[Senate Hearing 113-515, Part 8]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 8
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
----------
MARCH 12, APRIL 1, MAY 13, and MAY 20, 2014
----------
Serial No. J-113-1
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Part 8
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-515, Pt. 8
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 12, APRIL 1, MAY 13, and MAY 20, 2014
__________
Serial No. J-113-1
__________
Part 8
__________
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
----------
MARCH 12, 2014, 9:30 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois
presenting Staci Michelle Yandle, Nominee to be District Judge
for the Southern District of Illinois.......................... 5
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement........................................... 246
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement........................................... 245
PRESENTERS
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania presenting Cheryl Ann Krause, Nominee to be
Circuit Judge for the Third Circuit............................ 3
Heller, Hon. Dean, a U.S. Senator from the State of Nevada
presenting
Richard Franklin Boulware II................................... 9
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Hon. Salvador Mendoza, Jr., Nominee to be District
Judge for the Eastern District of Washington................... 2
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting
Richard Franklin Boulware II................................... 11
Toomey, Hon. Patrick J., a U.S. Senator from the State of
Pennsylvania
presenting Cheryl Ann Krause, Nominee to be Circuit Judge for
the Third Circuit.............................................. 4
STATEMENTS OF THE NOMINEES
Witness List..................................................... 25
Boulware, Richard Franklin, II, Nominee to be U.S. District Judge
for the District of Nevada..................................... 7
biographical information..................................... 77
Krause, Cheryl Ann, Nominee to be U.S. Circuit Judge for the
Third Circuit.................................................. 7
biographical information..................................... 26
Mendoza, Hon. Salvador, Jr., Nominee to be U.S. District Judge
for the Eastern District of Washington......................... 8
biographical information..................................... 117
Rodriguez, Leon, Nominee to be Director of the U.S. Citizenship
and Immigration Services, U.S. Department of Homeland Security. 10
biographical information..................................... 198
prepared statement........................................... 242
Yandle, Staci Michelle, Nominee to be U.S. District Judge for the
Southern District of Illinois.................................. 10
biographical information..................................... 162
QUESTIONS
Questions submitted to Nominees Richard Franklin Boulware, II,
Cheryl Ann Krause, Hon. Salvador Mendoza, Jr., and Staci
Michelle Yandle by Senator Cruz................................ 282
Questions submitted to Richard Franklin Boulware, II, by Senator
Grassley....................................................... 254
Questions submitted to Cheryl Ann Krause by Senator Grassley..... 249
Questions submitted to Hon. Salvador Mendoza, Jr., by Senator
Grassley....................................................... 258
Questions submitted to Leon Rodriguez by:
Senator Feinstein............................................ 248
Senator Grassley............................................. 266
Follow-up questions submitted by Senator Grassley............ 273
Senator Hatch................................................ 280
Questions submitted to Staci Michelle Yandle by Senator Grassley. 262
ANSWERS
Responses of Richard Franklin Boulware, II, to questions
submitted by:
Senator Cruz................................................. 307
Senator Grassley............................................. 299
Responses of Cheryl Ann Krause to questions submitted by:
Senator Cruz................................................. 296
Senator Grassley............................................. 283
Responses of Hon. Salvador Mendoza, Jr., to questions submitted
by:
Senator Cruz................................................. 319
Senator Grassley............................................. 310
attachment................................................... 321
Responses of Leon Rodriguez to questions submitted by:
Senator Feinstein............................................ 347
Senator Grassley............................................. 348
Follow-up questions submitted by Senator Grassley............ 371
Senator Hatch................................................ 345
Responses of Staci Michelle Yandle to questions submitted by:
Senator Cruz................................................. 343
Senator Grassley............................................. 335
LETTER RECEIVED WITH REGARD TO RICHARD FRANKLIN BOULWARE, II
American Bar Association, January 17, 2014, letter............... 396
LETTERS RECEIVED WITH REGARD TO CHERYL ANN KRAUSE
American Bar Association, February 6, 2014, letter............... 389
Bibas, Stephanos, et al., March 7, 2014, letter.................. 393
Brest, Paul, et al., March 10, 2014, letter...................... 391
Clarification by Cheryl Ann Krause to the U.S. Senate Committe on
the Judicary, March 13, 2014, letter........................... 395
LETTER RECEIVED WITH REGARD TO HON. SALVADOR MENDOZA, JR.
American Bar Association, January 17, 2014, letter............... 398
LETTERS RECEIVED WITH REGARD TO LEON RODRIGUEZ
Grifa, Lori, January 15, 2014, letter............................ 408
Hawkins, Dennis R., Esq., January 27, 2014, letter............... 410
Honda, Hon. Michael M., a Representative in Congress from the
State of California, February 14, 2014, letter................. 412
Johnson, J. Alan, January 9, 2014, letter........................ 402
Manger, J. Thomas, January 14, 2014, letters..................... 404
Major Cities Chiefs Association, January 14, 2014, letter........ 414
Wallenstein, Arthur M., January 14, 2014, letter................. 406
LETTER RECEIVED WITH REGARD TO STACI MICHELLE YANDLE
American Bar Association, January 17, 2014, letter............... 400
MISCELLANEOUS SUBMISSION FOR THE RECORD
Ros-Lehtinen, Ileana, a Representative in Congress from the State
of Florida,....................................................
prepared statement with regard to Leon Rodriguez, Nominee to
be Director of the U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security............. 415
C O N T E N T S
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APRIL 1, 2014, 10:04 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Coons, Hon. Christopher, a U.S. Senator from the State of
Delaware....................................................... 417
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 418
PRESENTERS
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting
Hon. Beth Bloom, Nominee to be District Judge for the Southern
District of Florida; Paul G. Byron, Nominee to be District
Judge for the Middle District of Florida; Hon. Darrin P.
Gayles, Nominee to be District Judge for the Southern District
of Florida; and Hon. Carlos Eduardo Mendoza, Nominee to be
District Judge for the Middle District of Florida.............. 418
Rubio, Hon. Marco, a U.S. Senator from the State of Florida
presenting Hon. Beth Bloom, Nominee to be District Judge for
the Southern District of Florida; Paul G. Byron, Nominee to be
District Judge for the Middle District of Florida; Hon. Darrin
P. Gayles, Nominee to be District Judge for the Southern
District of Florida; and Hon. Carlos Eduardo Mendoza, Nominee
to be District Judge for the Middle District of Florida........ 419
STATEMENTS OF THE NOMINEES
Witness List..................................................... 433
Bloom, Hon. Beth, Nominee to be U.S. District Judge for the
Southern District of Florida................................... 422
biographical information..................................... 434
Byron, Paul G., Nominee to be U.S. District Judge for the Middle
District of Florida............................................ 422
biographical information..................................... 505
questionnaire update letter, March 25, 2014.................. 559
Gayles, Hon. Darrin P., Nominee to be U.S. District Judge for the
Southern
District of Florida............................................ 423
biographical information..................................... 575
Mendoza, Hon. Carlos Eduardo, Nominee to be U.S. District Judge
for the Middle District of Florida............................. 423
biographical information..................................... 631
QUESTIONS
Questions submitted to all Nominees by Senator Cruz.............. 694
Questions submitted to Hon. Beth Bloom by Senator Grassley....... 680
Questions submitted to Paul G. Byron by Senator Grassley......... 684
Questions submitted to Hon. Darrin P. Gayles by Senator Grassley. 688
Questions submitted to Hon. Carlos Eduardo Mendoza by Senator
Grassley....................................................... 690
ANSWERS
Responses of Hon. Beth Bloom to questions submitted by:
Senator Cruz................................................. 703
Senator Grassley............................................. 695
Responses of Paul G. Byron to questions submitted by:
Senator Cruz................................................. 715
Senator Grassley............................................. 706
Responses of Hon. Darrin P. Gayles to questions submitted by:
Senator Cruz................................................. 722
Senator Grassley............................................. 718
Responses of Hon. Carlos Eduardo Mendoza to questions submitted
by:
Senator Cruz................................................. 730
Senator Grassley............................................. 724
LETTER RECEIVED WITH REGARD TO HON. BETH BLOOM
American Bar Association, February 6, 2014, letter............... 732
LETTER RECEIVED WITH REGARD TO PAUL G. BYRON
American Bar Association, February 6, 2014, letter............... 734
LETTERS RECEIVED WITH REGARD TO HON. DARRIN P. GAYLES
American Bar Association, February 6, 2014, letter............... 736
Chacon, Raul J., Jr., March 31, 2014, letter..................... 744
Keys, Carol F., Esq., March 31, 2014, letter..................... 738
Poston, Rebekah J., March 31, 2014, letter....................... 742
Rosier, Patricia, Esq., April 1, 2014, letter.................... 749
Strader, Yolanda P., March 31, 2014, letter...................... 739
Wilkie D. Ferguson, Jr. Bar Association, March 31, 2014, letter.. 746
LETTER RECEIVED WITH REGARD TO HON. CARLOS EDUARDO MENDOZA
American Bar Association, February 6, 2014, letter............... 751
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Nelson, Hon. Bill, a U.S. Senator from the State of Florida,
prepared statement with regard to Hon. Beth Bloom, Nominee to
be District Judge for the Southern District of Florida..... 753
prepared statement with regard to Paul G. Byron, Nominee to
be District Judge for the Middle District of Florida....... 754
prepared statement with regard to Hon. Darrin P. Gayles,
Nominee to be District Judge for the Southern District of
Florida.................................................... 753
prepared statement with regard to Hon. Carlos Eduardo
Mendoza, Nominee to be District Judge for the Middle
District of Florida........................................ 754
C O N T E N T S
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MAY 13, 2014, 9:30 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 755
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 756
Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont,
prepared statement........................................... 1280
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Hon. Julie E. Carnes, Nominee to be Circuit Judge
for the Eleventh Circuit; Jill A. Pryor, Nominee to be Circuit
Judge for the Eleventh Circuit; Leslie Joyce Abrams, Nominee to
be District Judge for the Middle District of Georgia; Hon.
Michael P. Boggs, Nominee to be District Judge for the Northern
District of Georgia; Mark Howard Cohen, Nominee to be District
Judge for the Northern District of Georgia; Leigh Martin May,
Nominee to be District Judge for the Northern District of
Georgia; and Hon. Eleanor Louise Ross, Nominee to be District
Judge for the Northern District of Georgia..................... 757
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia
presenting Hon. Julie E. Carnes, Nominee to be Circuit Judge
for the Eleventh Circuit; Jill A. Pryor, Nominee to be Circuit
Judge for the Eleventh Circuit; Leslie Joyce Abrams, Nominee to
be District Judge for the Middle District of Georgia; Hon.
Michael P. Boggs, Nominee to be District Judge for the Northern
District of Georgia; Mark Howard Cohen, Nominee to be District
Judge for the Northern District of Georgia; Leigh Martin May,
Nominee to be District Judge for the Northern District of
Georgia; and Hon. Eleanor Louise Ross, Nominee to be District
Judge for the Northern District of Georgia..................... 759
STATEMENTS OF THE NOMINEES
Witness List..................................................... 807
Abrams, Leslie Joyce, Nominee to be U.S. District Judge for the
Middle District of Georgia..................................... 768
biographical information..................................... 1010
Boggs, Hon. Michael P., Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 768
biographical information..................................... 1044
questionnaire update letter, April l0, 2014.................. 1107
Carnes, Hon. Julie E., Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 760
biographical information..................................... 808
Cohen, Mark Howard, Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 769
biographical information..................................... 1133
May, Leigh Martin, Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 770
biographical information..................................... 1181
Pryor, Jill A., Nominee to be U.S. Circuit Judge for the Eleventh
Circuit........................................................ 762
biographical information..................................... 908
questionnaire update letter, January 3, 2013................. 964
questionnaire update letter, January 10, 2014................ 989
Ross, Hon. Eleanor Louise, Nominee to be U.S. District Judge for
the Northern District of Georgia............................... 771
biographical information..................................... 1234
QUESTIONS
Questions submitted to all Nominees by Senator Cruz.............. 1312
Questions submitted to Leslie Joyce Abrams by Senator Grassley... 1292
Questions submitted to Hon. Michael P. Boggs by:
Senator Blumenthal........................................... 1335
Follow-up questions submitted by Senator Blumenthal.......... 1339
Senator Coons................................................ 1333
Senator Feinstein............................................ 1321
Senator Franken.............................................. 1331
Senator Grassley............................................. 1296
Senator Leahy................................................ 1313
Follow-up questions submitted by Senator Leahy............... 1319
Questions submitted to Hon. Julie E. Carnes by Senator Grassley.. 1281
Questions submitted to Mark Howard Cohen by:
Senator Grassley............................................. 1301
Senator Leahy................................................ 1316
Questions submitted to Leigh Martin May by Senator Grassley...... 1305
Questions submitted to Jill A. Pryor by Senator Grassley......... 1286
Questions submitted to Hon. Eleanor Louise Ross by Senator
Grassley....................................................... 1308
ANSWERS
Responses of Leslie Joyce Abrams to questions submitted by:
Senator Cruz................................................. 1381
Senator Grassley............................................. 1374
attachment................................................... 1384
Responses of Hon. Michael P. Boggs to questions submitted by:
Senator Blumenthal........................................... 1585
Follow-up questions submitted by Senator Blumenthal.......... 1596
Senator Coons................................................ 1580
Senator Cruz................................................. 1542
Senator Feinstein............................................ 1553
Senator Franken.............................................. 1577
Senator Grassley............................................. 1529
Senator Leahy................................................ 1545
Follow-up questions submitted by Senator Leahy............... 1593
attachment one............................................... 1605
attachment two............................................... 1622
attachment three............................................. 1638
attachment four.............................................. 1652
attachment five.............................................. 1662
attachment six............................................... 1667
Responses of Hon. Julie E. Carnes to questions submitted by:
Senator Cruz................................................. 1353
Senator Grassley............................................. 1342
Responses of Mark Howard Cohen to questions submitted by:
Senator Cruz................................................. 1678
Senator Grassley............................................. 1671
Senator Leahy................................................ 1681
Responses of Leigh Martin May to questions submitted by:
Senator Cruz................................................. 1693
Senator Grassley............................................. 1687
Responses of Jill A. Pryor to questions submitted by:
Senator Cruz................................................. 1371
Senator Grassley............................................. 1356
Responses of Hon. Eleanor Louise Ross to questions submitted by:
Senator Cruz................................................. 1701
Senator Grassley............................................. 1695
LETTER RECEIVED WITH REGARD TO LESLIE JOYCE ABRAMS
American Bar Association, March 12, 2014, letter................. 1706
LETTERS RECEIVED WITH REGARD TO HON. MICHAEL P. BOGGS
Advocacy For Action, Inc., January 10, 2014, letter.............. 1713
American Bar Association, December 20, 2013, letter.............. 1708
Draper, Lucy Hargrett, January 9, 2014, letter................... 1712
Fort, Hon. Vincent D., Georgia State Senate, January 15, 2014,
letter......................................................... 1715
Human Rights Campaign (HRC), May 14, 2014, letter................ 1723
Johnson, Hon. Henry C. ``Hank,'' Jr., a Representative in
Congress from the State of Georgia, May 20, 2014, letter....... 1718
Lambda Legal, May 9, 2014, letter................................ 1725
Leadership Conference on Civil and Human Rights, The, May 12,
2014, letter................................................... 1734
Murry, Dorian, May 8, 2014, letter............................... 1717
NARAL Pro-Choice America et al., February 20, 2014, letter....... 1720
National Council of Jewish Women (NCJW), May 12, 2014, letter.... 1728
People For the American Way, May 14, 2014, letter................ 1729
Scott, David, a Representative in Congress from the State of
Georgia,
January 3, 2014, letter........................................ 1710
LETTER RECEIVED WITH REGARD TO HON. JULIE E. CARNES
American Bar Association, December 20, 2013, letter.............. 1703
LETTERS RECEIVED WITH REGARD TO MARK HOWARD COHEN
American Bar Association, December 20, 2013, letter.............. 1736
Levitas, Elliott H., March 20, 2014, letter...................... 1738
LETTER RECEIVED WITH REGARD TO LEIGH MARTIN MAY
American Bar Association, December 20, 2013, letter.............. 1740
LETTER RECEIVED WITH REGARD TO JILL A. PRYOR
American Bar Association, February 16, 2012, letter.............. 1705
LETTER RECEIVED WITH REGARD TO HON. ELEANOR LOUISE ROSS
American Bar Association, December 20, 2013, letter.............. 1742
C O N T E N T S
----------
MAY 20, 2014, 10 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1745
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California
presenting Andre Birotte, Jr., Nominee to be District Judge for
the
Central District of California................................. 1750
PRESENTERS
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana
presenting John W. deGravelles, Nominee to be District Judge
for the Middle District of Louisiana........................... 1746
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri
presenting Hon. Ronnie L. White, Nominee to be District Judge
for the Eastern
District of Missouri........................................... 1747
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting
Hon. Robin L. Rosenberg, Nominee to be District Judge for the
Southern
District of Florida............................................ 1748
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Randolph D. Moss, Nominee to be
District Judge for the District of Columbia.................... 1749
STATEMENTS OF THE NOMINEES
Witness List..................................................... 1769
Birotte, Andre, Jr., Nominee to be U.S. District Judge for the
Central District of California................................. 1752
biographical information..................................... 1770
deGravelles, John W., Nominee to be U.S. District Judge for the
Middle District of Louisiana................................... 1754
biographical information..................................... 1854
Moss, Randolph D., Nominee to be U.S. District Judge for the
District of Columbia........................................... 1754
biographical information..................................... 1948
questionnaire update letter, May 15, 2014.................... 2024
Rosenberg, Hon. Robin L., Nominee to be U.S. District Judge for
the Southern District of Florida............................... 1755
biographical information..................................... 2161
White, Hon. Ronnie L., Nominee to be U.S. District Judge for the
Eastern District of Missouri................................... 1757
biographical information..................................... 2226
QUESTIONS
Questions submitted to all Nominees by Senator Cruz.............. 2312
Questions submitted to Andre Birotte, Jr., by Senator Grassley... 2289
Questions submitted to John W. deGravelles by Senator Grassley... 2294
Questions submitted to Randolph D. Moss by Senator Grassley...... 2299
Questions submitted to Hon. Robin L. Rosenberg by Senator
Grassley....................................................... 2304
Questions submitted to Hon. Ronnie L. White by Senator Grassley.. 2308
ANSWERS
Responses of Andre Birotte, Jr., to questions submitted by:
Senator Cruz................................................. 2323
Senator Grassley............................................. 2313
Responses of John W. deGravelles to questions submitted by:
Senator Cruz................................................. 2335
Senator Grassley............................................. 2326
Responses of Randolph D. Moss to questions submitted by:
Senator Cruz................................................. 2348
Senator Grassley............................................. 2337
Responses of Hon. Robin L. Rosenberg to questions submitted by:
Senator Cruz................................................. 2358
Senator Grassley............................................. 2351
Responses of Hon. Ronnie L. White to questions submitted by:
Senator Cruz................................................. 2369
Senator Grassley............................................. 2360
LETTER RECEIVED WITH REGARD TO ANDRE BIROTTE, JR.
American Bar Association, April 4, 2014, letter.................. 2371
LETTER RECEIVED WITH REGARD TO JOHN W. DEGRAVELLES
American Bar Association, March 14, 2014, letter................. 2373
LETTER RECEIVED WITH REGARD TO RANDOLPH D. MOSS
American Bar Association, April 4, 2014, letter.................. 2375
LETTER RECEIVED WITH REGARD TO HON. ROBIN L. ROSENBERG
American Bar Association, February 26, 2014, letter.............. 2377
LETTERS RECEIVED WITH REGARD TO HON. RONNIE L. WHITE
American Bar Association, November 8, 2013, letter............... 2379
Aron, Nan, May 19, 2014, letter.................................. 2386
Fraternal Order of Police-Missouri State Lodge, May 13, 2014,
letter......................................................... 2381
Leadership Conference on Civil and Human Rights, The, May 19,
2014, letter................................................... 2382
People For the American Way, May 19, 2014, letter................ 2384
ALPHABETICAL LIST OF NOMINEES
Abrams, Leslie Joyce, Nominee to be U.S. District Judge for the
Middle District of Georgia..................................... 768
Birotte, Andre, Jr., Nominee to be U.S. District Judge for the
Central District of California................................. 1752
Bloom, Hon. Beth, Nominee to be U.S. District Judge for the
Southern District of Florida................................... 422
Boggs, Hon. Michael P., Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 768
Boulware, Richard Franklin, II, Nominee to be U.S. District Judge
for the District of Nevada..................................... 7
Byron, Paul G., Nominee to be U.S. District Judge for the Middle
District of Florida............................................ 422
Carnes, Hon. Julie E., Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 760
Cohen, Mark Howard, Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 769
deGravelles, John W., Nominee to be U.S. District Judge for the
Middle District of Louisiana................................... 1754
Gayles, Hon. Darrin P., Nominee to be U.S. District Judge for the
Southern
District of Florida............................................ 423
Krause, Cheryl Ann, Nominee to be U.S. Circuit Judge for the
Third Circuit.................................................. 7
May, Leigh Martin, Nominee to be U.S. District Judge for the
Northern District of Georgia................................... 770
Mendoza, Hon. Carlos Eduardo, Nominee to be U.S. District Judge
for the Middle District of Florida............................. 423
Mendoza, Hon. Salvador, Jr., Nominee to be U.S. District Judge
for the Eastern District of Washington......................... 8
Moss, Randolph D., Nominee to be U.S. District Judge for the
District of Columbia........................................... 1754
Pryor, Jill A., Nominee to be U.S. Circuit Judge for the Eleventh
Circuit........................................................ 762
Rodriguez, Leon, Nominee to be Director of the U.S. Citizenship
and Immigration Services, U.S. Department of Homeland Security. 10
Rosenberg, Hon. Robin L., Nominee to be U.S. District Judge for
the Southern District of Florida............................... 1755
Ross, Hon. Eleanor Louise, Nominee to be U.S. District Judge for
the Northern District of Georgia............................... 771
White, Hon. Ronnie L., Nominee to be U.S. District Judge for the
Eastern District of Missouri................................... 1757
Yandle, Staci Michelle, Nominee to be U.S. District Judge for the
Southern District of Illinois.................................. 10
NOMINATIONS OF CHERYL ANN KRAUSE, NOMINEE TO BE CIRCUIT JUDGE FOR THE
THIRD CIRCUIT; RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA; HON. SALVADOR MENDOZA, JR., NOMINEE
TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF WASHINGTON; STACI MICHELLE YANDLE, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS; AND LEON
RODRIGUEZ, NOMINEE TO BE DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, U.S.
DEPARTMENT OF HOMELAND SECURITY
----------
WEDNESDAY, MARCH 12, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Amy
Klobuchar, presiding.
Present: Senators Klobuchar, Durbin, and Grassley.
Senator Durbin [presiding]. I am pleased to call this
nominations hearing of the Senate Judiciary Committee to order.
I know that we have votes scheduled around 10:30, so we will do
our best to accommodate everyone's schedule.
I am stepping in here for Senator Klobuchar who will be
arriving momentarily.
I want to give a warm welcome to all the nominees. We also
welcome family and friends who accompany them, and you will
have an opportunity to introduce them shortly.
We have five nominees under consideration today. First I
want to call upon Senators Murray and Casey to introduce the
nominees from their home States. Senator Patty Murray.
PRESENTATION OF HON. SALVADOR MENDOZA, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY HON.
PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Well, Mr. Chairman, thank you very much. It
is my privilege today to introduce to this Committee Judge
Salvador Mendoza, Jr., who has been nominated by the President
to be the next United States District Judge for the Eastern
District of Washington. I want to welcome Judge Mendoza. His
wife, Mia, is with him today; his mother, Maria; and his long-
time legal assistant, Monica; who have traveled out here from
what we call ``the other Washington.'' And I especially want to
welcome to this Committee his mother, who is visiting our
Nation's capital for the very first time to witness her son
testify before this Committee as a nominee of the President of
the United States. Maria, I know how proud you must be. And we
are honored that she is with us today as well.
Mr. Chairman, it is not every day that I get to introduce a
nominee who also happens to be a former intern in my office.
And it is also not every day that a man who is the son of a
migrant farm worker and who himself worked on the farms in
Yakima Valley is called on by the President to become the first
Latino Federal judge in the Eastern District of Washington. So
as a Senator from Washington State, I am incredibly proud to
introduce him to this Committee today, because through his
life's story, Judge Mendoza represents the very best of our
State's honest, hardworking spirit.
Madam Chairman, through his work ethic, his commitment to
his community, and his belief in equal opportunity, Judge
Mendoza is a leader and a role model for families throughout
our State and particularly young men and women born into
poverty and difficult circumstances. In fact, in his
application to serve as Federal judge, he discussed his own
upbringing, and I want to quote it to you. He said: ``I worked
and studied hard to better myself and my family. I understood
then what I believe now: that both the quality of the
educational system coupled with a strong system of justice will
lift up the entire community.''
Madam Chairman, I could not agree more, and it comes as no
surprise that throughout his professional life, Judge Mendoza
has stayed true to those words. From serving as a trustee for
Columbia Basin College to helping coordinate the annual Tri-
Cities Youth and Justice Conference, to helping to create the
first drug court for Benton and Franklin counties, Judge
Mendoza has given his time and experience investing in
institutions that each and every day lift up communities
throughout our State. He is currently a superior court judge,
but his judicial career spans private practice, service as an
Assistant Attorney General, and years of experience in
superior, district, municipal, and juvenile court. He is an
experienced practitioner in Federal court and served from 2010
to 2013 as lawyer representative to the Ninth Circuit Judicial
Conference. And through his many years of legal practice and
judicial experience, Judge Mendoza will come to the Federal
bench well prepared.
He has described his judicial philosophy as guided by the
principles of patience, respect, and humility--the same
principles that have guided his life and legal career and
principles that will serve him well as a member of the Federal
judiciary. So I want to thank Judge Mendoza for his willingness
to serve Washington State as a Federal judge. I have said time
and again that as a country we are best when good people are
willing to give of themselves in service to others. It is
service to others that has defined Judge Mendoza throughout his
career and will continue to define him as he assumes the duty
of this new office. I am very proud to be here today to support
his nomination. Thank you, Madam Chair.
Senator Klobuchar [presiding]. Thank you very much, Senator
Murray.
Senator Casey, you are here to introduce Cheryl Ann Krause.
PRESENTATION OF CHERYL ANN KRAUSE, NOMINEE
TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT BY
HON. ROBERT P. CASEY, JR., A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Casey. Madam Chair, thank you very much. I am
honored to be here along with Senator Toomey to speak in favor
of the nomination of Cheryl Ann Krause to be a member of the
United States Court of Appeals for the Third Circuit, one of
our great circuits in the United States.
I would say first that Cheryl's life has been a commitment
to excellence, a commitment to public service, and I think it
is a great American story of hard work and achievement. The
academic credentials that she brings to this job are
substantial. She attended Stanford University Law School. She
clerked for--and the University of Pennsylvania, graduating
summa cum laude, undergrad. I wanted to make sure I got that
Pennsylvania, University of Pennsylvania academic credential in
there. It is significant.
After law school, Cheryl served Justice Anthony Kennedy on
the Supreme Court of the United States, later served as a
prosecutor in the United States Attorney's Office for the
Southern District of New York for 5 years, where, among other
things, she was fighting public corruption cases and dealing
with all kinds of prosecutions involving international bank
fraud, securities fraud, all the range of prosecutorial
achievements that she was able to amass in those years.
I think also when you look at her work as a lawyer in the
private sector, as a Federal prosecutor, it is a life and a
degree of excellence that you often do not see. But I think it
is infused by a deep and abiding commitment to public service.
And when any of us make a determination about the person we
should vote for on a district court or appellate court, we, of
course, consider a range of credentials and questions. One, of
course, is experience. I think when it comes to experience in
the private sector or as a Federal prosecutor, as well as a
whole other range of experiences, very few people would be able
to outdistance what Cheryl brings to this nomination.
Second, we ask that the nominees have the kind of
commitment to public service and the integrity to serve as a
judge on either the district or appellate court.
And, third, I think--and these are broad categories, but we
hope as well that they can be a judge that will not just judge
fairly but will bring a judicial temperament to their work as a
judge. I think on that measure as well Cheryl stands out.
So I think whether it is a combination of academic
credentials, her broad experience in the public and private
sector, and especially her experience as a prosecutor, but I
think overall a commitment to public service is the reason that
I and so many others have decided to support her nomination
with enthusiasm and with a degree of intensity that is, I
think, pretty rare in this town. And I am grateful to have
worked with Senator Toomey bringing this nomination forward,
along with the White House and the Obama administration, and so
we are grateful.
And I will say finally that Cheryl's family is here. I know
they will be introduced later. We are especially grateful they
are here, led by Colonel Bradford R. Everman, her husband, who
has made a deep commitment to the security of the United
States, and we are grateful for his service as well.
Senator Klobuchar. Thank you very much, Senator Casey.
Senator Toomey.
PRESENTATION OF CHERYL ANN KRAUSE, NOMINEE
TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT BY
HON. PATRICK J. TOOMEY, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Toomey. Thank you, and good morning, Chairman
Klobuchar, Senator Grassley, Senator Durbin. Thanks very much
for giving me this opportunity to help to introduce Cheryl Ann
Krause.
I would like to point out that she was nominated by
President Obama on February 6th, and so I appreciate the timely
scheduling of this hearing and the progress we are making.
I also want to take a moment to thank Senator Casey for the
collaborative efforts that he and I have engaged in. We have
had eight successful confirmations since I have taken office.
We still have two very well qualified district court nominees,
Ed Smith and Gerald McHugh, who are awaiting Senate
confirmation, which I hope will occur soon. And we have eight
more district court vacancies that we are working on, but I
would just point out that this is a case of some terrific
bipartisan cooperation that is, in fact, making real progress
for Pennsylvania, and I appreciate Senator Casey's work in this
area.
As Senator Casey has already described, Cheryl Ann Krause
has a very, very impressive personal and professional
background. She clearly has a wealth of legal experience in
public service and private practice. Her commitment to the
community has been very impressive. Her work for children with
disabilities, a Penn Law School project that supervises law
students representing indigent defendants. As Senator Casey
pointed out, she comes from a family that is committed to
public service, her husband having spent years as a fighter
pilot for the U.S. military.
When I met with Ms. Krause, I found her to be a very, very
impressive candidate, clearly very, very intelligent, very
knowledgeable about the law, a very thoughtful and careful
person. I can tell you from the many folks with whom I have
discussed her candidacy, she has an outstanding reputation in
the legal community and beyond for excellence, for competence,
and most importantly to me, for an impeccable character.
So I am confident that she will make a strong addition to
the Third Circuit court, and I thank this Committee for its
time and hope that they favorably report out this nominee.
Thank you.
Senator Klobuchar. Thank you very much to both of you. I
know you want to stay for our entire hearing, but I am sure you
have other business. Thank you for coming.
Next, Senator Durbin, thank you for starting this hearing
out. I had another commitment. He is here to introduce Staci
Michelle Yandle, to be United States District Judge for the
Southern District of Illinois.
PRESENTATION OF STACI MICHELLE YANDLE, 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, Madam Chair. I am pleased to
introduce Staci Yandle, nominated to serve as district court
judge in the Southern District of my State. She has been
nominated to fill the vacancy in the Benton courthouse when
Judge Phil Gilbert assumes senior status on March 15th.
Staci Yandle was born in Centreville, which,
coincidentally, is the home town of my wife. That had nothing
to do with her selection.
[Laughter.]
Senator Durbin. But it did not hurt. She currently lives in
Carlyle. She received her undergraduate degree from the
University of Illinois and her law degree from the Vanderbilt
University School of Law. Over the course of her legal career,
Ms. Yandle has gained extensive litigation experience.
Currently she has her own solo practice in O'Fallon, Illinois,
which she has operated since 2007, before that working for two
prominent law firms in southern Illinois--Carr Korein Tillery
and The Rex Carr Law Firm.
Ms. Yandle has handled a wide variety of litigation
matters, including employment, education, medical injury, civil
rights, nursing home abuse. Most of her cases, she has either
been sole counsel or lead counsel. She served as an arbitrator
in the 20th Judicial Circuit Court in Illinois on approximately
ten occasions. She was appointed to serve on the Illinois
Advisory Committee to the U.S. Commission on Civil Rights from
1992 to 1996, and also appointed to serve by the Governor on
the Illinois Gaming Board from 1999 to 2001; currently served
on the board of the Illinois Bar Foundation; and she has also
worked as an adjunct law professor at the St. Louis University
School of Law; has a distinguished record of pro bono service
in our area; spent over 50 hours per year representing indigent
clients and nonprofit corporations, including the nonprofit
Delta Economic Development Corporation, which operates a child-
care center in my home county of St. Clair.
Ms. Yandle's nomination is also historic in several
respects. Never before in Illinois history has there been an
Article III Federal judge who is openly a member of the LGBT
community. Upon confirmation, Staci Yandle will be the first.
Upon confirmation, she will also be the first African American
Federal judge ever to serve in the Southern District of
Illinois. And up to this point, no woman has ever served as a
Federal judge in the Southern District. I believe that Ms.
Yandle will be preceded by Nancy Rosenstengel, whose nomination
is currently pending on the Senate floor, and she was the first
woman ever nominated to serve on that court.
In short, Staci Yandle's confirmation marks another
important milestone in the journey toward equality of
opportunity for all Americans. Ms. Yandle was recommended to me
by a bipartisan screening committee that I established. I am
pleased that she has been nominated here before the Committee
today, and I am going to work with my colleagues to move her
name through the confirmation process.
One thing I want to note for the record which is very
important only in southern Illinois, but extremely important in
that place: Some are wondering what is going to happen to the
Benton courthouse. I want to make it very clear that even after
Judge Gilbert becomes a senior judge, I am committed to
continuing the active status of a Federal judgeship in Benton,
which Ms. Yandle will serve in that capacity if approved by the
U.S. Senate.
Finally, I will mention that Ms. Yandle is joined here
today by her mother, Sylvia Yandle; her brother, Brian Yandle,
and his wife, Sheila; and her nephew, Darell Yandle. Welcome to
all.
Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Durbin.
