedent as
well. And the Supreme Court has determined that there are
limitations, and certainly I would follow that precedent.
Senator Flake. Thank you.
Judge Rayes, you authored an article entitled, ``Packing
Heat in Arizona,'' discussing Arizona's concealed-carry law and
advising citizens of the parameters of Arizona's self-defense
law. Do you believe that the right to self-defense is a
fundamental right?
Judge Rayes. Senator Flake, thank you very much. I believe
that the Supreme Court has decided that the Second Amendment
provides individuals the absolute right to bear arms. It is a
fundamental right, and I think consistent with that, at least
consistent with that and Arizona law, the right to self-defense
is a justification in certain circumstances.
My concern when I wrote the article is I would seeing
people come to court for offenses involving weapons when they
did not realize they had committed an offense or did not
realize the severity of their offense, and I wanted to educate
the public that when Arizona law became such that there was no
longer a crime to carry concealed weapons, that citizens who
carry concealed weapons would go out and educate themselves on
the law.
Senator Flake. Well, thank you.
Judge Soto, you have represented in private practice local
businesses and agricultural entities that do business across
the border. You have a lot of experience there. As a judge, you
have obviously dealt with issues concerning the border.
From your experience, what are the difficulties in allowing
the freest commerce that we can allow and have between Arizona
and Mexico? Mexico is our country's third largest trading
partner, second largest recipient of our exports, so there is a
lot of business that is done. A lot of people away from the
border do not recognize that. They see the border as something
that could be sealed and that is it, over, done. But we see it
in Arizona as a place of much commerce.
What difficulties does that present? And how does that
experience working on those issues benefit you in this new
role?
Judge Soto. Well, as you touched on, Senator, I was born
and raised on the border. I like to think I am quite familiar
with a lot of the issues that affect the border, and the longer
I see these issues, the more I realize how complex these issues
are. There are no simple solutions. There are a lot of facets
to the issues along the border, and there are no simple
solutions.
I think the individuals and the Government through their
policies need to encourage cross-border commerce. I think it
benefits both countries. I think some of the side benefits of
increased commerce between the two countries is to hopefully
reduce some of the drug issues and immigration issues that are
really seriously affecting our Nation and certainly affecting
the border.
On the other hand, as a judge it is my responsibility to
follow the law as it is written, to follow the precedents from
the Supreme Court and from the Ninth Circuit. So even though I
may have a lot of experience with border issues, I am still
going to strictly follow the law as it is written in applying
that law to the facts of a particular case that would come
before me.
Senator Flake. Well, thank you, and I appreciate the
indulgence of my colleague here in letting me go double beyond
the time. But this is an important hearing, and, again, I am so
grateful that you are all here. And I can tell you, in talking
to those serving on the bench in Arizona now, they are happy to
see the caseload probably cut in half now as we go. It has been
better this year, obviously, than last, but, boy, you are sure
going to help there, and it is going to be a great benefit to
the State of Arizona. And we will probably have some written
questions to followup. I know others on the Committee will as
well. But thank you for your forthright answers here today, and
thank you for making the trip.
Thank you.
Senator Hirono. Thank you very much, Senator Flake. I must
say that I enjoyed very much your very precise questions about
fundamental rights and constitutional rights and all that. We
are both lawyers, but, you know, it is always really--oh, you
are not? He sounds like one, doesn't he?
[Laughter.]
Senator Hirono. Okay. But it was illuminating to hear some
of your views on the questions that Senator Flake asked.
Just to end this hearing, I would just like to ask each of
you briefly to respond. What do you consider the most important
trait of someone who will be serving lifetime on our bench? We
will start with you, Mr. Logan.
Judge Logan. Senator, as a sitting judge, if confirmed, I
think it is very, very important that I continue to listen to
the litigants when they come in. Sometimes it is very emotional
in court. Sometimes as a judge it can be very, very difficult
because someone will leave the courtroom disappointed over how
you ruled in the case, and it is very important to listen, make
sure that you are always fair and impartial, and apply the law
to the facts, and that way the general public will understand
that it is very transparent and that the courts can be trusted.
Mr. Tuchi. Senator, I would adopt Judge Logan's answer, but
also say that the most--it is encompassed in treating every
matter that is before you at that moment as the most important
matter that you have to be concerned with, and all of what
Judge Logan said flows from that.
Ms. Humetewa. I would also align my views with the two
previous responses. I would say that in particular in this
district, because of the high volume, it is important to not
only show patience and respect of the parties and to listen to
them diligently and carefully and make sure that you understand
their issues completely, but I think it is incumbent upon
judges to rule and to decide expeditiously yet carefully so
that there can be finality of process for the litigants to be
able to manage the large volume of cases that will come before
us, if confirmed.
Ms. Marquez. I would just add that, if confirmed, I would
strive to make sure that every litigant would walk away feeling
that they were heard and understood. Many times even as a
litigant myself, even if you do not agree with the court's
decision, you are able to accept it and move on and reason a
lot better if you feel that the court has listened to you and
has been impartial when making its decision. And I would strive
to follow that and make sure that I am a good listener, an
active listener, and that the parties walk away feeling that
they were respected in the courtroom and that their views were
respected and that they were heard.
Judge Rayes. Thank you. I think you asked for one character
trait, and if I were to summarize it, I would say respect--
respect for the other branches of Government, respect for the
litigants, respect for the lawyers, and respect for precedent.
And I adopt what my other colleagues have said on the other
issues.
Judge Soto. Yes, I would agree with my fellow nominees. I
think their comments are--I agree with them. I think it is
important, though, for litigants, when they come to court, that
they know that you have done your homework and that you are
prepared, so when they come into court, you know about the
facts of the case, you know the law that applies to the case.
So whether it is in a criminal sentencing, you have an
individual before you that you are sentencing, or perhaps
whether it is a complex civil matter, I think it is important
for the litigants to know that this particular judge has
studied the case, knows the facts of the case, and is deciding
the case in accordance with the law, and that it is important
for us to be able to explain our decisions so that they--so
when they leave there, although they may not be happy with the
decision, they understand how we arrived at that decision.
Senator Hirono. Thank you. I want to again thank all of you
for being here, and welcome once again to all of your friends
and family who are here and those who are watching.
The record will remain open for 1 week for submission of
written questions for the witnesses or other materials. And
with that, this hearing is adjourned.
[Whereupon, at 11 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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. ROBIN ROSENBAUM, NOMINEE TO BE CIRCUIT JUDGE FOR
THE ELEVENTH CIRCUIT; HON. BRUCE
HENDRICKS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH
CAROLINA; MARK MASTROIANNI, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF MASSACHUSETTS; AND LESLIE CALDWELL, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE
----------
TUESDAY, FEBRUARY 11, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:01 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard
Blumenthal, presiding.
Present: Senators Blumenthal, Grassley, and Graham.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. I am going to open the hearing,
although we are missing some of our introducers. I want to
welcome the nominees and their families to this very, very
important occasion for you and for justice in our country. We
are very proud and honored that you are here today and
delighted that we will hear your testimony.
This occasion is a very serious and important step in the
nomination process, and not all of our Members of the Judiciary
Committee will be here this morning, as you know, but we will
be reviewing the record, all of our Members will be reviewing
the record, and I am going to ask Senator Graham of South
Carolina to begin the introductions this morning. Senator
Graham.
PRESENTATION OF HON. BRUCE HENDRICKS, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. LINDSEY
GRAHAM, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman.
I think you are all in good hands today with Senator
Blumenthal. It will be fairly painless, I hope.
Thank you, Mr. Chairman. It is my honor to introduce to the
Committee our United States magistrate since 2002, Bruce
Hendricks, and she is chosen wisely by the President to become
a district court judge. She was ABA unanimously well qualified.
She presided over the first pre-conviction drug program in the
District of South Carolina, one of the first in the Nation.
Before becoming a magistrate, she worked as an Assistant
U.S. Attorney in South Carolina for 11 years, very qualified to
do the job she is being nominated for. A graduate of the
College of Charleston and the University of South Carolina
School of Law, married to her husband, Teddy, and one son and
one daughter. And I can tell the Committee without any
reservation she is highly respected by the bar and very much
supported by Republicans and Democrats in South Carolina and
will make an outstanding district court judge for our State.
I want to thank the Obama administration for making this
nomination, and I look forward to supporting you in the
Committee and on the floor.
Thank you very much, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Graham.
Senator Graham has completed his introduction, and we are
going to hear now from the Ranking Member, Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Well, of course, we ought to congratulate
the nominees and their families. They can be proud of this
important milestone in their respective careers. We welcome all
of you.
Before we turn to the nominees appearing before us today, I
would like to say a word or two about the nominees pending on
the Senate floor. Of course, over the last several weeks, I
have heard some of my colleagues expressing frustration because
the nominees on the floor have not yet been confirmed. I am
somewhat surprised by that. As everyone knows, last year the
majority of the Senate invoked what is called ``the nuclear
option.'' By voting to invoke the nuclear option, the majority
stripped the minority of any ability to stop any nominee from
being confirmed on the floor.
The bottom line is that the majority voted to cut the
minority out of the process. As a result, under the precedent
of that 52-vote majority, it established that the Majority
Leader can bring up these nominations for a vote on the floor
anytime he decides to do so. The minority simply has no ability
to stop anyone from getting a vote. There is, in other words,
no filibuster of a nominee anymore. And as anyone who watches
the Senate proceedings can tell you, the Senate floor is not
exactly working overtime. We certainly are not considering a
lot of amendments to legislation. Instead, in most days very
little is considered on the Senate floor, and we are rarely in
session on Fridays. So there is really no reason why the leader
of the Senate cannot bring these nominations up for a vote
anytime that he decides to do it.
Finally, I would like to compare our progress so far this
year compared to where we were at this point during the sixth
year of the previous President, in other words, meaning
President Bush's sixth year. So in regard to the sixth year of
President Obama, during the 113th Congress we had hearings for
66 judicial nominees. After today, during this year alone we
have had hearings on 15 nominees. By comparison, in 2006 the
Senate confirmed only 32 judicial nominees during the entire
year. So as of today, we have already held hearings for almost
half that number.
So I will conclude by saying that I applaud the Chairman
for his work. He continues to keep us busy as he makes sure
that the Committee moves at a brisk pace. That applies to you
as well as to Chairman Leahy.
Once again, thank you all for your willingness to serve the
public.
Senator Blumenthal. Thank you. Thank you, Senator Grassley.
I am going to ask Senator Warren to introduce the nominee
from Massachusetts.
PRESENTATION OF MARK MASTROIANNI, 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. Thank you, Mr.
Chairman, and thank you, Ranking Member Grassley, for holding
this hearing and for allowing me to be here today. I apologize
that I will have to leave right after this. We have got another
hearing as well over in HELP.
But I am very pleased today to have the opportunity to
introduce Mark Mastroianni, who has been nominated to fill a
judicial vacancy in western Massachusetts for the District
Court of the District of Massachusetts. Mark came highly
recommended by the Advisory Committee on Massachusetts Judicial
Nominations. The advisory committee is comprised of
distinguished members of the Massachusetts legal community,
including prominent academics and litigators, and it is chaired
by former district court judge Nancy Gertner. Their
recommendation reflects the strong sense of Massachusetts'
legal community and, in particular, the legal community in
western Massachusetts that he will make an excellent district
court judge.
Mark Mastroianni is a true son of western Massachusetts. He
was born in Springfield, and he is a lifelong resident of
Hampden County. He is currently serving as the elected district
attorney for Hampden County, a position he has held since 2011.
He graduated with honors from the American International
College in Springfield, Massachusetts, and he went on to earn
his law degree from Western New England College School of Law,
also in Springfield, Massachusetts. And today he is here with
his wife, Carolyn, and his daughters, Christine, Jennifer, and
Lauren. I know they must all be immensely proud to attend this
hearing and to provide their love and support on this
extraordinary day.
DA Mastroianni began his career in the Hampden County
District Attorney's Office. He served there as an assistant
district attorney for over 5 years, gaining prosecutorial
experience in a wide variety of district and superior court
matters. He then moved into private practice where he built a
significant career as a defense attorney representing clients
in civil and criminal matters.
Over the course of 16 years, he has represented clients in
matters before the Massachusetts State trial courts and appeals
courts as well as the district court to which he has been
nominated. He frequently took on court-appointed defense cases
in Massachusetts, reflecting his commitment to the integrity of
our legal system and to the idea that everyone deserves
representation.
In November 2010, Mark ran as an independent and was
successfully elected to serve as the district attorney for
Hampden County in the western part of Massachusetts, a position
that returned him to lead the office where he began his career.
As district attorney, he is responsible for managing the
prosecution of all cases in the 23 cities and towns that make
up Hampden County.
Aside from the impressive qualifications of this candidate,
the fact of Mark's nomination is particularly important because
the seat he has been nominated to fill has been vacant for too
long. Since U.S. District Court Judge Ponsor took senior status
in 2011, the vacancy has strained the Federal judicial system
in western Massachusetts, causing cases to be postponed,
forcing judges from Boston to travel to Springfield to hold
hearings, and impeding the ability of citizens to get their day
in court.
Filling this vacancy as quickly as possible has been a top
priority for me since I arrived in the Senate last year, and DA
Mastroianni's swift approval and confirmation is essential for
ensuring the administration of justice for the people of
Massachusetts.
I am proud to have recommended Mark Mastroianni to
President Obama. He is an independent-minded district attorney
whose diverse litigation experiences both as a top prosecutor
and as a top defense attorney will enrich the Federal bench in
Massachusetts. I look forward to his approval by this Committee
and his swift confirmation by the full Senate.