We have a series of five votes that start at 10:30, and so
we are going to change this up a little bit and have all of the
nominees come up at the same time. And before that starts, I
wanted to introduce Mr. Leon Rodriguez, who has been nominated
to serve as Director of U.S. Citizenship and Immigration
Services in the Department of Homeland Security. He is
currently the Director for the Office for Civil Rights at the
U.S. Department of Health and Human Services. He previously
served as the Deputy Assistant Attorney General and Chief of
Staff for the Justice Department's Civil Rights Division. He
was born in Brooklyn, New York. Mr. Rodriguez earned his B.A.
from Brown University in 1984 and his J.D. from Boston College
Law School in 1988.
I also know that both Senator Reid and Senator Heller are
going to come in about 15 minutes to say some good words of
introduction for Mr. Boulware, who is nominated to be United
States District Judge for the District of Nevada, and so we are
looking forward to their coming to join our Committee. So we
will have to make a little room or bring up some chairs when
they join us.
But before you all come up, Senator Grassley, did you have
any words before we start?
Senator Grassley. I will put it in the record.
Senator Klobuchar. Excellent.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Klobuchar. Okay. So why don't all the nominees come
up, and we will swear you in.
Okay. Do you want to stand? 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. Krause. I do.
Mr. Boulware. I do.
Judge Mendoza. I do.
Ms. Yandle. I do.
Mr. Rodriguez. I do.
Senator Klobuchar. Thank you very much. Thank you for being
with us today, and we will start out with Ms. Krause. If you
want to take a moment to introduce anyone from your family that
is here with you today, we would love to meet them.
STATEMENT OF CHERYL ANN KRAUSE, NOMINEE
TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT
Ms. Krause. Thank you, Senator Klobuchar and Ranking Member
Grassley, and thanks to the Committee for the opportunity to be
considered today.
My appreciation to both Senators Casey and Toomey for their
gracious words and introduction, and also to the President for
the profound honor of this nomination.
With me in support today are many family and friends who
have traveled from Pennsylvania and elsewhere. We have here my
husband, Bradford Everman, who is my constant support and
inspiration to public service.
With me also are my son, Johnny, and 15-month-old Estelle,
who, if left to their own devices, would have more to say to
this Committee than me, and so I think will be excused shortly.
Senator Klobuchar. She is looking good now, though.
Ms. Krause. My sister, Elizabeth Krause, and her children,
Zoe and Eli; my brother and sister-in-law, Aaron and Stephanie
Krause, and their children, Sophie and Bryce; and many other
family and friends who have come here.
I would also like to note that coming from my firm Dechert
are a number of partners and associates who are here supporting
me and who are watching from afar, and I thank them all for
their support.
[The biographical information of Ms. Krause appears as a
submission for the record.]
Senator Klobuchar. Well, thank you very much. I appreciate
it.
Mr. Boulware.
STATEMENT OF RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEVADA
Mr. Boulware. Thank you, Senator Klobuchar. Thank you to
this Committee. Thank you to the Ranking Member as well for
being here. I also want to thank my home State Senators,
Senator Reid and Senator Heller. I want to thank Senator Reid
for recommending me for this nomination, and I want to thank
Senator Heller for his support.
With me today I have family and friends. I have my family
here: my brother and his wife, Yvette, and their daughter,
Elizabeth. I have my father, Frederick Boulware, and his wife,
Pamela Callahan; and, of course, I have my family, three very
vibrant and young children: my youngest, Zafeen, who is back
there, who I am sure you will hear talking; my son, Kahlil--she
is 4 going on 35.
[Laughter.]
Mr. Boulware. My son, Kahlil, who is 5 years old, my oldest
daughter, Oniana; and, of course, the love of my life and my
partner, Nancy.
The one person who is not here today is my mother, so I
want to thank her, too.
[The biographical information of Mr. Boulware appears as a
submission for the record.]
Senator Klobuchar. That is very nice. Very nice. And I do
see that Senator Heller has arrived. He wants to say a few good
words about you, and maybe he wants to settle in here, and we
will have Mr. Mendoza, Judge Mendoza say a few words, and then
we will go to Senator Heller, and he can say a few good words
about Mr. Boulware.
Judge Mendoza, good to see you.
STATEMENT OF HON. SALVADOR MENDOZA, JR., NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF WASHINGTON
Judge Mendoza. Thank you. Good morning, and I would really
like to thank the Committee for scheduling this hearing so
promptly after the nomination.
I want to thank, of course, Senator Murray for those kinds
words that she had this morning, and also Senator Cantwell for
her continued support. Along with them, of course, I would like
to thank Governor Inslee for his support as well.
I would like to thank President Obama for this incredible
nomination, this incredible opportunity. I am certainly
honored.
Here with me today is my wife, who is an excellent lawyer,
an excellent wife, and an incredible mother.
Senator Klobuchar. Which one is your wife? I see three
women with smiles.
[Laughter.]
Judge Mendoza. The people that are not here are my three
children: Carmen, who is 4; my son, Danny, who is 6, and
Anthony, who today turns 9 years old, so Happy Birthday,
Anthony, if you are watching.
And an important person in my life who is here with me is
my mother. My father and she--my father passed away in 2008,
but both of those two individuals taught me an in credible
amount of what it means to be a good human being, and I
appreciate that.
Also with me today is my long-time legal assistant, Monica
Villanueva, who is not only my legal assistant but a very good
friend of mine.
Also, I have my three brothers who are not here, were not
able to make the trip: Hector, who is taking care of my three
kids and Josey; and my brothers, Robert--Bobby--and Raul.
The person who is also not here is my sister, who passed
away a year and a half ago, but I know that she is with me at
this moment, and when I lost her, I lost my best friend, and I
just would like her name to be in the record.
My friends who are home watching, I appreciate them,
especially Norma Rodriguez, Mario Anteriano, and Scott Johnson.
I would also like to thank my colleagues on the superior
court bench who have been amazing supporters and mentors.
Also, my friends at the Supreme Court, State of Washington,
Justice Gonzalez, Justice McCloud, and Justice Johnson, who
have been very strong supporters.
Additionally, and finally, I would like to thank the
Federal bench of the Eastern District of Washington, especially
Chief Judge Peterson, Judge Suko, and Judge Shea.
Thank you.
[The biographical information of Judge Mendoza appears as a
submission for the record.]
Senator Klobuchar. Well, thank you very much.
Senator Heller, you are here to say a few good words about
Mr. Boulware.
PRESENTATION OF RICHARD FRANKLIN BOULWARE II,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
NEVADA, BY HON. DEAN HELLER, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Heller. I am. Thank you, Senator Klobuchar, and
also to the Ranking Member, Mr. Grassley, for holding this
meeting. And I want to congratulate all the nominees who are
here with us today. Congratulations, Richard. It is good to see
you again.
Mr. Boulware. Thank you, Senator. It is good seeing you as
well.
Senator Heller. Judicial nominations and subsequent
confirmations for qualified individuals are one of the most
important and unique responsibilities we hold as Members of the
U.S. Senate. Through the role of advice and consent, I believe
each nominee must be carefully considered, and I am pleased to
say that I believe we are continuing to accomplish this goal in
this Congress through bipartisan support.
In Nevada, where our delegation is certainly not one-sided,
it is critical for us to work together to find qualified
candidates who will uphold America's principles of impartiality
under the law. I believe Mr. Boulware embodies these
characteristics and serves as an example that, with a bilateral
effort, we can find middle ground in instances where it is
necessary.
That being said, I believe Richard Boulware will make an
excellent district court judge for the State of Nevada. After
sitting down with him, discussing his nomination at length, I
found him to be an extremely impressive nominee.
A graduate of Harvard University, Mr. Boulware went on to
earn his law degree from Columbia University in 2003. He
currently serves as Assistant Public Defender, Federal Public
Defender for the District of Nevada in Las Vegas.
He also has extensive experience arguing before the Ninth
Circuit Court of Appeals. This trial experience, coupled with
his impressive academic accomplishments while clerking for the
U.S. district court, I believe will serve him well on the
bench. Outside of his professional duties, he is currently
serving his local school system as a member of the
Superintendent's Educational Opportunities Advisory Committee.
Again, congratulations, and thank you again for the
opportunity, Madam Chairwoman, for introduced this Nevadan,
outstanding Nevadan, to this Committee, and I look forward to
his testimony as well as the Committee's consideration for Mr.
Boulware's nomination.
Thank you.
Senator Klobuchar. Thank you very much, Senator.
Ms. Yandle.
STATEMENT OF STACI MICHELLE YANDLE, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS
Ms. Yandle. Thank you, Senator Klobuchar. I would like to
thank you, Madam Chair, Ranking Member Grassley, and Members of
this Committee for scheduling this hearing and allowing us the
opportunity to speak with you today.
I would like to thank Senator Durbin for his introduction
and for his support. I certainly would like to thank President
Obama for his nomination and for this honor.
I would also like to thank various members of my community,
my friends, family, who are not in the room with us today, but
I certainly want to thank them for their continued support.
I would like to thank and introduce the members of my
family who are in the room with me today: first and foremost,
my mother, Sylvia Yandle, who traveled here with me from
southern Illinois. I would like to thank my brother and my
sister-in-law--I actually normally refer to her as my sister,
but we are on the record and I will be technically correct. She
is my sister-in-law, Sheila Yandle. They traveled here from
North Carolina; and my nephew, Darell, who traveled here from
Detroit.
I would also like to acknowledge and thank someone else who
is not in the room. That is my father, Robert Yandle, who is
deceased, and, frankly, has been deceased for quite some time,
but who is ever present with me, and he is certainly--I feel
his presence today, and I would like to acknowledge that as
well.
Thank you.
[The biographical information of Ms. Yandle appears as a
submission for the record.]
Senator Klobuchar. Thank you very much, Ms. Yandle.
Mr. Rodriguez.
STATEMENT OF LEON RODRIGUEZ, NOMINEE TO BE
DIRECTOR OF THE U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, U. S. DEPARTMENT OF HOMELAND SECURITY
Mr. Rodriguez. Thank you, Chairwoman, and what a great
honor it is to be here this morning.
I want to start by acknowledging my spectacular wife, Dr.
Jill Schwartz. She is a research physician dedicated to the
eradication of some of the most devastating diseases that we
face in our society.
I would also like to acknowledge my children: Talia and
Elias Rodriguez, who are in the center aisle here today.
Also with me today is former CIS Director, actually the
founding Director of Citizenship and Immigration Services,
Eduardo Aguirre, who was appointed by President Bush to stand
up the new agency, along with his Deputy Director, Michael
Petrucelli.
Also here are our good friends Bicky Borman and Gerald
Kell, and my current chief of staff, Juliet Choi.
I would like to acknowledge the members of my staff from
the Office for Civil Rights, some of whom I know are watching
us this morning.
And, finally, I would like to acknowledge my parents, who
are watching us from Rody, Incorporated, in Miami, the small
business they started in 1966. That business is still alive and
well today, and Isaac and Sara Rodriguez are watching us as
they do their work.
And, finally, I would like to salute the great American
stories of the other nominees here today. Their stories
illustrate the long road that we all travel to days like this
one, and it is stories like theirs that really inspire me to do
hopefully, in the event of my confirmation, a job like Director
of Citizenship and Immigration Services, which is such a great
path to offer opportunities to new Americans.
So thank you, Chairwoman, for this great opportunity.
[The biographical information of Mr. Rodriguez appears as a
submission for the record.]
Senator Klobuchar. Well, thank you so much, Mr. Rodriguez.
We welcome your family. We welcome all the nominees' families.
And now we have our Majority Leader, kind of the head of
our family, Majority Leader Reid here to say some good words
about Mr. Boulware.
PRESENTATION OF RICHARD FRANKLIN BOULWARE II,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
NEVADA, BY HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Reid. Thank you, Madam Chair. I have had the good
fortune over the years to be able to appoint people to
different positions. I do not know how many judges, but 10 or
so in Nevada. And it is always very difficult when family
members are involved in a selection because you are always
afraid: Am I showing too much favoritism? Is the person really
qualified? Well, in this instance, I have known his Mom and Dad
for many, many years, and they should be very proud of him, as
I am, because his qualifications are unparalleled. This is a
good man and a good candidate to be a judge for life.
I am happy to introduce to the Committee Richard Boulware.
He is an intelligent, talented young lawyer, and I have no
doubt he will distinguish himself as a judge. He has worked
very hard. He is the first African American man to be on the
Federal bench in Nevada, but not the first African American. He
has some really big shoes to fill with Johnnie Rawlinson, who
was on the district court, as she has now really distinguished
herself on the Ninth Circuit.
He has been a public defender in Nevada since 2007. Before
that, he was a public defender in New York for 4 years, worked
at the prestigious firm of Covington and Burling in New York.
He grew up in Las Vegas, attended Harvard University as an
undergraduate, and then took some time off. He checked out the
private sector. He clerked for a district court judge in the
Southern District of New York, and prior to entering law
school, he owned a consulting business.
He told me the reason he decided to go back to school, to
go to law school, is he was watching impeachment proceedings on
television of President Clinton, and he said, ``I need to be a
part of that, part of the legal profession.'' And so that is
what he did. He went back to law school, Columbia, where he
distinguished himself as a great scholar, a good student. He is
really well qualified in every aspect. And he is not just naked
from being in the court all the time. He has entered public
service in many different ways: a leadership role in the NAACP
in Las Vegas; he has also served as a volunteer attorney for
U.S. Vets, an organization that serves homeless veterans of the
armed forces since 2009. I would hope there were not homeless
vets in Nevada, but that is not true. There are lots of them.
It is commendable that he would devote his time to help these
people who are really in need.
He is past president of the Las Vegas chapter of the
National Bar Association, has extensive experience trying
criminal cases in the Federal court system. I have talked to
many of the Federal judges who understand what an advocate he
is for the rights of the accused.
He has received the Medal of Justice Award from the State
Bar of Nevada. He received the Dedicated Service Award last
year from the Nevada Attorney General's Criminal Justice
Program. So I am very impressed with him, and I know that he
will be an outstanding judge. And I feel very good and proud of
him and his family, most of whom are here today.
Senator Klobuchar. Thank you very much, Majority Leader
Reid. Okay.
Senator Reid. I was afraid Senator Grassley was going to
ask me some questions.
[Laughter.]
Senator Klobuchar. Yes, I know. Senator Grassley--can the
reflect Senator Grassley is very good at asking questions. He
asks a lot of questions. But that is not the case. You can
leave and do your duties, Majority Leader Reid.
Okay. We are going to begin here, and the reason Senator
Grassley was talking to me was just about making sure that
Senator Durbin would go after me, and then he was going to
allow him to go after I do. And, in fact, Senator Durbin, maybe
you want to go first. That is fine. All right.
I am going to start here with you, Ms. Krause, and I am a
former prosecutor like you, and I wonder if you could talk a
little bit about how you think that experience will impact you
on the bench. And also the pro bono work that you do, if you
could talk about that.
Ms. Krause. Yes, thank you very much, Senator. If I may, as
a preliminary matter, I realize in my excitement to be here I
omitted two of perhaps the most important people in the room:
my parents, Robert and Marilyn Krause.
Senator Klobuchar. Good call.
[Laughter.]
Ms. Krause. They have made the trip here from Pennsylvania
as well, and it is a great joy to me to be able to share this
day with them.
Senator Klobuchar. Okay.
Ms. Krause. Yes, Senator, I did serve as a prosecutor for
many years, and I have continued with public service through my
pro bono work in private practice.
As a prosecutor, I had the opportunity to do both trial and
appellate work, and that has given me a great appreciation for
the importance of the record, how to read a transcript, issues
of credibility of witnesses and motion practice in the district
court, many of the things that, if I am fortunate enough to be
confirmed as an appellate judge, will give me a good foundation
for reviewing and understanding the record.
I think further in both that commitment to public service
and the honor there of serving as a representative of the
United States, I was held to highest ethical standards and, of
course, a mandate on prosecutors to think not only as an
advocate, which, of course, is an important part of that job,
but also the mandate to do justice. And if I have the privilege
of serving on the Third Circuit Court of Appeals, of course,
being fair, impartial, seeing all sides, and serving the public
with the highest ethical standards would be paramount.
Senator Klobuchar. Thank you.
Mr. Boulware, you also served as a public defender, and
could you talk about that experience and how that will help you
on the bench?
Mr. Boulware. Thank you, Senator Klobuchar, for the
question.
I think one of the things that it has given me an
opportunity to do the most is participate in criminal trials. I
have participated in at least 15 Federal criminal trials,
including jury and non-jury trials, in two different districts,
in both the District of New York and the District of--the
Southern District of New York and the District of Nevada.
I have also been able to participate in a variety of
different types of Federal cases from white-collar complex
cases, which I have been the lead attorney on with respect to
my office for the past 3 years, but a variety of different
types of cases that come to the public defender's office.
So I believe that diversity of experience, in particular
the trial experience, as my nomination is for a trial court, I
believe all of that, if I am fortunate enough to be confirmed,
will serve me well as a district court judge.
Thank you.
Senator Klobuchar. Very good. You also should note you were
born in Rochester, Minnesota, since I had no one to introduce--
--
Mr. Boulware. Yes, I was born----
Senator Klobuchar. The home of the great Mayo Clinic.
Mr. Boulware. Yes, I was born actually at the Mayo Clinic.
Senator Klobuchar. You had a good hospital.
Mr. Boulware. Yes.
Senator Klobuchar. Excellent. It worked out well for you.
Okay. Judge Mendoza, as a judge, do you want to talk a
little bit about how being a judge, your current job as judge
is going to differ from this one?
Judge Mendoza. Thank you, Senator, for that question. Yes,
as a judge currently, one of the duties that I have is being
civil presiding judge for both of our counties, in Benton and
Franklin County. As a practitioner, I primarily handled
criminal law, so it is important to have both the criminal law
experience and the civil law experience, and that will suit me
well, if I am confirmed to this position.
I think it is also important to note that I was a deputy
prosecutor and an Assistant Attorney General, and I think those
experiences would also help me. I think it is important to
bring a wealth of experience to the position.
Thank you.
Senator Klobuchar. Thank you very much.
Ms. Yandle, I have a feeling that Senator Durbin is going
to ask you a question. Would that be right? Good. So I am going
to use the remaining time that I have to ask Mr. Rodriguez a
few questions. Again, it is an important job that you are going
to be taking here. USCIS is an agency of 18,000 employees and
contractors. Can you talk about how your management experience
as county attorney and other positions is going to help you out
there?
Mr. Rodriguez. I appreciate that question. In particular,
as county attorney for Montgomery County, I was on the senior
leadership team of a county with a $2 billion annual budget, a
$2 billion capital budget, 10,000 employees, an organization
that had much of the same complexity as Citizenship and
Immigration Services does. My prosecutorial positions really
prepared me for the fraud investigation aspects and the
national security aspects of the CIS Director's job.
Senator Klobuchar. Very good. And I have a specific
concern, and maybe you heard about this, about the plans to
move--and this was, of course, before you were in your job--the
U.S. Citizenship and Immigration Service office in Minnesota
from its current location near The Mall of America, which is a
very accessible location--accessible by bus, accessible by
light rail, one of the biggest shopping malls in the country
actually. And it obviously was a good location, and what your
office decided to do or your soon-to-be office was that they
moved the location, and it would be 3 miles from a metro
transit stop. Obviously a lot of people that use this service
do not have cars, and they are not able to afford cabs. And it
has actually become quite an issue. Our newspaper, our major
newspaper has editorialized about it a number of times, and the
worst part about it, Mr. Rodriguez, is I like that they told
the truth, but the GSA admitted that they actually made a
mistake. They thought they saw a sign for a bus, and they
thought it was a real public transit bus, but it was just some
private bus service that hardly goes there.
And so it is a glaring error, and last year, this office
had 28,000 visitors, processed more than 13,000 applications
for naturalization, and they have already now gotten a contract
with this new place, and it is a huge problem. Could you commit
to working with me and the GSA to address these concerns about
what is happening here? Because it is kind of an outrage.
Mr. Rodriguez. I can assure the Senator, first, that I am
aware of the situation and that I can commit to working with
you to find a resolution. In my current job, the work we do is
all about accessibility to Government services, and so this is
really core to my professional identity to tackle these sorts
of issues.
Thank you, Senator.
Senator Klobuchar. Okay. Well, I appreciate that. I am
looking forward to working with you on it.
With that, we will turn it over to Senator Durbin.
Senator Durbin. Thanks a lot, Senator Klobuchar.
Let me for the record ask my nominee here, Staci Yandle, a
question. I am familiar with your career and what you have
done, and you have spent a lot of time representing the little
guy, plaintiffs trying to recover in lawsuits where the odds
are against them, pro bono defendants and clients, and folks
who are usually considered to be the least likely to succeed
under our system of justice. And that is one of the things that
attracts me to you, and you know that.
When Chief Justice John Roberts had his confirmation
hearing before the Committee, here is what he said: ``If the
Constitution says that the little guy should win, the little
guy is going to win in a court before me. But if the
Constitution says that the big guy should win, well, then the
big guy is going to win.''
What do you think of Chief Justice Roberts' statement?
Ms. Yandle. I think his statement is absolutely correct,
and I think that is the proper role of a district court judge.
It would be certainly what I would value as well. Based on my
years of experience, as you mentioned, Senator, trying cases on
behalf of plaintiffs, it has given me actually a very keen
appreciation for the importance of impartiality and judicial
integrity. I have gotten that appreciation from the other side
of the bench. And so it is extremely important, and I agree
with what Justice Roberts said. If confirmed, and in any matter
that comes before me, based on the law and the applicable
precedent, should, as you put it, the little guy win based on
the law, they will; and should the corporation prevail based on
the law, they will.
Senator Durbin. One of the questions asked of you by
Senator Kirk--and we were all together yesterday when he asked
this question--was about a constitutional amendment, the Tenth
Amendment, the role of the Federal Government, the role of the
States, and it is something that we talk about night and day
around here as part of the ongoing conversation. And he asked
what your approach would be, what your views would be as a
district court judge on that amendment.
Ms. Yandle. Yes, and that was the Tenth Amendment, which
guarantees, of course, the rights to the State where there is
an absence of Federal right. And what I indicated was I have
not engaged in any type of constitutional analysis about the
strength or weakness of the Tenth Amendment. However, the Tenth
Amendment as well as any other part of the Constitution, if
there were a matter to come before me if I were confirmed, I
would look first for Supreme Court guidance. Lacking that, I
would look for any guidance from the Seventh Circuit. And I
would certainly apply the law.
Senator Durbin. Thank you.
Mr. Rodriguez, it was 13 years ago when I introduces a bill
called the DREAM Act in this Committee, and my cosponsor was
Senator Orrin Hatch. It has been a long, long journey. Four
years ago, I wrote a letter to President Obama, co-signed by
Senator Lugar; a year later another letter, co-signed by, I
believe, a dozen of my colleagues. In each of those, I asked
for the President to consider an Executive order that would
spare the DREAM Act-eligible young people in America from
deportation. The President issued that Executive order, and it
is known as DACA, and it defers deportation of those eligible
for the DREAM Act, specifically those who came to the United
States under the age of 16 and who have no serious criminal
record, finished high school, and at least hold out the promise
to be real assets to this Nation.
Well, we are now moving forward with that, and some still
criticize it. In fact, there has even been a vote in the House
of Representatives to repeal this DACA provision, the Executive
order of the President. A half million have come forward,
roughly, and signed up with the Government, registered as
promised, and now are leading otherwise normal lives. I just
was told that nine of them have been admitted to medical school
in the city of Chicago. I was with another just a week ago who
is now a teacher in the suburbs of Chicago. They have been
given their chance.
I would like to ask you two things. First, what is your
view about this prosecutorial discretion as it relates to DACA
or other deportations? And, second, will you be prepared when
the 2-year period ends and these and many others who have been
given DACA seek renewal to have the administrative resources
there so they can do that in a timely fashion?
Mr. Rodriguez. Senator, I really appreciate your calling
attention to the many wonderful young people who have
participated in the DACA program. They speak to the great
American promise that I discussed during my opening statement.
These are students, these are strivers. And as you have
observed many of them are now pursuing professions; a number of
them have indicated their interest in serving in our armed
forces if that opportunity were to become available to them.
And so I certainly will commit to doing everything that I
can and having the goal, in the hopeful event of my
confirmation, to making that process work and to finding the
appropriate resources to making that process work.
Thank you.
Senator Durbin. If I could do one followup, the question
was raised about the critics have said the President did not
have the authority to issue this Executive order. I have felt
that the issue of prosecutorial discretion has been fairly
clear in the past. In fact, justice Kennedy recently said, ``A
principal feature of the removal system is the broad discretion
exercised by immigration officials.'' This is from Justice
Kennedy in a recent case striking down one of the controversial
Arizona immigration laws.
Would you comment on this issue of prosecutorial
discretion?
Mr. Rodriguez. Well, certainly I have spent a significant
portion of my career as a prosecutor, primarily in the criminal
justice context, in some cases in administrative context as
well. There is prosecutorial discretion in all of those
contexts. It is not unlimited. It is not uncabined. But there
is prosecutorial discretion that would apply in all of the
contexts that the Senator is describing.
Thank you.
Senator Durbin. Thank you. Thanks to all the nominees.
Senator Klobuchar. Thank you very much, Senator Durbin.
Senator Grassley.
Senator Grassley. I will start with you, Ms. Krause. First
of all, congratulations to all of you. I would have said that
in my statement, but I put it in the record.
Senator Durbin. Is your microphone on?
Senator Grassley. My microphone is on, yes. Maybe I am
not--you can always hear me.
You have written about conditions of supervised release
that courts have imposed on convicted cyber criminals and
argued that restrictions on cyber criminals' Internet use was
extreme in certain cases. So then the question: Under what
circumstances do you believe it is appropriate for courts to
require a cyber criminal to obtain permission before possessing
or using an Internet-capable device like a computer or a
smartphone?
Ms. Krause. Thank you, Senator. That article was one
summarizing the law of many different circuits and pointing out
that in some cases there had been complete bans that had been
overturned; whereas, the standard--and certainly the standard
articulated by the Third Circuit in United States v. Freeman--
is that there be a relationship of the least restrictive
necessary to serve the penological interest.
I think that those restrictions would need to be considered
on a case-by-case basis, and they may range from needing to
seek permission or limited restrictions up to and including a
complete ban in certain cases like the Mitnick case, which I
described in that article as well.
Senator Grassley. Okay. Now, you are just going to love
when I ask you about something you wrote when you were a third-
year law student. That would be your views on Title VII,
reviews in which you stated your belief that, ``Discrimination
remains a widespread social problem.'' Basically you said that
although overprejudice was gone, a more subtle form of
discrimination still persists. Based on that you, argued that a
certain affirmative difference, the after-acquired-evidence
defense, should be limited in Title VII cases.
Now, I already recognize that you wrote that as a law
student, but I would like to know whether your views have
changed since 1993. Do you still believe that discrimination
remains a widespread social problem?
Ms. Krause. Senator, that article from 1994 related to the
use of the after-acquired-evidence defense, and I still believe
that Title VII should be enforced. It is the enactment of
Congress' considered policy determination that there remains
the need for protection of civil rights, including in the
workplace.
The position that I took there that it was Congress' view
that the protections as embodied in Title VII still needed to
be pursued ultimately was adopted by the Supreme Court in
McKennon v. Nashville Banner Publishing Company, where, I might
add, they actually cited to that article.
I believe as a judge, if I have the privilege of being
confirmed, that issues about Title VII would need to be
addressed on a case-by-case basis, considering the applicable
law and Supreme Court precedent, as well as Third Circuit
precedent, applied to the facts of the particular case or
controversy that might come before me.
Senator Grassley. Do you have happen to believe that
whether or not affirmative defenses that courts have recognized
in Title VII cases should be limited or unavailable in order to
combat discrimination in society?
Ms. Krause. I do not have a view on that as a general
matter, Senator. With that particular affirmative defense, the
Supreme Court concluded, consistent with the EEOC and others
that had looked at the issue, that it was not appropriate for
that to be used as a complete defense, although it did cutoff
damages.
Senator Grassley. So you would follow the Supreme Court?
That is an obvious answer.
Ms. Krause. Senator, I would follow the Supreme Court in
that, as in all things, if I have the honor of being confirmed.
Senator Grassley. One last question that I offer a lot of
judges, both district as well as circuit, or even Supreme Court
nominees. You have had a distinguished career as a lawyer and
appellate advocate, but never served in a judicial capacity.
Lawyers use many resources in formulating arguments that judges
might necessarily rely on in deciding your cases. So then this
is about the issue of whether or not you as a judge ever think
it is proper to rely on foreign law or on views of the world
community, as some judges have stated it, in determining the
meaning of the Constitution or Federal statutes.
Ms. Krause. Thank you, Senator. No, I view the U.S.
Constitution as well as statutes of Congress, of course, as
domestic law, and I would look to domestic law sources to
interpret them. I am aware that in certain cases, for example,
in discussing the jury system, the Supreme Court on occasion
has looked to British common law and referred to foreign law in
some circumstances.
Obviously, I would abide by the precedent of the Supreme
Court in the holdings of those cases, but my approach, if I am
confirmed would be to apply to domestic sources of
interpretation to U.S. law.
Senator Grassley. For the district nominees, I am going to
submit questions in writing, and I am now going to go to Mr.
Rodriguez. So if you would answer those when we submit them, I
would appreciate it.
[The questions of Ranking Member Grassley appear as
submissions for the record.]
Senator Grassley. Mr. Rodriguez, you were a board member of
CASA de Maryland, a group that advocates for Latinos and
immigrants. While I have strong disagreement over some of the
stances that this organization has taken over the years
regarding immigration policy, I would like to discuss several
events that occurred while you were on the board, and
especially in light of the job that you have been nominated
for.
While you were a member of that board, the organization
published a booklet entitled, ``Warning: Protect Yourself from
Immigration Raids.'' That was March 2007. The booklet was
designed to inform undocumented workers how to avoid or
minimize the chance of triggered lawful deportation
proceedings. It encouraged undocumented workers not to give law
enforcement a name of an individual, even while acknowledging
that it is a crime in some jurisdictions not to do that. Some
press accounts also noted how illustrations could be perceived
as disparaging law enforcement.
So my question: As a board member, did you have any
knowledge of this booklet before it was published in March
2007? Then I will go on to another question.
Mr. Rodriguez. Senator, I was not aware of that
publication.
Senator Grassley. Thank you. After the booklet was reported
in the press, did you take any steps, either privately or
publicly, to encourage the organization to retract the
pamphlet?
Mr. Rodriguez. Senator, what I might point out is that
actually I separated from board service in May 2007. When I
became county attorney for Montgomery County, I discontinued
basically all of my nonprofit involvements at that time. So I
did not become aware of this publication, Senator, honestly
until you referenced it today.
Senator Grassley. So you were gone 2 months after it was
published.
Mr. Rodriguez. That is correct.
Senator Grassley. Okay. Let me go on then. As a board
member, that organization, CASA, entered a lawsuit filed on
behalf of undocumented immigrants. That lawsuit sought to
prevent Maryland's Motor Vehicle Administration from complying
with the Federal law REAL ID Act. That Act was enacted
following September the 11th and was one of the recommendations
of the 9/11 Commission. Among other things, it required States
to strengthen their identity verification procedures to ensure
State forms of identification could be used for Federal
purposes, such as boarding an aircraft.
Do you personally oppose the REAL ID Act?
Mr. Rodriguez. Senator, I do not have a specific opinion on
the REAL ID Act. Certainly if those are questions that this
body is considering, I would look forward to working with the
Senator in the hopeful event of my confirmation to discuss that
Act.
Senator Grassley. Well, this might be an easier one for you
to answer. Do you believe that States should fully comply with
the Federal law, the Federal REAL ID Act?
Mr. Rodriguez. It is certainly my view, and a core part of
what I did as county attorney advising Montgomery County, that
States and localities should comply with Federal law. And
certainly whatever Federal law there might be, it is my view
that States and localities are obligated to comply with those
laws.
Senator Grassley. Okay. And then I think that answer
probably applies to this question, but let me ask it anyway. Do
you believe a State that is attempting to comply early with an
upcoming Federal mandate deadline should be prevented from
compliance until the 11th hour?
Mr. Rodriguez. Senator, it is difficult to specifically--
without knowing all the facts applicable to a particular
situation, it is difficult to offer a legal judgment on whether
the Federal Government does or does not have the authority in
the context that you describe. All of these situations tend to
be factbound, and so I would not venture to offer an opinion on
that subject today.
Senator Grassley. Okay. Now, here is one that I think you
can answer. If confirmed, you will have to help enforce the
immigration law. Even though the REAL ID law is not under the
jurisdiction of the Customs and Immigration Service, you may
play a role in its continued implementation. If confirmed, will
you use your position as Director to administratively obstruct
the REAL ID law?
Mr. Rodriguez. Senator, you can have my assurance that in
my role as CIS Director I will uphold the laws of the United
States.
Senator Grassley. Thank you.
I wanted to ask a question about congressional oversight.
While you were chief of staff at Civil Rights, the U.S.
Commission on Civil Rights conducted an investigation into the
decision to decline to prosecute a case from Philadelphia
concerning racial intimidation of voters on election day. On
May 14, 2010, then Assistant Attorney General Thomas Perez
testified before the Commission and answered questions
concerning this inquiry.
In regard to your working with him, did you help prepare
Mr. Perez for his testimony before the Commission that day?
Mr. Rodriguez. I was part of the team. I did not play a
central role in preparing him for his testimony.
Senator Grassley. At one point in the questioning, a
Commissioner asked Mr. Perez whether any political leadership
was involved in the decision not to pursue this particular case
of voter intimidation. Mr. Perez responded, ``No.'' However, a
FOIA lawsuit later revealed that the Department of Justice was
aware of more than 50 emails between political appointees and
career attorneys regarding the Government's ``decisionmaking
process'' to decline to prosecute the case. A Federal judge
even commented that these internal DOJ documents ``appeared to
contradict Assistant Attorney General Perez's testimony before
the Commission that political leadership was not involved.''
That is what the judge said in the decision to dismiss this
case.
At the time of Mr. Perez's testimony, then, the question to
you is: Were you aware of these emails' existence?
Mr. Rodriguez. I am aware generally about--is my--I am on.
I am aware generally of the issue that the Senator describes.
It was my understanding that the decisions were made by career
staff that there certainly were communications with political
leadership about the decisionmaking process that was being
undertaken at that particular point in time by the career
staff. That is my general understanding. I am not specifically
aware of the context of the emails that the Senator describes.
Senator Grassley. Also during this investigation, the
Department of Justice and the Civil Rights Division refused to
comply with the Commission's lawful subpoenas. Were you
involved in the deliberation to refuse to honor the
Commission's subpoenas?
Mr. Rodriguez. I actually--I was involved in the process of
gathering large numbers of documents and information to comply
with the Commission's subpoena. And my recollection is we
delivered thousands of pages of documents to the Commission.