Thank you.
Senator Blumenthal. Thank you, Senator Warren.
Let me just briefly say at the outset of this hearing that
I consider this hearing and others like it one of the most
important things we do in the U.S. Senate. We confirm judges
for life, and they become the voice and face of justice in this
country. Particularly at the district court level but also at
the court of Appeals, they are often the last stop for people.
A lot of folks in America think of justice as the U.S. Supreme
Court, but our district court judges and our circuit court
judges are really the place in this Nation where Federal
justice is dispensed. And I have been a lawyer for some time,
practiced frequently in the Federal courts, so I know how
important the quality of judging is not only to the lawyers but
most especially to the men and women whose lives are
dramatically and enduringly affected by what happens to them in
those courts. Whether it is criminal or civil, their lives are
changed, often forever, as a result.
So I want to thank the families of the judges who hopefully
will be confirmed for their service as well because I know the
kind of sacrifices that you will be making when your loved ones
spend long hours, whether it is in the courtroom or doing their
opinion writing and reading at home or in the office. And I
know that that sacrifice will consist of birthdays missed and
family occasions, but it is for one of the best causes in the
United States--the cause of justice and democracy. We are
unique as a Nation among all the countries in the world in
placing that kind of responsibility on our judges, and so we
thank you, thank the nominees, and thank their families.
And one last point before I introduce Senator Scott for his
introduction. This process really is and should be a bipartisan
one. The process of appointing and confirming judges is one
that should be done without considerations of politics or
party. What we are doing here is something for the Nation. And
I know that you will hear questions here and perhaps debate on
the floor that sometimes reflects differences and contention.
But at the end of the day, I think we come together as a Senate
to confirm the best possible people for these judgeships
because it is so critical to the Nation and the national
interest that we do so.
Senator Scott.
PRESENTATION OF HON. BRUCE HENDRICKS, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. TIM SCOTT, A
U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Scott. Thank you, Mr. Chairman. It is my privilege
to say some words on behalf of Judge Bruce Hendricks, a
fantastic person, a level-headed person, who is a great judge
already in her own right. I am looking forward to seeing her
serve on the Federal level. Bruce is, in fact, an amazing
person who happens to be a proud Charlestonian. Being from
Charleston, it gives me great honor to nominate her to be a
U.S. District Judge for the district of South Carolina.
I had the opportunity to sit down with Bruce recently and
talk with her about the things that are important to her and
get to know her a little better. She is as bright as the
dickens. There is no doubt she has an amazing resume. I know
Senator Graham has spoken about her resume and her scores as an
Assistant U.S. Attorney in the U.S. Attorney's Office for the
District of South Carolina, an instructor at the College of
Charleston, and a judge.
She is caring. Her pro bono work is the definition of
community service. She has participated in many programs that
have benefited the underprivileged, including unveiling an
after-school program to provide food and tutoring for the Boys
and Girls Club in Charleston. She has helped startup a marching
band for a local high school and routinely hosts kids at the
courtroom to introduce them to the judicial process and to the
judicial system under positive circumstances and in a very
positive way.
But the most important thing I have learned about you,
Bruce, is that you are a College of Charleston basketball fan.
Go, Cougars.
I believe the integrity of a judge is, in fact, the
cornerstone of our judicial system. Her trial experience, her
knowledge of the courtroom and the law, and her devotion to
improving our communities leads me to believe she will be fair
and devoted to justice.
I am proud to recommend Bruce to the Committee.
Senator Blumenthal. Thank you, Senator Scott.
We are going to--and, by the way, both Senator Warren and
Senator Scott probably have to leave for other engagements, as
did Senator Graham. We have multiple hearings going on at the
same time. So anytime you want to leave, Senator Scott, please
feel free to do so, and we certainly do appreciate your being
here.
Senator Scott. Thank you, sir.
Senator Blumenthal. I am going to introduce first on the
first panel--and we may be interrupted by Senator Rubio or
Senator Nelson if they arrive and wish to make statements--
Judge Robin Rosenbaum, who is President Obama's nominee to
serve on the United States Court of Appeals for the Eleventh
Circuit. Judge Rosenbaum is currently serving as a United
States District Court Judge for the Southern District of
Florida, a position she was confirmed for in 2002 by a 92-3
vote in the Senate. She previously served as a magistrate judge
in the same district from 2007 to 2012 and a Federal prosecutor
from 1998 to 2007, including 5 years as chief of the economic
crimes section.
Judge Rosenbaum began her legal career as a trial attorney
in the Civil Division of the United States Department of
Justice for 4 years before serving as staff counsel in the
Office of the Independent Counsel for the investigation of
former United States Secretary of Commerce Ron Brown.
Judge Rosenbaum spent 2 years as an associate at Holland
and Knight and clerked for Judge Stanley Marcus of the Eleventh
Circuit Court of Appeals in 1998. She was born in Chapel Hill,
North Carolina. She received her B.A. from Cornell University
in 1988 and graduated magna cum laude from the University of
Miami School of Law in 1991.
Judge Rosenbaum, would you please come forward?
Judge Rosenbaum. Good morning.
Senator Blumenthal. Good morning. We would first of all ask
you to please stand and be sworn. Do you affirm that the
testimony you are about to give before this Committee is the
truth, the whole truth, and nothing but the truth, so help you
God?
Judge Rosenbaum. I do.
Senator Blumenthal. Thank you. If you wish to make an
opening statement, we would be happy to hear it.
STATEMENT OF HON. ROBIN ROSENBAUM, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
Judge Rosenbaum. Thank you, Senator Blumenthal. I would
like to thank the Committee for convening this hearing and
Senator Blumenthal for presiding, Ranking Member Grassley for
attending as well, and I would like to thank Senators Nelson
and Rubio. I understand they may be here later this morning,
and I very much appreciate that. And I would like to thank the
President, President Obama, for nominating me for this
position.
I would also like to, if it is all right with the
Committee, briefly introduce my family.
Senator Blumenthal. Sure, absolutely.
Judge Rosenbaum. Thank you. My husband, Phil Rothschild; my
daughters Evin and Rosie Rothschild; my mother, Hedy Rosenbaum;
my father, Jerry Rosenbaum; my sister, Jodi Fiedler, and
brother-in-law, Larry Fiedler, and their three sons, my nephew,
Ben, Ryan, and Zachary Fiedler; my sister, Marci Rosenthal, and
her son, Jake Rosenthal; and I am very fortunate to have some
good friends here as well.
So I just wanted to thank everybody for being here.
[The biographical information of Judge Rosenbaum appears as
a submission for the record.]
Senator Blumenthal. Thank you, and I know they are very
proud of you.
Judge Rosenbaum. Thank you.
Senator Blumenthal. Let me ask you at the beginning, what
do you view as the greatest challenge you will have going from
the district court to the circuit court?
Judge Rosenbaum. Well, in the Eleventh Circuit, the
Eleventh Circuit actually currently has the highest caseload
per judge, so I think that the workload is challenging. But I
feel fortunate that I have had an opportunity to get used to a
heavy workload in the Southern District of Florida, where we
routinely seem to have up at the top in the number of hours
that we spend on the bench and also a huge caseload that we
carry there. So I am hopeful and I expect that that should help
to prepare me for a heavy caseload on the Eleventh Circuit if I
am fortunate enough to be confirmed.
Senator Blumenthal. You have had a lot of different
experiences both in litigating and as a judicial officer. Is
there an area of law or specialty that you think will be most
attractive and interesting to you?
Judge Rosenbaum. I really enjoy all of it. When there is an
area that I have not had the opportunity to work in previously,
I love the challenge of learning about a new area. I really
enjoy digging more deeply into areas that I have had the
opportunity to work on before. So I am really hopeful that I
will have the opportunity to work on everything.
Senator Blumenthal. Is there an area of law that you would
prefer not to deal with?
Judge Rosenbaum. Not really.
Senator Blumenthal. And that is a good answer.
[Laughter.]
Senator Blumenthal. Especially to your fellow future
prospective judges, I am sure.
Is there something that you think ought to be done to
either ease or alter the caseload in districts like the one
where you are currently a trial judge to perhaps alleviate that
caseload that you mentioned earlier?
Judge Rosenbaum. I think that a lot of that will probably
be addressed through time. I know recently there have been some
vacancies, so we are looking at 4 down on a 12-judge court. So
hopefully that will address itself eventually.
Senator Blumenthal. Thank you. That is all the questions I
have. Before turning to the Ranking Member, if he would agree,
I would like to introduce Senator Rubio for his introductory
statement.
PRESENTATION OF HON. ROBIN ROSENBAUM, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. MARCO
RUBIO, A U.S. SENATOR FROM THE STATE
OF FLORIDA
Senator Rubio. Thank you very much, Mr. Chairman. I
apologize for being a few minutes late, and I know Senator
Nelson will also try to get here today. But I would like to
thank the Chairman, Chairman Leahy, the Ranking Member, Senator
Grassley, and Members of this Committee for holding this
hearing and for the invitation to introduce my fellow
Floridian, Judge Robin Rosenbaum.
She currently serves as the district judge in my home
district, the Southern District of Florida. She has been
honored by the President with the nomination to continue her
service as a judge on the Eleventh Circuit Court of Appeals.
I am certain every Member of this Committee will agree that
the Senate has few responsibilities more important than
providing advice and consent on the President's judicial
nominations. These are lifetime appointments, with great power,
whose decisions directly impact the life, liberty, and the
property of the parties who come before them.
The decisions of a circuit court judge can be particularly
consequential. They impact people of several States, not just
one district. And because the Supreme Court hears so few cases,
circuit court rulings are often the final word on important
matters.
For that reason, I take my duty to review nominations very
seriously, as I know you do. The people of Florida and the
people of the United States deserve the finest men and women we
can find to occupy these judgeships. They deserve men and women
of great character and unquestioned ability, people who
understand the important but properly limited role of a judge,
and a judge's job is simply to say what the law is without
bias, without agenda. As passionately as a judge may feel about
a particular issue, when she puts on that black robe, she must
set aside her personal views.
The Judiciary Committee plays a critical role of diligently
evaluating each nominee, and I know this Committee will
thoroughly examine the record and the career of Judge Rosenbaum
and ask her some questions today and perhaps in the followup. I
trust and I know that she is up to the task. Judge Rosenbaum
certainly comes before you prepared with an impressive
background of public service. She graduated from my alma mater,
the University of Miami Law School, in 1991, earning her degree
magna cum laude--much better than me.
From there, she began an impressively good career focused
on Government service. She served in the Federal Programs
Branch of the Justice Department's Civil Division from 1991 to
1995 and in the Office of Independent Counsel in 1995 and 1996.
She returned to Florida in 1996 for a stint in private
practice with the prestigious law firm of Holland and Knight.
In 1998, she returned to public service when she served a
clerkship with Judge Stanley Marcus, a legend in South Florida,
on the Eleventh Circuit Court of Appeals. From 1998 to 2007,
Judge Rosenbaum was a Federal prosecutor in the United States
Attorney's Office for the Southern District, including several
years as the chief of the economic crimes section.
In 2007, she became a Federal magistrate judge in the
Southern District. In 2012, she was nominated by President
Obama and was overwhelmingly confirmed by the Senate as a U.S.
district court judge.
Through it all, she has remained active in the community
and has many supporters in South Florida who I continue to hear
from until moments ago and, of course, throughout the State.
And I wish her and her family all the best throughout this
process, and I am certain the Committee will give her
nomination a full and fair consideration, and I thank you for
this opportunity and the opportunity to speak to you today.
Thank you.
Senator Blumenthal. Thank you, Senator Rubio, and thank you
for being here. As I mentioned earlier, many of our Senators
have other meetings and hearings, and you are excused if you
have another.
Senator Grassley.
Senator Grassley. Thank you.
Like the Chairman said, you have been a district court
judge and have been there for about 2 years. I would like to
get a better sense of what your approach to hearing appeals
will be.
First, on the one hand, what characteristics have you seen
in appellate court judges that you would hope to avoid, if
confirmed? And, on the other hand, what characteristics would
you hope to emulate?
Judge Rosenbaum. Well, the ones that I think that an
appellate judge should have would be patience, treating those
who come before the court with dignity, and hard-working. It is
very important for the judges to be hard-working and to be well
prepared to understand the cases that come before them, whether
they dispose of them on the papers or after oral argument, to
be prepared for the oral argument if it is through oral
argument; and I think to explain thoroughly the basis for the
opinions that they issue. And those are the qualities that I
would strive to emulate.
Senator Grassley. Which ones have you seen either as a
lawyer or as a judge that you would hope not to--or that you
would not do because you considered those something a judge
should not do?
Judge Rosenbaum. Well, I would say that I have not really
seen too much of that. I have been fortunate, because when I
clerked on the Eleventh Circuit----
Senator Grassley. Under what circumstances do you believe
it is appropriate for a Federal court to declare a statute
enacted by Congress unconstitutional?
Judge Rosenbaum. In very rare circumstances, and only when
there is no other way to dispose of the issue other than to
rule on the constitutionality, and then only when the law
clearly conflicts with a part of the Constitution.
Senator Grassley. Under what circumstances, if any, do you
believe an appellate court should overturn precedent within the
circuit? And what factors would you consider in reaching a
decision to overturn such a precedent?