Senator Grassley. Here is a question that is very important
to me because I concentrate on oversight as a Member of
Congress. Do you believe that it is acceptable for an agency or
agent of the Federal Government to refuse to comply with a
lawfully issued subpoena?
Mr. Rodriguez. No, I do not believe that it is within the
authority of a Federal agency to refuse to comply with a
lawfully issued subpoena. I do note that there are occasions
where there are certain constitutional and statutory privileges
that may shield certain information or documents from
production, and I would assume that when those privileges are
asserted, they are asserted in good faith.
Senator Grassley. Let me ask you this next question, but
let me preface it with something like this, that in all the
years I have been in Congress, there is not a person like you
or anybody else that has come before us for a political
appointee that has not always said yes, will you respond to our
letters, will you come before us to testify, will you cooperate
with oversight, all those things. And invariably they never
live up to it.
So what is your view of the oversight authority of
Congress?
Mr. Rodriguez. So I think the Senator's question is how can
I assure you that I mean it when I say that. Is that correct,
Senator?
[Laughter.]
Senator Grassley. Yes. Thank you for understanding me.
[Laughter.]
Mr. Rodriguez. And I think particularly for an agency like
USCIS, where the role that we play touches every single State,
every single congressional district, I think our partnership
with this body and with the House of Representatives is really
critical, one, to our discharge of our duties as an executive
agency, but really our ability to effectively do our business
as Citizenship and Immigration Services.
I need you to fully understand what we are doing, the
challenges that we face, the opportunities that we are seeking.
And so I really view it as in the interest--in the hopeful
event of my confirmation, in the interest of my agency to have
an open relationship with your office and to provide you the
information that you need to fulfill your oversight role.
Senator Grassley. You know, this may sound like I think
this is a problem just with this administration. Do you
understand, I think this is a problem throughout Republican and
Democrat administrations, and there is a culture in these
administrations to thumb their nose at the Congress, not to
respond any more than they have to, have to write five or six
letters before you really get the answers you want. I have had
people at the start of this administration before I even knew
what this administration might do, give a whole file of letters
unanswered from the Bush administration that I thought surely
they would help us get answered so that they would not be
blamed for not answering our letters, you know.
My last question on another subject. You told Senator
Durbin that you would put more resources into DACA. That tells
me you will continue the program. Will you expand the program
beyond its current form? And, second, news reports have
suggested that DACA has taken resources away from other
immigration programs, including family and employment visas.
Are you saying DACA does not have enough resources today? Won't
adding more just harm other programs further?
Mr. Rodriguez. Yes, well, what I meant to say in responding
to Senator Durbin's question is that we will do what we need to
do to make sure across the board, throughout our functions as
Citizenship and Immigration Services, that we have the
resources that we need, that we are efficiently allocating the
resources that we have to discharge all of our functions, and
that we discharge our obligations as to all of our lines of
business.
I was not meaning to forecast the future of DACA or to say
what I would do in the future about DACA. I cannot prejudge
those situations without yet being confirmed, and I do hope
that I will be confirmed. What I can say is that if I am
confirmed, I view it as part of my stewardship of the agency to
make sure that the agency is proper resourced to do everything
that it does and that no one line of business suffers over any
other line of business.
Senator Grassley. Okay. You have answered my questions
well. I may not agree with you. You may have too much leeway in
some instances. But if you answer my letters, you are going to
satisfy me more than a lot of----
[Laughter.]
Mr. Rodriguez. So, Senator, you should also know that I
have a particular--I am a former false claims prosecutor, and
so I wanted to take an opportunity----
Senator Grassley. You are okay then.
[Laughter.]
Mr. Rodriguez. Well, I wanted to thank you for your
leadership on the whistleblower provisions of the False Claims
Act.
Senator Grassley. Well, thank you. And thank you, Madam
Chairman.
Senator Klobuchar. Well, thank you, Senator Grassley.
Has anyone else done anything with false claims? No, you do
not have to answer. That is fine.
I want to thank you all--and, Mr. Rodriguez, I just wanted
to put something on the record, and we do not have to go into
it. Maybe we can later in writing. But Congresswoman Ros-
Lehtinen from the House of Representatives, a Republican, put
in a good letter of support for you and your nomination, and
specifically mentioned the work that Senator Grassley had asked
about with CASA de Maryland and your good work there, and I
wanted to put this on the record, and just wondered why you got
involved in that organization and the kind of work that you saw
yourself as doing in the organization. I know Senator Grassley
had a serious question about a booklet and some things, but I
am giving you that chance to talk a little bit about the
organization.
Mr. Rodriguez. I come to really my entire professional and
personal life with the perspectives that came from being the
son of immigrants. My parents came here fleeing from the Castro
dictatorship in Cuba. My grandparents actually went to Cuba
fleeing anti-Semitism and poverty in Turkey and Poland. So it
is profoundly part of our identity as a family to understand
what it means to be starting fresh in a new country, what those
hardships are. And so I always have an affinity to any
enterprise, be it a Government agency of 18,000 people or a
small community nonprofit, to support people who are trying to
pull themselves up by their boot straps and make a good life
here in America and to help their families realize the dreams
of this country. So those are really my motivations.
Senator Klobuchar. Well, thank you. That was a very nice
way to end this excellent hearing. I know many of you are
pursuing your dreams in these jobs, and we want to thank you
for your patience here with our rather interrupted proceeding
here and there. And also your family members, I did not hear
any babies crying. I do not know what happened to that baby,
but I do not know, fell asleep, whatever. And we want to thank
you for being here, and we will keep the record open for a week
for further questions, and this hearing is adjourned. Thank
you, and thank you, Senator Grassley.
[Whereupon, at 10:39 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. BETH BLOOM,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL
G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN
DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
----------
TUESDAY, APRIL 1, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Christopher
Coons, presiding.
Present: Senators Coons and Grassley.
OPENING STATEMENT OF HON. CHRISTOPHER COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Good morning, everyone. I am pleased to call
this nominations hearing of the Senate Committee on the
Judiciary to order. I would like to welcome each of our four
nominees, their families and friends, to the U.S. Senate and
congratulate them on their nominations.
I would also like to welcome Senator Nelson, who is here to
introduce the nominees, and we may well be joined by Senator
Rubio.
Today there are 83 vacancies in our Federal judiciary. This
is an unacceptably high number. Over 5 years into this
administration, the Federal bench still sits nearly 10 percent
vacant, a 70-percent increase in the number of vacancies since
the President took office.
The result is that Americans are getting less justice and
more slowly. In some districts, such as the Eastern District of
North Carolina, a seat has been vacant for 3,000 days. In
Texas, vacancies nearly 2,000 days old are leaving courts
suffering under caseloads more than double that recommended by
the Judicial Conference.
And yet the Senate delegations from those States have not
agreed with the President on any nominees to fill those
longstanding and now critical vacancies. The judicial selection
and confirmation process, broadly speaking, is quite simply
failing to achieve the results contemplated for it by our
Founders under the Constitution. This hearing is an important
step in addressing the judicial vacancy crisis.
There are five current vacancies on Florida's Federal trial
courts, and today we will hear from nominees for four of those
seats. I applaud Senators Nelson and Rubio for their progress
and am grateful for their bipartisan cooperation and look
forward to their introduction of today's four nominees.
First, though, I will offer the opportunity to our
distinguished Ranking Member, Senator Grassley, to say a few
words. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. First of all, congratulations to the
nominees. I will take just a minute to talk about the
productivity of the Committee, compare the term of President
Obama with the term of President Bush.
After yesterday's confirmation votes, the Senate has
confirmed 64 lower-court Article III judges during President
Obama's second term. By comparison, up to this point in
President Bush's second term, the Senate has confirmed only 27
lower-court Article III judges. So 64 confirmed so far in the
second term of this administration, 27 in the previous
Presidency. With respect to the entire 5 years and 3 months of
a Presidency, we have approved 233 for President Obama, 229 for
President Bush. So I am glad we are being so productive and
doing what we have to do, and once again, thanks to the
nominees.
Senator Coons. Thank you very much, Senator Grassley.
I would now like to yield to the distinguished Senators
from the State of Florida to introduce our nominees. I know
that both of my colleagues have pressing schedules, so please
feel free to depart if you must after your introductions, and
again, thank you for your collaboration in making sure that we
have judicial nominees to fill these important vacancies.
Senator Nelson.
PRESENTATION OF HON. BETH BLOOM, NOMINEE TO
BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL G.
BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO
MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA, BY HON. BILL NELSON,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Mr. Chairman, I am going to short-circuit
my remarks, if I may, have my written testimony submitted in
the record.
Senator Coons. Without objection.
Senator Nelson. Senator Rubio and I, as both of you have
indicated, have a very good working relationship, and we try
through the process of a committee--ours is called the
``Judicial Nominating Commission''--to have the expertise of
the legal community to do the applications screening and then
interviewing and selecting three for each position that is
vacant. And today we are coming forth with four nominees.
Our agreement with the White House is that the President
will select from among the three that the two of us send to
him. The two of us interview all of the applicants, and we let
the White House know if we have an objection, and then the
White House will so select. And as a result, it is a process
that works. Partisanship does not get in the way. And as a
result, as has been proven over time, because this system has
been used by Florida Senators for a better part of three
decades, the proof is in the pudding of the quality that we get
on the bench.
And so of the four nominees today, Senator Rubio and I come
to you with our endorsement, our encouragement that we speed
the process. We have had emergency conditions in both the
Southern District and the Middle District. And so today you
will be hearing from Judge Darrin Gayles of the Southern
District, Judge Beth Bloom of the Southern District, Judge
Carlos Mendoza of the Middle District, and attorney Paul Byron
of the Middle District. And since it is in my written testimony
for the record, there are extraordinary qualifications, and as
you can understand, in a highly charged political atmosphere
like this, with a screening process that we have, what we
present to you today are people that are definitely qualified
for a lifetime appointment to serve in the Federal judiciary.
Thank you, Mr. Chairman.
[The prepared statements of Senator Nelson appear as
submissions for the record.]
Senator Coons. Thank you, Senator Nelson.
Senator Rubio.
PRESENTATION OF HON. BETH BLOOM, NOMINEE TO
BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL G.
BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO
MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA, BY HON. MARCO RUBIO,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Rubio. Thank you, Mr. Chairman, thank you to the
Ranking Member for holding this hearing, and thanks to the
nominees who are here with their families. I know it is an
exciting day for them. As I joked as I walked in, it is not
crowded up there, which is usually a pretty good sign. But we
are proud of our nominees here, and I want to talk about each
of them briefly, because they have an extraordinary amount of
experience in different fields that I think would add a
tremendous amount to their service on the Federal bench.
Judge Beth Bloom is, like me, a graduate of both the
University of Florida and the University of Miami School of
Law.
By the way, the University of Florida at this time next
week should be the national champion in basketball.
[Laughter.]
Senator Coons. I was wondering how long it would take you
to work that in this morning.
Senator Rubio. Perhaps we should have waited a week for
this hearing just so we could celebrate that as well.
But in any event, she actually went to the same two schools
that I did, but has been much more successful since because she
has worked in private practice before becoming a county court
judge in Miami-Dade County in 1995. She became a circuit court
judge in 2010 in the Eleventh Circuit where she currently
continues to serve, and, of course, she has been active in the
community in South Florida in a number of areas, including
areas of a particular interest to me: reducing recidivism and
supporting children who are in our foster system, which has
been a challenge in Florida over the last few years. And her
engagement in that has been fantastic and well appreciated.
Paul Byron earned his undergraduate degree with honors from
the University of Michigan--which had a heart-breaking loss,
you may have seen.
[Laughter.]
Senator Rubio. But he also went to law school at LSU,
Louisiana State University, and the school has had some success
in football especially. I am sorry to color everything with
sports, but that is how it--we have to have our priorities
right around here.
He began active-duty service in the United States Army in
the Judge Advocate General's Corps where he served first as a
criminal defense attorney and then as a prosecutor. And after
completing his duty in 1990, he became a Federal prosecutor in
the Middle District where he focused on organized crime and on
white-collar crime.
In 2001, he served as the senior trial counsel for the
International Criminal Tribunal for the Former Yugoslavia, a
pretty interesting background that he brings to this, and since
2001 he has worked primarily in private practice in Orlando,
with the exception of 2 years of service with the Justice
Department's International Division of Asset Forfeiture and
Money Laundering.
Judge Darrin Gayles earned his undergraduate degree with
honors from Howard University and his law degree from George
Washington University right here in the District, and then he
began his legal career and has really dedicated himself to
public service throughout his legal career as an Assistant
State Attorney in Miami-Dade County from 1993 to 1997. Then he
moved to Federal practice in 1997 when he became an Assistant
District Counsel at what was then Immigration and
Naturalization Service. After 2 years with INS, Judge Gayles
joined the U.S. Attorney's Office for the Southern District of
Florida, where he served in the appellate and the major crimes
and narcotics sections. And in 2004, he became a county judge
and in 2010 was appointed to the circuit court for the Eleventh
District, where he served in both the criminal and civil
divisions. So again, an extensive history of service to the
community.
And, finally, Judge Carlos Mendoza is, like me, the son of
immigrants, and he spent his career giving back to this
country. He joined the United States Marine Corps Reserves in
1989 right out of high school--the same year I graduated, by
the way, so the bench--I guess I am getting older is what is
happening.
He had to delay his college education for a year when his
unit was mobilized, and he was deployed to the Persian Gulf
during the first Gulf War. And after a distinguished military
service, he returned home and attended West Virginia
University, earning his undergraduate degree magna cum laude in
1993 and then his law degree in 1997.
After law school, he continued his military service as a
judge advocate with the United States Navy, a position that he
held for 8 years. In 2005, he entered public service as a
civilian, first serving as an Assistant State Attorney in the
Seventh Judicial Circuit of Florida and then as a municipal
attorney for the city of St. Augustine. And in 2011, Judge
Mendoza was appointed to be a circuit court judge in Florida's
Seventh Judicial Circuit, where he now presides over both civil
and criminal cases.
Last, but not least, I want to welcome Chief Judge Anne
Conway of the Middle District, who I believe is in the audience
today. Okay? She did not make it? All right. Well, she was
supposed to be here. She does a great job, so we just wanted to
recognize her for that.
And I wanted to wish all of our nominees and their families
the best throughout this process. I am certain this Committee
will give these nominees a full and fair consideration, and I
thank you for your attention today and for the opportunity to
speak here alongside my colleague Senator Nelson.
Senator Coons. Thank you, Senator Rubio. Thank you, Senator
Nelson. We are grateful for your collaboration and what Senator
Nelson describes as a 30-year-old process to produce highly
qualified nominees for the Federal bench from Florida. Thank
you.
Senator Coons. At this point I would like to now invite our
four nominees to come forward. It is the tradition of this
Committee that each witness be sworn, so if you would, please,
raise your right hand and repeat after me. Do you solemnly
swear that the testimony you are about to give to this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Judge Bloom. I do.
Mr. Byron. I do.
Judge Gayles. I do.
Judge Mendoza. I do.
Senator Coons. Let the record reflect the nominees have
answered in the affirmative. Please be seated.
I would now like to invite each of you in turn to offer
your opening statement, and I welcome you to also recognize
your loved ones and supporters if you so choose. I believe I am
working from left to right. Judge Bloom.
STATEMENT OF HON. BETH BLOOM, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF FLORIDA
Judge Bloom. Thank you, Senator Coons, and thank you,
Senator Grassley, and the entire Judiciary Committee for
convening this hearing this morning.
I want to thank Senator Nelson and Senator Rubio for the
kind introduction and working together to getting each of us to
this point.
I also want to thank the President for the honor of this
nomination.
With me today is my family: my husband, Lyle Stern, of 21
years, and with our three children, who are constant pride and
joy:
Our son Jacob Stern, who is a senior; he is 17. He is a
nationally ranked debater, and he will be starting college in
the fall at the University of Pennsylvania.
Our son Oliver Stern, who is a seventh grade honors
student. He is 13. He is a member of the Junior Thespian, a
member of his school's volleyball team, and he is involved in
student government.
And our youngest, daughter Emily, who is 8 years old and in
third grade, is a gifted piano player, singer, and dancer.
Also with us today is our friend Laurie Flink, who has been
a lifetime friend.
Our children are not in school today, but they are
certainly getting a wonderful civics lessons, and they have
been gaining a civics lesson throughout the entire process.
My father, Dr. Henry Bloom, died some time ago, but he is
always with me. And my mother, Phyllis Bloom, and my two
brothers and sister are back in Florida watching via the
Webcast.
I am also fortunate to have many friends and colleagues, my
courthouse family in Miami, that are also viewing this on the
Webcast.
I have an extended an extended family that is also as well
viewing this on the Webcast, and it certainly is an honor and a
privilege to be here, Senator, and I am looking forward to
answering your questions.
Thank you.
[The biographical information of Judge Bloom appears as a
submission for the record.]
Senator Coons. Thank you, Judge.
Mr. Byron.
STATEMENT OF PAUL G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF FLORIDA
Mr. Byron. Thank you, sir. I would like to start by
thanking Chairman Coons and Ranking Member Grassley for
convening this hearing today. It is a very important process,
and we are all very honored to be here before you.
I would also like to thank Senator Rubio and Senator
Nelson, Senator Rubio for his kind remarks and Senator Nelson
for his warm introduction, and for the cooperative manner in
which they have worked together. It is really inspiring to
watch them in action.
If I may, I would like to introduce my family. I will start
with the most important person in my life, my wife of 30 years,
Suzanne. Suzanne has always supported me in my desire to serve
in the public, to serve this country, whether it is the Army,
the Department of Justice, the United Nations, or in pursuing
this particular position.
We are here also with our son, David, who is an Assistant
State Attorney in Florida, and his fiance, Morgan Conn. And I
am also proud to introduce my daughter Alexandra, who is
preparing for her graduate studies; our daughter Taylor, who is
in eighth grade. And I guess musicians run in this panel. She
is an accomplished violinist.
And it is really truly a pleasure to be here, and I look
forward to answering your questions. Thank you.
[The biographical information of Mr. Byron appears as a
submission for the record.]
Senator Coons. Thank you. We are so far accumulating the
most talented group of children to be present for a
confirmation.
[Laughter.]
Senator Coons. So, if I might, Judge Gayles.
STATEMENT OF HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Gayles. Thank you, Chairman Coons, Ranking Member
Grassley. I would also like to thank Chairman Leahy for this
opportunity to appear before you today.
I would like to thank both Senator Nelson and Senator Rubio
for their support and their kind words this morning.
Of course, I would like to thank the President for his
nomination to the U.S. District Court. It is an honor for which
my family and I will be eternally grateful.
I have several family members here today that I would like
to introduce brief: my life partner, Raymond Zayas; my mother,
Janie Banks Gayles, who is seated directly behind me; as well
as my very proud grandmother, Nettie Banks, who recently
celebrated her 84th birthday.
I have my younger sister, Monica Drew, as well as two of
her older sons, James and Ryan, my Uncle Terryl and my Aunt
Bernice, as well as a whole host of friends that are present
with me today, as well as watching us on the Webcast.
And I welcome any questions that you have for me today.
[The biographical information of Judge Gayles appears as a
submission for the record.]
Senator Coons. Thank you very much, Judge Gayles.
Judge Mendoza.
STATEMENT OF HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT
OF FLORIDA
Judge Mendoza. Thank you, Chairman Coons, Ranking Member
Grassley, for the privilege of being here today. I would like
to start by thanking the President for this incredible honor to
continue serving my country.
I would also like to thank Senators Nelson and Rubio for
their kind words here this morning representing the State of
Florida in this country.
Here with me today are three very important people in my
life. They are the reason why I wake up ready to attack every
day and why I come home every day from work with a smile on my
face: my 14-year-old son, Jack, who is a freshman in St.
Augustine High School, and my 13-year-old daughter, Maddy, who
is an eighth grader at Marie Middle School. No matter what is
going on in my life, to them I am Dad, and that is a very
important part of my life. It keeps me grounded. Sitting
directly behind me is my wife of over 22 years, an accomplished
physician, a wonderful wife, a caring mother, and the glue that
holds this family together, Dr. April Mendoza. And I am
privileged to have them here during this journey.
I would also like to introduce two very close friends of
mine that took time out of their busy schedules to be here
today: from St. Augustine, attorney Matthew Cline, and from
Washington, DC, Eric Call.
I would also like to let the people in Putnam County,
Florida, know that I am thinking about them. Every person that
makes that courthouse work, that has made my job pleasurable
while I have been in that courthouse, I appreciate what you do
for the State of Florida and what you do for that county.
And, finally, I want to thank two of the most important
people in my lives, my mom and dad. They had the courage to
immigrate to this country and leave everything they knew behind
to look for a better life for their kids and for their family.
I thank them for their encouragement. I thank them for never
giving up on me, for always demanding the most from me. And on
those times in my childhood when the scenery was not always
pleasant, I thank them for letting me see my dreams through
their words, always ensuring that I understood that if I worked
hard and applied myself, there was no limit to what I could do.
So I thank them. They are here with me in spirit.
And I thank you for this privilege of being here, and I
certainly invite any questions you have this morning.
[The biographical information of Judge Mendoza appears as a
submission for the record.]
Senator Coons. Thank you, Judge Mendoza.
We are now going to do questions and rounds of, I believe,
5 minutes each. Yes, the Committee will proceed with 5-minute
rounds of questioning. Some Committees do 7-minute rounds.
Forgive me.
Senator Grassley. Since there are only two of us here, why
don't you just ask all your questions, and then I will ask all
my questions. Is that okay?
Senator Coons. That makes perfectly good sense. Thank you
to my senior Senator from Iowa, who is far more practical about
the administration of these hearings than I am.
If I might, just each of you in turn, if you would,
beginning with Judge Bloom, just briefly describe for us, if
you would, your judicial philosophy and how you would approach
your role as a Federal judge.
Judge Bloom. Certainly. During the almost 20 years as a
State trial judge, my judicial philosophy has been to approach
each case and each issue with an unbiased and open mind; to
understand the limitations on my power as a judge; to apply the
law faithfully to the facts as I deem them to be; and to ensure
great respect and dignity to all that come before the court; to
render my decisions promptly; and to always be thoroughly
prepared when the issues are addressed before me.
Senator Coons. Thank you.
Mr. Byron.
Mr. Byron. Yes, sir. Thank you. Let me start by saying I
agree with Judge Bloom's position, as she stated it, in terms
of the role of a judge, and I would echo that. I believe it is
incredibly important for a judge to approach his or her duties
with integrity, and by integrity I mean the ability to apply
the law impartially in every case, regardless of the litigants,
regardless of whether it is a criminal or a civil matter, and
that requires strict adherence to stare decisis, to ensuring
that the opinions held by the U.S. Supreme Court and the
Eleventh Circuit are followed and abided by in the district
courts.
Having been a litigator through most of my life, either as
a prosecutor or in the private sector, having certainty and
predictability in the legal system is fundamentally important.
And as a judge, if I am fortunate enough to be confirmed, that
is a goal that I will seek to enforce every single day.
Senator Coons. Thank you.
Judge Gayles.
Judge Gayles. I agree with Judge Bloom and Mr. Byron. I
have been a judge now for nearly 10 years. I decide each case
on its own merits and make my decisions based on the facts and
the applicable law. And if I am so honored to be confirmed, I
will continue to do that in the Federal court.
Senator Coons. Thank you.
Judge Mendoza.
Judge Mendoza. And I agree with my colleagues. I think the
finality that people look for and closure that comes out of a
courtroom is better preserved and respected when the variables
that go into those decisions, such as respect for the parties
in front of you, efficiency, adherence to the rule of law, are
what we use in reaching those decisions. And if I am fortunate
enough to be confirmed by this body, I would take that forward
with me.
Senator Coons. Thank you.
Each of you have experience in the law in a range of
different backgrounds, but if I might, Judge Bloom, you have a
wealth of experience serving as a State judge--several of you
do--and you have experience across this whole panel in civil
and criminal and international contexts, but less so in Federal
law.
If each of you would speak in turn to how you will prepare
to administer Federal statutes and case law, if confirmed, I
would appreciate it.
Judge Bloom. Thank you, Senator, for the question. I have
served in the State trial court in many different divisions. In
each division I have handled different issues in different
cases.
To prepare for my transition into each of the divisions, I
have certainly used my work ethic in ensuring that I understand
the substantive and procedural law and that I am able to apply
that law. And I have done that in each of the divisions that I
have served. I have also handled constitutional issues and
issues of statutory construction.
I believe that the work ethic that I have shown over the
last almost 20 years as a State trial judge as well as my
responsibility, which I take very seriously, to understand and
be able to apply the law will serve me well if I am fortunate
enough to be confirmed as a Federal judge.
Senator Coons. Thank you, Judge Bloom.
Mr. Byron, a different background, but I think the same
question is relevant, about how you would be fully prepared to
serve on the Federal bench.
Mr. Byron. Yes, sir. I am very happy and proud of the fact
that I had the formative years of my legal career as an
Assistant United States Attorney, and in that capacity we
applied Federal law on a daily basis. I have served in both the
organized crime section, the white-collar section, and did a
tour in the Civil Division representing the VA and other
governmental entities that were being sued for various causes
of action.
I have always come to the approach of applying the law by
starting with the statute, looking at the clear language of the
statute, and that is where my training began, and that is how I
approach every case, even in my private practice
responsibilities. I have tried a number of cases--the majority
of my cases, actually--in Federal court.
So looking at cases from the Federal perspective is
something that is inherently in my approach to the law. Even as
a State court practitioner, I follow the same analysis: looking
at the statute first, its clear language, then looking at
applicable controlling decisions from higher courts and
analyzing the cases in that regard.
To prepare myself more fully to be a district court judge,
my focus will be turning toward the management of cases, which
is different than being an advocate for a particular party, and
I have started preparing for that by reading various manuals on
management of complex litigation, how to deal with case
management orders from the judge's perspective as opposed to
the litigator's, and I continue to prepare myself as we move
forward.
Senator Coons. That is terrific. Thank you, Mr. Byron.
Judge Gayles.
Judge Gayles. I have spent my entire career upholding the
law. I began my career as an Assistant State Attorney, and the
balance of my experience as an attorney was spent in the
Federal courts, both in the Federal immigration court as an
Assistant District Counsel for the former Immigration and
Naturalization Service, and later as an Assistant United States
Attorney in the Southern District of Florida.
I have worked in both the appellate section, handling
appeals before the United States Court of Appeals for the
Eleventh Circuit, and the major crimes section, and later in
the narcotics section. And I handled in those divisions the
full breadth of cases one would handle, at least in the
criminal realm, from court-approved wire surveillance, grand
jury investigations, any number of pre- and post-trial matters
that came up before the United States district judges as well
as the Federal magistrate judges.
So I think I am very well versed in the Federal court and
with Federal law, and I think that the 10 years I have now
spent on the State court bench would only serve to assist me
well if I am so honored to serve in the Federal court.
Senator Coons. Thank you.
Judge Mendoza, you also have experience with Federal law in
your military capacity, but as a State court judge, help us
with how you would prepare for service as a Federal judge.
Judge Mendoza. And thank you for the question. My
professional career has been a group of transitions from
graduating law school to becoming a judge advocate in the
United States Navy to then serving as a specially appointed
Assistant U.S. Attorney for the Eastern District of Virginia to
being an Assistant State Authority in St. Augustine, Assistant
City Attorney in St. Augustine, now on the circuit bench. Every
one of those transitions required a steep learning curve, and
those sort of variables that I used in becoming proficient and
efficient in those jobs are what I will take forward with me.
And it is worth noting that if I am privileged enough to be
confirmed, I am aware that I will be surrounded by a very
capable set of accomplished colleagues in the Middle District,
and I certainly will seek, unabashedly seek their advice and
counsel if I am fortunate enough to be one of their colleagues.
Senator Coons. Thank you, Judge Mendoza.
My last question for the whole panel, if I might, is:
Several of you have made reference in your opening comment to
the importance of dignity, of how you treat all litigants
equally, regardless of the matter that brings them before you
or the circumstances that bring them before you. As a district
court judge, how would you see your role in ensuring fair
access to the American legal system? If you would, Judge Bloom.
Judge Bloom. I believe that fair access means certainty of
a decision and also the ability to know what is the decision.
So in terms of my role, I certainly am going to ensure that
case management is done effectively, that I will have an early
scheduling order and a meeting early with the parties so that
the parties know the time parameters and we can set reasonable
parameters, depending upon the uniqueness of the case.
I also will ensure, as I have done for the past 20 years,
that my rulings are clear and they are understandable and that
the rulings are prompt and that I am prepared for the hearings
and I have taken the time to review the submissions ahead of
time so that I am able to rule, since decisiveness is one of
the--certainly the most important responsibilities of a judge.
I believe that temperament and the way that the litigants are
handled in the courtroom in terms of the respect and dignity
that they deserve and the ability to answer questions and to
refer individuals, particularly pro se individuals, to, for
example, the law library that serves as a unique resource for
those who may not be familiar as one who might be represented
by counsel.
So those are the services and the qualities that I bring to
the bench in terms of access to the court.
Senator Coons. Thank you, Judge Bloom.
Mr. Byron.
Mr. Byron. Yes, sir. I agree with Judge Bloom's
observations that access to the court is a multipronged
analysis. Part of it is the prompt administration of justice
through scheduling orders that are consistent, they are
complied with by the parties and by the court, and that when
matters, including dispositive matters, are presented to the
judge, that he or she rules on them promptly and does not let
them languish. I think that does not help the litigants, and it
certainly does not help the process in terms of access to the
court, which includes not just the ability to file an action,
whether it is a criminal case or civil case, but promptly
moving it through to its conclusion.
In the Middle East District of Florida, there are also
services provided to litigants who may not have counsel. There
is the Federal public defender's office. There are a variety of
other panels where individuals could obtain assistance. And the
court has library facilities available to help those folks,
recognizing, of course, once their matter is before the court,
they are treated the same as any other litigant.
Senator Coons. Thank you, Mr. Byron.
Judge Gayles.
Judge Gayles. I think the effective administration of
justice is an important goal for any judge. I think that my
time in the State court has well prepared me. I agree with the
sentiments of both Judge Bloom and Mr. Byron. The work of a
judge is very important as far as case management and moving
cases along.
In Miami-Dade County, where I serve as a circuit judge,
when I came into the Civil Division a couple of years ago, my
caseload was approximately 4,700 cases. We are now down in my
Division to about half of that. And case management, engaging
the lawyers, holding status conferences, asking the lawyers
what help they need to move their cases along I think are all
very important because we have an important role not just to
adjudicate matters but to make sure that it is done timely and
effectively.
Senator Coons. Thank you, Judge.
Judge Mendoza.
Judge Mendoza. And I would agree with my colleagues and add
that, for example, in my judicial circuit in Florida, judges
participate with bar associations to encourage and to promote
the idea of pro bono representation and volunteerism. And to
the extent that judges are possible, I think that is a very
positive thing when judges are involved with bar associations
to add prestige and encourage those attorneys practicing in
front of them to engage in some level of pro bono work, and
certainly to the extent that I am able, that would be an
important part of my process.
Senator Coons. Thank you for that valuable addition. Thank
you very much to our four nominees.
I will turn now to Senator Grassley for his questions.
Senator Grassley. I generally ask different questions of
different nominees, so do not feel bad if I do not ask you all
the same questions.
I am going to start with Mr. Mendoza, and the Chairman
already asked the first question I was going to ask you, so I
only have one question of you. Oftentimes when judges are here,
I quote various Supreme Court Justices and ask for a comment,
agree or disagree. I do not always put it in a context, so you
may not know the context. This time I am going to quote Justice
Scalia's speech in 2005. ``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''--I suppose that means the Constitution.
``If that is what it says, that is what it says.''
So two questions. Probably the second part is more
important than the first part, but whether or not you agree
with Justice Scalia. And second, do you believe a judge should
consider his or her own value or policy preferences in
determining what the law means? If so, under what
circumstances?
Judge Mendoza. I would start by answering the first part of
your question and indicating that as a district court judge, if
I were fortunate enough to serve in that capacity, I would be
bound by all opinions written by the Eleventh Circuit Court of
Appeal and the U.S. Supreme Court. So as far as I am concerned,
all of our Supreme Court Justices are always right. And I would
follow their opinions without any hesitation.
My personal views do not enter into the decisionmaking
process. People have to have an understanding and a belief that
what comes out of court is fairly and objectively concluded. So
my personal opinion does not nor will it ever enter into my
decisionmaking process. I will make decisions, if I am
fortunate enough to serve in this capacity, based on the facts
of the case and the applicable authority that is applicable to
those facts.
Senator Grassley. Okay. Mr. Gayles, I have got, I guess,
maybe two questions or a question with two parts. Getting to a
view of constitutional interpretation, there are a number of
different theories explaining how judges should interpret the
Constitution. Some theories emphasize original understanding.
Some emphasize literal meaning. And some analyze general
principles underlying the Constitution and then apply a
contemporary meaning to those principles.
While all nominees who appear before this Committee repeat
the mantra that you just heard from Mr. Mendoza--and I do not
say that in a derogatory way--that they apply the law to the
facts, I am looking for an answer with a bit more thought
behind it. What interpretive model would guide you when you are
faced with constitutional questions?
Judge Gayles. As with a statute, when the Constitution is
clear on an issue--I do not mean to be--I am not trying to be
glib by saying this, Senator, but the meaning is clear, and
then my job is relatively easy. As a judge, we are faced with a
number of issues--constitutional issues, statutory construction
issues--pretty regularly. I think in my career--well, I know in
my career I have followed the law and have done it faithfully.
I have never interjected my own personal beliefs as far as the
law and how it should be interpreted in over 10 years. I mean,
I have been reviewed by the Third District Court of Appeal. I
do not think I have ever been reversed--well, I have been
rarely reversed, but when I have been, it has never been
because I made a decision that was far outside the dictates of
the law. I respect the law. I am sworn to uphold the law. And I
will follow Supreme Court precedent as well as Eleventh Circuit
precedent if I am so fortunate to be confirmed.
And the specific question that you asked me as far as how I
will consider Supreme Court--I am sorry, constitutional
language, I do not believe that I have an overarching
philosophy regarding the issue, but I will faithfully uphold
the law.
Senator Grassley. I am going to quote for you from Justice
Breyer, and then I have got a couple questions that follow on
this. Justice Breyer has described the law as ``a conversation
among judges, among professors, among law students, and among
members of the bar.'' He provided this description in the
context of his argument that it is sometimes appropriate for
judges to look to sources other than the Constitution or
Federal statutes when reaching a decision about what the law
means.