Judge Rosenbaum. Well, of course, the circuit can overturn
its own precedent only on an en banc hearing or, of course,
when the Supreme Court has issued a ruling that is directly
contrary to a prior ruling of the circuit. And the court should
sit en banc under Rule 35 of the Federal Rules of Appellate
Procedure only when we are talking about a matter of great
importance or when there are conflicting panel opinions. So in
order to resolve a conflict in the circuit, if there were one,
that would be reason to overturn circuit precedent. Or if, for
example, it were a matter of great importance, that would be
another reason.
Senator Grassley. I am going to ask a philosophical
question based upon a statement that Justice Scalia made in a
speech in 2005, and I do not want you to worry about Justice
Scalia. I am just asking you about this philosophy.
``I think it is up to the judge to say what the
Constitution provided, even if what it provided is not the best
answer, even if you think it should be amended. If that is what
it says, that is what it says.''
Would you agree with that philosophy?
Judge Rosenbaum. I am not familiar with the speech that it
comes from, but, yes, I would.
Senator Grassley. Okay. And then, second, and my last, do
you believe a judge should consider his or her own values or
policy preferences in determining what the law means? And if
you thought that a judge should, under what circumstances?
Judge Rosenbaum. I absolutely believe that a judge should
not consider his or her own personal policy preferences and
that they should play no role in interpreting the law.
Senator Grassley. Thank you.
Senator Blumenthal. Thank you, Judge Rosenbaum, and you are
excused. Thank you.
Judge Rosenbaum. Thank you very much.
Senator Blumenthal. We are going to ask the next three
nominees, Bruce Hendricks, Mark Mastroianni, and Leslie
Caldwell, to please come forward.
Now that you have sat, would you please rise so we can
swear you in? Do you affirm that the testimony you are about to
give before the Committee is the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Hendricks. I do.
Mr. Mastroianni. I do.
Ms. Caldwell. I do.
Senator Blumenthal. Thank you.
Ms. Caldwell, I am going to introduce you because no one
has. You have heard abundant and very full introductions of the
other two nominees, so let me just say we are very honored to
have you here today. You have a lot of great experience in
courts, and you have been nominated to be Assistant Attorney
General of the Criminal Division at the Department of Justice.
I understand you are currently a partner in the New York office
of Morgan, Lewis and Bockius and focus on white-collar crime
and regulatory matters.
Previously, Ms. Caldwell served as special assistant to the
Assistant Attorney General in the Criminal Division at the
Department of Justice where she led the Department of Justice
Enron Task Force from 2002 to 2004. Prior to that she served as
an Assistant United States Attorney for 11 years in the Eastern
District of New York and for 5 years in the Northern District
of California. She began her legal career at two private law
firms: Spengler, Carlson, Gubar and Brodsky, and then at
Cadwalader, Wickersham and Taft. I understand you were born in
Steubenville, Ohio, and earned your degree, your B.A. summa cum
laude at Pennsylvania State University in 1979 and your J.D.
cum laude from George Washington University School of Law in
1982. Welcome.
And let me ask each of the nominees, give you an
opportunity to make a brief opening statement, if you wish,
introducing your family, as Judge Rosenbaum did.
STATEMENT OF HON. BRUCE HENDRICKS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA
Judge Hendricks. Thank you, Senator Blumenthal. I would
like to start by thanking Senators Graham and Scott for their
very gracious remarks. Their roles in this process are
difficult ones, and I am grateful for their confidence in me.
I would like to thank President Obama, most of all, and his
administration for this nomination to the district court. It is
a singular personal honor and experience for me.
To Senator Blumenthal, Chairman Leahy, and Ranking Member
Grassley, my sincere thanks and appreciation for the invitation
to appear here today.
I have family and many friends cheering me on. Today here
with me is my husband, Teddy; my son; my daughter and her
husband. I am particularly thrilled that my nieces Torrey
Crawford and Sydney Howe are here.
Back home I have an anxious mother, siblings, and cousins
watching along with other friends and colleagues in Charleston
and in South Carolina. I am only here because of them.
My father has been deceased for some time now. He would be
greatly pleased.
I look forward to answering any questions you may have.
[The biographical information of Judge Hendricks appears as
a submission for the record.]
Senator Blumenthal. Thank you.
Mr. Mastroianni.
STATEMENT OF MARK MASTROIANNI, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MASSACHUSETTS
Mr. Mastroianni. Thank you, Senator Blumenthal.
Senator Blumenthal, I would like to thank you and thank
you, Senator Grassley, for your consideration and involvement
in this process; also Senator Leahy for his participation in
this Committee.
I would like to thank President Obama for the nomination
and having the faith in me and my background that I could be
considered to serve in this position.
And I would very much like to thank Senator Warren who
established the committee to look for an appropriate candidate
to fill this judgeship in our State. I thank her for the
selection process and, again, for her faith in me and my coming
out of that process.
I would like to thank Senator Markey as well for his
support of my nomination as well.
Present with me today, I am very fortunate to have the most
important people in my life here with me. My wife, Carolyn, is
here. My daughter Christine, my daughter Jennifer, and my
daughter Lauren are all here with me.
Also, very special to me, very close family members: my
sister-in-law, Joan, is present with my niece and nephews. My
nephews Steve, Mike, and John, and my niece Meghan, are also
here. I thank them very much for being here.
Senators Blumenthal and Grassley, I would also like to note
that here supporting me today, it is quite an honor that
several of the other elected district attorneys from the State
of Massachusetts are here to support me in this. I did not see
all who came in, but I know District Attorneys Blodgett,
Sullivan, Connelly, Cruz, and Morrisey are here in the room. So
out of the 11 elected district attorneys in the State of
Massachusetts, we are well represented in this room today, and
I appreciate their support.
[The biographical information of Mr. Mastroianni appears as
a submission for the record.]
Senator Blumenthal. Thank you very much.
Ms. Caldwell.
STATEMENT OF LESLIE CALDWELL, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Ms. Caldwell. Mr. Chairman, Ranking Member Grassley, thank
you. I am very honored to appear before you today as President
Obama's nominee to be the Assistant Attorney General for the
Criminal Division of the Justice Department.
Here with me are my partner, Michele Kohler, and her
daughter, Hannah Ryan, who are sitting behind me. Also here is
my niece, Megan Caldwell, who is sitting in the second row; my
fantastic administrative assistant, Donna Weekes; and several
other friends and colleagues. I thank them all for their
support and for being here today.
I know that if they had made it to this day, my parents,
Key and Caryl Caldwell, would have been so proud of seeing
their daughter sit before this Committee. My father, Key, was a
native of Lookout Mountain, Tennessee, who at the age of 19
joined the Army Air Corps in World War II. He became a B-24
bomber pilot, assigned to the 8th Air Force, based in England.
After many successful missions over Germany, his plane was shot
down. He managed to keep the plane airborne until he could
leave German airspace and land in a field in Switzerland. All
but one of his crew survived. He was detained by the Swiss but
escaped, and with the help of the French Resistance, made his
way to safety. My father went on to become a successful
businessman in Pittsburgh, but he was also a very humble man.
In fact, I never even knew the story that I just shared with
you until I was well into adulthood and stumbled upon my
father's war diary. When I asked him with amazement about his
exploits, he said very matter of factly that all he had done
was serve his country as best he could. And he never spoke of
it again.
My mother, Caryl, was a remarkable woman who set an example
for me every day of her life. She grew up in a single-parent
home on the north side of Pittsburgh, which at the time was a
very poor neighborhood. Though she was the valedictorian of her
high school class, there was no money for college. So she got a
job as a secretary in the Legal Department at U.S. Steel and
worked her way through the University of Pittsburgh at night.
Around the time she was meeting my father and marrying him, she
graduated from Pitt summa cum laude, Phi Beta Kappa. Though she
never worked in a traditional job again, she raised three
children, was in leadership roles in many community
organizations, and volunteered countless hours as an adult
literacy teacher. I like to think that if my mom had been 30
years later, she would have been the one sitting before this
Committee today.
Our parents taught my brothers that the values that matter
most in life are fairness, integrity, hard work, and humility.
As I sit before this Committee, I am especially mindful of
those values, and of the honor of public service, to which I
have dedicated much of my career.
If I am fortunate enough to become head of the Criminal
Division, I will do my best to ensure the vigorous enforcement
of the criminal laws and to apply them with equal force whether
the wrongdoing occurs in a boardroom, across a computer
network, or on a street corner.
I thank you again for considering my nomination, and I am
pleased to answer any questions you may have.
[The biographical information of Ms. Caldwell appears as a
submission for the record.]
Senator Blumenthal. Thank you, Ms. Caldwell.
Let me begin my questions with Judge Hendricks. What do you
think are the two or three most important experiences that
prepare you for this job?
Judge Hendricks. Thank you, Senator Blumenthal, for the
question. My experience as an Assistant United States Attorney
for the----
Senator Blumenthal. I do not know whether your microphone
is on.
Judge Hendricks. It looks like it is on. There it is.
Senator Blumenthal. Thank you.
Judge Hendricks. Thank you, Senator Blumenthal. I think my
experience as an Assistant United States Attorney for 11 years,
trying cases before the district court, and handling
investigations on behalf of the United States was a great
experience in enabling me to be familiar with the district
court and trial procedure, in particular the Rules of Evidence.
Then transitioning into the role of United States magistrate
judge I believe helps prepare me for the role of United States
district judge as I am already working in the district court
and handling cases there, some of which are under certain
circumstances co-extensive with the Article III judges.
Senator Blumenthal. That sort of anticipates my next
question. In your district, do magistrates conduct trials? In
the District of Connecticut they do, just as Federal judges,
Article III judges, as you just mentioned.
Judge Hendricks. Yes, Senator. By consent of the parties
and approval of the district judge, then a magistrate judge may
conduct a trial, and I have had three jury trials in my
career--well, two jury trials and one bench trial.
Senator Blumenthal. Civil or criminal?
Judge Hendricks. Civil. We cannot handle full felony jury
trials, although we can take felony guilty pleas, and I have
done that. And I handle some of the preliminary felony criminal
work.
Senator Blumenthal. In your view, what is the most
difficult matter you have had to handle as a magistrate judge?
Judge Hendricks. Thank you, Senator, for that question.
Actually, every day, every case is important, and I give great
pause before I issue a ruling or make a decision. I think in
particular in the criminal law arena, decisions in regards to
an individual's liberty are always tough decisions, and those
would be my hardest decisions every day.
Senator Blumenthal. Thank you.
Mr. Mastroianni, let me ask you the same question. What do
you think are the two or three most important experiences that
would affect your judging?
Mr. Mastroianni. In my professional career, I have had
several experiences which I think prepare me for this
consideration, and it started out being in private practice and
learning about the business world and how to make it in the
business world. Being a criminal defense attorney, starting
from the ground up and working to doing criminal defense at the
highest level, and doing the same thing as a prosecutor,
starting as a prosecutor at the lowest level and working my way
up to be handling the highest cases, and ultimately have the
good fortune to be elected as district attorney and run an
office--those experiences have taught me so much about the law,
about the respect that should be had for each opposing side.
Although it is an adversarial system, fairness and integrity in
the system is the common goal. And my experience I think comes
together, so I fully appreciate the dynamic of our system.
Senator Blumenthal. As district attorney, what are the most
difficult decisions you have to make?
Mr. Mastroianni. The most difficult decisions oftentimes
deal with selecting charges and selecting what penalties we
will seek to impose on particular cases. Where there are
victims involved, it becomes much more complicated when there
are vulnerable victims involved, children and elderly people
who cannot necessarily speak for themselves. And that was a
source of their victimization that becomes especially
difficult. So putting forward cases where our case is weakened
by the inherent vulnerability of someone who was victimized is
a difficult task, and we have taken a lot of pains to put
procedures in place that will appropriately handle those cases.
Senator Blumenthal. So victims' advocates or special
counsels to represent victims are something that you value
highly?
Mr. Mastroianni. I do value them highly. We do have a
special victim witness unit within our office who is in
constant contact with victims of cases and let them know what
the system means, because also part of the circle of
victimization, if you will, is when a victim comes into a
courthouse that they are not familiar with and they have never
been involved in a proceeding and they find themselves there on
a regular basis and it is very intimidating for them. And so
our office does provide support for them in the role of their
own special advocates.
Senator Blumenthal. Thank you.
Ms. Caldwell, I should have said at the very outset,
although I spoke mainly of the judges that we have as needs,
that your position is really one of the most important in the
whole Federal Government because your recommendations very
often will be final as to the charges that are brought either
by a United States Attorney--and I know because I served as one
quite a few years ago--or by the Department of Justice itself.
And so you will have in your hands the fates of many
individuals whose lives will hang in the balance. And obviously
the interests of society also will be at stake because those
individuals may have committed very serious and significant
crimes with ramifications on national security or other kinds
of very important issues at stake.
And I was moved by your stories of your parents. Obviously
they are a source of your dedication to public service. You
served, I believe, about 17 years as a Government attorney,
which, in my view, is one of the highest callings of any
attorney. So I want to thank you for your dedication to public
service and just ask you whether you go into this job with any
priorities. You mentioned that they are all important, whether
it is white-collar crime or organized crime or drug dealing,
whether you see any priorities for the Criminal Division at
this point.
Ms. Caldwell. Thank you, Senator, and I appreciate your
comments. I certainly do see that things are moving very fast
in the world of cyber crime, in the world of international
crime. Things are always moving fast in the world of narcotics
and organized crime and gangs. And white-collar crime is also
something that I think is a very important priority.
So as you said, Senator, I think you are correct, they are
all priorities, and I believe, if I am fortunate enough to be
confirmed, my first priority will be to understand what exactly
is being done currently and try to align that with what the
Department's priorities perhaps should be.
Senator Blumenthal. Do you have a view as to what the
division of responsibility should be between the United States
Attorneys and the Department of Justice?
Ms. Caldwell. I think that the United States Attorney--
having been in both, I think that the United States Attorney's
Offices are really the front lines of most Federal criminal
prosecution. I think the Criminal Division has a very
significant role in supporting those offices, particularly the
smaller offices that may not have the resources to do certain
kinds of cases. But the Criminal Division also has its own very
important litigating role, as you know, Senator. The Fraud
Section is a very large section that brings very sophisticated
cases all over the country. The Computer Crime and Intellectual
Property Section is probably the premier expert on computer
crime in the country.
So I think that it is going to be very important to
continue working together, the Criminal Division and the U.S.
Attorney's Offices, if I am fortunate enough to be in that
role.
Senator Blumenthal. And do you think that there need to be
enhanced training programs for the attorneys in either the
Criminal Division or the Department of Justice generally?
Ms. Caldwell. I am certainly not--I am not familiar with
what the current training programs are, but I know that it is
very important to train particularly young prosecutors to
understand the importance of their role and the power that they
have, to make sure that that power is used in an appropriate,
fair, and judicious manner.
Senator Blumenthal. And one last question. You know, we had
testimony--in fact, it may have been at our last hearing--on
the issue of data breaches, the kinds of hacking and theft of
information that has occurred at stores like Target and Neiman
Marcus where the stores could be viewed as a victim and are a
victim of criminal activity, but at the same time need to be
held accountable for increasing the protections that they have,
protections for themselves against that kind of invasion, but
also protections for their customers whose information is
entrusted to them.
Do you have views as to what the stores ought to be doing
or what other enterprises should be doing to protect themselves
better against this kind of cyber attack?
Ms. Caldwell. I appreciate that the cyber attack as well as
intellectual property theft are both extremely important
issues. I am not familiar with the specifics other than what I
have read in the media of the data breach issues. But I think
it is clearly very important. I think one of the areas in which
criminals are moving very quickly is cyber attack, cyber
breach, intellectual property theft, and that is something that
I would look forward to learning a lot more about and being
very aggressive in connection with that.
Senator Blumenthal. Thank you, Ms. Caldwell.
Ms. Caldwell. Thank you, Senator.
Senator Blumenthal. Senator Grassley.
Senator Grassley. Yes, I am going to start with Mr.
Mastroianni and then Ms. Caldwell and then Judge Hendricks.
I am going to, first of all, talk about a gun prosecution
you were involved in. Let me give some background before I ask
a question.
In 2013, the Massachusetts Supreme Court upheld the State's
gun storage law. The law mandated that gun owners keep their
firearms in a locked container or equipped with a mechanical
lock even inside their own homes. A defendant kept a loaded
handgun in an unlocked drawer in his bedroom. Following an
argument, the defendant's roommate took the firearm and threw
it out the window where it was recovered by police. The
defendant was charged with violating the storage law.
The defendant challenged the statute as an unconstitutional
violation of the Second Amendment. The defendant argued that
requiring firearms to be locked even within one's home
effectively invalidated the right recognized by the Supreme
Court in Heller, and the Massachusetts Supreme Court disagreed.
You were district attorney at the time. I recognize that that
was part of your job, to enforce State laws. However, you said
in an interview that the court made the right decision in the
case. In my view, the right to self-defense does not mean a
whole lot if you cannot access your firearm in a real big
hurry.
My question then: Would you explain why you believe the
particular law does not violate the Second Amendment?
Mr. Mastroianni. Thank you, Senator. The Second Amendment
is clear. Individuals do have rights to have firearms, and I
respect that and recognize that as clearly the law of the land.
States have the authority to impose other regulations that
affect the safety of their citizens, and the specific statute
on which you are speaking went to the safety of citizens.
Around the same time as that case came up, we were dealing with
several other cases where firearms that were unlocked--one was
in a private home. I believe both instances were in a private
home. And access to those firearms was gotten by an individual
who was drug-addicted and struggling with psychological issues
in their life at that time, and there was an unlocked firearm,
and that individual got a hold of that weapon and ended up
using that weapon to end their life.
There have been other cases that have come into my office
where unlocked firearms have fallen into the hands of
unlicensed people and/or children, and there is rarely a good
outcome when a youngster or teenager gets a hold of a gun, does
not really know how to use it, and takes it out of the home.
And that was the basis for the legislation in Massachusetts
requiring those gun locks. It was in no shape or form meant to
infringe upon the ultimate right given by the Supreme Court of
an individual's constitutional right to have a properly
licensed gun, but in Massachusetts we did prosecute those
specific cases under the specific facts as were presented
because they were violations of the Massachusetts law of the
safety with how those guns were kept.
Senator Grassley. I am going to stop and let Senator
Nelson----
Senator Blumenthal. I was going to ask you, Senator
Grassley, whether you would be willing to pause for a moment,
and I am going to ask Senator Nelson to please make his
comments and remarks concerning Judge Rosenbaum.
PRESENTATION OF HON. ROBIN ROSENBAUM, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. BILL
NELSON, A U.S. SENATOR FROM THE STATE
OF FLORIDA
Senator Nelson. Mr. Chairman, you all are so kind to extend
the courtesy to your fellow Senators. To you, Mr. Chairman, to
Chairman Leahy, to Senator Grassley, I am very appreciative and
want to tell you of the bipartisan support for our nominee,
Robin Rosenbaum.
Senator Rubio and I, as we have testified several times, we
have a committee that we call a ``judicial nominations
committee,'' and the intent is to find the very best candidates
without regard to partisanship for judicial vacancies.
In this particular case, Judge Rosenbaum was a selection to
the Federal district court a couple--several years ago and has
apparently performed in such an outstanding manner that the
President wanted to select her then for the circuit. And so
Senator Rubio and I, well knowing her, have not only rendered
no objection, we affirmatively support Judge Rosenbaum. And she
will join the Court of Appeals for the Eleventh Circuit, and,
of course, that is in the southeastern United States.
She began her legal career in the U.S. Attorney General's
Honors Program where she worked in the Federal Programs Branch
of the Civil Division of the Department of Justice. She then
worked in private practice in one of our very finest law
firms--it is now a nationwide law firm--Holland and Knight. She
worked as a clerk for a Federal judge, Judge Marcus, United
States Circuit Court Judge for the Eleventh Circuit, and as an
Assistant USA for the Southern District. So you see the breadth
of her experience.
She then became a magistrate, which is often the route that
we find now for so many of our Federal judges, because the
magistrates render such important Federal service. And then in
2012, we confirmed her to the U.S. district court.
Judge Rosenbaum also works to inspire the next generation
of legal minds in her teaching position at the University of
Miami, where she earned her law degree magna cum laude. She has
an undergraduate degree from Cornell.
And she is joined and I have just met with her family, her
husband, Phil Rothschild; their daughters Rosie and Evin; her
mom and dad; and her two sisters and their families.
So it is with heartfelt and enthusiastic support that we
bring this to the Committee, and I want to particularly thank
Senator Grassley, because we have been through a number of
nominees. We have a judicial emergency in two of our three
districts in Florida, and Senator Grassley, where he had
questions once on one nominee, unrelated to this, he had an
open mind to go back and re-evaluate, and I want to say for the
record, Senator Grassley, how much I appreciate that.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Nelson. We are
honored and pleased you could join us today. We know that you
and our colleagues are very busy, and we are glad also you had
a chance to spend some time with Judge Rosenbaum. Thank you for
coming.
Thank you.
Senator Grassley. Thank you, Senator Nelson, for your kind
words.
One more question for Mr. Mastroianni. In 2010, you were
asked about decriminalizing possession of less than an ounce of
marijuana. You said that doing so would be ``a step in the
right direction for trying to get rid of the backlog of cases
in the court'' and that ``it was putting a strain on a lot of
people's criminal records which really should not be there.''
Since you made that statement, you have, in fact, served as
district attorney. Has your opinion on this issue changed, or
do you still believe possession of less than an ounce of
marijuana should be decriminalized?
Mr. Mastroianni. Well, in Massachusetts, Massachusetts
moved forward, and that is, in fact, the law now in
Massachusetts relative to a very small amount. So consistent
with what I said, that law does follow along with my opinion on
the issue.
In developing the opinion on that issue and in developing
the change in law of Massachusetts, the State and myself
recognized and examined the time spent by law enforcement in
investigation of certain offenses and the need for law
enforcement to spend their time investigating other, perhaps
arguably more serious offenses. So in reaching that
determination, it is a balance of the resources that law
enforcement and prosecution offices have in trying to recognize
what may need the most minimal attention of each offices in
trying to allocate resources for the best way to serve public
safety.
Senator Grassley. Has your view been reinforced as a result
of being district attorney?
Mr. Mastroianni. Well, in my experience as district
attorney, we have seen--we have seen the number of cases coming
into the court lessen, but there is still--we are still early
enough in the process for there to be this transition period
where both law enforcement and prosecutors are trying to deal
with and understand the new law relative to decriminalization
of marijuana, because it affects law enforcement and
prosecutions on many levels, including levels like motion to
suppress levels and when can police officers conduct a search
of someone or a search of someone's car if there should be less
than a criminal amount of marijuana in the vehicle.
So those are all legal issues that we continue to work on,
so we have not reached a level where we say we have achieved
something and we can tangibly look at that and say this was
positive, because we are still in the implementation stages.
Senator Grassley. Ms. Caldwell, I am going to start out
with the enforcement of the Controlled Substances Act, and then
I am going to move on to Dodd-Frank and whistleblowers so you
know what is coming up.
One of the problems with the Department's policy of
selective enforcement of the Controlled Substances Act in
Colorado and Washington is that the Federal priorities
identified by the Department are already being negatively
impacted by the failure of these States to regulate medical
marijuana. I will use as an example one of those Federal
priorities is preventing the diversion of marijuana to
neighboring States. Yet the percentage of marijuana interdicted
by law enforcement in Iowa that can be traced to Colorado has
risen from 10 percent in 2010 to 25 percent in 2011 to 36
percent in 2012.
So my question: Do you agree with me that the Department
should establish clear metrics in determining if its policy in
this area is adequately protecting Federal interests so that,
if necessary, it can re-evaluate its decision not to challenge
these State laws?
Ms. Caldwell. Senator Grassley, I recognize the importance
of this issue, and I very much appreciate the question.
Senator Grassley. Thank you.
Ms. Caldwell. I think that enforcement of the Controlled
Substances Act is extremely important. I was a narcotics
prosecutor for several years in New York and saw the havoc that
drug abuse could have on communities and, frankly, the entire
New York City was at an all-time high homicide rate when I was
a prosecutor there. So I have seen this firsthand, and I think
it is very important.
I think that--I am not privy to the Department's internal
decisions about policy or about the priorities that you
mentioned, Senator. I am generally familiar with the
priorities, and I think that they represent--they seem to
represent well the things that should be prosecuted and, as you
know, one of those priorities is the diversion priority. Other
priorities are to keep marijuana away from minors, keep it away
from cartels, keep cartels from taking control of distribution
businesses in Colorado and Washington and any other State that
may go in that direction.
So I think it is extremely important. I look forward to
learning much more about the issue and about the internal
thought process if I am fortunate enough to be confirmed to
this position.
Senator Grassley. I know that the policy was decided at, I
assume, a level above what you will be doing, but since you are
enforcing the laws, I hope that they listen to you; and if they
say that they are going to make sure that Colorado and
Washington enforce their laws in order to have this discretion
of not prosecuting against the Federal law and they are not
keeping the product within their State, I hope you will re-
evaluate it, because I think my constituents in Iowa ought to
be protected under Federal law.
Another question. I also understand that the Department may
soon issue a guidance memorandum to make it easier for a
marijuana business in those two States to use the banking
system. Two questions, but I will ask one at a time--or, no, I
have got three or four questions that maybe you can give me a
short answer to, because I want to know that I am understanding
Federal law. I just want to make sure about your view on
Federal law in this area.
Distribution of marijuana is a Federal crime that is a
predicate offenses for money-laundering prosecution. Is that
correct?
Ms. Caldwell. Correct, Senator.
Senator Grassley. For example, if a business knowingly
attempts to engage in a monetary transaction of $10,000 or more
that are derived from distributing marijuana, that is a
violation of Federal money-laundering laws. Is that correct?
Ms. Caldwell. Yes, Your Honor--Senator.
[Laughter.]
Senator Grassley. Okay.
Ms. Caldwell. I am in the habit of saying ``Your Honor.'' I
apologize.
Senator Grassley. That is okay.
Senator Blumenthal. I think that is a mistake we commonly
make.
Senator Grassley. And if a business knowingly attempts to
engage in a financial transaction of any amount of funds that
are in the proceeds of distributing marijuana with the intent
to promote the carrying on of the distribution of marijuana,
that is also a violation. Would that be correct?
Ms. Caldwell. Yes, Senator, that could be a violation.
Senator Grassley. Okay. And then one more or two more short
questions before I--well, then I am going to move on to Dodd-
Frank--or whistleblowers. And the penalties for violating these
Federal money-laundering laws can be up to 20 years in prison.
Ms. Caldwell. I have to acknowledge that I have not looked
recently at the current money-laundering penalties, but that
sounds potentially correct, yes, sir.
Senator Grassley. And then, finally, none of that will
change unless Congress changes the Federal money-laundering
laws, right?
Ms. Caldwell. Certainly the laws as they are written will
be enforced by the Criminal Division.
Senator Grassley. I think you see what I am leading up to.