The first question, and then I will let you answer that,
and then the second one.
First, do you share Justice Breyer's views that judges
should occasionally look for guidance from sources like law
review articles or other scholarly comments, commentaries?
Judge Gayles. I respect the Justice's statement and opinion
regarding that issue. I think our Constitution has served us
well for over 200 years. Consistency I think is important.
I think certainly revealing a treatise or law review
article, it might be nice to maybe get an understanding, but
that should certainly not be the guiding force as far as how
you interpret the Constitution. So I respect the Justice's
statement, but I do not completely agree with it.
Senator Grassley. Okay. And, second, do you believe that it
is appropriate to rely on legislative history--I also have down
here ``floor statements made by Members of Congress,'' but I
think that is all part of legislative history, as well as
Committee reports--when deciding what a law means?
Judge Gayles. That may be a factor after you have
considered other factors in interpreting a statute. When I was
an undergraduate at Howard University, I had the good fortune
of interning on the Hill for the House of Representatives
Standing Committee for the District of Columbia. I know a bit
about how the legislative history comes about. I know that it
is not inherently reliable. There may be problems with relying
on that.
So it would not and it has never been a cornerstone of how
I interpret a statute. It is an available tool, but it is not
something that I rely upon.
Senator Grassley. Just as an aside, Justice Scalia would
like to hear what you said, because I asked him that question
when he was up for confirmation almost 30 years ago, and he
said, ``I never rely on it at all. You cannot rely on it.''
[Laughter.]
Senator Grassley. Or something to that effect.
I am going to go to Mr. Byron. In 2004, you gave a
presentation on combating terrorist financing through
charitable organizations. I realize that the purpose of your
presentation was to help attendees recognize that there are
fake charities set up for purposes of financing terror. In one
slide you discussed ``barriers in the fight to stop
terrorists.'' One of these barriers is the fact that religious
organizations and churches are not required to file Form 990
and the facts that the IRS cannot routinely examine churches.
Could you discuss in more detail the problems that you were
referring to?
Mr. Byron. Yes, sir. I was focusing not on the
Establishment Clause or the free exercise of religion aspects.
Certainly that was not part of my focus. My focus was more from
a procedural or a tactical approach of transparency, and I do
not believe that those comments were intended to include, for
lack of a better term, mainstream religious organizations. I
was really talking about fronts that at that time had been
identified as being front organizations that were hiding behind
the cloak of being a religious organization, in part to avoid
transparency and the movement of money. And that failure to
have transparency in those organizations frustrated the ability
of law enforcement to track the flow of money and allowed for
individual donations to be collected and moved overseas for
terrorist financing proposes. There had been an investigation
actually in Alexandria, I think, at that time of just such an
organization. I was really referring to that, and not
mainstream religious organizations or the fact that our
Constitution provides certain protections and rights to
religious *organizations, which I fully support and agree with.
Senator Grassley. Okay. And my last question to you, when
is it appropriate for the Federal Government to preempt State
law? If confirmed, what sources and approaches would you
utilize to assess whether Congress or the executive branch, in
fact, intended to preempt State law and acted within the scope
of their authority to do so?
Mr. Byron. Yes, sir. Thank you, sir. I think we have to
start with the Tenth Amendment, which sets forth exactly the
division of power between the Federal Government and the
States. And I think Justice Roberts spoke about that in the
National Federation of Businesses v. Health and Human Services,
which we are all familiar with. He gave a very detailed
explanation of the division of powers between the Federal
Government and the State authorities and when preemption is not
appropriate, such as commandeering the activities of what are
typically purely State functions. So there is this interplay
between the Necessary and Proper Clause, the Commerce Clause,
and the taxation authorities, for example, of the United
States, and the line is drawn between the authority of the
Federal Government and the States, depending on the issue,
whether it is a Commerce Clause issue or some other issue.
So my approach, sir, would be to look at the particular
activity that is being preempted or governed, and then go back
to the Constitution to determine, first off, is it a Federal or
a State right that we are dealing with. And if so, is the
particular statute that is being applied one that fits within
the authority of the Federal Government to regulate that
behavior, looking at controlling case law to guide me along the
way, sir.
Senator Grassley. Thank you.
And, Ms. Bloom, I have two questions for you. I believe,
looking at your record, that you have not had much, if any,
Federal law experience either as a practicing attorney or a
judge. If I am wrong on that, you can correct me. So, question:
Are you comfortable with the Federal rules and procedures? And
since being nominated, have you taken any steps to familiarize
yourself with them?
Judge Bloom. Thank you for the question, Senator Grassley.
The answer to both is yes, and in terms of my feeling
comfortable, certainly I have handled constitutional questions
as a State trial court judge as well as statutory construction.
So I certainly believe that my skill set in the State trial
court will serve me well, and certainly my work ethic, in
taking the opportunity to understand the substantive and
procedural law. And in terms of my preparation, I have
certainly taken the time to observe many of our Federal judges
in the Southern District. I now have the Federal Judicial
Center's Manual that I have started to review. I have read the
Federal Rules of Civil Procedure and am now reacquainted with
the Federal Rules of Evidence that I remember from my days in
law school. And certainly I have had experience with the
Sentencing Guidelines since I have served for many years in the
Criminal Division. So I certainly have had that experience.
So in answer to your question, Senator Grassley, I believe
that I am well prepared if I am fortunate enough to be
confirmed.
Senator Grassley. Okay. And my last question has two parts.
You have been reversed by the appellate court on a couple of
occasions. I would like to ask you about a case where you did
not grant a recusal motion.
First, what factors do you consider when reviewing a
recusal motion? And I might as well ask the second part of
that. Can you explain the situation in Miami Elevator v.
Marbrad, a case where you did not recuse? And how did you reach
your decision?
Judge Bloom. Thank you, Senator, for the case. The first
case in which I was reversed for my failure to recuse myself
was, in looking at the factors, the motion itself was legally
insufficient. It was not signed by the moving party, the
client. It was only signed by the attorney. And there were no
facts that were attested to. So certainly from the case law in
the Third District it was found to be legally insufficient. In
the Miami Elevator case, I do not particularly remember what
were the facts that led to my recusal, but certainly it was
grounded on a legally sufficient motion to recuse.
Senator Grassley. Congratulations, all of you, and thank
you.
Judge Bloom. Thank you, Senator.
Mr. Byron. Thank you, Senator.
Judge Gayles. Thank you.
Judge Mendoza. Thank you.
Senator Coons. Thank you, Senator Grassley.
At this point, there being no other questions, I will
simply suggest that Members of the Committee who were not able
to be with us today but want to submit questions for the record
may do so for 7 days, and this hearing is hereby adjourned.
[Whereupon, at 10:49 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. JULIE E. CARNES, NOMINEE TO BE CIRCUIT JUDGE FOR
THE ELEVENTH CIRCUIT; JILL A. PRYOR,
NOMINEE TO BE CIRCUIT JUDGE FOR
THE ELEVENTH CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF GEORGIA;
HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; AND HON. ELEANOR
LOUISE ROSS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT
OF GEORGIA
----------
TUESDAY, MAY 13, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard
Blumenthal, presiding.
Present: Senators Blumenthal, Feinstein, Durbin, Klobuchar,
Franken, Coons, Hirono, Grassley, Lee, and Flake.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. I am very pleased to call this hearing
to order. I want to welcome the Ranking Member, Senator
Grassley, and thank Senator Leahy for giving me this
opportunity to chair this very, very important hearing.
In my view as a lawyer and a litigator, the U.S. Senate has
few responsibilities more important than the confirmation of
judicial nominees. They are the voice and face of justice in
this country. Whether at the district court or the court of
appeals level, they practically and really are the ones who
determine the quality of our courts, our justice system, and
what most Americans see is their face and voice when they seek
justice in our courts. And as one who has practiced before many
judges, I have the highest respect for the work, the very hard
work that they do, the sacrifices they make, the service they
provide to our country and, likewise, that their families
provide.
So I want to welcome all of the nominees here today,
including your families, who are part of your team, each of
your teams, and contribute mightily to the work that you will
do. And I am particularly honored today to welcome two of our
colleagues, two of our most able and well regarded colleagues,
Senators Isakson and Chambliss.
And if you have an opening statement, I would be pleased to
call on you and then go to our two colleagues.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you. I just shook hands with all
the nominees. I want to congratulate you once again. And I want
to also congratulate your family and friends, who obviously are
proud of your advancement today.
Today we are going to hear from seven nominees who have
been nominated to serve in courts in Georgia: two appellate
court nominees and five district court nominees. Today's
hearing is a product of very long deliberations between the
White House, the Georgia Senators, and this Committee. I am
happy to see this bipartisan solution to the vacancies in
Georgia, and I am looking forward to hearing from today's
nominees.
I would note that one Member of the House of
Representatives requested to testify in opposition today, and
the Chairman did not grant that request. The Chairman's
decision regarding outside witnesses in opposition to judicial
nominees for lower courts is very consistent with past
Judiciary Committee practice.
I would also note that several outside liberal interest
groups have already weighed in on and urged Senators to oppose
two of today's nominees.
Now, I would hope that my Democrat colleagues would not
subject these nominees to any litmus test, and instead I would
hope my colleagues would give these nominees the same benefit
of the doubts and give their home State Senators the same
deference that Republicans so often provide for President
Obama's nominees.
As Senators, nearly every nominee who comes through our
Committee has taken some position that we may disagree with.
That is why home State support is so important, and as I have
said, all these nominees have the support of both the President
of the United States and their home State Senators.
I have given great deference to the home State Senators'
support when reaching decisions on whether to support nominees.
I believe home State support is important in the process,
including the Judiciary Committee, as well as the full Senate.
In fact, very soon the full Senate will consider six district
court nominees from Arizona. Even though I have some concerns
about several of those nominees, I plan to support them in part
out of deference to home State Senators who recommended them. I
would hope that my colleagues on the other side would show the
same deference with respect to the nominees that we are going
to hear today.
So, once again, I welcome the nominees and their families
today and look forward to their testimony and their answers to
our questions. Thank you.
Senator Blumenthal. Thank you very much, Senator Grassley.
Senator Chambliss, welcome, and thank you so much for being
here. It means a lot to us, and I am sure to the nominees that
you and Senator Isakson are here today for. Thanks.
PRESENTATION OF HON. JULIE E. CARNES, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT;
JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH
CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE
TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; HON.
MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
GEORGIA; AND HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. SAXBY
CHAMBLISS,
A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Well, thank you very much, Senator
Blumenthal, and to you and Ranking Member Grassley and other
Members of the Committee, particularly Chairman Leahy, with
whom Senator Isakson and I have worked so closely together to
reach this point, not just the point of the hearing but to
reach the point of the nominations, I thank you.
We are here today to consider the nominations of Julie
Carnes and Jill Pryor to be circuit judges for the Eleventh
Circuit; Leslie Abrams to be a district court judge for my home
district, Georgia's Middle District; and Michael Boggs, Mark
Cohen, Leigh May, and Eleanor Ross to be district court judges
for Georgia's Northern District.
Johnny and I, Senator Isakson and I have a committee of six
very distinguished lawyers from around the State who are our
judicial nomination review committee, and we have one simple
requirement of those six lawyers, and that is, when considering
judicial nominees, send us excellent lawyers. In this case
today, we have got seven excellent lawyers to be presented to
the Committee for ultimately, hopefully, confirmation to the
Eleventh Circuit as well as to two of our districts in Georgia.
Now, they will introduce their family, but these seven
individuals are so highly thought of by lawyers in Georgia that
today there are two individuals here, although the last I heard
they were stuck in traffic--I hope they are here by now. But
there are two individuals who represent the epitome of the
legal justice system in Georgia who on their own have spent
their time and spent their money to come show their support for
all seven of these individuals, and that is, the Chief Justice
of the Georgia Supreme Court, Justice Hugh Thompson; and also
the Chief Judge of the Georgia Court of Appeals, Judge Herbert
Phipps, is here to show support.
It is my pleasure to introduce these Georgians, the seven
Georgians, to the Committee today. We have before us a very
diverse and highly qualified group of legal minds from all
across our States. Georgia and the Eleventh Circuit will be
well served by both the breadth and depth of experience of
these individuals. Their full biographies are well known to the
Members of the Committee, so I will not go into extensive
detail. But I do want to take a moment just to briefly
recognize each of these nominees.
Judge Julie Carnes has been a Federal district judge for
the Northern District of Georgia since 1991, and she has served
as chief judge since 2009.
Jill Pryor has been in private practice in Atlanta for
nearly 25 years. During that time she has played a pivotal role
in some of the largest and most complex cases in Georgia
history.
Leslie Abrams has been an Assistant U.S. Attorney in
Atlanta since 2010. Her experience both as a Federal prosecutor
and from her time in private practice will serve her well on
the bench.
Judge Michael Boggs has served on the bench since 2004,
first as a superior court judge, which is our highest trial
court level, and as a judge on Georgia's court of appeals since
2012. He was also co-chair of Georgia's Criminal Justice Reform
Council in 2012 and 2013. I found out yesterday Judge Boggs has
actually disposed of in excess of 14,000 cases while on the
bench.
Mark Cohen's legal career actually began clerking for a
Federal judge. He then went on to work with both the Georgia
Attorney General's and the Governor's offices before entering
private practice in 1999.
After a Federal clerkship of her own, Leigh May entered
private practice in 2000, and she has been accumulating
accolades ever since. She has been repeatedly recognized as an
outstanding lawyer by her peers.
Finally, Judge Eleanor Ross has been a State court judge
since 2011 where she has an outstanding record. Prior to her
time on the bench, she worked for more than 15 years as a
prosecutor.
Each and every one of these individuals would be an asset
to the Federal bench no matter where they sat. But given the
growing caseloads for judges on the Eleventh Circuit and the
Northern and Middle Districts, their confirmations are
particularly important.
Finally, I would like to take a moment to thank the
President, his counsel, Kathy Ruemmler, and the rest of his
staff for going above and beyond in this process. The
collaborative effort here is an example of what we can
accomplish when we work together, and I am greatly appreciative
of the time they put in to ensure these vacancies are filled
with such high-caliber individuals.
And with respect particularly to Kathy Ruemmler, she has
served the President well as his counsel. Unfortunately, she is
leaving the Office of Counsel to the President at the end of
this week, and we will certainly miss Kathy but wish her well
in her future private endeavors.
So, Mr. Chairman, thank you very much for letting us be
here this morning to introduce this outstanding panel of seven
Georgia lawyers to be considered for confirmation as Federal
judges.
Senator Blumenthal. Thank you, Senator, for those excellent
remarks.
Senator Isakson.
PRESENTATION OF HON. JULIE E. CARNES, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT;
JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH
CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE
TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; HON.
MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
GEORGIA; AND HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. JOHNNY
ISAKSON,
A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Isakson. Chairman Blumenthal, Ranking Member
Grassley, Senator Franken, Senator Klobuchar, it is an honor
for me to be before the Judiciary Committee today. I associate
myself with all the remarks made by Senator Chambliss. We are
presenting to you today seven very qualified lawyers to be on
the bench of the circuit court and the district court of our
State of Georgia: Julie Carnes and Jill Pryor to the circuit
court; Leslie Abrams, Mike Boggs, Mark Cohen, Leigh May, and
Eleanor Ross to the district court.
Now, I am not a lawyer, Mr. Chairman, but I ran a company
for 33 years, and I have been in court a few times. And I know
what I like to look for in a judge, and that is, somebody that
is going to call it like they see it; they are going to call it
down the middle. They are going to be fair, they are going to
be equitable, and they are going to be respected. I can submit
to you that, without reservation or question, all seven of
these individuals meet every one of those tasks.
As Senator Chambliss has said, he and I have a joint
committee of six lawyers from around the State that vet all of
the potential nominees for the court appointments that we have
to offer and we will confirm. All six have given these their
highest recommendation in the vetting process and recommended
them without reservation.
I also want to thank the President of the United States. We
have had a process that began 3 years ago to fill what then
were two vacancies, now are seven vacancies in Georgia. Without
hesitation or reservation, President Obama has been inclusive
of Senator Chambliss and myself and our committee, and Kathy
Ruemmler has done a steadfastly wonderful job to see to it that
the very best nominees from our State come before you today to
be introduced.
I would not single one of them out because, as you can
tell, they are all exceptional, but I have to add one note of
personal privilege. Thirty-seven years ago, I served my first
year in elected office in Georgia as a member of the Georgia
House of Representatives. Back on the back row of the Georgia
Legislature was a guy named Charlie Carnes. He was called ``the
head of the Saw Mill Gang,'' which were seven members that sat
at the back of the room and made it tough on any of us arguing
any case before the Georgia Legislature.
His daughter, Julie, is here today, and I am confident that
Charlie is looking down with great pride of a father in a
wonderful daughter who has had a distinguished career and I am
proud to call my friend, and I am proud to call Charlie my
mentor.
So it is a privilege for me to introduce to you these seven
distinguished nominees for the bench in Georgia. We would
appreciate your looking favorably upon their confirmation, and
we thank you for your time today.
Senator Blumenthal. Thanks, Senator Isakson. Thank you both
for your insights and wisdom about these nominees. And I know
you have tremendously busy schedules, so just to tell everyone
here you may not be able to stay for the remainder of the
hearing, but we really very much appreciate your contributing
as you have this morning. Thanks so much.
I will now ask the first panel to please come forward:
Julie Carnes and Jill Pryor. The Committee welcomes you. They
are nominees to serve as circuit judges for the Eleventh
Circuit.
Julie Carnes has served as a judge on the United States
District Court for the Northern District of Georgia since 1992
and as chief judge since 2009.
And Jill Pryor has been an attorney at Bondurant, Mixson
and Elmore--I hope I got the pronunciation right--since 1989,
serving as a partner since 1997.
Our custom here is to swear you in first, so I am glad you
are standing. Do you affirm that the testimony that you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Carnes. I do.
Ms. Pryor. I do.
Senator Blumenthal. Thank you.
If you have a short opening statement, we would welcome you
to give it.
Judge Carnes. Starting with me, Senator.
Senator Blumenthal. Judge Carnes.
Judge Carnes. All right. Certainly.
STATEMENT OF HON. JULIE E. CARNES, NOMINEE
TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
Judge Carnes. First, I would like to thank President Obama
for this high honor that he has conferred on me. I am deeply
appreciative of the President for the trust he has placed in
me.
Second, I would like to thank our Georgia Senators,
Senators Chambliss and Isakson. I know that but for their
recommendation of me to the President and their enthusiastic
support, this would not have come to pass.
And, last, I would like to thank you, Senator Blumenthal,
and you, Senator Grassley, for both presiding and serving as
Ranking Member, respectively, and to all the other Senators who
are joining us. It is a great honor just to appear before this
body.
I think I can speak confidently for all seven of us that we
recognize this is a large group of people to have at a hearing,
and I know there must have been some logistic challenges for
you all to put this group together. So we are appreciative for
the opportunity for the hearing.
Now I would like to introduce the family members that I
have present with me today.
First, my husband, Steve Cowen, who is behind me. Steve is
a very respected lawyer in Atlanta. He is the smartest, wisest
lawyer I have ever dealt with, and he is a man who has made a
lot of personal and professional sacrifices through the years
in support of my career, for which I am always grateful.
My daughter, Kelly, I think is behind me. Kelly is an
Assistant Attorney General for the State of Georgia, a lawyer.
My step-daughter, Susanna Cowen, and her husband, Ross
McSweeney, are here, back there somewhere. You will not be
surprised they are also lawyers. Both are lawyers. They live
here in DC. But I guess the headline news for them recently is
that Susie gave birth in November to twins, Felix and Orla, and
made us grandparents for the first time. So that has been a
happy occasion.
There are three people not here who I would like to
acknowledge: my son, Jeff Campanella, is pursuing an acting
career in L.A. He would certainly want to be here with you,
Senator Franken, to meet you. That would have been a wonderful
honor.
[Laughter.]
Senator Franken. Why?
[Laughter.]
Judge Carnes. In the hopes you could find a job for him.
Senator Blumenthal. Your first mistake was giving Senator
Franken the floor.
[Laughter.]
Judge Carnes. And, second, the two people that have meant
the most to me in my life and are responsible directly and
indirectly for every good thing that ever happened to me, and
that would be my mother and my father. My mother, Mary Carnes,
celebrated her 87th birthday last week but due to health
reasons could not be here.
My father, you heard Senator Isakson speak of him. He had a
remarkable life. He was the youngest of 13 children, grew up in
a very poor farming family in north Georgia, signed up for the
Navy in World War II and in the Korean War, came back and used
the GI bill to finish his education, going to school for 9
years at night to get a college and law degree, and ultimately
running for the legislature and then becoming chief judge of
his court for 17 years. And he was a very esteemed and beloved
figure in Georgia legal circles, was a great mentor to me, and
was the most patriotic man I have ever met. He would just be
thrilled that this happened.
And so with that, I appreciate your indulgence, and I am
happy to answer any questions, Senator.
[The biographical information of Judge Carnes appears as a
submission for the record.]
Senator Blumenthal. Thank you, Judge Carnes.
Ms. Pryor.
STATEMENT OF JILL A. PRYOR, NOMINEE TO BE
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
Ms. Pryor. Good morning, Senator Blumenthal, Ranking Member
Grassley, Senators Durbin, Klobuchar, and Franken. I thank you
and the other Members of the Senate Judiciary Committee,
Chairman Leahy and the others, for considering my nomination.
Appearing here today is the greatest honor of my life. I say
that honestly.
It is also a great privilege to be here with Chief Judge
Carnes. She has been a mentor and a role model to me and
countless other women lawyers in the State of Georgia.
I would like to thank Senators Isakson and Chambliss for
their generous introductions and also for working hard with
President Obama, whom, of course, I would also like to thank,
in the spirit of cooperation to fill the judicial vacancies in
the State of Georgia.
With me here today are some of my family members: My
husband of nearly 20 years, Edward Krugman, who is also my law
partner and one of the finest lawyers I have ever encountered.
My 16-year-old son, Pryor Krugman, is here. He is a student
at the Paideia School in Atlanta, and I am very pleased that he
is here.
Also, my friend, Julie Reiley, who was my roommate my very
first year in law school, and has been a friend ever since.
I have a daughter, Leila Krugman, who unfortunately is at
home in Atlanta. She came down with a little bit of a bug over
the weekend. But I have to say, at the age of 13 years old, she
would probably rather go to school than have to spend a couple
of days with her parents. So we are probably fortunate that she
is not here today.
I also have people----
[Laughter.]
Ms. Pryor. She is very well behaved, though. It would have
been the weekend that would have been tough.
I also have people watching from home: my parents, Jerry
and Ginny Pryor. Without their loving guidance, I would not be
here today, that is for sure. My aunt and uncle, Carol and Bob
Madden; my sister, Suzanne Henderson; my sisters-in-law, Deucy
Rachelson and Laura Venzall, and their families, and many other
families and friends are watching and cheering me on today.
Twenty-five years ago, I had the privilege of clerking for
Judge Edmondson on the Eleventh Circuit, and to commemorate my
hearing today, Judge Edmondson gave me the gift of this vintage
World War II eagle pin that I am wearing. Judge Edmondson is
the person who first started me on the path with this
tremendous institution, the Eleventh Circuit. I am very
grateful to him for that and for his guidance over the years.
And, finally, I would like to extend my gratitude to Emmet
Bondurant, Mickey Mixson, Jay Elmore, and all the partners,
associates, and staff of my law firm, Bondurant Mixson and
Elmore, who have generously supported me throughout this
process. They are some of the finest professionals I have ever
met, dedicated to their cases and their clients, and I cannot
thank them enough for all of their support. Anything I have
accomplished in my legal career, I owe the credit to them.
Thank you, and I am ready for your questions.
[The biographical information of Ms. Pryor appears as a
submission for the record.]
Senator Blumenthal. Thank you both for those excellent
opening statements.
Judge Carnes, I am interested, perhaps you could tell us
what you think will be the greatest challenges in going from
the district court to the court of appeals.
Judge Carnes. Well, I think it should be a pretty smooth
transition. I will go for the positive parts before I get to
the challenge. Most of the cases that they handle are cases I
will have handled over the last two decades. And while district
judges handle trials and hearings, we also issue a lot of
opinions, so opinion writing is what appellate judges do, and I
am familiar with that.
What I think will be the major difference is the process by
which opinions are issued. As a district judge, we all write
our opinions by ourselves, with no input or review from anyone
else. On the court of appeals, of course, it is a different
matter. You operate in panels of three, and that means that
opinion writing, decisionmaking on the court of appeals is a
collaborative process, and you have to work with other people.
And so that will be a difference for me. I hope--I think
that I will be able to master that. I know most of the judges
on the court. Ms. Pryor and I know each other and have a very
cordial relationship, and I hope that will be a pretty easy
transition.
Senator Blumenthal. Have there been times during your
service as a district court judge when you staunchly disagreed
with the outcome and opinion of your court of appeals?
Judge Carnes. You mean with regard to one of my cases?
Senator Blumenthal. Exactly.
Judge Carnes. ``Staunchly'' would be strong. No judge likes
to be reversed, and sometimes if you are reversed, you look at
it and say, well, you know, maybe there was a point there;
maybe they had it righter than I had it. And sometimes you read
it and think, well, no, I think I disagree. So you see it both
ways. But I do not think I have ever had staunch disagreement
with anything they have done.
Senator Blumenthal. Ms. Pryor, what do you think for you
will be the greatest transition challenges going from private
practice to the judicial role?
Ms. Pryor. Well, Senator, obviously, I have been an
advocate for more than 25 years, so it will be a little
different to assume the role of a judge. However, I have
practiced appellate practice for all of those years, and I am
familiar with the impact of decisions on the parties, the
litigants who come before the court and the importance of well-
reasoned, clear opinions that will guide the parties' actions
and practicing lawyers in the future.
I have also had the opportunity, as I said, to serve as a
law clerk on the Eleventh Circuit Court of Appeals.
So I think the difficulty, most of the difficulty, will be
involved with the internal procedures and practices of the
court, becoming familiar with those and learning how to be
efficient in my work.
Senator Blumenthal. Have you practiced a great deal before
the court of appeals?
Ms. Pryor. Yes, I have, sir, as well as the State court of
appeals and Supreme Court.
Senator Blumenthal. Thank you.
Senator Grassley.
Senator Grassley. I am going to start with Ms. Carnes. You
have had a distinguished career as Assistant U.S. Attorney,
appellate practitioner, commissioner on the U.S. Sentencing
Commission, and now as chief judge. I would ask you a few
specific areas of your judicial practice. I am going to start
with the scope of remedies available under Section 1983 when a
constitutional violation occurs. I would first point you to
AT&T Wireless v. Atlanta. This is one of those cases that you
did not want to be reversed in, I assume. So let me ask you a
few questions.
As an appellate judge, how would you decide what is the
scope of remedies available under Section 1983?
Judge Carnes. And I think it was a long time ago, but I
believe the case you are referring to is where AT&T had sued
because a particular county was not giving them cell phone
access or something. And they won on that point. I agree they
won on that point. But AT&T went a little bit farther, and they
sued under 1983 so that they could get attorneys' fees. And I
ruled that while they could get their cell phone put up that
they could not sue pursuant to 1983 because this was a very
carefully regulated area by the Congress and 1983 did not come
into play.
The Eleventh Circuit initially reversed me, but then the
case was vacated, called for en banc. They never got to a point
of an en banc hearing. AT&T went away, and I do believe the
Supreme Court in the next couple of years issued an opinion
that vindicated my original position.
Senator Grassley. Okay. In another case, Schwier v. Cox,
that the Eleventh Circuit reversed in 2003, that was involving
1983 remedies for violation of voting rights and the Privacy
Act. I would like to have you talk about your views on the
scope of remedies available for violation of privacy rights and
voting rights.
Judge Carnes. Well, in that particular case, there had been
no precedent in the circuit, and I actually relied on a Ninth
Circuit case in holding that there was no private right of
action for this particular alleged breach. The circuit
disagreed with me, and, of course, in that case or any other
case, I will follow their precedent in the future.
Senator Grassley. And what about the voting rights issues?
Judge Carnes. Which case are you referring to, Senator?
Senator Grassley. What?
Judge Carnes. Which case are you referring to?
Senator Grassley. Well, I thought both privacy rights and
voting rights were involved in the Schwier case.
Judge Carnes. Well, as I recall--again, it has been a long
time, but it was whether or not the potential voter was
required to give her Social Security number as a prerequisite
to being allowed to vote.
Senator Grassley. Thank you.
Now, a little more general question for you, and I am going
to refer to Justice Breyer. He has described the law as ``a
conversation among judges, among professors, among law
students, among members of the bar.'' He provided this
description in the context of his argument that it is sometimes
appropriate for judges to look to sources other than the
Constitution or Federal statutes when reaching a decision about
what a law means.
First question of two that I will ask: Do you share Justice
Breyer's views that judges should occasionally look for
guidance from sources like law review articles or other
scholarly comments? And maybe I better--just leave Justice
Breyer out of that. Let me say, Do you share a view that judges
should occasionally look for guidance from sources like law
review articles or other scholarly commentary?
Judge Carnes. I do not think there is anything wrong with
looking at a law review article for the purposes if they have
collected a lot of cases and it shortens the research process.
But to the extent that the statement is being made to indicate
that a judge should try to be--or be influenced in the
decisionmaking by what a law professor or someone has said,
absolutely not. We rely on the cases, not the opinions of
someone in academia.
Senator Grassley. And my last question: Do you believe that
it would be appropriate to rely on legislative history when
deciding what a law means, assuming the law is not clear?
Judge Carnes. Well, I think for most judges, legislative
history is the last thing you look to if nothing else is there
to help you. And like a lot of judges, I am a little leery
about it. I would never say never, but I think the theory or
the concern is that legislative history is not something
Congress enacted; it is something that staff members have
written after the fact. And so all else would have to fail
before I would look at the legislative history, and I look at
it with great scrutiny.
Senator Grassley. Thank you.
Now I am going to go to Ms. Pryor. During your legislative
career, you have been involved with several challenges to
Georgia's parole system. What has been your interest in parole
issues?
Ms. Pryor. Well, Senator, throughout my career as a lawyer,
I have taken on pro bono cases, and in the parole cases you
mention, particularly the Sultenfuss case, I was actually
appointed by the Eleventh Circuit to represent an inmate who
was proceeding pro se. And I think pro bono work is very
important, and when the court calls upon me to do that work, I
have always responded in the affirmative.
Senator Grassley. Okay. So then your interest comes mostly
when you were invited into that environment?
Ms. Pryor. Yes, sir. I had no previous knowledge or
experience with that issue.
Senator Grassley. Is there anything about this experience
that would influence your review of lower court sentencing
decisions if confirmed as an appellate judge?
Ms. Pryor. No, sir. I would apply precedent and follow the
law.
Senator Grassley. The next question might sound
confrontational. It is a question I ask a lot of people that
are involved in political activity. Over the course of your
career, you have contributed to quite a few Democratic causes
and politicians over the years. So I always seek assurances
that these nominees can give me that you will be fair to all
litigants who come before you, and in particular those who
represent or who advocate on behalf of causes that you may
disagree with personally or politically.
Ms. Pryor. Senator, my personal beliefs or political
beliefs would not enter into any judicial decisionmaking that I
might have. I was exercising my First Amendment rights in those
situations. But, of course, as a judge and also as a nominee, I
am prohibited from engaging in any such activity.
Senator Grassley. Okay. Two more questions. If confirmed,
what would be your judicial philosophy or approach in applying
the Constitution to modern statutes and regulations?
Ms. Pryor. Well, the Constitution is an unchanged document,
I believe. Obviously, we have to apply it to new situations and
new technologies, but I do not believe that that changes the
meaning of the Constitution itself.
Senator Grassley. Last question: Do you believe that a
judge's gender, ethnicity, or other demographic factors has any
or should have any influence on the outcome of the case? And I
would like to have you explain if it would have.
Ms. Pryor. No, I do not.
Senator Grassley. Okay. Thank you, Mr. Chairman. Thank you,
both nominees.
Senator Blumenthal. Thank you, Senator Grassley.
I want to enter in the record, if there is no objection, a
statement from Senator Leahy and then go to Senator Durbin.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Durbin. Mr. Chairman, thank you. In the interest of
time, I would just acknowledge that Judge Carnes, in testifying
before the House Judiciary Committee 5 years ago, raised an
issue relative to mandatory minimum sentencing and what you
described as the ``blunt and inflexible tools'' of that law.
And I would just note that we have passed out of this
Committee, now pending on the floor, the Smarter Sentencing
Act, which is going to address that not just for you but for
all Federal judges in the future. So I thank you for that
testimony, and I would yield back to the Chair.
Senator Blumenthal. Thank you, Senator Durbin.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Congratulations to you both. Judge Carnes, congratulations
on being a grandparent.
Judge Carnes. Thank you.
Senator Franken. It is a big deal. And, also, I am sorry
that your son has chosen to be an actor.
[Laughter.]
Senator Franken. That almost never turns out well.
[Laughter.]
Judge Carnes. Maybe he will listen to you more than to us.
Senator Franken. No. I hope he has a great career.
You talked both about being reversed and being reversed I
guess from the standpoint of being a district judge by a
circuit court judge. But there are going to be reversals, too,
when you are on the circuit court, or there may be. And, you
know, you also both talked about judging in your job, remaining
true to precedent.
I am not a lawyer. When I first got here, the fifth day I
was here we had the Sotomayor confirmation hearing, on my fifth
day. And I was kind of a little bit confused by one thing,
which is that it seemed that Judge Sotomayor, who had been on
the circuit court, had been taken to task for two decisions
that she made that were overturned by the Supreme Court. One
was on hiring firefighters and the promotions, I guess, of
firefighters in New Haven and using race as part of that. And
she voted one way, and it was decided that way. And then the
Supreme Court reversed that decision. But it seemed to me that
she had been observing stare decisis and that she had been
ruling according to precedent.
Then there was another one on the Second Amendment, and the
same thing was the case. But she was very much taken to task by
Senators on the other side.
If you are reversed by the Supreme Court but you had
observed stare decisis, what is your feeling about that?
Judge Carnes. Well, I think on the court of appeals you
really have no choice but to do that. If I am sitting on a case
and there has been precedent in the Eleventh Circuit, I am
required to abide by that precedent. I have no other
alternative, except there is a provision for en banc. So if on
the appellate court a judge believes that the precedent on
which she is relying has fallen into disuse or it is confusing,
it is not creating clear standards for the litigants or there
are conflicting opinions, then you can request an en banc and
have the full court decide. But absent that, if a judge is
relying on precedent, I do not think that judge can be faulted
for that.
Senator Franken. That is kind of what I thought, too. And,
Ms. Pryor, you said you were going to rule according to
precedent, right?
Ms. Pryor. Yes, Senator.
Senator Franken. So when a situation comes up when there is
a question like, okay, this is something that is pretty ripe,
but there is really no cause for me to go en banc, then that is
the proper way to go, right, is to rule according to what has
already been decided by the Supreme Court or by the court
itself?
Ms. Pryor. Yes, Senator Franken.
Senator Franken. Okay. That is what I agree with, and that
is what I thought then, and it is what I think now.
Congratulations again to both of you for your nomination, and
thank you, Mr. Chairman.
Senator Blumenthal. Thanks, Senator Franken.
That is all of our questions for you this morning. We thank
you again for being here as well as your families and wish you
well. The positions that you are hopefully going to occupy are
positions of immense trust and importance to our justice
system. Again, thank you for your willingness to serve. Thank
you.
Judge Carnes. Thank you.
Ms. Pryor. Thank you, Senator.
Judge Carnes. Thank you all.
Senator Blumenthal. We will go on now to our next panel, if
they would come forward.
If you would please raise your right hand, do you affirm
that the testimony you are about to give before the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Abrams. I do.
Judge Boggs. I do.
Mr. Cohen. I do.
Ms. May. I do.
Judge Ross. I do.
Senator Blumenthal. Thank you. Please be seated, and I
invite each of you to provide an opening statement.
STATEMENT OF LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF GEORGIA
Ms. Abrams. Thank you, Chairman Blumenthal, Ranking Member
Grassley, Senator Durbin, and Senator Franken. Thank you all
for being here, for calling this hearing, and for hearing from
us today. I would also like to thank President Obama for this
nomination and for the faith that he has put in me.
Now I would like to recognize several people who are here
with me, both family and friends.
First, two people who are simply the best thing that have
ever happened to me and who have never missed a parent-teacher
conference, a recital, or anything that has been important to
me, my parents Reverend Robert and Carolyn Abrams, who are
seated right behind me. My parents are both ordained elders in
the United Methodist Church.
Also with me is one of my college roommates from Brown
University, Tiffany Thompson, and her mother, Mrs. Thompson,
who I lovingly refer to as ``my fairy godmother.''
Two of my best friends and study group members from Yale
Law School who are part of a group of friends that still get
together every year, and we called ourselves the ``Law School
Ladies,'' Becky Monroe and Kristi Graunke. And two of my
compatriots from my time at Skadden Arps Slate Meagher and Flom
here in DC, Keba Marshall and Avia Trower.
I also have watching via live streaming my five brothers
and sisters--Dr. Andrea Abrams, the Honorable Stacy Abrams,
Richard Louis Abrams, Walter Abrams, and Dr. Jeanine Abrams
McLean--as well as my grandmother, Wilter Mae Abrams.
I would also just like to thank my U.S. Attorney's Office
family, my Skadden family, and my family from Central United
Methodist Church, as well as the judge that I clerked for,
United States District Court Judge Marvin J. Garbis.
Thank you.
[The biographical information of Ms. Abrams appears as a
submission for the record.]
Senator Blumenthal. Judge Boggs.
STATEMENT OF HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Boggs. Thank you, Senator Blumenthal, Ranking Member
Grassley, Members of the Committee for the opportunity to be
here today. I would like to also thank Chairman Leahy and his
staff for arranging for this meeting. I am very proud and
appreciative to the President for nominating me. I also want to
thank Senator Chambliss and Senator Isakson for the warm
introduction and for their support throughout this process.
I have with me today my wife of 15 years on Thursday,
although I am not sure a trip to DC was what she had in mind
for an anniversary gift, but we will celebrate our anniversary
on Thursday, and my wife, Heather, is a kindergarten teacher in
the public school systems in Georgia, and I am really proud of
what she does to improve the lives of so many young children in
our State. She was the Teacher of the Year last year for our
school district, and I get quite a bit of encouragement from
her and what she does.
I am also honored to have two special guests from the
judiciary in Georgia with me today. Seated behind me is Chief
Justice Hugh Thompson of the Georgia Supreme Court and also
Chief Judge Herb Phipps of the Georgia Court of Appeals, the
court on which I currently serve. And I am really honored.
These are both mentors of mine and both very astute members of
the judiciary and well-respected members of the judiciary in
our State.
I am also honored to have two very good friends. Richard
Hyde, the chief investigator with the Georgia Judicial
Qualifications Commission, is here with me today, as well as a
friend of now probably 30 years from when I was first
legislative aide to a Democrat Congressman from Georgia
straight out of law school, my good friend Pete Robinson, who
is a lawyer with the law firm of Troutman Sanders in Atlanta
and also in DC.
My parents passed when I was--my father approximately 30
years ago when I was 21. My mother passed a couple of years
ago, but everything I have ever accomplished I am confident is
because of the things that they taught me in the time I had
with them.
I have two wonderful in-laws, my wife's parents, Dr. Porky
and Becky Haynes, and I know they are very proud and very
excited for me on this occasion.
I am honored to be here, Mr. Chairman, and I want to thank
the many people that have helped me: my judge family on the
court of appeals, I know many of them, including my staff, are
watching via Webcast, and I am so very appreciative for their
support.
And with that, Mr. Chairman, I appreciate the opportunity
to introduce my friends and family, and I welcome any
questions.
[The biographical information of Judge Boggs appears as a
submission for the record.]
Senator Blumenthal. Thanks, Judge Boggs.
Mr. Cohen.
STATEMENT OF MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF GEORGIA
Mr. Cohen. Thank you, Senator Blumenthal, Senator Grassley,
and also thanks to Chairman Leahy and the rest of the Members
of the Committee for making this Georgia Day at the Senate
Judiciary Committee. We really do appreciate it.
I want to thank President Obama for giving me the greatest
honor that I have ever had in 34 years of practicing law--this
nomination.
I want to thank Senators Chambliss and Isakson for their
warm remarks and also for their support throughout this
process.
There are several people I would like to introduce today.
First and foremost, sitting behind me is my wife, my best
friend, and the love of my life, Bonnie Cohen. Bonnie was a
legal secretary for over 35 years, and despite having to work
for lawyers her entire adult life, she agreed to marry me. And
for that I will be forever grateful. I would not be sitting
here today without her love and support, and we celebrate our
17th wedding anniversary next week.
Also here today are two people who are like family members
to Bonnie and me: Judge Stephanie Manis and Bob Manis. Judge
Manis and I worked together at the Georgia Attorney General's
Office for many years. She has been a mentor, a friend, and a
role model, and someone whose career has been an inspiration to
me throughout my professional career.
Here today also with me are two young partners from my law
firm, Troutman Sanders: Jaime Theriot and Kevin Meeks. Jaime
and Kevin have worked with me on every major piece of
litigation that I have handled at the firm. They are two of the
finest young lawyers it has been my privilege to work with
during my legal career. And I would not be sitting here without
their support.
Also here also for me as well as Judge Boggs is Pete
Robinson, who is the managing partner of our Atlanta office, a
former Democratic Majority Leader in the State Senate and a
long-time friend. And two former colleagues of mine at the law
firm who now work in Washington. Bill Arnold and Trenton Ward
are also here, and I appreciate their attendance.
There are a lot of people watching on the Web who are
friends and colleagues of mine. I want to particularly mention
one very special one, and that is one of the most beloved
Georgia attorneys, Norman Underwood. When I came to Troutman
Sanders 15 years ago, Norman became my mentor. He took me under
his wing, and he made me a better lawyer. And if I am fortunate
enough to be confirmed by this august body, I will be
privileged to say that I got to practice law with Norman
Underwood.
And, finally, I would like to recognize my parents, Vivian
and Irving Cohen. My parents were born in Brooklyn, New York.
They are children of immigrants. They are children of the Great
Depression. And because of their family situation, they were
unable to achieve the education that they provided for their
only son. My father enlisted in the United States Army during
World War II. He was a disabled veteran, and he ran a small
business. My mom was a secretary and worked in the home.
Together, because of their support and sacrifice, I was able to
go to college and law school and lead the life that led me to
this moment before you today. I know if they were here they
would be very proud.
And with that, I welcome any of your questions.
[The biographical information of Mr. Cohen appears as a
submission for the record.]
Senator Blumenthal. Thank you, Mr. Cohen.
Ms. May.
STATEMENT OF LEIGH MARTIN MAY, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF GEORGIA
Ms. May. Thank you, Senator Blumenthal, Ranking Member
Grassley, and the rest of the Senate Judiciary Committee. Thank
you for holding this hearing, and I am honored to be here today
to answer your questions. I also want to thank Senators
Chambliss and Isakson for their kind introduction and for their
support throughout this process.
I would like to thank President Obama for the great honor
that he has given me in this nomination. It is something that I
am very proud of, and it is the highest honor that I can think
of achieving.
I have quite a crowd of family here today, so I will try to
go quickly.
My husband, Gil May, is here. He is an architect in
Atlanta, the love of my life, and the person that has been
there for me every day throughout this process.
I also have with me my 7-year-old son, Griffin May. He is a
first grader at the Paideia School in Atlanta, Georgia, and has
thoroughly enjoyed his trip to DC, especially the chance to get
to go up in the Washington Monument yesterday as it reopened.
So it has been a very special trip for him.
My mother, Beatrice Williams, is here. She is in her final
year as a first-grade teacher in Decatur County, Georgia. She
has had a long career in public education and is very excited
about her upcoming retirement.
My in-laws are here, Dr. Jerrell and Lauren May, and they
also have both retired from public education, and I am very
happy to have them here today.
I have my brother, sister-in-law, niece, and nephew.
Stephen, Julie, Lucy, and Hollis May are here from Daphne,
Alabama.
I also have my law partner, Joel Wooten, and a daughter of
one of my other law partners, Sandra Lynne Fryhofer, that are
here for me today. I really have appreciated the support of my
law firm, Butler Wooten and Fryhofer, that the partners and the
other staff and attorneys in the firm have given me, and I am
very proud to have Joel and Sandra Lynne here with me today.
Thank you very much.
[The biographical information of Ms. May appears as a
submission for the record.]
Senator Blumenthal. Thanks very much, Ms. May.
Judge Ross.
STATEMENT OF HON. ELEANOR LOUISE ROSS, NOMINEE
TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT
OF GEORGIA
Judge Ross. Thank you, Chairman Blumenthal, Ranking Member
Grassley. I would like to thank the entire Senate Judiciary
Committee. Thank you to Senators Chambliss and Isakson for the
warm introduction as well as the bipartisan efforts throughout
this process. Thank you also, President Barack Obama, for the
honor of this nomination.
I, too, have some very special people with me. First, my
husband of 13 years, fellow attorney Brian Ross, who is seated
behind me. He is my rock and source of inspiration in all of my
professional and personal endeavors.
Our two daughters, 12-year-old 6th grader Briana Valerie
Ross and 10-year-old 5th grader Leeann Danielle Ross. They
graciously made the sacrifice to miss a day of school to
attend. I thank them and their teachers for allowing them to do
so with the understanding that they will be making up missed
school work.
Speaking of teachers, I also have behind me my mother,
Otelia Barnwell, who is a retired public school teacher from
right here, the D.C. Public School System.
Also, my siblings are present: my sister, Dr. Valerie
Barnwell, and my brother, fellow attorney George Otis Barnwell.
My father, George Miller Barnwell, also was a teacher. He
passed away when I was 8. He is with me here in spirit, as he
always has been, and today I have with me a person who has
served as a father figure for my entire life, that is, my
uncle, Jim Clarke.
And I also have with me my two beautiful teenage nieces,
Savannah and Arianne Barnwell.
I would also like to acknowledge my mother-in-law, Shirley
Covington, who also is a retired public school teacher as well
as principal. She could not make the trip to DC today, but she
supports me from her home in Columbus.
And, finally, I would like to acknowledge my colleagues and
my exceptional staff at the DeKalb State Court. They are
keeping things running smoothly while I am here in Washington.
Thank you, and I welcome your questions.
[The biographical information of Judge Ross appears as a
submission for the record.]
Senator Blumenthal. Thank you very, very much to all of you
for your opening statements and, most important, for your
records of public service. And I want to say again how
important these hearings and this process are.
I want to welcome Chief Justice Thompson, Chief Judge
Phipps. You honor us by your presence here today. Sorry you had
a bit of difficulty getting here, but you were mentioned in
absentia by Senators Isakson and Chambliss.
Like you, these individuals have performed a great deal of
public service over the course of your careers already. The
decisions we make here really will be to put you in a place
where for many people seeking justice you will be the last
person making a decision. Even though there may be a right of
appeal to the court of appeals, you will be the source of
justice for them. And so this decision for us is immensely
important, and we are going to approach it, I think, with the
close scrutiny that it deserves in every instance.
I would like to begin, Judge Boggs, with some questions to
you, if I may. As I look through the responses to the
Committee's questionnaire, I noted that there were no texts of
remarks, no speech drafts, notes, anything in writing of that
kind. Over the course of your very long career in public life,
did you never deliver a prepared speech? Did you never submit,
for example, to the Judiciary Committee when you served in the
State legislature any prepared remarks?
Judge Boggs. Well, thank you, Senator. It was not the
practice of myself while I was serving for the 4 years in the
General Assembly to speak regularly before committees. In fact,
the only occasions I had to do that were on bills that I had
authored. I never spoke to any Committee of the House or Senate
on any bill that I did not author other than a bill I was asked
to carry by the Secretary of State, which meant that I had to
testify before the Senate on that matter.
It is not the practice of the General Assembly then and I
do not think now that witnesses submit any written comments or
testimony, and indeed that was not my practice. I typically
spoke extemporaneously and generally spoke from the bills, the
text of the bills that I was presenting.
Senator Blumenthal. On some of the videos, I think, that
are of your service in the legislature, you seemed to be
reading from something. Did you keep none of those texts?
Judge Boggs. I was reading from the text of the bills that
I was presenting at the time. I was not speaking about support
or--I was simply asking legislators to support the bill. But
what I was reading from and what I always took to the well on
those limited occasions was the text of the bill.
Senator Blumenthal. And on the issue, for example, of
women's reproductive rights, I know that you have spoken
passionately about your views on that topic. On rights of women
to seek reproductive health care, I know that you have stated
your opposition to abortion. You prepared no remarks on any
occasions that you delivered?
Judge Boggs. Senator, to my knowledge, I have never given
any public comments on my position on reproductive rights. I
have cosponsored some bills in the General Assembly. To my
knowledge, I also voted on a couple of amendments on the floor
of the House that I did not author and had no authorship in.
But to my knowledge, I have never given any speeches concerning
reproductive rights.
I know this, Senator: I never authored any of those bills.
Even the ones I cosponsored, I had no role in drafting that
legislation.
Senator Blumenthal. And I noticed also, as you well know,
that on April 10, you supplemented your responses to the
questionnaire to this Committee with additional materials, some
of them dealing with the controversial issues that may be of
interest to my colleagues. Can you assure us that there are no
additional materials that are relevant to particularly
questions 12c and 12d of the questionnaire?
Judge Boggs. Yes, sir, Senator. I can assure you of that. I
appreciate the Committee's indulgence and opportunity to submit
additional submissions with respect to my original responses to
questions 12c and 12d. I respectfully suggest that the effort
that I went to to supply the information in my original
questionnaire was quite exhaustive. I did all of the notable
searches on Internet searches that were available. The
newspapers that covered the area that I served as a legislator
are not searchable by the public in any form other than by
review of the hard copies.
In addition, I reviewed applications and questionnaires of
nominees who had had prior legislative service and attempted to
mirror what they had done with respect to their submissions. I
did not note that any of those nominees had ever submitted a
listing of bills that they had cosponsored. That is certainly a
matter of public record, and I could have easily provided it.
But with respect to question 12c, which asked for my public
statements on matters of public policy, I did not view bills
that I cosponsored, that I did not author, that I had no
interest in other than cosponsoring, that I had nothing to do
with the drafting of, to be my public statements.
And so in that regard, I did exhaust additional resources
in order to provide this Committee with everything that was
available. That meant going to Georgia Public Broadcasting, who
at the time I served in the legislature made videos of
legislative sessions. The information they had from 2001 to
2004 was old. It was on servers that were not searchable. It
was in a format that was not searchable, that had to be decoded
and put into a searchable format. It took me roughly 6 weeks of
almost daily contact and personal visits to Georgia Public
Broadcasting to retrieve the videos that I did supply.
With respect to question 12c, that dealt with public
speeches I might have given while I was a legislator from 2001
to 2004. I have been a judge both on the trial court bench and
the appellate court bench for 10 years. On advice of the State
Bar of Georgia, I destroyed my files from my old law office,
which would have possibly contained references of when I spoke
to certain civic organizations, dates, and to whom I spoke. But
because that information and media coverage of that was not
available, I took 5 days, I traveled 250 miles to my home town,
and I reviewed 515 newspapers, roughly 8,000 pages, personally,
and then hired someone to review on the internal programming
system of our daily newspaper their data in order to provide
the additional submissions. And I am very appreciative for the
opportunity to have done that.
Senator Blumenthal. I appreciate that explanation. I would
remind you, I know I do not need to remind you, that some of my
colleagues, particularly on this side of the aisle, have found
the failure to be completely forthcoming and frank with this
Committee in terms of providing materials as a reason to
disqualify, in fact, put in jeopardy the nomination of a
judicial nominee. So I would urge you, if there are any other
materials that are discernible in any way, that you provide
them as quickly as possible.
Judge Boggs. Absolutely, Senator.
Senator Blumenthal. Let me go to some remarks and actions
that you made in the course of your career, if I may. When you
were a candidate for the Georgia Superior Court, you spoke at a
candidate forum. You told the audience at that time, and I am
quoting: ``I am proud of my record. You do not have to guess
where I stand. I oppose same-sex marriage.'' And you went on:
``I have a record that tells you exactly what I stand for.''
Wouldn't your co-authorship of those amendments in the
Georgia Legislature dealing with reproductive rights and a
woman's right to choose be indicative of how you will serve as
a judge on the district court in Georgia if you are confirmed?
Judge Boggs. Thank you, Senator, for the question. I did
make the comments that you refer to. Later in that same speech,
I referred to my respect for the separation of powers and the
lawmaking authority that is vested in the legislature and that
judges should not be policymakers. I have maintained that
position for the entirety of my judicial career.
However, I agree that the comments that I made probably
gave the wrong impression to the audience to whom I was
speaking, particularly with respect to the job that I was
seeking. I should have done a better job of delineating the
roles, the different roles and the markedly different roles,
between being a legislator and being a judge. I was a
legislator at the time I made those comments, but I was seeking
the office of judge.
However, I think that my record, my 10-year record of
disposing of roughly 14,000 cases demonstrates unequivocally
that I have never allowed personal views I may have on an issue
to affect how I analyze issues or how I decide cases.
Senator Blumenthal. Have any of those cases dealt with
reproductive rights or a woman's right to choose?
Judge Boggs. I think on my time on the Georgia Court of
Appeals I have dealt with one case on my panel. It was not a
case that I authored, but one case that dealt with Georgia's
current statute on a minor having to receive parental consent
in order to receive an abortion. It was on appeal from a
petition to a juvenile court. Other than that, no.
It is true that throughout my judicial career both as a
trial court judge and an appellate court judge that I have
rarely dealt with issues of those constitutional magnitude.
Senator Blumenthal. So other than that one case, to know
where you stand on that issue of reproductive rights or a
woman's right to choose, we would have to go back to your
actions in the Georgia State Legislature?
Judge Boggs. I do not necessarily agree, Senator. I think
that the best evidence of the type of judge I will be is the
record of the type of judge I have been. I do not think that my
legislative record that is over a decade old is indicative of
what type of judge I might be on the Federal district court. I
would point to my record as a trial judge, disposing of 14,000
cases, dealing with civil cases and criminal cases, ruling for
plaintiffs, ruling for defendants, ruling for the State, ruling
against the State. I think that is the best evidence of the
type of judge I would be.
Senator Blumenthal. Where do you stand now on reproductive
rights or a woman's right to choose?
Judge Boggs. Senator, my personal opinion on matters that
might come before the court would be--it would be, I think,
inappropriate and a violation of the Code of Judicial Conduct
of Georgia that I currently am bound by to state any position
on those matters. But I can state unequivocally that my
personal position on that matter or any other issue is
irrelevant to how I have decided cases for the past 10 years,
how I have analyzed issues, and I am committed to following the
rule of law, the doctrine of stare decisis, and always doing
that if I am fortunate enough to be confirmed.
Senator Blumenthal. And the Constitution's right to privacy
included?
Judge Boggs. Absolutely.
Senator Blumenthal. In your response to questionnaires
before this Committee, you said that you are a ``strict
constructionist.'' Is that your general philosophy?
Judge Boggs. I think at the time I made those comments,
which was upon my transferring from the superior court to the
court of appeals, I made those comments to a reporter. What I
intended to convey was my fidelity to the rule of law and my
fidelity to the limited role of a judge in our democracy, and
intended to convey my respect for the limited role of a judge,
and that is to not decide cases based on public opinion, to not
decide cases based on public clamor, but to decide cases based
on the faithfulness to the rule of law and the doctrine of
stare decisis, which I believe my record demonstrates I have
done.
Senator Blumenthal. Normally, a strict constructionist is
one who looks very specifically, and judges would say
faithfully, to the text of the Constitution and the philosophy
is to avoid going beyond what is actually written in the text
of the Constitution. Is that a fair description of strict----
Judge Boggs. It is my understanding of strict
constructionism. Yes, sir, it is a form of constitutional
interpretation and analysis.
Senator Blumenthal. In 2004, you said that the right of
privacy is not ``in the context or in the text of the
Constitution.''
Judge Boggs. I am not familiar with having said that,
Senator. If you--I am happy to respond later if I can find out
where that quote might come from. I am not familiar with having
said that.
Senator Blumenthal. Well, you said it in 2004. It was a
while ago. But let me give you a chance to explain now.
Judge Boggs. Sure.
Senator Blumenthal. If the right of privacy is not
specifically delineated or described in the text of the
Constitution, is it still equally valid as the rule of law?
Judge Boggs. Yes, sir, I believe that the easy answer to
that question is that I would base every decision on rights of
privacy, fundamental rights, and use a constitutional
interpretation model that is based on precedents of the U.S.
Supreme Court and the Eleventh Circuit.
Senator Blumenthal. And so you would not permit or allow
your view of the Constitution as a strict constructionist to
interfere in any way with carrying out the rights of
individuals, the rights of privacy to individuals who may come
before your court?
Judge Boggs. Absolutely not, Senator.
Senator Blumenthal. Let me ask you about another part of
your record relevant to this same issue. You supported
legislation that would require doctors to report the number of
abortions they perform. Would you tell us why you supported
that legislation? Don't you think it was ill advised?
Judge Boggs. Well, Senator, let me respond this way: The
legislation that you refer to was an amendment made on the
floor of the House of Representatives. It was not an amendment
that I drafted. It was not an amendment that I was familiar
with. It came up on the floor of the House in the routine of
handling the business of the legislature for that day.
I supported measures like that and including that because
those issues were very important to the people that I
represented. My constituents as a State legislator were 38,000
citizens in one county in southeast Georgia for the first 2
years that I served. The district grew a little larger than
that. But that district is a very conservative and a very pro-
life constituency. I believed that it was the obligation of a
legislator to vote--listen to and vote the will of their
constituency. Those issues were very important to my
constituents, and that is why I supported that floor amendment.
Senator Blumenthal. That amendment came within a few years
after and before attacks on doctors who provided abortion
services. Would you agree with me that it was a mistake to
support that kind of amendment?
Judge Boggs. In light of what I have subsequently learned,
yes, sir, I do not think that it would be appropriate to be
listing the names of doctors that perform abortions within what
was then the Georgia Patient Right to Know Act, which dealt
predominantly with litigation that doctors had been involved
with and the ability of patients to see that information.
Senator Blumenthal. Thank you. My time has expired, and I
would turn to Ranking Member Grassley.
Senator Grassley. It might surprise you, but I am going to
ask you a lot of questions, and I am going to ask similar
questions of what you did. I find no offense with your
approach. And I hope the rest of you do not feel left out.
[Laughter.]
Senator Grassley. You served the past 10 years as--again,
to Judge Boggs, you served the past 10 years as an elected
State court judge, and I think you verified that already.
Judge Boggs. Yes, sir.
Senator Grassley. In this election did you run under any
particular party?
Judge Boggs. No, sir. Georgia's judges are elected
nonpartisan at the levels that I ran.
Senator Grassley. Okay. So your role as a judge has been a
nonpolitical, nonpartisan. Is that correct?
Judge Boggs. Entirely. Yes, sir.
Senator Grassley. In 2001, as you have already said, you
were elected as a Democrat to the Georgia General Assembly,
right?
Judge Boggs. That is correct.
Senator Grassley. You have been criticized by some groups
for some of the policy positions you took as a legislator. For
instance, as a legislator, you had a pro-life voting record.
You supported traditional marriage. I would ask you a couple
questions. First I am going to read something that you said
during Senate Resolution 595. This resolution recognizes
marriage as a union between a man and a woman. In the statement
on the resolution, you said, ``It is my opinion both as a
Christian and as a lawyer and as a member of this House that it
is our opportunity to stand up in support of this resolution.''
So please explain what you meant by this statement.
Judge Boggs. I clearly meant, Senator, that my personal
opinion was at the time, over a decade ago, that I was in
support of a proposed constitutional amendment that would have
banned same-sex marriage. My position on that, Senator, may or
may not have changed since that time, as many people's have
over the last decade. Moreover, my position on that, as
reflected by those personal comments in 2004, have never had
any import whatsoever in how I decided cases or how I analyzed
issues, both as a trial court judge and an appellate court
judge.
Senator Grassley. Is it fair to say that your Christian
faith informed your policy positions as a legislator?
Judge Boggs. Yes, sir.
Senator Grassley. By contrast, how does your Christian
faith affect you and your decisionmaking process as a judge?
Judge Boggs. It never has interfered with my decisionmaking
process whatsoever, Senator.
Senator Grassley. Is there anything in your personal view,
whether religious or otherwise, that would make it impossible
for you to apply the law as a Federal judge, even if you
personally disagreed with it?
Judge Boggs. No, sir.
Senator Grassley. You have also said, ``While serving you
at the Georgia House of Representatives, I was proud to
represent you. I tried to base all my decisions on commonsense,
conservative values that are based on the fact that I was
raised in a Christian home, and that has given me true family
values.''
Again, do you hold any personal or religious views that
would make it impossible for you to apply the law as a Federal
judge even if you personally disagreed with it?
Judge Boggs. Absolutely not, Senator.
Senator Grassley. Further, as I mentioned, you have been
criticized for your legislative record with respect to
abortion. During your time in the legislature, you cosponsored
bills that would help encourage women to consider adoption and
a bill that required minors to be accompanied by a parent or
guardian before getting an abortion.
Three questions in regard to that. There may be some
concern that your personal views on abortion may influence your
ability to follow precedent as a judge. What is your commitment
to following precedent? I think you have made that very clear.
I do not think you need to answer that.
Please describe what you see to be the differences in
responsibility as a policymaker and a judge regarding the topic
of abortion. I think you made that very clear in your answer to
Senator Blumenthal.
Do you hold any views regarding abortion, religious or
otherwise, that would make you unable to discharge your duties
faithfully as a U.S. district judge?
Judge Boggs. No, sir, I do not.
Senator Grassley. You have many years of experience as a
judge. Have there been any times where you decided a case based
on your policy preferences or desired outcome rather than
following the law or applicable precedent?
Judge Boggs. That has never happened, Senator, and you have
my commitment that, if I am fortunate enough to be confirmed,
that would never happen.
Senator Grassley. Mr. Cohen, you have been involved in
litigation of the Georgia voter ID law. I have three questions
in regard to that.
Can you describe who you were representing in these cases
and how you came to be involved in them?
Mr. Cohen. Yes, Senator. Based on my experience in the
Georgia Attorney General's Office, which was over 13 years,
when I went into private practice, then Attorney General
Thurbert Baker hired me to represent the State and its agencies
in a variety of high-profile litigation. That varied from
defending the University of Georgia's affirmative action
program to defending a redistricting plan passed by a
predominantly Democratic General Assembly to defending
Georgia's photo ID law.
In all of those cases, I was never involved in the
enactment of any of those policies or legislation. I never was
a lobbyist for any group either advocating for or against the
legislation. I was hired just like any other lawyer is hired,
and that is, to represent their client and advocate their
position in court.
Senator Grassley. If you were confirmed, how would your
experience with voter ID laws influence your decisionmaking
process as a judge if a voter ID case were to come before you?
Mr. Cohen. It would not make any--it would not implicate my
decisionmaking at all. I would be bound by the decisions of the
U.S. Supreme Court, which in this case is the Crawford v.
Marion County case in the Eleventh Circuit Court of Appeals in
resolving that issue.
Senator Grassley. Some have claimed that voter ID laws
generally--and these would be like laws you have defended--
exist ``for no other reason than to deny African Americans the
right to vote.'' Do you agree with that statement?
Mr. Cohen. I think the case law in this area has come down,
depending on the State it was brought in, in different ways. In
Georgia, the evidence that was presented in our case did not
lead the court to conclude that there was a denial of the right
to vote. I am aware that in other States, because of different
factual circumstances that were presented in those States and
sometimes different statutes and different State constitutional
provisions, the decision came out differently.
So I think in any case involving a challenge to a photo ID
law, it depends on the facts that are presented and the
specific statute that is being reviewed.
Senator Grassley. You already made reference to affirmative
action cases you have been involved in. In Johnson v. Board of
Regents, a class of students who were denied admission
challenged the university system awarding points to applicants
based on diversity. You defended the university's point system.
The Eleventh Circuit found that the university's system was not
narrowly tailored and, hence, unconstitutional.
Tell us about the case and your role in it. Who were you
representing?
Mr. Cohen. I was representing the Board of Regents at the
University of Georgia, again, hired by Attorney General
Thurbert Baker. At that time that was before the Supreme
Court's decisions in Grutter and Gratz. So the University of
Georgia was implementing a points program very much like the
University of Michigan was in its undergraduate institution.
Both cases kind of were appealed at the same time. The Michigan
case got to the U.S. Supreme Court, and our case was settled
before that time.
Senator Grassley. If confirmed, this ruling will be binding
precedent over your court. What assurances can you give this
Committee that you will follow it and any other precedent even
if you may not personally agree with it?
Mr. Cohen. Well, Senator, as a district judge, an Article
III judge, I am bound by the decisions of the U.S. Supreme
Court, and in the issue of affirmative action in higher
education, that would currently be the Fisher case, the Gratz
case, the Grutter case, and any other decision that might be
issued.
Senator Grassley. Ms. Abrams, I am going to quote, as I
often do, Justice Scalia on living Constitution theory, who
said: ``The risk of assessing evolving standards is that it is
all too easy to believe that evolution has culminated in one's
own views.''
Do you believe that--forget that Scalia said that. Just
think of the concept.
[Laughter.]
Senator Grassley. Well, I respect Justice Scalia, but I do
not want him to be the focal point here.
Do you believe that judges should consider evolving
standards when interpreting the Constitution?
Ms. Abrams. Thank you, Senator. I believe that a judge, and
particularly a district court judge, is bound by the rule of
law, bound by precedent, and in my case it would be the
precedent--if I am so fortunate as to be confirmed, it would be
the precedent of the Supreme Court and the precedent of the
Eleventh Circuit, and that, and nothing else, would guide my
decisions.
Senator Grassley. Do you believe it is ever appropriate for
a Federal judge to incorporate his or her own views when
interpreting the Constitution?
Ms. Abrams. No, Your--no, Senator.
Senator Grassley. Because there was a split in the ABA
rating of you, while a majority of the Standing Committee on
the Judiciary rated you a qualified, a minority found the
opposite. And the attachments you provided in response to
questions to your Senate questionnaire provided very little in
the way of examples of legal writing. Is there anything further
that you could share with the Committee to ease any doubts that
may exist about whether your experience has prepared you for a
lifetime appointment?
Ms. Abrams. Thank you again, Senator. I have practiced
both, in Federal court, civil law as well as criminal law. And
in that capacity, I have had a strong motions practice, both
written and oral, and appellate practice. In my last almost 4
years at the U.S. Attorney's Office, I have handled criminal
cases from their very inception through sentencing, including
trials, both jury trials and the equivalent of bench trials. I
also handled my own habeas motions and have argued before the
Eleventh Circuit Court of Appeals.
In addition, after graduation from Yale Law School, I
served as a clerk to a district judge, and I believe that
firsthand experience has made me--helped me understand what the
day-to-day obligations of a district court judge. While I
understand that there will, in fact, be a steep learning curve,
I have spoken to all of the judges of the Middle District of
Georgia who I will work with if I am so fortunate as to be
confirmed. And I know that they will support me in getting up
to speed, and I think that my ability to study--and I have
studied all of the rules and the bench book--and my hard work,
my hard work ethic will help me do my duty as a district court
judge if I am confirmed.
Senator Grassley. I am going to yield. I am going to assume
you two will not be here. Go ahead.
Senator Blumenthal. Thank you, Senator Grassley.
Just for the information of my colleagues, we are scheduled
to have a vote I think at 11:10. I am going to turn the gavel
over to Senator Franken when that happens, and he and I will
trade places, and we will continue the hearing.
I am going to turn to Senator Durbin now, but before I do,
Judge Boggs, you mentioned a case that was decided while you
were a judge, perhaps on the Georgia appellate court, dealing
with the State's parental notification. I am not aware of that
case. Could you provide the name and the opinion, if there was
one, to the Committee?
Judge Boggs. I may have misspoken. What I was referring to
was that the parental notification law has been the law in
Georgia since 1987, well before I became a legislator. My
actions in the General Assembly--I am not sure of the year, but
between 2001 and 2004--to amend that bill in two specific ways
was to amend current statute. I do not know of any case--the
case that you are referring to would be the one that was on my
panel at the court of appeals?
Senator Blumenthal. Yes.
Judge Boggs. Oh, absolutely. Certainly, Senator.
Senator Blumenthal. If you could provide the name and the
opinion, if there was one, and any other details about that
case.
Judge Boggs. Certainly.
Senator Blumenthal. Appreciate it. Thank you.
Senator Grassley.
Senator Grassley. I am going to submit questions in
writing.