I am afraid that there might be a decision made within the
Department of these people using the banking system and somehow
not be convicted of--or prosecuted for money laundering. Let us
move on.
You probably--well, no, you would not know, but let me tell
you, I very much believe whistleblowers are patriotic people,
and that we would not be able to do our job of oversight or in
your case prosecution if you did not have some of their
information.
In a 2010 article that highlighted the whistleblower
provisions of Dodd-Frank, you commented that these new
whistleblower provisions ``will have a huge impact'' and would
be, continuing the quote, ``very significant.'' You also said,
``There are some number of people in large corporations who
learn about things that could be considered violations of
securities laws. Now they have a huge motivation to move
forward.''
Based upon your extensive experience as a Federal
prosecutor, how valuable are whistleblowers to Federal law
enforcement and prosecution efforts?
Ms. Caldwell. Senator, I appreciate the question. I also
appreciate your leadership in the area of whistleblowers. I
agree with you that whistleblowers are often very important
sources of information. I know that the Dodd-Frank
whistleblower program has led to very significant numbers of
whistleblower reports to the Securities and Exchange
Commission, some of which have turned into significant
securities cases. I know that in the health care arena and a
lot of other areas, there are whistleblowers who bring forward
very significant information, and as a prosecutor, I
recognize--when I was a prosecutor, I recognized that that
information could sometimes have a lot of value in bringing a
prosecution.
Senator Grassley. Do you believe that providing financial
incentives to whistleblowers assists in the enforcement of
Federal laws?
Ms. Caldwell. Certainly that is the status of the--from
Dodd-Frank and the False Claims Act. There are financial
incentives for whistleblowers, and I do think those financial
incentives have contributed to whistleblowers coming forward.
Senator Grassley. Yes. Now I am going to move closer to
home where you will be home, the Department of Justice, and
nothing you could have anything done with, but I have--I want
to express to you that I have concerns about how the Department
of Justice generally treats whistleblowers. I often feel that
whistleblowers are kind of treated like skunks at a picnic,
just as an example.
Will you commit as Assistant Attorney General that you will
do everything in your power to ensure that these brave
individuals who come forward, often at personal risk, will be
treated fairly and that those who retaliate against
whistleblowers will be held accountable?
Ms. Caldwell. Senator, I am not familiar with the exact
procedures of the Department of Justice with regard to
whistleblowers, but I am confident that there are procedures in
place, and I am confident that there is a recognition that
whistleblowers should be protected and should not be retaliated
against.
Senator Grassley. Let me say to you that you are in a very
good position where you are, since you know that whistleblowers
are very important to getting the job done, that I hope when
you run into some of this you will be an advocate for them
within the Department as well as people within corporations or
elsewhere.
I am going to now move on to Judge Hendricks. Thank you
very much, Ms. Caldwell.
Ms. Caldwell. Thank you, Senator Grassley.
Senator Grassley. You founded the Bridge Program in your
home district of South Carolina. You are a pioneer when it
comes to Federal drug courts. Bridge is among the first Federal
drug courts in the Nation--at least that is my understanding.
How do you see the role of drug courts in the Federal
judiciary?
Judge Hendricks. Thank you, Senator Grassley. Yes, I was
honored to be appointed the presiding judge for the district's
first drug court program, and studies show and my experience
has shown that for certain offenders, it is a very good thing.
For those offenders whose criminal activity is fueled by
addiction, for those offenders it has shown and I have seen
that it improves their lives, it changes their lives, it
reduces the cost of prosecution and incarceration. And by
handling and dealing with their addiction, it also provides for
community safety and a reduction of recidivism.
Senator Grassley. As a Federal magistrate, where do you
draw the line regarding who is admitted to drug court?
Judge Hendricks. Thank you. Thank you, Senator. Well, the
line in our program is clear. We would not admit in the U.S.
Attorney's Office--we work with the U.S. Attorney's Office in
choosing offenders to participate, would not involve--offenders
who would not be involved with any kind of violent crime or
crime involving child abuse or pornography.
Senator Grassley. Before I ask the last question of you, I
should go back to Ms. Caldwell. It probably sounded like only
the Justice Department has problems with whistleblowers. It is
throughout Government, so I am not just accusing the Justice
Department of mistreating whistleblowers. Too often they are
mistreated by bureaucracy generally.
Back to Judge Hendricks. If confirmed as a district judge,
would you work to expand the Bridge Program in South Carolina's
Federal courts?
Judge Hendricks. Senator, if asked to do so and if the rest
of the district court were so inclined, I would be happy to
participate in establishing a drug court program in other areas
of the district.
Senator Grassley. My last three small questions deal with a
speech on employment discrimination that you gave for the South
Carolina Trial Lawyers Association in 2008. You said that,
``Summary judgment has a serious hurdle in the Fourth
Circuit.'' Could you explain what you meant by that statement?
Judge Hendricks. Thank you. Your Honor--I mean, Senator,
the standard for summary judgment in the Fourth Circuit is a
tough one for certain litigants. I think my practice is to
grant summary judgment motions where the law and the facts are
clear and support it. But as part of that, there is always a
danger in dismissing a case too early, and so you try to
balance both of those equities in approaching motions for
summary judgment.
Senator Grassley. Okay. And, last, do you believe that the
standard for summary judgment should be different for
employment discrimination cases?
Judge Hendricks. Senator, I am not sure about that. I think
there are rights on both sides of the issue, and it would not
be up to me to make those decisions.
Senator Grassley. Thank you very much, and thank you for
your tolerance while I took so much time.
Senator Blumenthal. Thank you. Not at all, Senator
Grassley. Thank you. By the way, I want to join in expressing
my appreciation for the work that you do on whistleblowers,
really a profoundly important cause.
And thank you to the nominees who have appeared this
morning and their families. In my personal opinion--I do not
speak for the Committee--we have the good fortune and honor of
hearing from some very, very exceptionally qualified
individuals who I will support, and I really appreciate your
being here today. And we need you quickly because, as you know,
we have judicial crises in many parts of our country due to the
lack of sufficient person power on the bench. Judge Rosenbaum
made reference to the very heavy workload and caseload in the
Southern District of Florida. I suspect that is true in each of
the judicial districts that you have been nominated to fill
positions.
And I want to say, Ms. Caldwell, I know that your position
has been vacant since March 2013. You have been nominated since
September 2013. I certainly hope that your nomination will be
expedited.
I just want to say to my colleague Senator Grassley that I
think Ms. Caldwell was a little bit modest about her
prosecutorial record on narcotics and substance abuse in the
Eastern District of New York, was it not, where you were a
prosecutor? You did a number of very profoundly significant
prosecutions while you were there, including Lorenzo Nichols,
the Chinatown prosecution that you did, a number of extremely
sensitive and challenging narcotics cases. So nobody knows
better the importance of both organized crime and narcotics
along with white-collar crime, as you testified today.
And on the subject of whistleblowers, I am not sure whether
I recollect correctly, but did the Enron case involve a
whistleblower?
Ms. Caldwell. Yes, it did, Senator, a whistleblower named
Sherron Watkins.
Senator Blumenthal. I thought so, and as you know, Ms.
Caldwell was responsible for the Enron prosecution, so she is
certainly aware and sensitive to the importance of
whistleblowers in major prosecutions.
All of that said, many thanks for being here today. Your
families should be proud of you, and we are proud that you are
potentially and hopefully filling very, very important
positions in our system of justice. Thank you very much.
I am going to close the hearing, and the record will remain
open for 1 week. Thank you.
[Whereupon, at 10:17 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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. GREGG JEFFREY COSTA, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FIFTH CIRCUIT; TANYA S. CHUTKAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLUMBIA; HON. M. HANNAH LAUCK, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; HON. LEO T.
SOROKIN, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MASSACHUSETTS; AND
JOHN CHARLES CRUDEN, NOMINEE TO
BE ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
----------
TUESDAY, FEBRUARY 25, 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. Al Franken,
presiding.
Present: Senators Franken and Cornyn.
OPENING STATEMENT OF HON. AL FRANKEN,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Franken. This hearing will come to order. Welcome,
everybody. We will hear from five nominees today, each of whom
has a very impressive legal career, enjoys widespread support
from his or her colleagues and home State Members of Congress,
and is well qualified for the positions to which he or she has
been nominated.
Judge Costa has had an impressive career as a Federal
prosecutor and then as a district court judge.
Tanya Chutkan spent more than a decade with the D.C. Public
Defender Service and now focuses on private enforcement of the
antitrust laws at Boies, Schiller and Flexner.
Hannah Lauck has spent nearly a decade on the Federal bench
as a magistrate judge, a position she assumed after a
successful career as a Federal prosecutor.
Leo Sorokin has spent nearly a decade on the Federal bench
as a magistrate judge, too, a position he assumed after service
with the Federal Public Defender's Office.
And John Cruden has served at the Environment and Natural
Resources Division for two decades, working in both Democratic
and Republican administrations in various capacities, including
as the Acting Assistant Attorney General. He has also had an
impressive career in the army, both before and after becoming
an attorney.
I hope that we can act quickly and in a bipartisan manner
to give these nominees an up-or-down vote. I look forward to
hearing from all of you today.
Ranking Member Cornyn, it is a great pleasure to chair this
hearing with you. Would you like to give any opening remarks
and introduce Judge Costa?
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. I do. Thank you, Mr. Chairman, and I am
glad to be joining you on the dais this morning. I think we
could have--we almost have a quorum of the U.S. Senate present
today. So I know we have a number of good nominees to hear
from, and obviously Representative Norton.
So I want to thank Chairman Leahy for convening today's
hearing. We know the Founders vested the Senate with the
authority and responsibility to provide advice and consent on
the nomination of judges and officers for the executive branch.
We all take these jobs very seriously, and one good reason to
do it beyond the constitutional mandate is the fact that many
of these Federal judges will long survive us in public service.
They will serve for many, many years to come.
Today we will hear from five of the President's nominees. I
want to focus my comments on Judge Costa of the Southern
District of Texas who was nominated to the Fifth Circuit Court
of Appeals. He was raised in Texas. Following his graduation
from Dartmouth--I am not sure how he got to Dartmouth from
Texas, but to his credit, he attended Dartmouth and 2 years in
Mississippi with Teach for America. He returned to the
University of Texas to attend law school, where he was the
editor-in-chief of the Texas Law Review. He served as a law
clerk on the D.C. Court of Appeals, a Bristow Fellow in the
Office of the Solicitor General, and a law clerk to Chief
Justice William Rehnquist.
Even more impressive, he came back home to Texas, and after
practicing in civil litigation for 2 years, he went into public
service as an Assistant U.S. Attorney in the Southern District.
At the Department of Justice, he tried more than 15 cases to
verdict, argued six cases before the Fifth Circuit, and
directed the Hurricane Katrina Fraud Task Force. He received a
departmental award for his prosecution of Allen Stanford.
Because of these qualifications, the Texas Federal Judicial
Evaluation Committee evaluated Judge Costa for the district
court seat that he now occupies, and it was with pride and
admiration that Senator Hutchison and I recommended him to the
President for that district court nomination. Now the President
has given him a promotion after a short time on the trial
bench, and the President's recent nomination follows hard work
again of the same Federal Judicial Evaluation Committee, this
time appointed by Senator Cruz and myself, in close
consultation with the White House and important input from the
members of the Texas congressional delegation, like Congressman
Green, who is here in the audience.
His nomination is a testament to his hard work and his
accomplishment, and I know he and his family are proud of his
accomplishments, as they should be. I look forward to hearing
from him and the other witnesses here today.
Thank you, Mr. Chairman.
Senator Franken. Thank you, Senator.
Well, we have several Members of Congress who are here
today to introduce the nominees from their home States, and I
would like to give each of them an opportunity to go ahead with
their remarks. I guess we will work our way across starting
with Senator Udall.
PRESENTATION OF JOHN CHARLES CRUDEN, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, U.S. DEPARTMENT OF
JUSTICE, BY HON. TOM UDALL, A U.S. SENATOR FROM THE STATE OF
NEW MEXICO
Senator Udall. Thank you, Chairman Franken and Senator
Cornyn, and thank you for the opportunity to introduce John
Cruden, who has been nominated to be Assistant Attorney General
for the Environment and Natural Resources Division. I have
known John for many years. From the time I served as Attorney
General of New Mexico, John was the chief of the Environmental
Enforcement Section at the Justice Department. We often worked
together on important environmental enforcement cases. He also
joined me for a groundbreaking conference in New Mexico of all
State Attorneys General where we focused on strengthening
environmental compliance.
It has been a pleasure for me to follow John's career. He
was a highly regarded Deputy Assistant Attorney General for the
Environment and Natural Resources Division, a strong leader on
the most important environmental cases, and he also pioneered a
close working relationship with State Attorneys General,
promoting joint enforcement and collaborative efforts.
John has an impressive background. He is a West Point
graduate and served with distinction in the military. He then
moved to the U.S. Department of Justice where he was
responsible for all Federal civil environmental enforcement in
the United States. He is a highly regarded litigator, one who
fights for the best interests of the United States, and his
work has resulted in major settlement negotiations.
While at the Department, he has received many honors,
including the Muskie-Chafee Award, the highest honor the
Environmental Division can bestow. He is the recipient of three
Presidential rank awards from three different Presidents of
both parties. John was the first Government attorney to be
elected and then serve as the president of the District of
Columbia Bar and the first Government attorney to be elected as
the Chair of the American Bar Association's Section on
Environment, Energy, and Natural Resources.
John left the Department of Justice in 2011 and became
President of the Environmental Law Institute, a nonpartisan
research institute with a long and distinguished history,
providing education and training and some of the leading
environmental publications in the Nation. The Environmental Law
Institute gives a series of annual awards honoring individuals
who benefit the environment through wetland protection. The
most recent awards ceremony was at the Botanic Garden up here
on Capitol Hill. John invited me to be the keynote speaker. It
was a moving event. Local ranchers, community leaders, and city
engineers were recognized for having a real on-the-ground
impact. This is John's hallmark, pulling people together to get
things done. ELI is renowned for its commitment to
environmental protection, and John has served ably as its
President.
Just a further word about ELI. ELI is a forum to find
environmental ideas and policies that work, not a partisan
focus, just results.
I cannot imagine a more qualified individual than John for
this very important position. He has twice served as Acting
Assistant Attorney General for the Division. He is a well-known
expert in environmental law. While he led the Division, it was
designated ``the best place to work in the Federal
Government,'' a tribute to his leadership skills.
I strongly support the nomination of John Cruden. He has
experience, integrity, and dedication to the rule of law. He
will make a superb Assistant Attorney General.
Thank you very much.
Senator Franken. Thank you, Senator Udall, for being here
this morning. I know you have a lot to do. You are welcome to
stay for the rest of this, but certainly I know how busy we all
are, so if you need to duck out, I totally understand.
Senator Udall. Thank you.
Senator Franken. We will go now to our Virginia Senators,
first Senator Warner.
PRESENTATION OF HON. M. HANNAH LAUCK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON. MARK R.
WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Chairman Franken and Ranking
Member Cornyn. It is a real honor for me to be with my good
friend and colleague Tim Kaine to introduce a fellow Virginian
as President Obama's nominee to the U.S. District Court for the
Eastern District of Virginia, Judge Hannah Lauck. If confirmed,
Hannah will become the first woman judge on the Federal trial
bench in Richmond.
Hannah is exceptionally well qualified to carry out the
duties and responsibilities of a Federal district judge. Hannah
earned her bachelor's degree magna cum laude, actually also Phi
Beta Kappa at Wellesley. She also--although since all of us I
think were at--went to law school in Boston, she did go down
toward New Haven for law school where she went to Yale and
graduated in 1991 where she directed the homeless clinic and
served on the board of the Initiative for Public Interest Law.
Hannah began her legal career in the Eastern District of
Virginia, serving as a clerk for Judge Jim Spencer, and I think
probably Senator Kaine will mention more about that. Judge
Spencer is extraordinarily well regarded in Richmond for his
legal acumen, honest nature, and service to community, and will
actually go to senior status later this year.
Coming full circle, Hannah has now been nominated to fill
the seat of Judge Spencer, her mentor and for whom she clerked
right out of law school.
From 1994 to 2004, she served as Assistant U.S. Attorney in
the Eastern District where she handled both civil defense
matters as well as criminal prosecutions. Following a brief
stint in the private sector, Hannah became a U.S. magistrate
judge in the Eastern District of Virginia where she has served
since 2005.
As a magistrate judge, she helped begin one of the first
Federal re-entry courts, which is designed to reduce recidivism
of individuals released from prison who have serious
addictions. She is also an active member of the community where
she has helped the next generation of legal experts. For many
years she has taught at the University of Richmond, where,
again, Senator Kaine also is active.
She has been highly recommended by all the appropriate bar
associations, and I have gotten to know her over the last few
years. I think she is extraordinarily well qualified, and I
appreciate the Chairman's comment as well about the need to
make sure that we fill all these judicial vacancies. She comes
extraordinarily highly recommended. I am very proud that the
President has nominated her, and she comes with my full 100
percent support.
And with apologies to my colleagues, I have got a hearing
upstairs, and apologies to the nominee, but thank you, Mr.
Chairman, for the opportunity to present this well-qualified
candidate.
Senator Franken. Thank you, Senator Warner, for your words
on Judge Lauck.
We will go to Senator Kaine.
PRESENTATION OF HON. M. HANNAH LAUCK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON. TIM KAINE,
A U.S. SENATOR FROM THE STATE
OF VIRGINIA
Senator Kaine. Thank you, Mr. Chair and Ranking Member
Cornyn. It is good to be here with you today on behalf of Judge
Lauck.
Mark and I were together at Harvard Law School. I became a
lawyer and he became a client. He was smarter than me. But--and
he still is smarter than me. But it is good to be here together
for this wonderful nominee.
Judge Lauck, just amplifying a point that Mark made,
started her legal career after she graduated from Yale Law
School, working with Judge Spencer, the person whose decision
to go senior status has led to this opening. Jim Spencer is
really a towering figure in the Eastern District in the Federal
judiciary, and she has big shoes to fill. But since she started
as a law clerk with him, judges kind of treat their law clerks
almost as their children. They take a parental pride in what
they do. And I have talked to Judge Spencer about this
particular occasion. He is very, very proud of his law clerk,
Hannah, and what she has done during her career.
Mark did a good job of laying out her professional
background. She has been, in addition to a law clerk, in
private practice, a corporate counsel with Genworth in
Richmond, but her main work before she went on the bench as a
magistrate was with the U.S. Attorney's Office for 10 years. As
an Assistant U.S. Attorney, half of her time was focused on
civil litigation, and then--I think the first half of her
career was on criminal litigation, the second half on civil
litigation. Very familiar with the docket in this court.
As a U.S. magistrate from 2005 to today, Judge Lauck's work
has involved all Federal misdemeanors. Magistrates in Richmond
Division try Federal misdemeanors, and they also try any civil
matter completely and fully with the consent of the parties. So
she has acted as a judge in virtually the entire range of cases
that this court handles.
I will just say this in closing: This is a court I am very
close to. My wife clerked for a Federal judge on this court
when she started her legal career, and I was a litigator for 17
years, and the bulk of my practice was in the Richmond Division
of the Eastern District of Virginia. It was a happy day for
that court when I tried my last case in 2001, but I have stayed
very close to the court. I know the judges, I know the
bailiffs, I know the court personnel, I know the lawyers, I
know many of the parties. They speak with uniform plaudits
about the work that Judge Lauck has done as a magistrate, and
they have the utmost confidence that she will be a wonderful
Article III judge in this seat that is being vacated by her
mentor, Judge Spencer. I recommend her highly.
Senator Franken. Thank you, Senator Kaine.
And just for everybody here, as I introduce Senator Warren,
not everyone in the Senate has an association with Harvard Law.
[Laughter.]
Senator Franken. Senator Warren.
PRESENTATION OF HON. LEO T. SOROKIN, 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, Mr. Chairman, thank you, Ranking
Member Cornyn, for holding this hearing and for allowing me to
be here today. I am very pleased to introduce Judge Leo
Sorokin, who has been nominated to fill a judicial vacancy on
the district court for the District of Massachusetts.
Judge Sorokin's nomination came after he was recommended to
me for this position by the Advisory Committee on Massachusetts
Judicial Nominations. The advisory committee is comprised 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 strength of Judge
Sorokin's resume, the extraordinary support that he has
received from those who have worked with him and appeared
before him, and the conclusion of the Massachusetts legal
community that he is a superlative nominee.
Judge Sorokin is joined here today by his wife, Dr. Pam
Wolf, and their three children--are you back there? There you
are. Good. Jake, who is a sophomore at Yale; Mikaela, who is a
senior at Brookline High School; and Sascha, who is in eighth
grade. And also here today are his sisters, Sharon Sorokin
James--Sharon, are you back there? Okay, making sure--and Dr.
Rachel Sorokin Goff and Rachel's husband, James Goff. I know
they are all tremendously proud to be sharing this moment, and
we are very proud to have them here.
Judge Sorokin is a 1983 graduate of Yale and a 1991
graduate of Columbia Law School, after which he clerked for
Judge Rya Zobel on the district court in Boston. He served as a
magistrate judge in Massachusetts since 2005, handling both
civil and criminal matters for the district court in Boston,
and he served as chief magistrate judge since 2012. Judge
Sorokin's track record as a magistrate should give the Senate a
high level of confidence in his ability to serve as a district
court judge.
Judge Sorokin's prior legal career is also very impressive.
He spent 2 years as an associate in civil litigation practice
at Mintz Levin in Boston and then 3 years in the Attorney
General's office before another 8 years as an assistant Federal
defender in Boston. In that capacity, he handled both trials
and appeals across a broad swath of Federal criminal law
matters and all manner of cases from single defendant cases to
complex multi-defendant cases.
Judge Sorokin has also truly distinguished himself in his
time as a magistrate in Massachusetts. In particular, Judge
Sorokin was principally responsible for the creation of the
Court-Assisted Recovery Effort, known as CARE, a re-entry
program that was developed in the District of Massachusetts.
CARE is designed to help Federal offenders returning from
prison avoid relapse behavior that might endanger the
community. Participants are subject to a high degree of
oversight, including more frequent drug testing, and review of
their conduct by the courts as often as every week. They
receive incentives like drug treatment and other resources,
such as mock job interviews and courses on financial literacy.
At the same time, they face swift sanctions, potentially
including immediate jail or time in community service, for any
noncompliance with the program, such as a failed drug test.
The CARE model was one of the first re-entry programs in
the Federal system. To date, nearly half of the district courts
in the United States have such a court or are considering
starting one. Observers from all over the country have come to
Boston to see it in action, and early data on the effectiveness
of the program is significant. An academic study in 2009
comparing CARE participants to a control group of similarly
situated individuals under regular Federal supervision
concluded that CARE participants were a third less likely to be
re-arrested in the first year after the program was put into
effect.
Done right, programs like CARE reduce crime, improve the
safety of our communities, and improve the lives of former
prisoners. They represent the kind of work that can be done to
improve our justice system when Federal judges have the
diversity of professional experience to create and facilitate
innovative solutions to persistent problems.
Judge Sorokin is a first-rate lawyer with impressive
credentials and a demonstrated commitment to public service. I
am proud to have recommended him to President Obama, and I look
forward to his full approval by this committee and swift
confirmation by the full U.S. Senate. Thank you very much.
I apologize, but I am supposed to be in a Banking hearing
at this same moment, so I will excuse myself.
Senator Franken. Well, then, go there.
Senator Warren. I will go. I will, and I apologize to Judge
Sorokin's family, but I know it is going to be a good hearing.
Thank you.
Senator Franken. Thank you for being here, Senator.
Representative Eleanor Holmes Norton.
PRESENTATION OF TANYA S. CHUTKAN, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA,
BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN
CONGRESS FROM THE DISTRICT OF COLUMBIA
Ms. Norton. Thank you, Chairman Franken, Ranking Member
Cornyn. I appreciate this hearing. I appreciate the opportunity
to introduce a highly qualified candidate for the United States
District Court for the District of Columbia, Tanya S. Chutkan.
Tanya Chutkan is the hiring and recruiting manager of a
major DC law firm where she engaged in both civil and criminal
litigation. She is currently representing plaintiffs in
antitrust cases, which is her major focus, in Federal courts in
New York, Pennsylvania, California, Tennessee, and Alabama.
Ms. Chutkan has also had extensive criminal experience at
the Public Defender Service of the District of Columbia. She
tried more than 30 cases there, argued two cases on appeal. Ms.
Chutkan is a graduate of the University of Pennsylvania Law
School. She also attended George Washington University here. At
the law school, she served as an associate editor of the Law
Review and as an Arthur Littleton Legal Writing Fellow.
Tanya Chutkan has won uniform praise from both her
colleagues and opposing counsel and judges as well. I strongly
recommend her based on her intellect and her character and her
skills and diligence and temperament and her fairness. And, Mr.
Chairman, if I may note, by coincidence, you are holding this
hearing during Black History Month, and before the District has
any courtesy to recommend judges to the President, there had
only been one African American woman to serve on the district
court until--here for 32 years. Since we have had this
courtesy, we have had the second to serve, and Ms. Chutkan, if
she is approved, as I am sure she will be by virtue of her
extraordinary qualifications, will be only the second African
American woman on the bench. We are very proud of what she has
achieved, and we are very proud of our court that she, I hope
you agree, should join, because it is a distinguished court,
and she is, in my view, a highly qualified candidate.
I recommend her strongly to you for approval by this
Committee and, of course, for confirmation by the senate.
Senator Franken. Thank you, Representative Holmes Norton,
for coming to our side of the Hill, and I know that you are
busy over there. You are welcome to stay, certainly, but if you
have to leave, we certainly understand.
I would now like to ask Judge Gregg Costa to come forward,
and as is customary--you may keep standing--I will administer
the oath and swear in the witness.
Judge Costa, Gregg Cost, do you affirm that the testimony
you are about to give before the Committee will be the truth,
the whole truth, and nothing but the truth?
Judge Costa. I do.
Senator Franken. Thank you. Welcome, Judge Costa, and
congratulations on your nomination. I would like to give you an
opportunity to make an opening statement and to acknowledge any
friends or family who may be here with you today or watching
from home.
STATEMENT OF HON. GREGG JEFFREY COSTA, NOMINEE
TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Costa. Thank you, Senator Franken, and thank you for
presiding today. Thank you, Senator Cornyn, for your kind
introduction, for supporting me for a second time. I also want
to thank Senator Cruz and thank the Federal Judiciary
Evaluation Committee that both Senator Cornyn and Senator Cruz
have set up in Texas, which has treated me very fairly and
supported me for a second time.