Senator Blumenthal. And we will have--the record will stay
open for all of us for a week after this hearing to submit
questions in writing, but that one in particular, if you could
respond to, I would appreciate it. Thank you.
Judge Boggs. Yes. Thank you, Senator.
Senator Blumenthal. Thank you.
[The information referred to appear as submissions for the
record.]
Senator Blumenthal. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. And at the outset
let me say to all nominees, thank you for being here today, and
special thanks should be given to your two Senators, Senators
Isakson and Chambliss, who have worked very hard for this
moment and have buttonholed each and every one of us about your
nominations. They think very highly of you, and that commends
all of you to our consideration, positive consideration.
I do have a few questions, Judge Boggs, I would like to ask
you because you appear to have served in the Georgia General
Assembly at a very controversial moment when your State was
debating its State flag. And the question was whether or not
the flag would be changed and no longer display the Confederate
X battle symbol.
You were embroiled in that debate, and I ask you this
question: Do you believe that Confederate flag issue had
anything to do with the issue of race?
Judge Boggs. You know, when that flag was passed in 1956,
Senator, there was no legislative history. I was not a flag
historian then, nor am I now. But in looking back on that issue
and preparing for today, I know that some argue that race,
particularly the--it was passed in reaction to the Brown
decision from the U.S. Supreme Court in 1956. I have no reason
to dispute that, although there are arguments on the other side
as well as to what the motivation was for the bill originally.
Senator Durbin. Beyond the motivation for the original form
of the flag, when you were serving in the General Assembly and
the debate was underway, and I believe overwhelmingly the
African American legislators opposed that symbol in the flag,
did that lead you to believe that that debate had anything to
do with the issue of race in your time?
Judge Boggs. Yes, sir.
Senator Durbin. And what was your feeling?
Judge Boggs. I was offended by the flag, Senator. At the
time that I made that vote in 2001, I was a freshman
legislator. I was in my 17th day of service. I was very
respectful of the opinions that a majority of the African
American community in my State had toward that flag. It was not
only a symbol of a reminder of the Civil War and a horrific
tragedy and horrible time in American history, a reminder of
the institution of slavery, but it was also, I think, even more
predominant, the more contemporary uses of that flag by
organizations that espoused hate, that espoused oppression,
that spouted over racism.
I found that one of the most challenging things of being a
legislator was deciding when to vote the will of my
constituents and when to vote the will of myself and my own
conscience. It was something that I have known other
legislators to struggle with. I struggled with it regularly, on
that issue particularly. The overwhelming majority of the
constituents in my one county that I represented, which
likewise contained a minority population that I was not
ignorant of, overwhelmingly, though, those constituents desired
that Georgians be permitted an opportunity to vote on whether
Georgia changed the flag, and that is why I cast the vote the
way I did. However, I am glad the vote--I am glad the flag was
changed. It reflected something that I thought Georgia could do
better with, quite frankly, Senator.
Senator Durbin. Since you understood that the debate in
your time dealt with issues that at least brought up echoes of
race problems and slavery, let me ask you this: When a new
compromise design was proposed in 2003 that removed the
Confederate X but echoed the Confederate Stars and Bars flag,
this design was supported by African American Democrats, and
you voted against it. Why?
Judge Boggs. Yes, sir. For the same reasons. The
overwhelming majority of my constituents wanted a choice
between the 1956 flag and the current flag. Intervening between
the vote you just mentioned and my original vote was yet
another opportunity to vote for a referendum on the flag, and I
voted for that one. That would have afforded Georgians an
opportunity to vote.
However, I reiterate with the utmost respect, looking back
on that vote, at the time I cast that vote, it was a very
difficult decision to decide whether to vote my conscience,
which was reflective of the will of the people in my
community--I am sorry, the will of the constituents in my
community or vote my own conscience. Terribly agonizing. I
could not have been more respectful of the opinions of the
people that desired that that flag change. And I am glad the
flag did change.
Senator Durbin. Judge Boggs, each year for over 10 years, a
Congressman from your State, John Lewis, organizes a civil
rights pilgrimage, inviting members of both political parties
to come down and to personally witness some of the scenes of
the civil rights struggles of the 1960s. And I was honored to
be invited 1 year, and as fate would have it, walked over the
bridge at Selma with Congressman Lewis in the early morning
Sunday hours, and he pointed out the spot where he was beaten
unconscious and clubbed down by troopers on that march to
Selma, Alabama. And he said that--from Selma, Alabama. And he
said to me, ``You know, there are many people who are
acknowledged as heroes, and I should not be one of them.'' He
said, ``I was just here doing what I thought was right.''
But there was one in particular who hardly ever gets
credit, and his name is Frank Johnson. Frank Johnson was a U.S.
Federal district court judge, the position that you five aspire
to, in the Middle District of Alabama. He not only ruled that
the statue that allowed putting Rosa Parks in the back of the
bus was wrong, he went on to rule that that Selma march would
be allowed. For that, his mother's home was firebombed. He was
basically invited away from polite society in his part of
Alabama, but became an icon to many of us in terms of courage
on the bench.
I understand the role of a legislator and a politician,
trying to measure your constituents and what they want against
what you believe is right. And sometimes, sadly, they come in
conflict.
Obviously, Judge Johnson decided, sitting on that Federal
court, that even though he would be ostracized by many of his
friends, he would do what he felt was right.
I have asked you a lot of questions about when you were a
State representative, and you have basically said, ``I have
reflected the way my people felt.'' So now how do you view that
issue of race when you have an opportunity to serve on the
district court here?
Judge Boggs. Thank you, Senator, for the question. First
let me say I have the utmost respect for Congressman Lewis. I
know him. I respect his career. While I know he might have been
critical of me during this process, I do not take any affront
to that. I deserve that criticism based on that vote. I have
nothing but the utmost respect for Congressman Lewis and for
all of those, including my colleague that sits behind me, Judge
Herb Phipps, who fought through years and decades of racism and
oppression and became the second juvenile court--African
American juvenile court judge in our State.
So my vote was never intended to be disrespectful. It was
never intended to fail to acknowledge the sacrifices that an
enormous number of people made, from Dr. King to others, for
the struggle that ultimately succeeded in equality. My vote was
never intended to reflect that.
I believe as a judge that everyone that comes before me
should be treated equally. I believe that my record as both a
trial court judge and as an appellate court judge reflects my
faithfulness to that. I do not think anyone can disprove if
someone is accusing someone of being a racist. How do you
disprove that? I think the best evidence I would have that the
people that know me best do not believe that in me is that
after that vote, I had a primary challenge in the Democratic
primary, and every African American elected official in my
community supported me, including the mayor, city and county
commissioners. They grew up with me. I went to school with them
or their children in the public school systems. They know me.
They know that that vote was not indicative of any bias I hold
toward anyone.
In that election I received 90 percent of the vote to be
returned to the General Assembly for a second term. And these
same groups and these same people overwhelmingly supported me
with 80 percent of the vote when I ran for superior court
judge, and I think that is the best evidence that I hold no
bias, Senator.
Senator Durbin. Thank you, Judge Boggs.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Durbin.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for your willingness to be here and your willingness to serve.
Ms. Abrams, let us start with you. I see most of your
practice throughout your career has been in civil litigation.
Is that right?
Ms. Abrams. Yes.
Senator Lee. Although less so in the U.S. Attorney's
Office.
Ms. Abrams. Definitely.
Senator Lee. That has given you a good flavor for both of
them, both of which will be important components of your
caseload, should you be confirmed.
When you approach a civil case--and, you know, as you know,
a lot of civil cases are decided on dispositive motions, and
when they are not decided on dispositive motions, there is
usually a dispositive motion that is made at some point or
another.
When you review a dispositive motion, whether it is a
motion to dismiss or a motion for summary judgment, is it
appropriate for a judge to err on the side of granting or
denying a dispositive motion? In other words, there are some
judges occasionally that will say, at least privately, ``I
would rather err on the side of giving the plaintiff his or her
day in court, a trial.'' Do you lean in either direction? In
other words, is it just as bad to grant a dispositive motion
where it is not warranted as it is to deny one where it is? Is
either one worse than the other?
Ms. Abrams. Thank you, Senator. I do not believe that one
is either worse than the other or that it would be appropriate
for me to hold a belief as to that. I think that every case
that comes before me, if I am confirmed, should get the same
treatment, and that is, a fair and impartial application of the
law to the facts of that particular case.
Senator Lee. Okay. So you would not have any predilection
one way or another toward granting or denying them. You are
going to call them as you see them based on the issues brought
before you.
Ms. Abrams. Yes, Senator.
Senator Lee. I sometimes see a dangerous tendency in the
courts in that sometimes we can end up with trial by attrition
where those--you know, it is easier to deny a motion for
summary judgment than it is to grant one in some ways. And in
some ways it involves less risk. You do not have to write a
lengthy opinion when denying one. It is often easier to write
the opinion. It is not immediately appealable in most
circumstances, and so it is often easier to just say, well, I
will deny this one and see what happens on appeal. Would you
tend to agree with that?
Ms. Abrams. I think that that certainly does happen. I
fortunately was trained by a judge who believed that we had to
get it right, and when I was a clerk, I did, in fact, deny a
number of motions that, in effect, ended cases. But that was
because the law, the applicable law, dictated that that was how
a case should be handled. And I hope that I learned enough from
Judge Garbis and that I would, in fact, fairly and impartially
apply the law to the facts of each case as it comes before me.
Senator Lee. Judge Garbis is still on the bench, right?
Ms. Abrams. Yes, he is.
Senator Lee. So Judge Garbis is still available if you ever
need to----
Ms. Abrams. He most certainly is.
Senator Lee. That is good.
Judge Ross, you are already a judge. Do you agree with what
Ms. Abrams has said? Do you disagree with any of this?
Judge Ross. I agree with Ms. Abrams that I would have no
predilection either way, and also I can say that having served
as a State court judge, I have never ruled on a motion for
summary judgment just at the point of being cautious.
Now, I have taken longer to rule on some of them than on
other issues because, like Ms. Abrams said, I wanted to get it
right. And I am fortunate enough to say that none of the
rulings that I have rendered on motions for summary judgment
have gotten reversed with the exception of one portion of one
ruling based on attorneys' fees. And I did agree with the court
of appeals that I should have analyzed it slightly differently.
Senator Lee. Okay. Ms. May, do you have any particular
judicial philosophy? How would you describe or define your
judicial philosophy?
Ms. May. Thank you, Senator Lee. My judicial philosophy
would be to apply the law fairly and equally to all people, if
I am confirmed as a district court judge, that would appear in
front of me. I think it is very important for judges, as Ms.
Abrams said, to get it right, and that means following the
applicable Supreme Court and Eleventh Circuit precedent to the
letter and not allowing my own personal opinions to get in the
way of stare decisis and applying the applicable law.
I also think it is important for judges to treat both the
parties and the attorneys with respect and to listen to all
sides to an argument to make sure that as a judge I would
understand the arguments of the parties; and also when issuing
orders or ruling on specific issues, I also believe it is very
important for a judge to be clear and let the parties know
exactly what the ruling is so that they can apply that to the
rest of the case and move forward.
Senator Lee. Thank you.
Judge Boggs, you commented a few minutes ago about your
inclination as a legislator to try to figure out, you know,
what your constituents would prefer and that that can sometimes
put a legislator in a difficult position.
Does any of that apply to you as a judge, either as a State
judge or would it apply to you as a Federal judge if you were
confirmed?
Judge Boggs. Thank you, Senator. No, it does not apply, and
that is a very comforting part about being a judge. I think I
am more suited to be a judge than I was a legislator, quite
honestly. There is a lot of comfort in the rule of law. There--
--
Senator Lee. Are you saying you would look good in the
robe?
[Laughter.]
Judge Boggs. I am confident not.
You know, the gauging of public sentiment on any issue as a
legislator is always difficult. The political implications of
votes are difficult. The considerations that partisan
politicians have to make day in and day out are difficult
decisions.
The decisions judges make are likewise difficult, but the
fortunate part about the faithfulness to the rule of law is you
do not stick your finger in the wind every time you decide a
case to decide what is popular and what is public will and what
is the general direction of the public on this issue.
I am very comforted in knowing that if you are faithful to
the rule of law, if you are faithful to apply precedent to
every case, and you do not interject your personal opinions,
while it is true you may make some unpopular decisions,
popularity is not the test of whether justice has been done.
Senator Lee. Would that apply even when you are being asked
to make a ruling that is going to be strongly against the
public will? I mean, it is not just that it might not be the
most popular ruling, but a ruling that, in the eyes of the
public, might seem harsh, might seem unfair, might go against a
very popular party before you, perhaps a very sympathetic
plaintiff or defendant?
Judge Boggs. Yes, Senator, I think indeed judges that are
faithful to the law are going to make unpopular decisions on a
regular basis. The comforting part about being a judge is that
the law should prevail in each and every case. Sympathy for the
party, empathy for the party has no role. The gender or role or
sexual orientation of a party has no role in deciding how you
issue a decision.
It is much more difficult when you are, I think, a partisan
legislator to deal with those issues because, quite frankly, I
think most of you all have districts in your States, your
entire States, and I did as a legislator, where your entirety
of your constituency do not always agree or rarely agree on
everything. Fortunately, as a judge, you are not concerned with
those issues.
Senator Lee. Okay. Thank you. I see my time has expired.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Lee.
Senator Klobuchar.
Senator Klobuchar. Thank you very much. Thank you to all of
the nominees. This is a very special day, and I can see you
have a lot of happy family members back there.
I was going to ask some questions of Mr. Boggs. I know, Mr.
Boggs, you were a judge--for how long?
Judge Boggs. Ten years now, Senator.
Senator Klobuchar. Ten years, okay. And obviously there is
a lot of understandable questions about the positions that you
took as a candidate and in the legislature on choice and civil
rights and marriage equality. Did you rule on any of those
cases when you were a judge, cases involving those issues?
Judge Boggs. As a trial court judge in Georgia's highest
level of trial courts, I did not have jurisdiction to rule on
constitutional questions, if that is your question. As a judge
on the intermediate appellate court in Georgia for the last
2\1/2\years, we have limited constitutional jurisdiction.
Specifically, we only deal with the Constitution as applied and
whether it was applied in an unconstitutional fashion. But
jurisdiction in constitutional cases presides with our Supreme
Court.
Senator Klobuchar. Thank you. Could you talk about your
oval judicial philosophy, how your personal views have shaped
that philosophy?
Judge Boggs. I do not know, Senator, that my personal views
have shaped my philosophy. My experiential views as having been
a judge for 10 years has shaped my philosophy. I try to emulate
characteristics that I see in other judges that I value. My
general judicial philosophy is that judges should be faithful
to the law. They should be faithful to the doctrine of stare
decisis. They should understand the limited role of the
judiciary, and they should not be policymakers.
In addition, I think it is imperative that judges are
continually treating every party that appears in front of them
equally before the law. That builds public confidence in a fair
and impartial judicial system, which I think is very important.
Senator Klobuchar. And in your opinion, how strongly should
judges bind themselves to the doctrine of stare decisis?
Judge Boggs. Well, I think the doctrine of stare decisis
should bind all judges. It bound me as a trial court judge. I
was bound by the decisions of the court I now serve on and also
the Supreme Court of Georgia. I think as an appellate court
judge I am bound obviously by the decisions of the Supreme
Court of Georgia. And if I am fortunate enough to be confirmed,
I would be bound and follow all of the decisions of the Supreme
Court, even on those issues that you discussed.
Senator Klobuchar. Well, the Supreme Court ruled nearly 50
years ago in the Griswold and Eisenstat cases about privacy
rights and access to contraception. Do you view these cases as
settled law?
Judge Boggs. I do, and I would follow that precedent if I
were fortunate enough to be confirmed.
Senator Klobuchar. I am concerned about this amendment. I
know there is a lot of background here, and I have read it all,
but one of the things that really stuck out to me as someone
who is a former prosecutor dealing with public safety issues
was the amendment that you supported in the Georgia State
Legislature--and I think Senator Blumenthal had asked about
this. I had to leave for another hearing, but I had some more
questions on it--that would have required posting on the
Internet about the number of medical procedures that doctors
have performed having to do with terminating a pregnancy. I
think there could clearly be public safety implications for
these doctors if you put all this detailed information about
them online. And I think you can see it in other areas as well,
and I think we have certainly seen lives being taken from these
doctors that terminate pregnancies. And we do not put this kind
of information online for other procedures in other medical
areas.
My first question is if your views on this issue are still
the same.
Judge Boggs. Well, I would be hesitant to give you my views
on that issue inasmuch as that may come before me as a judge,
but I would tell you, as I did Senator Blumenthal, that that
was a floor amendment. I did not have any idea it was coming. I
did not have anything to do with the drafting of it. The author
of that amendment on the floor of the House when he presented
it did not discuss it with me ahead of time.
In retrospect, and particularly in light of what I have
learned subsequently concerning the public safety issue, I
should not have voted for that amendment.
Senator Klobuchar. And so did you consider that at that
time when you voted on it, the public safety risk?
Judge Boggs. I was not aware, as I am now, Senator, at the
time of the public safety risk. Again, in the back and fro of
bringing up a bill, floor amendments coming up, I should have,
and in hindsight it is regretful that I did not.
Senator Klobuchar. Okay. Last year the Supreme Court issued
an important ruling on marriage equality in the Windsor case.
How would your personal views on marriage equality impact your
decisions as a judge?
Judge Boggs. They would not. I am faithful to the
obligation to follow stare decisis, and I would follow Windsor
and any other cases out of the Supreme Court, including Romer
and Lawrence.
Senator Klobuchar. Would you commit to following Supreme
Court precedent in this area when it comes to marriage
equality?
Judge Boggs. Absolutely, Senator.
Senator Klobuchar. All right. I know that there has also
been some attention around comments you made while running to
be a State court judge. If confirmed, what role do you think
your personal opinions about women's reproductive rights should
have on the cases before you?
Judge Boggs. My personal opinion on women's reproductive
rights has no role on how I would decide legal issues or decide
cases or analyze issues were I to be confirmed as a district
court judge.
Senator Klobuchar. One of the things that has been brought
to my attention I think would concern a lot of people, but not
as much as the amendment on the doctors' posting. But you
cosponsored a bill that took some pictures with license
plates--you took pictures with a license plate, I think, and it
said ``Choose Life,'' the license plate. What do you think
about that and how it would influence any decisions that you
would make going forward?
Judge Boggs. Well, thank you, Senator. The Choose Life
adoption support program was a bill that was presented to the
General Assembly. I cosponsored it along with probably a
majority of the members of the 180-member House of the General
Assembly in Georgia because it was important to the
constituents that I represented. It would have no impact, my
personal beliefs, on reproductive rights as with my personal
beliefs on any issues. Not only would it have no impact if I
were fortunate enough to be confirmed, but I think my record
demonstrates over the last 10 years that I am faithful to never
interject my personal opinion into decisions I make.
Senator Klobuchar. Were there any questions about you
injecting your personal opinion into decisions that you made? I
am sure you had cases appealed, like everyone else does, as a
State court judge. And were the basis of any of the appeals
that you had somehow injected your personal views on any
subject?
Judge Boggs. I am proud to say, no, Senator, not one time.
Senator Klobuchar. All right. Thank you very much. I
appreciate your answers.
Judge Boggs. Thank you.
Senator Hirono. [Presiding.] I will be chairing. Senator
Flake?
Senator Flake. Well, thank you. I hate to keep this going,
but, Judge Boggs, just quickly, in 2013 you received the Grass
Roots Justice Award that was given by the Georgia Justice
Project on behalf of the Criminal Justice Reform Council.
According to the Georgia Justice Project, the Grass Roots Award
was created in 2008 as a way to lift up the work of people and
organizations whose efforts give voice or lend aid to the
poorest in the community, and in doing so, complement the work
that they do at the Georgia Justice Project.
Can you tell about the role you played in the Criminal
Justice Reform Council and the work you did to receive that
award?
Judge Boggs. Thank you, Senator. That award was received by
me on behalf of the Criminal Justice Reform Council. It was not
an award specific to me, but an acknowledgment of the work of
the entire council, which I co-chaired. I have had the
pleasure, since I have been both a trial court judge and an
appellate court judge, to work to improve the judicial system
for the very people that are most frequently involved in it,
particular in the criminal justice arena.
As a trial court judge, I developed and presided over our
circuit's first felony drug court program. I believed that it
was appropriate to try to assist people whose mental health
issues or substance abuse issues were driving their felony
criminal conduct.
I am proud to say that that program still exists. It has
now expanded into a mental health court program, which I had
always aspired to do had I stayed on that bench.
In 2011, the chief justice of the Georgia Supreme Court
appointed me as a member of the Georgia Criminal Justice Reform
Council, and as a member, we addressed adult felony criminal
justice reform by doing a lot of the things, quite honestly,
Senator, that this body is considering, both in the Smart
Sentencing Act, the Recidivism Reduction Act, and Chairman
Leahy's Safety Valve Act of 2013, where we have looked at
mandatory minimums and provided a couple of safety valves. We
have looked at programs that would assist people with substance
abuse issues that are involved in felony criminal conduct so
that we can assist them in the community.
We found that those programs that are evidence-based
programs are very successful in reducing recidivism. They are
much better at saving taxpayer money. And, importantly, they
put people back with their families, and they restore people to
a productive life.
Later, the Governor of the State of Georgia appointed me
for the last 2 years to co-chair Criminal Justice Reform. In
2013, we addressed juvenile justice reform, developed a fiscal
incentive grant program to incentivize local communities to
treat juveniles in their community as opposed to very costly
and unproductive, we think, out-of-home placements. And then
last year, I co-chaired the council again, and we addressed the
concept of re-entry. What do we do with the approximately
18,000 inmates that are being released from Georgia's prison
system a year? How can we better equip them to be successful?
How can we ensure public safety at a better rate than what we
have been achieving? Our recidivism rates are currently roughly
30 percent, and that is unacceptable, particularly with respect
to the cost to the taxpayers in our State.
And so with the charge we were given, I have been very
fortunate in being part of developing a program, an evidence-
based program in the State that will help these inmates while
they are in prison learn job training skills that are
transferable, help these inmates with substance abuse programs
while in the system, provide a seamless transition from prison
to the community, and then provide resources to the community
to ensure that these citizens are productive, lawful, compliant
with the law, but also productive citizens that can get their
lives back. And I have been very proud to be a part of that,
and I appreciate your question, Senator.
Senator Flake. Thank you. That is all.
Judge Boggs. Thank you.
Senator Hirono. Senator Feinstein.
Senator Feinstein. Thank you very much, Madam Chairman.
I would like to ask a couple of questions, if I can. Again,
I regret that I was not here, Judge Boggs, to hear your answer
to the question on essentially the bill that had online
profiles to the number of abortions performed by a doctor over
the prior 10 years. And I think you said it was a mistake. What
exactly did you mean by it was a mistake?
Judge Boggs. I do not think it would be appropriate,
Senator, to post that information online. It would be a huge
public safety risk for the physicians that are performing,
lawfully performing abortions pursuant to the authority they
have from the Supreme Court. And that is what I meant.
Senator Feinstein. Okay. So you are saying essentially the
bill was wrong.
Judge Boggs. The amendment that was proposed was not----
Senator Feinstein. The amendment, yes.
Judge Boggs. It was not my amendment, but, yes, ma'am, the
amendment was ill conceived, I believe, in hindsight.
Senator Feinstein. Because I trust you are aware of the
kind of violence that takes place around this issue. And, you
know, there is a question, I think, among many of my colleagues
whether an activist conservative judge can no longer--or an
activist conservative can become a judge that is not an
activist judge. I happen to believe that is possible. In a
couple of cases, I have voted for an Eleventh Circuit and a
Fifth Circuit judge that I think have done very well when they
said they would not continue to be activist.
I think when you come to a Federal court, it is really very
important that the questions of constitutionality on an issue
are active by someone who, as Judge Abrams has said, will
follow precedent. And this Committee--I sat on it for 22
years--we have been acutely disappointed by the fact that
people pledge themselves to stare decisis, and then they leave
here and they take the oath as a judge, and you just watch and
you say, ``Where has it all gone?''
I do not want to cast a vote for someone where that
happens, and so I want to ask you a couple of questions.
The issue of choice is extraordinarily important to me. I
represent a State which is dominantly pro-choice. What would be
your position on issues revolving around a woman's right to
choose? Now, this is purposely an open question.
Judge Boggs. Yes, ma'am. Thank you, Senator. My position on
matters that might appear before me regarding a woman's right
to choose would be faithfulness to the rule of law,
faithfulness to stare decisis. And while I respect that there
have been some bad experiences maybe by Members of this
Committee, I think the best example I can give you is not what
I say that I will do but evidence of what I have done as both a
trial judge and an appellate court judge in my State, disposing
of roughly 14,000 cases.
I think my record is the best evidence that I can separate
any political or partisan or public policy position I may have
from my ability to be an impartial decisionmaker. And you have
my commitment that, if I am fortunate enough to be confirmed, I
will follow the precedent of the U.S. Supreme Court on women's
reproductive rights issues as I will on any other issue that
they decide.
Senator Feinstein. Well, you see, I listened to a couple of
Supreme Court Justices say just that, and Senator Hirono was
not here then, but there were long discussions on this, and
then, bingo, it all changed. And it makes us feel very foolish
to believe what we hear.
So, I mean, for me, I have to make a judgment whether you
mean what you say or whether it will be just like the Supreme
Court Justices who pledged to us diligent pursuance of stare
decisis. And it just did not happen.
Now, let me ask you another issue, and Senator Klobuchar
began it, and I would like to just do it in a slightly
different way, and that is, U.S. v. Windsor. I am aware that a
lawsuit is pending in the court to which you are a nominee, so
I want to be very careful. But I am the main author on
repealing the Defense of Marriage Act. I was one of 14 that
voted against it in the 1990s, and we have 42 cosponsors. We
lost Baucus, but we are getting close. And as you know, 17
States and the District of Columbia have essentially approved
the right of marriage to same-sex partners.
What DOMA did was--family law--divorce, et cetera--is
generally the preserve of State law, but in that case, they
made it the preserve of Federal law and in so doing removed
some 1,100 Federal rights from couples that are duly married in
their State. So this involves estate tax rights, Social
Security rights, and on and on and on.
So the question I have would be: If your State were to
approve same-sex marriage or the Supreme Court on the Windsor
case would repeal DOMA, how would you feel and how would you
act as a judge?
Judge Boggs. My personal feelings would be irrelevant to
how I would act as a judge. You have my commitment that I would
follow the decision in Windsor. I would follow any precedent
from the Eleventh Circuit or the Supreme Court on marriage
equality issues, as I would any issues. My personal opinions
expressed over 10 years ago on that issue may or may not have
changed. But whatever my personal beliefs are on that or any
other issue, they have never been relevant to how I have
decided cases.
With respect to your earlier question, Senator, my
fundamental philosophy is that judges have an obligation to
follow the law. You do not have to believe me necessarily when
I say here today under oath--I hope you would--that I would
follow precedent. But I hope you would also look to what I have
done for the last 10 years that demonstrates a faithfulness to
follow precedent in over 14,000 cases and 273 opinions I have
authored on the Georgia Court of Appeals that have all been
made available to the Committee.
I think it is a fundamental obligation of judges to follow
stare decisis, but I recognize that maybe that is not always
followed through with by some nominees.
Senator Feinstein. Well, at least my vote depends on
whether I believe that or not and for how long I can continue
to believe it. And I think this is a very hard one.
The third issue, of course, is race. I think you were
eloquent on the subject of the Confederate flag and what it
means. It really means much more than just the material of that
flag. It is a whole history, it is a whole set of beliefs,
which are rather counter to America of today.
So my hope is--and I do not know. I hope to have a chance
to talk with you more after this. But what I want you to know
is for my vote I have to have certainty. And I do not know
quite how to get it in view of this record. So I want to just
put that on the table publicly.
Judge Boggs. Thank you, Senator. I respect that position.
Senator Feinstein. Thank you. My time is up.
Thanks, Mr. Chairman.
Senator Blumenthal [presiding]. Thank you, Senator
Feinstein.
Let me just close by going back to a line of questioning
that I began--I know that some of my colleagues have pursued
it--the amendment dealing with publicizing doctors'
performances of abortion. And I know that you said that it was
not your amendment, that you may have been--well, maybe I
should just ask you: Were you unaware about the violence that
was linked to performing abortions at that time? Dr. Barnett
Slepian was killed in 1998. The FACE statute in New York was
passed in 1994. Your amendment was voted on in 2001. There was
clearly a very powerful history of violence linked to doctors'
providing these services. And I find frankly incredible the
idea that you would not understand that this amendment would
put doctors at risk.
Judge Boggs. Well, thank you for the question, Senator.
Indeed, it was not my amendment. However, I did support it on
the floor. I have stated earlier in this hearing that I
believed the amendment was ill conceived. I regret that I voted
for it. I recognize the public safety risk now much more so
than I did at that time.
Ultimately, I think, as a legislator casting thousands of
votes for amendments and bills and making decisions in
committee, it is not, I think, entirely unexpected that there
may be some votes that I have cast throughout my judicial
career that in hindsight looking back on them as a legislator
trying my best to represent the people that I represented in a
very staunchly pro-life district, I might have made some
mistakes. I was not a perfect legislator. I am not a perfect
judge. But looking back on it, I regret that vote, and I
recognize fully the public safety risk.
Senator Blumenthal. Well, I appreciate your disavowal of
it. I think it is more than just another vote. This one was
significant. We all cast votes here, and we are all responsible
for every one of them, and some are more significant. This one
strikes me as profoundly significant insofar as it involved not
just a matter of constitutional rights, not just the rule of
law, but physical safety for medical care providers, doctors
who were providing constitutionally guaranteed rights to women
vulnerable to the same kind of violence.
So I appreciate your comments on it, and I think it is
something that we will have to take into account.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I, too, have some
questions for Judge Boggs, and I know that mainly it is--and
the rest of you should feel good about that, is what I am
saying. You should feel very happy about that.
Judge Boggs, I had the opportunity to meet you a couple
weeks ago, and I enjoyed that meeting. And I believe that
judges can decide things by--you know, in the proper way, even
if they have had a record before of votes when they are in the
legislature that are contrary to constitutional--what has been
decided constitutionally. And I do not want a situation where
we cannot ever have people confirmed because they have some
public record on something. I think that is a bad tendency. I
think that is a bad tendency to do that. So I think that--
because a judge's role is to make decisions based on what the
law is, and not take their personal opinions, although personal
opinions or experience I think do shape how a judge--and it
invariably has to. And Oliver Wendell Holmes said that, you
know, experience is the law in many ways for judges.
So I think it is important, we have to factor it in, but we
cannot establish a system here where we are just looking at
things in the past, either at votes as a legislator or just
opinions expressed by a professor, you know, who is writing
scholarship. I think that is a dangerous thing that we are
doing.
But I do think that we--I think it was good that we get to
question you, and I think it is good that we get to actually
meet you beforehand in private, and I did that. And when I
talked to you about the Confederate flag or the Confederate war
symbol, or battle emblem, rather, I guess, on the flag, you
told me that you voted against changing the flag because your
constituents wanted the right to vote on it on referendum.
Isn't that right? Isn't that what you told me?
Judge Boggs. I did tell you that, Senator, yes.
Senator Franken. So then I look back, and it turned out you
voted twice on this, and at the first time, in 2001, there was
no referendum.
Judge Boggs. Correct.
Senator Franken. So I felt kind of, you know, a little odd
about that because I went like, okay, well, that one there was
no referendum. And so give me a chance--or I would like to give
you a chance to explain that, because what I got out of our
meeting was that you had--that your constituents overwhelmingly
wanted a referendum on this, and yet there was no referendum
attached the first time. So can you explain both votes?
Judge Boggs. Well, the first vote, Senator, indeed there
was no non-binding referendum presented in that legislation. My
constituents overwhelmingly believed that a vote against that
bill might subsequently result in a referendum that would offer
them an opportunity to choose between the old flag and what
subsequently we had changed to.
You know, I have expressed earlier my position on that. I
do not know how to explain it any further. I will tell you,
Senator, that it was an agonizing opportunity 17 days into my
legislative career to make this balance between and address
this challenge between voting the will of my constituents and
voting what I believed conscientiously was the correct thing to
do.
Subsequently, there was an opportunity to choose--to
present to the public in Georgia a non-binding referendum that
includes the post-1956 flag and the flag that we had changed to
in 2001. I voted for that referendum. It provided my
constituents with what I thought they wanted.
Subsequently, however, that did not pass, and there was
another referendum to the one I think to which you refer, and
voted the same way I did the first time.
Senator Franken. Did you introduce a resolution in 2001 to
have a referendum?
Judge Boggs. No, sir. I never--I did not introduce a
referendum. I did not author any of these bills. But I did not,
likewise, introduce a referendum.
Senator Franken. Okay. Well, you understand from my point
of view where, when I asked about this, you said it was because
your constituents overwhelmingly wanted a referendum.
Judge Boggs. Yes, sir.
Senator Franken. But there was no referendum on that vote,
and you did not introduce anything about a referendum. Did you
say anything about there bring a referendum? Was there anything
in the public record about your saying there should be a
referendum?
Judge Boggs. No, sir, I never spoke then publicly about my
position on the flag. I do not necessarily----
Senator Franken. Okay, but you talked to me about it.
Judge Boggs. Yes, sir.
Senator Franken. And what you said to me was the way you
voted was because your constituents overwhelmingly wanted to
vote on it.
Judge Boggs. Yes, sir.
Senator Franken. And it does not seem like that vote had
anything to do with a referendum.
Judge Boggs. I understand the question, Senator, and
appreciate it. I am trying to clarify it. I do not see the
inconsistency that your question presumes. My constituents
wanted to vote, we were not presented with an opportunity to
vote, and that therefore represents an inconsistency. My
position was, my constituents' position was to vote against any
flag change that did not present them with an opportunity to
vote on the flag. And 17 days into my career would not have
probably been the time for me to introduce a non-binding
resolution on that matter.
Senator Franken. Okay. But what you told me was that you
voted because you wanted them to have a chance to vote, but
nevertheless, there is no record of your saying that.
Judge Boggs. Right.
Senator Franken. And, actually there is a record of your
telling a local newspaper that you voted to keep the flag with
a Confederate--this is in 2001, that you voted to keep the flag
with a Confederate symbol because your constituents
overwhelmingly supported the flag.
Judge Boggs. Yes, sir, I did say that, and I think that is
consistent with what I have said today, and what I told you
when we met.