I certainly want to thank President Obama for nominating--
this great honor of a second nomination, and I have someone
here today as well who--a public official who is really the one
who started me out on this path. That is Representative Al
Green from Houston. I did not know the Congressman until a few
years ago when he set up this process to start considering
judicial nominees, and the fact that he started me down this
path is something I will always be grateful for.
I do want to introduce my family who is here. A week or two
ago, when I found out about this hearing, I sent my mother a
very brief email that just said, ``The White House called. The
hearing is set for 2/25.'' And my mother and father were at a
restaurant when she got the email, and she said, ``Wow, it is
pretty remarkable when your son sends an email saying the White
House called.'' And that really did drive home for me what an
amazing journey this has been and these amazing opportunities I
have had. And as I said when I was sworn in to the district
court bench, I think these amazing opportunities I have been
able to enjoy speaks not just to the greatness of our country
but to my mother and father's greatness as parents.
My wife, Jennifer, my biggest supporter and my best friend,
is here.
And then that brings me to the two people who are probably
the biggest beneficiaries of my second nomination. That is my
two boys, Elijah and Joshua, because it is giving them an
opportunity to redeem their behavior from the last hearing they
attended.
[Laughter.]
Judge Costa. I will not know until I watch the video later
today if they have improved.
And then making her debut in the Senate today is my 4-year-
old daughter, Rebekah, but I have no concerns whatsoever about
her behavior.
Senator Franken, being from Minnesota, this morning's snow
was probably no big deal to you, but it was the first time my
kids on the way over here had ever seen snow falling from the
sky. So I promise you at least for them this morning's snow is
going to be far more memorable than anything I say this
morning.
But with that, I am ready to take the Committee's
questions.
[The biographical information of Judge Costa appears as a
submission for the record.]
Senator Franken. Well, thank you, and welcome to your
family.
Judge Costa, it is somewhat customary for this Committee to
ask nominees to describe their judicial philosophies. I take
this to mean the approach that you will take when deciding
close cases, cases where the law is not quite as clear or where
the evidentiary record is disputed. I would like to give you a
chance to address that and, in particular, what we can expect
of you and what litigants can expect of you when you are
confirmed to the court of appeals.
Judge Costa. Thank you for the question, Senator Franken.
When I was a lawyer, the thing I most enjoyed about being in
front of judges was when they approached the case with an open
mind, when you did not think they brought preconceived notions
to the case before they heard from the lawyers or looked at the
evidence. And so I think the appropriate role of a judge is to
view each case with an open mind and base the decision on the
facts and law in that case.
In cases when there is not a precedent directly on point
that you referred to, I think there are still, you know,
standard, commonly accepted methods of interpretation that a
judge can rely on to find what the appropriate answer is for
that case.
Senator Franken. Well, congratulations on your second
nomination in such a close time period. When you were being
considered for your current position at the district court,
Senator Grassley submitted a written question for the record in
which he asked you about judicial temperament. You gave an
answer that included open-mindedness. This is what you said.
You said, ``The most important elements of judicial temperament
are open-mindedness, respect for all parties, attorneys and
other participants in the judicial process, and humility.''
Now you have been on the bench for nearly 2 years. How
would you respond to the same question? How has your
experience--has it in any way changed your view on that
question?
Judge Costa. I do not think it has. All those qualities I
think are still very important for a judge to have, and I have
worked hard to try and exhibit those.
I think the one thing from the experience I have had thus
far that I might add to that is, as a Federal judge, you really
need a strong work ethic, because if you want to be open-
minded, if you want to give fair consideration to the parties'
arguments in each case, there are a lot of cases, and there is
a lot of paper that gets filed. And so it is a lot of work to
take the time to read everything and make sure everyone has got
a fair hearing.
I know at the district court it is an incredibly demanding
job. I know at the circuit, if I were fortunate enough to be
confirmed, it would be as well. I think the Fifth Circuit has
the second busiest docket behind the Ninth. But it is something
I have been able to do during my time on the district bench,
and I would hope to do the same, if confirmed.
Senator Franken. So what you are saying is that 2 years ago
you had no idea how hard you would be working.
[Laughter.]
Judge Costa. Some idea, but until it really hits you,
right?
Senator Franken. Judge Costa, you clerked for Judge
Randolph and Justice Rehnquist, and you have written about
Justice Marshall. Are there any judges or Justices who you
particularly admire, someone whom you might consider a role
model?
Judge Costa. Well, certainly the two judges I clerked for I
learned an amazing amount from, as I hope my law clerks have
learned something from me. And in many ways, the way I run my
chambers, my writing style I think mirrors some of what I
learned from Judge Randolph and Chief Justice Rehnquist. I
think Justice Ginsburg has said Chief Justice Rehnquist was the
best boss she ever had. He was my boss in a very different
capacity than he was her boss, but I would echo her sentiment.
So I look to both of them.
I also think given that I am being considered for the Fifth
Circuit, it is worth mentioning there were four judges,
including John Minor Wisdom, who the Fifth Circuit building in
New Orleans is named for--three of them were Eisenhower
appointees. They served during the 1960s. It fell to them the
task of applying Brown v. Board of Education on the ground in
the South. And they did so and applied the law--they were bound
as lower court judges to apply the law, and they did so in the
face of great social ostracism and sometimes threats of
violence. And so I think their fidelity to the rule of law in
very difficult circumstances is also a great example.
Senator Franken. Thank you, Judge Costa. I have heard about
Judge Wisdom. How do you spell ``Minor'' in Wisdom?
Judge Costa. M-I-N-O-R. A great judge name--Judge Wisdom.
Senator Franken. But Minor Wisdom is just odd.
[Laughter.]
Senator Franken. It always struck as very Southern in some
way. I do not know why.
Senator Cornyn.
Senator Cornyn. It is a sign of judicial humility.
[Laughter.]
Senator Cornyn. I could be wrong, Chairman Franken, but I
believe Senator Alexander clerked on the Fifth Circuit, and I
want to say he clerked for Judge Wisdom. I could be wrong
there.
Senator Franken. I think Senator Sessions may have as well.
Well, anyway.
Senator Cornyn. So, Judge Costa, you and I are well
acquainted with one another professionally, and I am glad to
see you here today sitting in this seat at long last now for
this hearing.
Just by way of some description, you alluded to the Federal
Judicial Evaluation Committee process, and just to put a little
meat on the bones, this is a bipartisan group of what I think
are probably the top practitioners in the State to evaluate the
professional qualifications and credentials of the candidates.
And, of course, we work with the Texas congressional
delegation, like Congressman Green and others, to make sure
that we get the best talent to actually apply for these
benches.
But could you describe a little bit about your interaction
with the Federal Judicial Evaluation Commission, both when you
applied for the district bench as well as the court of appeals?
Judge Costa. Absolutely. On both occasions, they have a
very open process. It is well publicized when they are
accepting applications. Any lawyer in the State can submit an
application, and then a certain number are notified who are
selected for interviews. And both times I met with the full
committee for interviews. They asked tough but fair questions.
On the committee are some of the most respected lawyers in the
State. When I was there last time, I was thinking how much they
could have been billing if you added up all 35 members while I
was sitting there spouting off on the law.
But, again, they take this very seriously, and it is
refreshing to see that these lawyers who have so many other
important things to do put so much care into making sure that
there are people on the Federal bench who are well suited to
being there.
Senator Cornyn. Well, you appreciated, I know, that the
legal profession is made up of people who obviously advocate
for clients and are not necessarily advocating for a cause. And
what the legal profession depends on and what I believe the
bedrock of America depends on is somebody at some point who is
going to call balls and strikes and who is going to apply the
law as written or based on the precedents established by the
U.S. Supreme Court or superior court. Is that something that
you are committed to doing?
Judge Costa. Certainly, Senator, and I think my record in
the year and a half or so that I have been on the Federal bench
hopefully shows that. Judges are not here to make policy. We
leave that to you all and to the President. Our job is to apply
and interpret the law.
Senator Cornyn. Well, the policymaking can get pretty messy
sometimes, but I appreciate your answer.
So let me talk about the 164 memoranda, opinions, and
orders that you have written since you have been on the
district bench. I note that the Fifth Circuit has reversed
three of those, which, by my count, is not a bad record. I
remember when I was in private practice, somebody pointed out
that the only lawyers who never lose a case are those who never
try a case. And I think there is probably an analogue here for
judges, and obviously you call the balls and strikes in your
capacity as a district judge, but it is the appellate court's
responsibility to do its independent review of your work. And I
would just note that 3 out of 164 ain't bad.
But could you tell me and tell the Committee what, if
anything, you learned from the reversals? Sometimes I think we
learn less when people agree with us than when people disagree
with us.
Judge Costa. Thank you for the question, Senator Cornyn. We
said the same thing about trial lawyers losing cases in the
U.S. Attorney's Office, and I have often said--I think I had
two defendants who got a mixed verdict or were acquitted, and I
always learned more as a trial lawyer in those two instances
than I did when you win and you go home and think you did
everything great.
And I think, you know, obviously the appellate court is
there to have three judges look at an issue. The appellate
court often has fuller briefing, often has more time to
consider an issue. So I obviously give great weight to what the
appellate court thinks and, you know, I review that and respond
in future opinions I have accordingly based on the issues that
they thought were incorrectly decided.
Senator Cornyn. Well, Judge Costa, I am happy to support
your nomination, and I would say that in a Washington
environment where very often there is polarization and where
the White House and the Congress is at loggerheads, this is one
area where we have been able to come together, and I think
thanks to your hard work and outstanding record and commitment
to the rule of law, we have been able to come together and
agree on your nomination. So I just want to say congratulations
to you and your family, and I look forward to your confirmation
and to your outstanding record of public service now in the
Fifth Circuit.
Judge Costa. Thank you.
Senator Franken. Thank you, Senator Cornyn. I would like to
echo that, and you are dismissed.
Judge Costa. Thank you, Senator. We will go see the snow.
Senator Franken. The kids behaved very well.
[Laughter.]
Senator Franken. I would now like to ask Tanya Chutkan, Leo
Sorokin, Hannah Lauck, and John Cruden to come to the witness
table, and you can remain standing.
Please remain standing to be sworn. Do you affirm that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Ms. Chutkan. I do.
Judge Lauck. I do.
Judge Sorokin. I do.
Mr. Cruden. I do.
Senator Franken. Thank you. Please be seated.
Welcome and congratulations to you all on your nominations.
I would like to give you each an opportunity to make an opening
statement and to acknowledge any friends or family who may be
here with you or watching from home.
We will start with Ms. Chutkan.
STATEMENT OF TANYA S. CHUTKAN, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA
Ms. Chutkan. Good morning. Thank you very much, Senator
Franken and Ranking Member Cornyn, for holding this hearing
today. I realize that a tremendous amount of effort goes into
preparing this, and I thank you and your staffs for doing that.
I also want to thank Congresswoman Holmes Norton for her
very kind introduction and for the work her Judicial
Nominations Commission did in reviewing my materials and the
honor they do me in recommending me for this nomination.
I would like to acknowledge with me here today this morning
my husband, Peter Krauthamer, who--we met years ago as young
public defenders and whose service on the D.C. superior court
bench has been an example and inspiration for me. And my two
sons, Nicholas and Max Krauthamer, who are delighted to be
missing school to be here today.
[Laughter.]
Ms. Chutkan. It is not always easy being the child of two
trial lawyers or a trial lawyer and a judge or, worse yet, two
judges, but they have become very effective advocates for
themselves.
[Laughter.]
Ms. Chutkan. Quite skillful.
I would like to thank President Obama for nominating me. He
has given me a great honor, and it is one I hope to uphold and
live up to.
I want to thank my--here today with me, my sister, Dr.
Robynne Chutkan, who is here, and with her husband, Eric Mann,
who is from the Department of Homeland Security. My brother,
Dr. Norman Chutkan, could not be here today. He is actually
performing surgery right now, but I know if he could be here,
he would.
And my wonderful, wonderful parents, Dr. Winston Chutkan
and Noelle Chutkan, who could not be here today, but I am sure
are watching on a webcast. My parents have been a steadfast
source of love and encouragement and support for all three of
their children, and any success that we have achieved has
really been due to the wonderful example they have set for us.
So I am thinking of them today.
I want to thank my mother-in-law, my father-in-law and his
wife, my many sister- and brother-in-laws who are watching from
near and far; my 12 nieces and nephews, who should all be in
school today; colleagues from both my law firm of Boies,
Schiller and Flexner, including my partner, William Isaacson,
who is here today; and colleagues from the Public Defender
Service, neighbors, and friends who are here today and watching
by webcast. Thank you all.
[The biographical information of Ms. Chutkan appears as a
submission for the record.]
Senator Franken. Thank you, Ms. Chutkan.
Judge Lauck.
STATEMENT OF HON. M. HANNAH LAUCK, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF VIRGINIA
Judge Lauck. Thank you, Chair, Senator Franken. I also want
to thank Ranking Member Cornyn for the opportunity to appear in
front of this Committee and to the Committee for organizing
this hearing for us.
I want to thank President Obama for the honor of the
nomination and especially thank Senators Warner and Kaine for
their gracious words of introduction.
I would like to introduce my family. My husband of 20 years
is here, Jay Wood. He is my best friend. He is the source of
all happiness in my life and a terrific father and teacher.
Our son is here, Frost Wood. He is a ninth grader in his
father's school and has permission to be here today, both from
his father and from the other teachers in the school.
[Laughter.]
Senator Franken. He did not get permission from me.
[Laughter.]
Senator Franken. From the Chair, but okay.
Judge Lauck. They are having a great year because not only
are they missing school today, they have had a lot of snow
days. This is pretty much the winter of excellence for them in
academia.
My daughter, Addie Wood, is here. She is a seventh grader
in the sister school where Jay teaches.
Our parents, many of them have passed, including my mother,
who was a Minnesotan. But we are hoping that Jay's father, Hank
Wood, is successfully manipulating the webcast today, and there
is a good chance of that.
With us in the room are my brother, Jett Lauck. My sister,
Dede Cockerill, Dede has come in from Texas and has brought a
Texan delegation with her. Her husband, Jim Cockerill, is in
Texas still. My niece, Sarah Jones, may be gone because she has
a little baby, Ella, whom she was gracious enough to bring just
a few weeks after birth. I do not know if they are back here
yet.
Senator Franken. I see a mother with a little baby.
[Laughter.]
Senator Franken. She is kind of blond.
Judge Lauck. Yes.
Senator Franken. Is that her?
Judge Lauck. That would be it. And I would like to note for
the record I certainly am a great aunt.
With Sarah is her husband, Brad, who is a graduate of SMU
and works in the House across the way.
I also have numbers of supporters from--colleagues from
work, good, long, dear friends who have taken the effort to
come here, including law school friends.
Our cousins are here, Ted Bond and Ashley Silverberg, and
we have members from our courthouse, which is a family in the
Eastern District. My law clerk, L.A. Kirkendahl, is here, and
Kristen Kirtsos, and I know that Judge Spencer is here in
spirit, and I appreciate the opportunity at all to be
associated with the seat that he has occupied.
And I look forward to your questions.
[The biographical information of Judge Lauck appears as a
submission for the record.]
Senator Franken. Thank you, Judge, and welcome to all
family members and also to Ms. Chutkan's family.
Judge Sorokin.
STATEMENT OF HON. LEO. T. SOROKIN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MASSACHUSETTS
Judge Sorokin. Thank you, Senator. I would like to thank
you and the other Members of the Committee for convening this
hearing; President Obama for the high honor and humbling honor
of the nomination to the district court; Senator Warren for her
kind words regarding me, her support in this process; and also
Senator Markey, who I know is not here today but who has also
been supportive of my nomination.
As Senator Warren mentioned, I am joined by my wife, who
has been the love of my life for over 30 years; our children,
who are here today, relishing, I think, the opportunity to miss
school; my sisters, who Senator Warren mentioned; my brother-
in-law, Jim; and from your neck of the woods, Senator, I know
on the webcast watching is my sister-in-law, brother-in-law,
and their three children, who live in Rushford, Minnesota, on
their farm.
Two people who I would just like to briefly acknowledge who
are not here are my parents, my mother and father, proud
graduates of the University of Connecticut School of Law in
1950 and 1953, respectively. Without them I would not sit here
today. They taught me the importance of hard work, character,
and commitment to the rule of law, and though I know that they
are saddened--or at least I am, that they are not here to share
this moment with me, I am sure that they are beaming with pride
looking down upon us from the heavens.
Senator Franken. I am sure they are.
Judge Sorokin. So I thank you.
[The biographical information of Judge Sorokin appears as a
submission for the record.]
Senator Franken. Thank you, and welcome to your family and
friends.
Mr. Cruden.
STATEMENT OF JOHN CHARLES CRUDEN, NOMINEE TO
BE ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE
Mr. Cruden. Senator Franken, Senator Cornyn, thank you so
much for chairing this, and I am really honored not just by the
President's nomination and the support I received from the
Attorney General, I am honored to be on this panel with judges
that, if I am so lucky to be confirmed, I may be in front of at
some time in my life.
I also want to thank Senator Udall, who is a superb Senator
but was a wonderful Attorney General, and that was where I
first encountered him.
Senator Udall told you a bit about my background, and it is
relevant to some of the people that are in the audience
supporting me today. It has been a somewhat unique career
trajectory. I graduated from West Point, and in the audience
today I have some of the individuals who graduated with me.
In my office, on the wall of my office is a print of the
plains of West Point. Superimposed on that are the names of my
classmates who died in Vietnam, and every morning I go into the
office and I see the real price but also the importance of
service and public service, but also my warm salute to those
men and women in uniform who continue to do extraordinary
things for the Nation.
I was fortunate leaving West Point to be selected to be the
chief of the Environmental Enforcement Section, which Senator
Udall already pointed out that is how we met. I was there also
joined by extraordinary individuals, professionals who worked
very hard every day promoting the rule of law, advancing the
environment, and many of them are here today also in support of
me, and I am so thankful for their public service and their
friendship. It means a lot to me. Those career professionals in
the Environment Division are really the backbone of that
organization.
Listening on webcast, I know, because I have had the
fortune of working with Federal officials and so many agencies
across the United States, agencies that the Department of
Justice served, but I have also had the chance of working with
Attorneys General and local attorneys on efforts of advancing
the environment, they have been very supportive, and I thank
all of them.
And also in the audience today are individuals who served
with me in two other ways. I was fortunate enough to be elected
by my peers to be the president of the District of Columbia Bar
Association, and then later the American Bar Association's
Section of Environment, Energy, and Natural Resources, and
there are individuals here from those two great organizations
who dedicate their valuable time to advancing the rule of law
and supporting attorneys.
But like others on the--here before you today, I would not
be here today, clearly would not be here today without others
that I do want to single out. Almost immediately after I
graduated from West Point--maybe I waited a few days--I married
my wife, Sharon, who is here today. She is a great professional
in her own right, giving her life to teaching learning-disabled
young people.
Wonderful professionals, I am so proud of my daughters,
Kristen and Heather. They are here with their husbands, Major
Scott Campbell and Travis Mason, but now I am at the stage of
my life where I have been gifted with other things, and I have
four grandchildren. They are boys and girls. With us today are
Ryan Mason and Jonathan Mason. Watching us and here in spirit
are Lauren Campbell and Katelyn Campbell, two extraordinary
young girls.
So thank you again for the opportunity to appear before you
today. Thank you for your consideration. I look forward to your
questions.
[The biographical information of Mr. Cruden appears as a
submission for the record.]
Senator Franken. Well, welcome to all your family and
grandchildren, the grandchildren watching, and thank you for
your service. I will start the questioning with you, Mr.
Cruden.
In your view, what are the most pressing challenges facing
the Environment and Natural Resources Division today? And how
will you address those challenges?
Mr. Cruden. Thank you, Senator. Although I served in the
Environment Division for a number of years, I have been out of
it now for 3 years in an environmental organization, and so as
you would expect, the very first thing I would do going back to
the Division would be learning and listening to all of those,
so I can tell you in that learning and listening, here are
areas that I will be clearly focusing on: Over half of the
Division's resources are dedicated to environmental issues,
either enforcing our Nation's laws or defending agency
policies, and I want to look at that. I want to advance those
things. It is extraordinarily important to me.
Another whole part of the Division's responsibilities is as
a stewardship for natural resources, our public lands, our
national parks. And I want to work on that. It always has
litigation and has litigation today. I need to familiarize
myself with that, but I want to make sure that we are using our
resources wisely.
And then a third area that I intend to concentrate on as
well is there is a unique responsibility the Division has for
Native American rights. They both represent tribes through the
Department of Interior, but they also have litigation with
tribes of the United States. It is an area where I have some
familiarity because I have met with tribal leaders, but not a
lot. And so I will need to learn. I will need to have that
experience and expertise. I will need to meet with tribal
members, as I will need to meet with State Attorneys General to
actually not only figure out how best to use those priorities
but, to answer better your question, how best do I implement
the enormous responsibilities of the Environment and Natural
Resources Division.
Senator Franken. Thank you for that thoughtful response.
It is going to be the rest of you, to be judges--or judges
already and about to be a judge, hopefully. Ms. Chutkan, Judge
Sorokin, and Judge Lauck, I would like to ask you the same
question I asked Judge Costa, which is to please describe your
judicial philosophy, the approach that you would take in
deciding close cases, what we can expect of you, what litigants
can expect of you when you are confirmed as a Federal district
court judge. We will start with Ms. Chutkan.
Ms. Chutkan. Thank you, Senator. Like Judge Costa, as a
trial lawyer, both at the Public Defender Service and in my
career in private practice, I have had the opportunity and the
privilege to practice before a wide variety of judges, both in
Federal and State courts, and really the ideal judge has always
been for me one who is open-minded, fair, and prepared. And
that would be my philosophy, and that would be the guiding
principles for me as a judge.
Impartiality is bedrock. Listening to both sides, treating
all people who come before me, be they individuals or
corporations, with respect and with dignity, and working very
hard to review all relevant materials, do my own research, be
prepared so that when I listen to the arguments of both sides,
I am aware of the relevant case law and of the facts. And in
the close cases, to really pay close attention to the language
of the statute, if I am interpreting a statute, to the facts,
to the binding precedent of the Supreme Court and the D.C.
Circuit, and to treat each case individually and on its own
merits, and apply the law to the facts without fair or favor or
partiality to any side.
Senator Franken. Thank you for that answer.
Judge Lauck, I would like to nominate you not to use that
answer.
[Laughter.]
Judge Lauck. That is the universe of good judging that I
will do my best to respond. Obviously Ms. Chutkan has an
impressive description of what a good judge should be. I cannot
say that I have a word that describes my philosophy. What I
have tried to do in my years as a magistrate judge is to be
both predictable and persuadable.
The predictability flows from following the rule of law,
applying precedent clearly, applying the rules of procedure in
an accurate and speedy manner.
The persuadability stems from some of what Ms. Chutkan
talked about, which is being open-minded, creating an
atmosphere in which everyone who walks in the courtroom feels
as if they have a fair shot, listening carefully to what the
litigants are trying, the case that they are bringing to you,
so that whatever decision you reach and however it comes down,
the individuals feel fairly heard and they know that the law
has been fairly and impartially applied.
Senator Franken. Thank you.
Judge Sorokin.
Judge Sorokin. Thank you. The litigants I think could
expect that I would approach every case with an open mind; that
I would come to court prepared, having reviewed carefully all
the submissions that they had provided me; that I would treat
them both with civility and respect; and that I would endeavor
to render both a prompt decision and a decision that I could
clearly explain to the parties so that they understood not only
what the result was but why I was reaching the result that I
had reached.
In terms of resolving close cases, what I would attempt to
do is to identify exactly what it is in dispute between the
parties and then look at both the general binding precedent
from the Supreme Court and the First Circuit governing the
question, the methodology to approach the question, analogous
case law related to the issue before me, even if it is not
deciding the issue before me, and then render an impartial
decision under the law to the narrow question before me.
Senator Franken. Thanks to all of you for that.
I want to talk a little bit about recidivism. Judge Lauck,
you started a Second Chance Offender Rehabilitation Effort
court in 2007, and, Judge Sorokin, you have done work with the
Massachusetts drug re-entry court program. I have long
advocated for mental health courts and drug courts as
alternatives to traditional incarceration in appropriate cases.
Can each of you tell the Committee about your work in this
area and whether you have identified effective ways to reduce
recidivism and what those are?
Ms. Chutkan. Thanks, Senator. I have not done a tremendous
amount of work on recidivism in my practice.
Senator Franken. Okay.
Ms. Chutkan. But I can tell you that from my time as a
public defender--and I spent 11 years as a public defender--I
found that clients--I was less likely to see clients a second
or third time if there were adequate supports for them in the
community, especially drug treatment and assistance in
transitioning back into society so that they would have the
support and resources they needed so that they would not fall
back into the kind of behavior that led them into the criminal
justice system in the first place.
So I am a big proponent of programs to reduce recidivism.
Senator Franken. Judge Lauck, you started an anti-
recidivism program. Can you tell me about it and what your
findings are?
Judge Lauck. Yes, thank you, Mr. Senator. We have begun the
SCORE program. It is called SCORE, a Second Chance Offender
Rehabilitation Effort, and in our court we--it is a re-entry
program so it is individuals who have already been convicted
and are on supervised release. And the goal of this program is
to identify individuals who are highly addicted to give them
the skills to stop using, to become sober, but also other life
skills. And I think one of the greater aspects of the success
of the SCORE program has been the life skills of education,
getting a GED, getting a driver's license, getting employed.
All of those things have had, I think, a measurable effect on
reducing recidivism with those individuals and leading them to
a successful and employed and sober life within our community.
It has also the benefit of saving resources for individuals
who are not going back into the jail system. I think it overall
has a very positive effect on the community at large.
Senator Franken. Thank you for that work.
Judge Sorokin.
Judge Sorokin. Thank you. Senator, in 2006 our district
started something called the ``Court-Assisted Recovery
Effort.'' Similar to the program that Judge Lauck mentioned,
our program is focused on individuals who are returning from
Federal prison onto supervised release who have serious drug--
histories of drug addiction and drug abuse. And the aim of the
program is to help the participants first to create and then to
maintain a sober, employed, and law-abiding life.
We have found that by combining the public health approach
of treatment with the criminal justice approach of
accountability together, we are able to encourage and achieve
success with these individuals returning from Federal prison.
And as Senator Warren mentioned, we have studied it and found
that we have effectively reduced recidivism. We have not
studied the resource savings, but anecdotally it does appear
that it is certainly cheaper for people in supervised release
to provide them treatment than to jail them.
Senator Franken. And they become more productive and on and
on.
Well, I want to thank all of you, and I hope we get you
confirmed as soon as possible. And I would like to congratulate
you and your loved ones and family and friends who have come
today.
We will hold the record open for 1 week for submissions of
questions for the witnesses and other materials. This hearing
is now adjourned.
[Whereupon, at 11:07 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
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