Senator Franken. It seems like that when we met, you said
that--you did not say it was because your constituents
overwhelmingly supported the flag. It was because your
constituents overwhelmingly wanted to vote on it. And I think
those are two different things. And it gave me the--it led me
to the understanding, whether you intended it or not, that your
only vote was a vote on whether to put that flag up for a vote,
that that is what you wanted, that you voted against changing
the Confederate flag on the Georgia State flag--it is like a
bit part of the flag. It is like half the flag or something.
And that was passed in 1956, and for no other--I mean, that was
because of Brown. And so it really was about--this was not
something that was part of the Georgia State flag after
Reconstruction. It happened in 1956, 2 years after Brown.
So to me, this is a very important thing, and as I said, I
do not think that we should be judging--or we should be
confirming people based on public stuff they said before unless
it is so antithetical to being a good judge. And I know you
have been a judge for 10 years now, and I hear wonderful things
about you. The thing that upsets me or that gave me some pause
is that we had this meeting, and in the meeting I felt that you
gave me a little slightly misrepresentation of your record on
this by saying that the reason you voted against changing the
Confederate flag being on the bill--on the State flag was that
your constituents wanted a referendum on it. But there was no
referendum tied to that 2001. You did not raise anything about
a referendum. You did not say anything publicly about a
referendum. And, in fact, you told a local newspaper that the
reason you voted against it was because your constituents
overwhelmingly want to keep that flag. And those are two
different explanations to me. Those are two different things.
And so while I am very--you know, I am very disturbed about
this tendency of us to vote against people because something in
their past--because they were brave enough or acted out of
conviction beforehand, I do judge by my meetings with people
how forthright they are.
On this last thing, or on this thing that the Chairman
brought up about the voting to put online the number of
procedures, abortion procedures, that doctors had performed,
you know, there was at that time these Nuremberg files that
they talked about, which they put on the names of doctors.
There had been doctors murdered for this. And yet you say that
you were a State legislator then and that you were not aware of
that at all?
Judge Boggs. Senator, respectfully, I was not. That was not
my amendment. The bill that was proposed to be amended was a
Patient Right to Know Act that would have listed 20 other
things about physicians, predominantly related to medical
malpractice lawsuits and settlements.
Senator Franken. But did it list procedures, other
procedures?
Judge Boggs. I do not recall, Senator, if it listed other
procedures.
Senator Franken. You do not recall.
Judge Boggs. But I have indicated here today and I would
have indicated previously that my position on that was ill
conceived.
Senator Franken. But you were a State legislator at the
time but were not aware of any of the public safety issues that
were involved around this whole issue?
Judge Boggs. I was not, and I think that is probably
attributable to the fact that this came as a floor amendment,
not a bill, not something I had an opportunity to study, not
something I had an opportunity to even speak to other
legislators about. It happened on the floor of----
Senator Franken. So this was simply off your radar, all
this news around threats to doctors and bombings of clinics and
those kinds of things? How old were you at the time?
Judge Boggs. Thirty-seven.
Senator Franken. You were 37 years old.
Judge Boggs. Yes, sir.
Senator Franken. And a State legislator.
Judge Boggs. Yes, sir.
Senator Franken. And you were not aware of any of that.
Judge Boggs. No, sir.
Senator Franken. Okay. Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Franken.
Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. And I thank all of
the panel members for being here.
Judge Boggs, you explained your vote regarding the Georgia
flag, you explained your position regarding the online posting
of abortion instances as basically, if I understand you
correctly, reflecting your constituents' views and not your own
conscience. Is that an accurate statement?
Judge Boggs. With respect to the flag, yes, Senator, that
is correct. With respect to at the time my position on
reproductive rights issues, I was respecting also the will of
my constituents, yes.
Senator Hirono. For those of us who have served in State
legislatures, we certainly know the challenges in when to
express your constituents' views and when to vote your
conscience. So as you think back, can you give an example of
when you went against the will of your constituents and voted
with your conscience?
Judge Boggs. I can think of several instances, Senator. I
supported reapportionment maps drawn by Democrats in the
General Assembly during my term in the legislature that were
not supported by the majority of the people in my district.
Senator Hirono. Well, if you do not mind my interrupting,
then considering that so many of the questions that we have
been asking have to do with in the area of reproductive rights,
civil rights, those areas, have you at any point when you were
in the State legislature voted your conscience on matters that
are related to the gist of the questions that we have been
asking?
Judge Boggs. Senator, I cannot think of any specific
instance at this time. I would be happy to answer that question
in writing after having been given an opportunity to review my
legislative voting record.
Senator Hirono. That is fair.
[The information referred to appears as a submission for
the record.]
Senator Hirono. You have voted a number of times as a
legislator for bills and amendments that raise the question
regarding your views on abortion. So I wanted to ask you,
because you said that your personal view on abortions would not
be appropriate for you to let us know, but do you agree with
the Supreme Court's decision in Roe v. Wade that granted a
constitutional right to a woman to have an abortion?
Judge Boggs. Absolutely, and also in the Casey decision as
well, and I would be bound by those if I were confirmed, and I
pledge to you that I would faithfully follow that precedent.
Senator Hirono. So until and if the U.S. Supreme Court
changes its decision on Roe v. Wade, you will apply Roe v. Wade
in the way that it should be applied?
Judge Boggs. Without question, Senator.
Senator Hirono. Thank you.
Now, you were also a vocal proponent as a State legislator
on Georgia's constitutional amendment prohibiting same-sex
marriage. You have also raised questions about judicial
activism. I think the way you put it was you have concerns
about judges issuing decisions that venture into policymaking.
I take it that that is what you mean by judicial activism when
they venture into policymaking that should be left to the
legislature.
Judge Boggs. Yes, Senator.
Senator Hirono. So getting back to Georgia's constitutional
amendment against same-sex marriage, you do know that that
constitutional amendment is being challenged.
Judge Boggs. Yes, sir.
Senator Hirono. So if the constitutional amendment is
struck down by the Federal court, would you consider that court
to be engaging in judicial activism?
Judge Boggs. I would not, but to----
Senator Hirono. Why is that?
Judge Boggs. To go back to my comments made in 2004 as a
State legislator, candidly, I did believe that at that time.
Ten years ago, my comments about judicial activism were that
judges that were to determine same-sex marriage as
constitutional would have been engaging in that. Looking back
on that now, particularly with 10 years being a judge, 10 years
being faithful to the obligation to follow stare decisis, 10
years of looking back on a career as a legislator and noting
the notable differences between both roles, that is what I was
referring to in 2004. But I do not believe that now, that that
judge that might decide, in Georgia or otherwise, that that
constitutional amendment is unconstitutional would be engaging
in judicial activism.
Senator Hirono. So would you consider judicial activism in
the context of if it were a lower court that were doing things
that did not comport with what you viewed as what the Supreme
Court, the U.S. Supreme Court held, that that would be deemed
judicial activism? For example, when our Supreme Court decided
Lily Ledbetter or decided Citizens United, would you consider
those decisions judicial activism? Because they did take a lot
of people by surprise, to say the least.
Judge Boggs. No, Senator, I would not, and the difference
is my view of judicial activism as a legislator versus my view
of judicial activism as a judge. I have grown in my job as a
judge to respect the role of judges to decide those cases based
on the facts presented before them. When I was a legislator, I
was not a judge. I did not have an obligation to be faithful to
the rule of law. I was not making decisions in that capacity.
And so I think the crux of the distinction is determining what
I was at the time I made those comments.
But certainly you are correct: Comments I made in 2004 were
reflective of the sentiment you expressed.
Senator Hirono. Except that as a judge, though, you will be
confronted with cases before you that the decisions that you
make on those cases could be deemed and described by State
legislators, like you were, as engaging in judicial activism.
And you can see that possibility as a Federal judge.
Judge Boggs. Sure, Senator. Judges at all levels of court
in my State or any State are routinely criticized for making
unpopular decisions, maybe making decisions that legislators do
not believe are appropriate. I have been in legislative
hearings when that has happened, and I have been a judge where
I have heard that happen.
The difference is a judge that shows faithfulness to the
rule of law is going to apply precedent faithfully, and while
it is true those issues, the equal rights issues, have not come
before me on a regular basis as an appellate judge, the
jurisdiction that I have on the court of appeals is broad. We
heard appeals from every class of course, and in each instance
I have been faithful to follow the rule of law and to apply
precedent.
Senator Hirono. So you could as a Federal judge engage in
what some legislators may consider to be judicial activism
based on the facts of the case and what is presented to you?
Judge Boggs. I cannot presume what a State legislator might
think about any decision I made----
Senator Hirono. One like you.
Judge Boggs [continuing]. as an appellate judge. Well, one
like me very well may criticize me. But what I would say to
that is that I have shown a dedication to the Code of Judicial
Conduct in Georgia and never decided cases based on public
clamor or fear of criticism. And I commit to you that I would
continue to be faithful to those obligations.
Senator Hirono. Just for clarification, then, as a State
court judge, have you had cases dealing with marriage equality,
equal protection for gays and lesbians? And I think you did
note that you had one case involving a minor seeking an
abortion. So as to marriage equality cases, equal protection of
gays and lesbians, have you had as a State court judge any
cases in those areas?
Judge Boggs. I have had one, Senator, that it is an
adoption case that the record is sealed, and I would not want
to do anything to jeopardize the rights of the mother or--but I
will tell you that I did have a case as a trial court judge
several years ago wherein a woman who identified herself as a
lesbian and identified her partner before me in chambers
requested that I approve her adoption of a child from foster
care.
Georgia law is particular with respect to juvenile court
matters and particular with respect to adoptions, and we are--
it is sacred that we maintain the fidelity of our laws in that
those records are sealed. I do not know what she may have told
family or others in her community concerning her sexual
orientation. It is irrelevant to me. But I do know that I was
presented with that case by a lawyer that told me that he had
presented that case to our circuit's chief judge and our
circuit's chief judge refused to hear that case. So he came to
me, the junior judge in the circuit. And I heard the case. I
listened to her evidence, her fitness to be an adoptive parent.
I listened faithfully and impartially to the evidence presented
by the Department of Family and Children's Services, and I
approved the adoption.
And as I have said routinely, I am faithful to follow the
law. That was the appropriate decision to make in that case,
not because of her sexual orientation but because the facts
warranted it. She was capable of taking care of this child. She
had shown an ability to take care of the child through the
foster care program. DFACS had indicated that every time they
conducted a home evaluation, her home was clean and she was
capable of taking care of the child. I handled that case as I
would for any other petitioner concerning adoptions.
Senator Hirono. Thank you. My time is up. Thank you.
Senator Blumenthal. Thank you, Senator Hirono.
Senator Coons.
Senator Coons. Thank you, Senator Blumenthal. I would like
to thank all of the nominees who appear before us this morning.
Thank you for the opportunity to join what I understand has
been a vigorous exchange with other Members of the Committee,
and I would like to thank Senator Blumenthal for chairing
today.
First, if I might, I would just like to ask each of you in
turn if you would offer what comments you wish on what role you
think you would have as a member of the Federal judiciary in
ensuring equal access to justice and ensuring fair and balanced
treatment of all litigants who might appear before you, and
what in your experience gives us some confidence that you will
make that a priority in your service, if we might, Ms. Abrams,
welcome, and from you to your left, that would be wonderful.
Thank you.
Ms. Abrams. Thank you, Senator. As I have stated, I believe
that my role as a judge, if I am confirmed, will be to fairly
and impartially apply the applicable law to the individual
facts of each case, and that would necessitate that I be fair
and impartial with each person that comes before me.
I believe that throughout this process people have talked
to lawyers who have appeared opposite me, and I think that my
interaction with them, my attempt to be fair in all cases, even
as a prosecutor, to see the full picture, not disregarding my
duty as a prosecutor and as an advocate for the Government, but
to be fair and to be considerate of what was going on, and I
believe that lawyers who have worked with me on the other side,
and I believe judges whom I have appeared before would say that
I do attempt to be fair and balanced, and I would carry that
into being a district court judge if I am confirmed.
Senator Coons. Thank you.
Judge Boggs.
Judge Boggs. Thank you for the question, Senator. Equal
access is kind of a broad topic. I view equal access to the
court as being a model of efficiency, and that is that the
judge has an obligation to move cases through the system so
that cases do not languish, so that litigants have an
opportunity to bring closure to their cases. The efficiency of
the judicial system is bent on that, and I think it is
necessary. You have corporate litigants that have no closure to
cases because cases are not moving, and so equal access means a
lot of things. It means that the judge should remain active--to
me, the judge should remain active in the case, move cases
forward, set reasonable deadlines, but also move the court into
a system that is more efficient, and that may mean--for
example, when I was a trial court judge, I dealt with the drug
court program to move some of the felony cases off the original
docket, the main docket, criminal docket. It also may mean
that--I supported pretrial diversion programs. I supported
mandatory mediation in civil trials where juries had been
requested--all models built on allowing equal access by
improving how quickly people could get to court.
With respect to ensuring everyone is treated fairly, I
think the best evidence I could give you of that would be my
record as a trial court judge and appellate court judge, where
I have an unblemished record of having ensured that everybody
that appears before me is treated equally, with an unbiased and
an impartial application of the law to the facts of their case.
And that is what has prepared me, I think, to model that if I
were fortunate enough to get confirmed on the district court.
Senator Blumenthal. Thank you, Your Honor.
Mr. Cohen.
Mr. Cohen. Senator, if I am fortunate enough to be
confirmed, the oath that I would take provides that I would
administer justice without respect to person and to equal
rights to the poor and to the rich, and I would take that very
seriously. I think that is a cardinal fact that any Federal
judge has to consider when he or she is presiding over a case.
I think it is also important, just looking at my record, a
lot of us attorneys in private practice have done pro bono
work, and I certainly have done some with respect to working
through the Atlanta Bar Association's eviction defense program
and representing people who are being unjustly thrown out of
their apartments. And also for many years I served on a board
of a wilderness group that provided for alternative sentencing
for juveniles that, frankly, should not have gone into a
juvenile detention facility but deserved to go to a program
where they can get education and work to keep themselves out of
the adult prison system down the road.
So also as a district judge, we have the Federal Defender
Program in the Northern District of Georgia, and I, of course,
would, in accordance with the rules in the Northern District,
whenever a defendant came before me, make sure that that
defendant had the opportunity not only for counsel but
obviously to notify the Federal Defender Program if they could
represent that person.
Senator Coons. Thank you.
Ms. May.
Ms. May. Thank you, Senator Coons. Throughout my time in
private practice, I have mainly been handling plaintiff's
litigation. So in terms of my work experience, I oftentimes
represent people that are not familiar with the court system
and have to kind of take them through what is going to happen
and educate them about the civil system. So from that
standpoint, I have experience in those areas.
Along with my colleagues, I do believe the most important
part of equal access is to treat everyone fairly before the
law, no matter what their circumstances are. But there are some
concrete activities that the judges can do to make that more
likely. For example, courts on their websites can provide links
to different resources that pro se people can utilize. Judges
in their standing orders can provide more detail for folks
represented pro se so they can learn more what is expected of
them in the courtroom.
I also believe a judge has a responsibility to encourage
pro bono work and to be out in the community and speaking on
issues about equal access to the courts. And in my own career,
I have been very active in pro bono activities.
Thank you.
Senator Coons. Thank you. Ma'am.
Judge Ross. Thank you. You cannot see my nameplate.
Senator Coons. Yes, forgive me.
Judge Ross. Eleanor Ross. That is fine, Senator. Thank you
so much.
Senator Coons. Forgive me.
Judge Ross. That is no problem at all. As a State court
judge, I have concerned myself very much with equal access.
First of all, we do have a lot of pro se litigants in State
court, so it is important to assure that they know all of the
resources available to them, including the services of the
public defender and legal aid as well as the law library.
Also, in terms of fairness, I have demonstrated as a State
court judge that I am very fair and respectful to the litigants
who appear before me, whether they are pro se litigants or the
most well versed, well-known attorneys.
So it is a pattern that I have demonstrated time and time
again as a State court judge, and if I am fortunate enough to
be confirmed as a district court judge, I would definitely
continue it.
Senator Coons. Thank you, Your Honor.
Judge Ross. Thank you, sir.
Senator Coons. Judge Boggs, if I might, I have a few
questions rooted in your record that I wanted to get to, if I
might.
Judge Boggs. Yes, sir.
Senator Coons. You cast a vote when a member of the Georgia
Legislature to approve posting profiles of abortion doctors
online, and there has been some exchange about that. What, in
your opinion, motivated your vote for that measure? And how
could I understand that measure as being anything other than an
intent to burden a woman's right to choose?
Judge Boggs. Thank you for the question, Senator Coons. I
was motivated by a very strong desire to represent the will of
my 38,000 constituents in south Georgia who were predominantly
pro-life. Those issues were important to my constituents. That
amendment, albeit an amendment that I did not have very much
time to consider and for which I have expressed regret for not
having been more considerate of that vote, in the end of the
day the motivating factor for my vote on pro-life issues in
general was motivated by my desire to represent my
constituents.
Senator Coons. You in 2012 completed a judicial
questionnaire in your application to the court of appeals on
which you now serve, and you stated, and I think I quote, ``The
judiciary continues to endure criticism, fairly earned in some
cases, of abrogating their constitutionally created authority
by issuing decisions that venture into policymaking.'' This is
the question of activism by the judiciary.
If you could, just help me understand. Did you believe the
Georgia Supreme Court was being inappropriately activist when
they struck down Georgia's sodomy law in Powell v. State or the
U.S. Supreme Court in Lawrence v. Texas? Were they being
inappropriately activist in the way you detailed there?
Judge Boggs. No, sir.
Senator Coons. Could you name three or four cases where you
believed the judiciary has fairly earned criticism for, as you
put it, abrogating their constitutionally created authority?
What cases did you have in mind?
Judge Boggs. At the time I made not necessarily those
comments but other comments on the floor of the House as a
legislator, I had in mind judges that were declaring same-sex
marriage as constitutional, candidly. That is what I thought as
a legislator. That is the cases that I was referring to, those
States where judges had declared that law constitutional.
Looking back on that, particularly now, 13 years later, and
particularly now, with the benefit of having been a judge for
10 years, the concept of activist judge that I had as a
legislator is no longer prevalent in my mind-set.
Senator Coons. You said, I believe, earlier today in an
exchange with Senator Blumenthal that it would be inappropriate
under Georgia's Canon of Judicial Ethics, or perhaps under the
Federal Canon of Judicial Ethics as well, to convey to this
Committee where you stand on particular issues, yet those same
canons would have applied to you as a judicial candidate in
2004 when you made a public announcement in a candidate forum
about where you stood on issues like same-sex marriage. Was
that a violation of the Canon of Judicial Ethics?
Judge Boggs. I do not know. I would leave that to the
Judicial Qualifications Commission in Georgia. I will tell you
that, in looking back on those comments made while I was still
a legislator but also seeking the job of judge and, candidly,
probably after I had qualified for the position of judge, I
regret that I was not more articulate and artful in crafting an
explanation to my constituents that reflected my understanding
of the role of a judge, looking back on it.
Senator Coons. The Georgia Canon of Judicial Ethics states
a judge or a candidate for election to judicial office shall
not make a contribution to a political organization, and a
political organization is defined as ``a political party or
group the principal purpose of which is to further the election
of a candidate to office.''
Would you consider Georgia Conservatives in Action to be a
political organization under that definition?
Judge Boggs. Senator, I would have to look at it. I am
not--I am familiar with that organization, but not enough with
regard to tax status and otherwise to determine if they meet--
--
Senator Coons. You are familiar with it because your
campaign committee perhaps made a contribution to it in
September 2012, and my understanding is that Georgia
Conservatives in Action endorses political candidates,
including a candidate for the U.S. Congress. That is an issue
that is of some concern to me in terms of crossing, I think, a
line that is fairly clear.
Canon 7-A of the Georgia Canon of Judicial Ethics also says
that a candidate shall not publicly endorse a candidate. When
did you announce your candidacy for superior court judge?
Judge Boggs. Senator, I do not recall. It would have been
sometime in 2004.
Senator Coons. And at that point, were you a member of the
Bush-Cheney Democrats for Bush National Steering Committee?
Judge Boggs. To my knowledge, I have never been a member of
that committee. It was only throughout this process that I
discovered I had been listed, and I believe my listing, without
my permission or even knowledge, was by virtue of me having
attended a meeting prior to President Bush's fundraiser in
Georgia. I did not attend the fundraiser. I did not make any
political contribution. I did go back and having now seen that
I was a member of that committee, 13 years later, and realized
that everybody that attended that, with the exception of one
member, was listed. Again, it was done without my authority. I
had no knowledge of it.
And as to your comments back on Conservatives in Action, at
the time I made a contribution from my campaign, judicial
campaign, to Conservatives in Action, I had no knowledge of
their sponsorship or endorsement of any candidates for elective
office.
Senator Coons. I appreciate your answers to these
questions. I may have others for the record, and, Mr. Chair, I
appreciate your forbearance in the time I have taken. I do
think there is a voluminous record here that well bears
consideration. I appreciate your testimony today. And to the
rest of the panel, thank you very much for your testimony as
well.
Senator Blumenthal. Judge Boggs, the questions that you
have been asked by Senator Coons lead me to one last set of
questions, and I promise they will be brief.
On the topic of judicial activism and the right to privacy,
you may recall in February 2004, in your capacity then as a
State legislator, you spoke on the floor of the Georgia House
of Representatives in favor of a resolution calling for a
proposed constitutional amendment that would have banned same-
sex marriage. And in support of that resolution, you said to
your colleagues that they should recognize the ``dangers''
posed by ``activist judges and mayors operating in derogation
of current State law.'' And you cited as an example of that
activism and derogation of State law a decision by the Supreme
Court of the State of Georgia in the 1998 case of Powell v.
State. You may recall in that case the Georgia State Supreme
Court struck down the Georgia sodomy statute that imposed
sentences of 20 years to people who engaged in consensual sex
in the privacy of their own homes.
And my question to you is: Number one, do you think the
Georgia Supreme Court wrongly decided Powell in striking down
those laws?
Judge Boggs. I do not now, no, sir.
Senator Blumenthal. You did then but you do not now?
Judge Boggs. My views have changed and my roles have
changed. As a legislator, talking about activist judges was
quite markedly different than what I believe now, yes.
Senator Blumenthal. And you would not now support a
constitutional amendment banning same-sex marriage, I take it.
Judge Boggs. No, sir. I mean, my position on that issue,
whatever it might have been then and whatever it is now,
though, however, has no import whatsoever on how I decide
cases.
Senator Blumenthal. In that speech in 2004, you cited Judge
Carley's dissent in Powell, and you cited his dissent as
evidence of the potential dangers of judicial activism. And I
wonder whether you would agree now with Justice Carley, who
wrote in that dissent, ``A constitutional right to privacy
obviously cannot include the right to engage in private conduct
which was condemned as criminal at the very time that the
Constitution was ratified.'' I will repeat it for you.
Judge Boggs. Please.
Senator Blumenthal. ``A constitutional right to privacy
obviously cannot include the right to engage in private conduct
which was condemned as criminal at the very time that the
Constitution was ratified.'' You cited that dissent with
approval in support of a view that, in effect, Powell was
wrongly decided. And I would just point out that Georgia had
many statutes, including criminalizing sexual relationships in
marriages between people of different races at the time the
Constitution was passed, and Justice Carley's dissent would
indicate that the right to privacy would cover none of those
kinds of private consensual acts now.
Judge Boggs. I think to the extent that you are asking me
to agree or disagree with my opinions about Justice Carley's
dissent, I have not read that dissent in 10 years. My personal
views on that are irrelevant, but I would say this: To the
extent his opinion has been conflicted by decisions from the
Supreme Court, I would follow the decisions of the Supreme
Court. And while I have respect for Justice Carley, a very good
friend of mine, formerly on the Georgia Supreme Court, my role
as judge would be to apply precedent.
Senator Blumenthal. Thank you.
You know, I want to close by thanking all of you as
potential and likely district court judges because you are
really going to serve as the protectors and guardians of our
Nation's legal conscience, and I am reminded of that fact,
thinking of Judge Frank Johnson, who was invoked--his memory
was invoked by Senator Durbin. You know Judge Johnson's
history. He was more than an icon. He was really a hero. And I
think he is the reason that many of us chose this career, chose
to be trial lawyers or prosecutors, because of his conscience
and conviction and courage standing up to ostracism, physical
threats, and violence.
And so I hope that you will take this responsibility--I
know you will take it seriously because you are truly going to
be the voice and face of justice for the people who come into
your courtrooms. So I want to thank you for the long hours that
you will spend, your willingness to serve, your families again
who are here today, your friends who have supported you, to the
Senators of your State, Senators Chambliss and Isakson, for
their leadership in making your nominations possible, and to
the President of the United States for his faith in your
ability to serve.
And with that, I am going to adjourn this hearing. The
record will be kept open for 1 week, and thank you all for
attending.
[Whereupon, at 12:10 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 ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA;
JOHN W. deGRAVELLES, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA; RANDOLPH D. MOSS,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; HON. ROBIN
L. ROSENBERG, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
FLORIDA; AND HON. RONNIE L. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF MISSOURI
----------
TUESDAY, MAY 20, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin
presiding. Members present: Senators Feinstein, Durbin, and
Grassley.
Also present: Senators Landrieu, McCaskill, and Nelson, and
Delegate Holmes.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM ILLINOIS
Senator Durbin. This hearing of the Senate Judiciary
Committee will come to order. Today we will consider five
highly qualified nominees to the Federal bench, including Andre
Birotte, who has been nominated to be District Judge of the
Central District of California; John deGravelles, nominated to
the Middle District of Louisiana; Randolph Moss, nominated to
the District Court for the District of Columbia; Robin
Rosenberg, nominated to the Southern District of Florida;
Ronnie White, nominated to the Eastern District of Missouri.
At these hearings it is traditional for nominees to be
introduced before the Committee by Senators from their home
States. For Mr. Moss's nomination, Congresswoman Eleanor Holmes
Norton will provide an introduction, upon her arrival.
And unless the Ranking Member has any opening remarks, we
will allow the Senatorial introductions to commence.
Senator Grassley. I am going to put my statement in the
record.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Durbin. Thank you very much, Senator Grassley.
Senator Landrieu, do you have a time problem with another
hearing coming up?
Senator Landrieu. I do, Senator, thank you. I am chairing a
hearing in 15 minutes, if I could proceed.
Senator Durbin. If you will beg the indulgence of your
fellow colleagues sitting at the table.
Senator Landrieu. With the courtesies of my colleagues,
thank you.
Senator Durbin. Senator Landrieu.
PRESENTATION OF JOHN WHEADON deGRAVELLES, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, BY HON.
MARY LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you so much, Mr. Chairman, and I
appreciate the courtesies of my colleagues to introduce Mr.
John Wheadon deGravelles, a nominee for Article 3 Judge on the
U.S. Middle Court in Louisiana.
I was so pleased to recommend this nominee to President
Obama, and I am very happy and proud to introduce him to you
all today.
He is affectionately known as Johnny. He is joined by his
loving wife of many years, Jan deGravelles; his two children,
Neale and Kate, who are both lawyers; his sister, Ann Norton,
and close family friends who are here with him today.
Johnny has earned the support of the President of the
United States and both of his home-state Senators on the basis
of his impressive legal career over a long period of time.
Decades of Federal Court experience have brought him to
this Committee with an unquestionably even and fair handed
temperament recognized by all.
Johnny was born in Lafayette, although he is a current
resident of Baton Rouge. When he graduated with his degree from
LSU, he graduated with top honors. For 24 years he has
practiced at an extraordinary law firm, of which he helped to
found and continues in that today.
In addition to all of that work, Mr. Chairman and Ranking
Member Grassley, I wanted to call to your attention, he has
always come to my attention over many years, but particularly
after Katrina, Johnny really stepped up as a leader in the
legal community to help all of the many lawyers that were
dislocated from their homes, from their practices, during that
great disaster which we are still recovering from along the
Gulf Coast.
He was a Fulbright Scholar; he has been recognized for
outstanding professional excellence by the Louisiana Trial
Lawyers Association and the Council for a Better Louisiana. He
has written numerous articles and publications. His civic
engagement is really extraordinary.
And I think, for the good humor of this Committee, and we
always like to have well-rounded nominees, please let the
record reflect that he is a legendary guitar player. And he
plays blues, gospel, country and rock and roll. He once opened
for the legendary Aaron Neville at a band concert in Angola
Penitentiary, an experience he describes as going to rock and
roll heaven.
So anyway, he is a wonderful guy with a great sense of
humor, with a terrific background in law. And I could not be
more proud to present him to this Committee for your
consideration today.
And thank you so much, Senator Durbin and Senator Grassley.
Senator Durbin. Thank you, Senator Landrieu.
Senator McCaskill.
PRESENTATION OF HON. RONNIE L. WHITE, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MISSOURI, BY HON. CLAIRE McCASKILL, A U.S. SENATOR
FROM THE STATE OF MISSOURI
Senator McCaskill. Thank you, Mr. Chairman. I am here today
to introduce my friend and highly respected jurist and attorney
in the State of Missouri.
Judge Ronnie White earned his political science degree from
St. Louis University in St. Louis, and then graduated from the
University of Missouri Law School. During law school, he
actually interned in the Jackson County Prosecutor's Office,
where I began my legal career.
He went on to return to St. Louis and worked at the
Department of Defense Mapping Agency and also served as a trial
attorney in the Public Defender's Office in both the City and
County of St. Louis. In 1987, he entered private practice and
during this period of time he was elected to the Missouri
Legislature and served three terms in Jefferson City.
He served as Chairman of the House Judiciary Committee, the
House Ethics Committee and the Committee on Civil and Criminal
Justice during his time in Jefferson City.
In 1993, he was appointed to the position of City Counselor
for the city of St. Louis. While serving as City Counselor, he
argued a case before the Supreme Court of Missouri. One month
later, he was appointed to the Missouri Court of Appeals,
Eastern District.
And then later, Judge White was appointed by Governor Mel
Carnahan to be the first African-American to serve on the
Missouri Supreme Court, in October 1995. He went on to be
selected and serve as Chief Justice of the Missouri Supreme
Court between 2003 and 2005.
He also currently serves as an adjunct faculty member
teaching trial practice and procedure at Washington University
School of Law in St. Louis, Missouri. I will not take the time
to cite all the community boards and commissions that Judge
White has served on during his incredible career of public
service in our State, and I will not go through all of the
awards he has gotten, honorary degrees and other recognition.
He currently is in the private practice of law, but
continues to be a shining star to thousands of Missourians
because of his career, which has really been emblematic of hard
work, courage, dedication and service to public before self.
He has never forgotten that his job as a successful
attorney, lawyer and judge is about the community he serves,
and not about him.
Now, that is all the resume stuff. He is just a really good
guy. He is probably the gold standard for ethical conduct as a
sitting member of the bench in our State. And because he was a
first, he had a lot of pressure on him in various ways. He has
withstood that pressure and done his job without fear or favor.
I can think of no one in the State of Missouri--and I mean
that literally--no one in the State of Missouri that is more
deserving of this appointment to the Federal bench than my
friend, Ronnie White.
Thank you, Mr. Chairman.
Senator Durbin. Thank you, Senator McCaskill.
Senator Nelson.
PRESENTATION OF HON. ROBIN L. ROSENBERG, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BILL
NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Mr. Chairman, I cannot help but reflect
here, since I have been in front of this Committee many times,
that this is a process that works. And it is a process that
sets us, the United States, apart from so many other
judiciaries around the world. As a result, we get the best, the
testimony that you have just heard about the two other judges.
And I want to commend Senator Grassley. When he had doubts
about a recommendation from the Senators from Florida on a
previous nominee, Senator Grassley was kind enough and he was
judicious enough to go in and do a thorough examination and to
listen to the arguments. So it is a process that works.
We in Florida try to make it work even better by taking the
politics out of the selection, as Senator Rubio and I have this
Judicial Nominating Commission that does all the interviewing
and that picks three. And then the President agrees that he
will pick from among the three for the Federal District judges.
Now, sometimes the process takes a long time, as it has
been in the case of Judge Rosenberg today, whereas we had had
starts and stops on different vacancies. But the process works.
And so I am bringing to you, on behalf of Senator Rubio and
me today, a State judge--we call them Circuit Judges--where she
has served since 2007. And prior to that, was the partner in a
law firm. She started her legal career, as so many of our
judges do for the excellent training, as a law clerk. And in
this case, it was a Federal District judge. Prior to that, an
assistant city attorney, trial attorney in the Civil Rights
Division of the Justice Department, capping off an education of
a J.D. and an M.A. from Duke and Princeton. Judge Robin
Rosenberg is joined by her husband, Michael McAuliffe, and
their three children. Where are the children? There you are.
And her dad, whom I know personally, Dr. Marvin Rosenberg. And
so I bring you an extremely qualified nominee--and thank you
all for making this system work.
Senator Durbin. Thank you very much, Senator Nelson.
Now, from the District of Columbia, Delegate Eleanor Holmes
Norton.
PRESENTATION OF RANDOLPH D. MOSS, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA, BY
HON. ELEANOR HOLMES NORTON, A DELEGATE FROM THE
DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Mr. Chairman.
My Judicial Nominating Commission had several well-
qualified candidates before them. They forwarded them all to
me, but Randolph Moss, whom I introduce today, stood out for
his exceptionally well-qualified background.
Randolph Moss is a partner today in the law firm of Wilmer,
Cutler, Pickering, Hale and Dorr. He served for 5 years with
the Office of Legal Counsel before President Clinton
recommended him and the Senate confirmed him to be the an
Assistant Attorney for Legal Counsel in the Office of Legal
Counsel.
After his service, he returned to Wilmer, Hale as a partner
where today he chairs the firm's Regulatory and Government
Affairs Department, is a member of its Business Trial Group and
its Litigation Controversy Department.
Mr. Chairman, Mr. Moss has the kind of background that
regularly comes before the United States District Court here,
particularly in administrative and constitutional law involving
corporate and environmental law, anti-trust, national security,
patent law, False Claims Act, contracts and commercial
disputes. In his pro bono capacity, he has represented indigent
individuals in criminal and civil matters.
Mr. Moss is highly regarded in the legal profession, has
been recognized by the Chambers USA and Best Lawyers of
America, among others.
He clerked for U.S. Supreme Court Justice John Paul
Stevens. Before that, for Judge Pierre Leval at U.S. District
Court for the Southern District of New York. Randolph Moss is a
graduate of Hamilton College summa cum laude and Phi Beta
Kappa, and of the Yale Law School, where he served as an editor
of the Law Review.
Mr. Chairman, I think you will agree when you hear from him
why his brilliant legal work and distinguished background and
reputation led me to recommend him to the President, as I do to
you this morning.
Senator Durbin. Thank you very much, Delegate Norton. We
appreciate your coming over to our side of the Rotunda.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Before I introduce Andre Birotte, whom I recommended to
President Obama, let me first welcome Ronnie White back to the
Committee. As I said in 2001, Justice White, I deeply regret
what happened with respect to your nomination in the late
1990s. So I just want to say welcome, and to tell you that you
have my support. I very much hope that you will be confirmed.
PRESENTATION OF ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Let me now introduce Andre Birotte, who
has earned the ABA's highest rating of Well Qualified. He is
here with his wife, Rebecca, and his 7-year-old daughter,
Yanick, and his two sons, Andre III and Jean-Pierre. And I know
he is a proud family man. We discussed it earlier in his
career, and he has just done fine in handling both.
He was raised in New Jersey. He earned his bachelor's
degree from Tufts in 1987 and his law degree from Pepperdine in
1991. From 1991 to 1994, he served in the Los Angeles County
Public Defender's Office, where he represented indigent
defendants in more than 30 trials.
From 1995 to 1999, he served as an Assistant U.S. Attorney
in Los Angeles. From 1999 to 2001, he worked as an associate at
the private law firm Quinn Emanuel. In 2001, he became
Assistant Inspector General for the Los Angeles Police
Department, rising to the position of Inspector General in
2003.
Now, the creation of an Inspector General's Office for the
Police Commission was one of the recommendations of the
Christopher Commission, which was led by late Secretary of
State Warren Christopher, and reviewed the performance of the
Los Angeles Police Department following the beating of Rodney
King in 1991.
As Inspector General, Birotte built a strong reputation for
fairness, and earned the respect of all sides, including the
law enforcement community. In 2009, then-Los Angeles Police
Chief Bill Bratton, who is deeply respected on both sides of
this Committee, wrote to me to express his, quote, ``strongest
endorsement and support,'' end quote, for Birotte.
As Chief Bratton said, in the approximately 6 years that I
have known Andre, ``Our working relationship has been one of
transparency, cooperation, trust and respect,'' end quote.
Bratton praised Birotte's judgment as principled and said he
had done a commendable job as Inspector General.
In 2009, on my recommendation, Birotte was nominated to
serve as U.S. Attorney for the Central District of California.
He was confirmed on February 11th, 2010. His tenure as U.S.
Attorney, candidly, has been a great success.
Let me start with national security. As Chairman of the
Intelligence Committee, I know that efforts by the U.S.
Attorney's Office in this arena often occur behind the scenes,
but some of them do result in notable criminal convictions.
In one case, Birotte's office secured a conviction and 25-
year sentence for a defendant charged with several crimes,
including a conspiracy to import surface-to-air missiles. In
another case, a pharmacist was convicted of providing money to
terrorists with the intent that the money be used to attack
U.S. personnel overseas, military personnel overseas.
I am very pleased that Andre Birotte, like many U.S.
Attorneys, has made national security a top priority. Mr.
Birotte's office has also focused on gangs and organized crime.
In fact, during Mr. Birotte's tenure, the Office has secured
lengthy sentences against members and leaders of several major
gang and organized crime organizations all across Southern
California.
In one case, for example, a street vendor was targeted in a
gang shooting which severely wounded the vendor and resulted in
the death of a 23-day-old infant. One defendant, a member of
the 18th Street Gang, was sentenced to life in prison on
racketeering charges.
Recent LAPD statistics show a decrease in gang-related
crime of 35.5 percent in Los Angeles since 2010. Obviously,
this is due to the combined efforts of State, local and Federal
law enforcement. Many deserve credit for it, but it is a
significant decrease during Mr. Birotte's tenure as United
States Attorney.
Birotte's office has also been active in protecting
Californians against sex crimes and human trafficking. For
example, a grand jury indicted eight people, four of which were
alleged gang members, quote, ``on charges related to the sex
trafficking of teenage girls who were recruited and groomed to
work as prostitutes across Southern California,'' end quote.
One of those defendants was sentenced to 30 years in
prison. He was a gang member who admitted, quote, that he
``used force, fraud and coercion to cause teenage girls to work
as prostitutes across Southern California,'' end quote.
Prosecutors alleged that he not only used his fists, a
cane, a shoe and other objects against the females, but that,
quote, ``He also pepper-sprayed one of the victims in her
face,'' end quote, and, quote, ``put a gun to the head of one
of the victims.''
In another case, Birotte's office secured a 25-year
sentence against a man who molested children, photographed the
abuse and traded images on the abuse on the Internet. His
office also secured a 9-year sentence on a civil rights charge
against a police officer who, following a traffic stop, forced
a woman into an isolated parking lot and sexually assaulted
her.
Birotte also created the Public Corruption and Civil Rights
Unit of the U.S. Attorney's Office in Los Angeles. Since then,
several cases have been brought against local officials alleged
to have taken bribes. One major case is pending, I'm sorry to
say, against a Democratic California State Senator who is
alleged to have taken 100,000 in bribes from a businessman and
from people he believed were associated with a Hollywood film
studio.
Another major and very important case alleges serious
misconduct and obstruction of justice by officers in the Los
Angeles County jail system. This case is ongoing.
Americans rightly hold the law enforcement community and
the rule of law in high esteem. In my view, this requires
making sure that misconduct, when it does occur, is brought to
light and action.
I take the time to outline this because I truly believe
that Andre Birotte is one of the most outstanding United States
Attorneys in this Nation and will be a fine judge.
Throughout his career, he has shown a profound commitment
to fairness, to the rule of law and to making every decision on
the merits. And this has earned him, in a big and often
conflicted city, deep respect from communities from all sides
of these questions. It is truly amazing.
He is supported not only by State and Federal law
enforcement, but by the Central District's Federal Public
Defender, Sean Kennedy. Kennedy told my selection committee
that Birotte has, quote, ``incredible judgment,'' end quote,
and would make a, quote, ``wonderful Federal judge.''
I agree. I think he is a 10 who will bring exceptional
skill, reputation and integrity to the Federal bench in the
Central District. I hope his children are very proud of him,
and I urge my colleagues to support him.
Thank you, Mr. Chairman.
Senator Durbin. Thank you, Senator Feinstein.
I would now like to ask the nominees to please come to the
witness table and, if they would remain standing for a moment,
I will administer the customary oath.
Please raise your right hand. Do you affirm the testimony
you are about to give before the Committee will be the truth,
the whole truth and nothing but the truth, so help you God?
Mr. Birotte. Yes.
Mr. DeGravelles. Yes.
Mr. Moss. Yes.
Judge Rosenberg. Yes.
Judge White. Yes.
Senator Durbin. Thank you.
Let the record reflect that the nominees have all answered
in the affirmative.
I will now give each of you a chance to introduce your
families and friends who have joined with you today, perhaps
give a few words of opening remarks and then submit yourself to
a questioning process.
Mr. Birotte.
STATEMENT OF ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Mr. Birotte. All right. Thank you, Senator Durbin.
Senator Durbin and Ranking Member Grassley, I want to thank
you and the entire Committee for convening this hearing this
morning. I certainly want to thank our home-state Senators,
Senator Boxer and Senator Feinstein.
Senator Feinstein, I want to thank you for the kind remarks
this morning, and I want to thank you, your Judicial Advisory
Committee, your statewide chair, David Casey, for not only this
nomination here today, but for your support and your trust and
confidence in me in your nomination of me as United States
Attorney.
I certainly want to thank the President, President Obama,
for this honor, an honor that my family and I will be eternally
grateful for.
Speaking of family, I want to introduce, if I may, my
family that is here today. My wife, Rebecca. I feel very
fortunate that our paths crossed many years ago, because she
has brought me joy from that day to the present. My lovely
children, Andre III, who is nine; Yanick----
Senator Feinstein. Stand up so we all can see you.
Mr. Birotte. Andre, can you stand?
My daughter, Yanick, who is seven, and my baby boy, Jean-
Pierre. With three children, it is never a dull moment, as one
might imagine, including getting them ready to be here this
morning. But they bring immense joy to me and in many ways
inspire me to be the best that I can be each and every day.
I want to also introduce some good friends that are present
here today. My very close friend, Lamont Jones, who is present.
Lamont and I were associates at Quinn, Emanuel. We have been
best of friends ever since. In fact, he is the godfather of
Jean-Pierre, and so this trip had the added benefit of
reconnecting them.
My good friend Henry Kerner, who is here. Henry, he
currently serves on the Permanent Subcommittee of
Investigations for Senator John McCain. He and I met when we
were both baby lawyers, he as a deputy district attorney and
myself as a deputy public defender. And despite being on other
sides of the aisle and trying cases for over a year, we became
and remain best friends to this day, some 20 years later.
My brother, Edwin Birotte, in Florida, and my other
brother, Patrick Birotte and his wife and my nephew and niece,
Chloe and Patrick, couldn't be here, but they are watching via
Webcast. And I have a number of friends and relatives that are
also watching from the West Coast who got up early this
morning, before their workday started, to watch this. And if I
could, just want to mention a few names.
Certainly my mother-in-law and father-in-law, Ernie and--
North. My sister-in-law, Ashley, and Pete Mejia, Rene and
Rachel Cornejo, as well as good friends Chris and Karen Watson,
as well as Jim and Jessica Dabney. I also have a number of high
school friends and colleagues that are also watching via the
Webcast, and I want to thank them all for doing so here today.
Certainly last but not least, I want to thank the two
people without whom I would not be here, my parents, Dr. Andre
Birotte and Graciane Birotte. I am the proud son of these two
Haitian immigrants. My parents came over to this country by way
of leaving Port-au-Prince to Mexico City, where my parents
learned the language there and my father went to medical school
there. From there, they went to, of all places, Newark, New
Jersey, where my father started and built a successful medical
practice and my mother got her teaching credential and started
a nursery school that is running to this day.
My father, he passed away in 1998, although he was present
to witness a personal dream of mine to become an assistant
United States Attorney. And my mother, unfortunately passed
away unexpectedly from a heart attack in October 2011, but she
was there beaming with pride as I was sworn in as the United
States Attorney.
They are the two individuals that taught me everything I
know about hard work, counting your blessings, the importance
of an education and giving back to your community. They are in
every way, shape and form my role models.
So with that, I want to thank you all again, and I am ready
to answer any questions you may have.
[The biographical information of Mr. Birotte appears as a
submission for the record.]
Senator Durbin. Mr. deGravelles.
STATEMENT OF JOHN WHEADON deGRAVELLES, NOMINEE
TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT
OF LOUISIANA
Mr. deGravelles. Good morning, Senator Durbin, Ranking
Member Grassley, other Members of the Committee. I want to
thank you very much for having this hearing and giving me the
opportunity to answer any questions that you may have of me.
I want to especially thank Senator Landrieu for her very
kind remarks, and both Senator Landrieu and Senator Vitter for
their support in this process.
I want to thank President Obama for this extreme honor of
being nominated and, hopefully, if fortunate enough to be
confirmed, to have the opportunity to serve in the Middle
District of Louisiana.
I have family members here also, Members of the Committee,
which I would like to introduce, and some who are not here
which I would also like to mention.
First and foremost is my wife and the love of my life for
44 years, Jan, who is here with me and without whom, whose
support I would simply not be before you today.
I have my two children, both of whom are proud members of
the legal profession, Neale and Kate. I also want to recognize
my three grandsons: Rainier, who is age seven; Emmett, who is
age four; and Rhodes, who just turned 1 year old.
With me today who flew in from San Francisco is my sister,
Ann McBride Norton. Could not be with me is my sister, Claire
Cloninger, and my twin brother, Charlie deGravelles.
I want to especially also recognize my mother, who is 98
years old and going strong. She is back in Lafayette, looking
at this proceeding live. Hi, Mom. [Laughter.] And when we had
Mother's Day recently, I told her that she inspires me every
day, and she truly does.
My father died several years ago. He was also a tremendous
inspiration to me, and I know he would be very excited to be
here if he were alive, and I know he is also with us in spirit.
I have very, very good friends here with me today. Charlie
McBride and his wife, Peggy Debell, who have been great friends
and of lots of support during this process.
Finally, I would like to thank my law firm family back in
Baton Rouge, my law partners and the wonderful and talented and
hard-working people who help us in our law firm. So thank you
all.
And thank you, Senators, for this opportunity.
[The biographical information of Mr. deGravelles appears as
a submission for the record.]
Senator Durbin. Thank you.
Mr. Moss.
STATEMENT OF RANDOLPH D. MOSS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA
Mr. Moss. Good morning. Thank you, Chairman Durbin. Thank
you, Ranking Member Grassley. I would like to thank the
Committee for holding the hearing today, I thank Chairman Leahy
and Ranking Member Grassley for scheduling this hearing and
Senator Durbin for chairing it today. I thank Senator Feinstein
for attending as well.
I would like to thank Congresswoman Eleanor Holmes Norton
for her very, very kind remarks, as well as for recommending me
to the President, and would like to thank the President for the
honor of this nomination.
I would like to take a minute to introduce the members of
my family. My mother, Adrienne Moss, is here today. I am
someone who could not be more blessed to have such a wonderful
mother, and I appreciate it every day. I am equally blessed by
my wonderful wife, Liza, who is here. She is a lawyer at the
Department of Justice, serves in the Criminal Appellate
section.
Unfortunately, my daughter Emily could not be here today;
she is 21 years old and studying abroad, and having the time of
her life. My son, Will, is here. Will is missing one of the
last 3 days of high school to attend today.
The last time I was before this Committee, Will was 3 years
old. And to my great fortune and, I think, the great fortune of
all of us, Will fell asleep in his mother's lap just as the
hearing was beginning. But Will has assured me that that will
not happen today.
My sister, Cindy, is here. She is a neuroscientist, studies
echolocation in bats. My brother, Eric could not attend today.
He is a lawyer, Senator Durbin, who lives in Chicago. And I
would also like to just take a moment to recognize my father,
who passed away three and a half years ago. There is not a day
that goes by in which we all do not miss my father terribly. I
know he would have very much enjoyed being here, and I am very
sorry that he is not.
And I would just take a minute, just to thank my many
friends and colleagues who have taken the time out of their
days as well to attend today. So thank you.
Thank you, Ranking Member Grassley. Thank you, Senator
Durbin.
[The biographical information of Mr. Moss appears as a
submission for the record.]
Senator Durbin. Thank you.
Ms. Rosenberg.
STATEMENT OF HON. ROBIN L. ROSENBERG, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Rosenberg. Good morning, Senator Durbin and good
morning, Senator Grassley. I am so honored to be here today as
a nominee for a U.S. District Court judgeship in the Southern
District of Florida, which is my hometown where I grew up and
began my career as a lawyer, clerking for a Federal judge right
in the U.S. District Court of the Southern District of Florida.
I want to thank Senator Nelson and Senator Rubio for their
support of me, and I want to particularly thank Senator Nelson
for his remarks and acknowledge the long friendship that we
have shared, that my family has shared with him over the years.
And, of course, I want to thank President Obama for nominating
me.
I want to thank all of the Members of the Judiciary
Committee for holding this hearing.
I want to acknowledge some very important people who are
here today, and I do not think I would be here without them. It
is why I am who I am, I think, and how I got to where I am. So
I would be remiss in not acknowledging them.
First and foremost, as Senator Nelson had pointed out, my
parents are here from Florida, Dr. Marvin and Baylie Rosenberg.
They have, throughout their life, at every juncture and every
stage, instilled in me a hard-work ethic, a commitment to
public service and a drive to do better, and never made me feel
that there was something that I could not attain, and I always
knew their support was with me.
And so it is why I believe I have been able to pursue the
things I have in life and to give it 100 percent of who I am
and what I have to give. And so I want to thank my parents for
being here and for everything they have done for me.
Second, with great pride I acknowledge my husband, who is
behind me, Michael McAuliffe. We have been married for over 20
years. He has supported me in all of my endeavors.
We met here in Washington, DC, at the Department of
Justice. He is my rock and sets the standard high for me and my
family. He is a well-regarded attorney. He has been a Federal
prosecutor. He has been an elected State attorney in Palm Beach
County, and he currently is a general counsel in the private
sector.
Not surprisingly, I have to brag about my children as well.
I have three wonderful children, all of whom are here from
their various activities and places that they came in from. My
oldest is Sydney McAuliffe, who just graduated on Friday from
high school, from the Dreyfoos School of the Arts, and will be
attending Duke University as a Robertson Scholar next fall.
Duke is my alma mater from law school and a graduate degree in
public policy.
Adin McAuliffe is a sixth grader, 12 years old, who is
thrilled that Sydney is going to Duke, because he is an avid
lacrosse player and has been enjoying watching the national
champions return to the NCAA tournament this year.
And Madison McAuliffe, who is a ninth grader at Phillips
Academy Andover, also my alma mater, brings such great pride
and lights the world on fire with her smile and her
intelligence and her athleticism.
I also want to acknowledge some friends who have been able
to be with--well, I have other family members who could not be
here, and want to just acknowledge them as well. I have two
younger brothers, Gary Rosenberg, who is a doctor in
California, and Jamie Rosenberg, who began Adopt a Classroom,
the national program, who is in Miami. They each have three
lovely children and together with my family, we are a very
close and loving family.
Others in the audience who I would like to recognize, long-
time friend Richard Ugelow. I began my career at the Department
of Justice working with and under Richard in the Civil Rights
Division. And Phil Yore [phonetic] is here, and I worked with
Phil as well, and I am so delighted that he is here.
Other special friends are Eva and Sarah Abraham, who flew
in from Florida to be with me.
Last, I would like to acknowledge and thank my colleagues
in the 15th Judicial Circuit in Palm Beach County, where I do
sit as a State Court judge. I want to thank them for their
friendship and their support, and all of the other friends and
extended family members who could not be here today.
I welcome any questions, and I thank you for conducting
this hearing and for considering my nomination.
[The biographical information of Judge Rosenberg appears as
a submission for the record.]
Senator Durbin. Thank you very much.
Mr. White.
STATEMENT OF HON. RONNIE L. WHITE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI
Judge White. Thank you, Senator Durbin and Ranking Member
Grassley.
Senator Durbin. Would you turn on your microphone there?
There you are.
Judge White. Thank you, Senator Durbin and Ranking Member
Grassley, for holding this hearing this morning and providing
us with the opportunity to appear before you.
I would like to thank Senator Claire McCaskill for the kind
remarks and for recommending me to the President. And I would
also like to thank Senator Roy Blunt for his participation in
this process.
My son, Ronnie White II, graduated from law school on
Sunday afternoon and is attending bar prep in St. Louis this
morning, so he could not be here with me.
My wife, Sylvia, of 33 years, is at home waiting on the
movers to bring back all of those things that left our home 3
years ago when Ronnie went away to school. So she is watching
on the Webcast and could not be here.
I also would like to say that my law partners are watching
on the Web, and a host of friends from Missouri, and they are
all excited about my opportunity to appear before this
Committee.
Thank you.
[The biographical information of Judge White appears as a
submission for the record.]
Senator Durbin. Thank you very much, Mr. White.
Senator Grassley. Could I ask questions----
Senator Durbin. Oh. Senator Grassley has a schedule issue,
so please proceed.
Senator Grassley. I only wanted to ask Justice White
questions. I will submit other questions for answers in
writing, because I have to be on the floor at 10:45, so I am
not even going to be able to go very deep with you, Justice
White.
But history turned out that you were right in the
controversial decision you were involved in the previous time
you were before us. I am not going to go through the history of
the Roper case, but it does bring up the issue of what you
think about precedent of the Supreme Court.
And now the Supreme Court has ruled that the execution of
younger people is a violation of the Eighth Amendment. So I am
going to have two questions and one statement.
Before you answer the first question, let me go to the
second one. I would like to have you explain your rationale for
joining the Missouri Supreme Court majority in Roper, even
though binding precedent from the U.S. Supreme Court at that
time contradicted the holding of the Missouri Court.
And then a statement I would make, that when you joined the
majority in Roper, I assume that you were aware the U.S.
Supreme Court had denied habeas corpus petition in several
cases, in 2002 and 2003, that raised the same arguments that
you and the majority of the State Court supported.
And then my second question is, given your support for the
Missouri Court's decision in Roper, what can you do to assure
the Members of this Committee that you are serious about
respecting the binding precedence of the U.S. Supreme Court?
Judge White. Ranking Member Grassley, regarding the Roper
decision, there was a decision handed down by the Supreme Court
in Atkins versus Virginia that had ruled that the States would
no longer execute people who are mentally retarded and that
were found guilty of murder.
So we applied that rationale to the Roper case, to say that
maybe the national consensus had evolved to a point where they
would no longer kill juveniles under the age of 18.
Senator Grassley. Well then, the Stanford decision was
binding at that particular time, was it not, in addition to the
Aiken [phonetic] case? And so I am speaking about the Stanford
precedent.
Judge White. Yes, it was, sir.
Senator Grassley. All right. So then would you summarize
for us what you can do to assure the Members of the Committee
that you are serious about respecting binding precedence of the
Supreme Court? Or, I suppose, what you just told me; you were
respecting it at that particular time?
Judge White. At that particular time. Senator----
Senator Grassley. Go ahead.
Judge White. Senator Grassley, if I am fortunate enough to
be confirmed by this Committee, by the Senate, I would follow
all binding precedent from the Supreme Court and the Eighth
Circuit Court of Appeals, and that would be my role as District
Court judge.
Senator Grassley. All right, thank you.
Thank you, Mr. Chairman. I have to go.
Senator Durbin. Thank you very much, Senator Grassley.
I will have a question of each of the nominees, and then
other written questions may be sent your way. And if you will
respond to them in a timely fashion, we would certainly
appreciate it.
Justice White, it is not often that the Senate gets a do-
over. And in your case, it is long overdue.
Judge White. Thank you.
Senator Durbin. I was new to the Committee when you were
first nominated to serve on the Federal District Court, and I
can remember in vivid detail your experience. I do not want to
dwell on the past. I want to look forward to the future and
look forward to supporting you again for the Federal District
Court bench.
I want to commend Senator McCaskill for nominating you,
sending your nomination our way through the President, and also
to Senator Blunt, who, as you have noted, participated in
bringing you before this Committee.
It is a rule of the Committee that a blue slip needs to be
signed by both Senators before a person can come before us, and
Senator Blunt signed that slip. So at this point, you are here
today, at least with the tacit approval of Senator Blunt to
move forward in the process.
When you were nominated before, the issue that was raised
during your nomination related to the support of law
enforcement for your nomination to the Federal bench. I note
that Chairman Leahy has received a letter on May 13th from the
president of the Fraternal Order of Police, Missouri State
Lodge, in relation to your nomination. And without objection,
it will be placed in the record.
I would like to quote from that letter. And it reads,
``From the Missouri Fraternal Order of Police. As the elected
representative of over 5,400 law enforcement officers across
the State of Missouri, I am urging your Committee to vote out
the nomination of Ronnie White for the open judicial seat in
the U.S. District Court for the Eastern District of Missouri.
We would then be hopeful the Senate confirms his nomination.
``We do not take such stances lightly. As front-line law
enforcement officers, we recognize the importance, the need to
have jurists such as Ronnie White, who have shown themselves to
be tough on crime, yet fair and impartial. As a former Justice
of the Missouri Court of Appeals and as a Chief Justice of the
Missouri Supreme Court, Ronnie White has proven that he has the
experience and requisite attributes to be a quality addition to
the U.S. District Court. We can think of no finer or more
worthy nominee.''
Judge White, this is a compelling letter from what may be
the largest law enforcement organization in your State.
Would you please reflect, as an attorney, a judge, a
justice on Missouri's Supreme Court and someone with life
experience, on the appropriate role of a judge when it comes to
dealing with issues of justice, dealing with law enforcement
and the protections of our Constitution?
Judge White. I believe the role of the judge, Senator, is
to apply the law to the facts and to exclude any other personal
opinions or prejudices he or she may have, and make the
judgment based on what is before them, nothing more, nothing
less.
Senator Durbin. Would you comment specifically on the issue
of the death penalty, which was raised in your previous
nomination hearing?
Judge White. Senator, during my term as a Supreme Court
judge in Missouri, I have written opinions affirming the death
sentence. I have concurred in opinions that affirmed the death
sentence, and I have also signed the appropriate letters to
carry out executions.
And I would follow the precedent of the Supreme Court in
the Eighth Circuit as it relates to the death penalty.
Senator Durbin. I thank you for that.
Mr. Birotte, I cannot recall a more positive introduction
by a Senator of a nominee than Senator Feinstein's introduction
of your nomination.
You have served on both sides of the table in the
courtroom. There are many people who, walking into a court,
look up at that judge and think, ``I do not have a chance. This
system is rigged against me. I am poor; I am a minority; I do
not have the best attorney; I do not have any wealth.'' What is
your message to that defendant looking up to the potential of a
Judge Birotte?
Mr. Birotte. Thank you, Senator Durbin.
I think the message that I would hope, if I were fortunate
enough to be confirmed, is that I would provide a courtroom
that was a forum where anyone, regardless of background,
ethnicity, wealth, what have you, would receive a fair and full
hearing in the courtroom, with a well-reasoned, well-researched
decision. And so for any individual, I would hope that they
would feel that they would get a fair hearing.
Having served on both sides of the aisle, if you will, as a
defense lawyer, prosecutor, civil practitioner and then as
inspector general, I like to think that that background and
experience would prepare me well for an opportunity to serve on
the bench and would afford individuals the sense that I would
be completely fair and they would get a fully hearing.
Senator Durbin. One of the things you undoubtedly
experienced, as many of us who practice have experienced, is
that some judges with lifetime appointments become imperial and
believe they are beyond reach of ordinary human beings.
How do you maintain the dignity of the bench and yet the
approachability of a system of justice?
Mr. Birotte. Well, I like to think that my background and
my reputation would speak to that issue. I have always
maintained the view that while I am certainly fortunate to have
the positions that I had, I am a human being and I am no
different than any other individual that I deal with.
I may have a title, per se, but I have a background and
experience that helps me relate to other human beings. And so I
would like to think that if I were fortunate enough to be
confirmed as a District Court judge, that would always remain
with me.
Those experiences representing individuals, indigent
defendants, prosecuting individuals, working within the Los
Angeles City and dealing with the various communities
throughout that very large city, I think would help keep me
grounded, if I were fortunate enough to be confirmed.
Senator Durbin. Thank you.
Mr. deGravelles--did I pronounce that correctly?
Mr. deGravelles. Yes, Senator.
Senator Durbin. After 6 years of French, I ought to get
something right.
[Laughter.]
I find it amazing in your background that you have taken 45
cases to trial by jury and participated in hundreds, overall.
You are truly a trial attorney, which is a rarity these days.
Most trial attorneys seldom have a trial, and you have had many
in the course of your life. You are engaged in litigation now,
as you approach this nomination.
And you have been before many judges and juries. What is
your observation on the role of the judge and the best judge in
that circumstance?
Mr. deGravelles. Well, there is certainly a fundamental
difference, as you know, Senator, from the role of the advocate
versus the role of the judge. The advocate has to zealously put
forth his client's position.
Bit when you become a judge, it is an entirely different
matter. You are there to serve everyone in the courtroom, both
sides of the courtroom. And I believe that integrity best
describes what a judge should be.
And by that, I mean not just fairness and not just honesty,
but approaching every issue, every case, with an open mind, no
preconceived agenda, no preconceived idea of who should win or
lose, and simply applying the binding precedent to the facts in
the case.
Senator Durbin. Would you say that most of your work in the
trial court has been as a plaintiff's attorney?
Mr. Birotte. Yes, it has, Senator.
Senator Durbin. And I note that you are currently involved
in litigation related to the 2010 Deepwater Horizon oil rig
fire that led to 11 deaths in the oil spill in the Gulf of
Mexico.
This litigation involves thousands of claimants seeking
compensation for injury, property damage and economic loss.
You have also represented the family, I believe, of one of
the men who was killed on the rig.
Mr. Birotte. Yes, sir.
Senator Durbin. Could you give us kind of a background or a
discussion on this case and your involvement?
Mr. Birotte. A very, very tragic case, of course, Senator.
It is the largest natural environmental disaster in the history
of this country, and it has led to, I think, one of the largest
pieces of litigation in trials in the history of our country.
So it is a tragedy, but out of that tragedy I think that
the United States District Court for the Eastern District of
Louisiana has done a magnificent job of taking an incredibly
complicated case, lots of different kinds of laws--as you just
mentioned, really hundreds of thousands of claimants, legions
of lawyers and so all sorts of issues, and has done a
magnificent job of being able to marshal all of that in a way
which I think is progressing forward
This particular judge vowed at the beginning of this case
that he was not going to allow this to be the Exxon Valdez,
which took some 20 years to get finally to the end of the
resolution.
So while this case is not close to being over yet, I think
it is really a model in terms of complex litigation and how a
judge can and should handle an extremely difficult and
complicated case.
Senator Durbin. Thanks.
Mr. Moss, you have got quite a background. But one of the
things in your background stands out, as you might expect,
representing the great city of Chicago, and that is your
clerkship for Supreme Court Justice John Paul Stevens.
Could you comment on that experience and what you learned?
Mr. Moss. Thanks for the question, Senator. It was an
absolutely wonderful experience, and I have to say that I have
been extremely fortunate in both of the clerkships that I had.
It is hard to imagine sort of a better path.
I was able to actually clerk on the District Court for
Pierre Leval, who was one of the great, at that time, District
Court judges in the country--he is currently on the Court of
Appeals--and got to see how the District Court worked, and
learned about that process from a real master in the process.
And then had the privilege to go on from having clerked on
the District Court and clerking for the Supreme Court for
Justice Stevens.
And I often tell people the story when I went down to
interview with Justice Stevens and I convinced myself going
into the interview that there was no way I was going to get the
job because it was the easiest way to deal with the stress.
And I remember going back on the train back to New York
afterwards and thinking to myself, ``I am really disappointed I
am not going to get this job, because I liked him so much. He
was such a decent human being.''
And I think that one of the things that I very much learned
from Justice Stevens that I think is very important just in
judges in general is the sense of humility, and that he is a
public servant, was a public servant, somebody who approached
every case and gave it his absolute best, not only to reach the
right decision in each case, but to explain why he reached that
decision in the case.
So it is hard to imagine someone who has been as lucky to
have clerked for two such wonderful judges.
Senator Durbin. Mr. Moss, last year you signed on to an
amicus brief in the case of U.S. versus Windsor. This was a
case in which the Supreme Court struck down the Defense of
Marriage Act.
Your brief, which was joined by several former solicitors
general and White House counsels, as well as other former
senior Department of Justice officials, argued that it was
proper for the Court to exercise jurisdiction to resolve a case
in which the executive branch enforces a law but refuses to
defend the law in court.
Since this was such an anomaly, this is so rare in our
history, tell us about that brief and your decision to sign it.
Mr. Moss. Thank you, Senator Durbin.
It is rare, where the executive branch decides to enforce a
law but not defend it. And it is appropriately rare in the
overwhelming majority of cases the Department of Justice does
decide to defend cases and will make whatever reasonable
arguments it can in defense of the constitutionality of a
statute.
The point that we were making in the brief, and as you
noted, it was a bipartisan group that signed on to the brief,
was that the Court should exercise jurisdiction in a case like
that. Because if the Court did not exercise jurisdiction, then
it left it to the executive branch alone to decide on the
constitutionality of the statute.
In our view, it was preferable to have a world in which it
was the courts that would ultimately have the authority, and
the Supreme Court that would ultimately have the authority, to
decide on the constitutionality of the statute.
Senator Durbin. Thank you.
Judge Rosenberg, you too have had an amazing career in the
practice of law. And I will not read through all of the things
that you have done, but I will note that while you were working
in private practice at several major law firms, at one point
before assuming the bench in Florida, you served as a mediator.
There seems to be a growing trend in American jurisprudence
toward mediation and arbitration as an alternative to
litigation.
What does that say about our system of justice, and those
who would like to avail themselves of it but think there are
better alternatives?
Judge Rosenberg. Sure. Thank you, Senator Durbin, for the
question and thank you for asking me about a topic, actually,
that I feel so strongly about.
Not only was I a certified mediator, but actually began a
mediation company in Palm Beach County that had about 25 or 28
mediators who worked as independent contractors--many of whom,
by the way, were retired judges who were serving as mediators.
And that also is a common trend. Many judges then go on to
mediate.
In the State of Florida, mediation is a requirement, so no
case actually can go to trial in the State before it goes to
mediation. And that too has become a growing trend throughout
the country.
It does not speak less of our judicial system, but what it
does show is that there are meaningful alternative ways to
resolve disputes. I think anyone who has been in a courtroom,
whether as a judge or as a seasoned trial attorney or U.S.
attorney, knows the stresses, the burdens, the length of time,
the cost, the toll that litigation can take on individuals and
entities.
And to have an alternative like mediation where parties can
come together, where communication channels are open that
otherwise perhaps have not been opened when litigation becomes
very adversarial, is a very, very important process and
oftentimes leads to resolution with less cost, with less
stress, with less burden on the courts.
Certain cases can only be resolved in court. And if we can
find a way in which more cases can be resolved through
mediation--which is a voluntary process, so the parties have to
want to do it; they have to go to mediation, but no one is
compelling them to resolve--but they begin to see things about
their case in ways that perhaps they had not thought about
before. And they begin to communicate with the other side,
whether directly or through the mediator; that is a very, very
important component of the entire litigation process, and I
firmly believe in it.
Senator Durbin. So let me ask you about the other side of
that coin, the arbitration process, where many people may not
even realize that they have signed away, in many contractual
relationships, their right to go to court.
And obviously there are some who believe that it is to
their advantage not to put a question before a judge or a jury.
What do you think of that aspect?
Judge Rosenberg. I think that that is a very good question,
and I thank you for that.
I have been in the position, both in my practice of law as
an employment lawyer, many contracts that are entered into have
arbitration provisions. So I am well familiar with how a
provision is put into a contract and to whose advantage one
might perceive that to be.
And also there has been a lot of litigation, even in State
court, on the enforceability of arbitration provisions. And
many times arbitration provisions are not upheld, because they
are found to be unconscionable. They are either substantively
or procedurally found to be deficient.
And so there are checks and balances, I believe, in place
to ensure that there is an equal playing field so that when one
enters into a contractual provision to sign away, if you will,
their important rights to have a day in court--and that is
everyone's right--that they do so knowingly, voluntarily and
intelligently.
Senator Durbin. Justice White, many lawyers are critical of
judges for taking way too long to reach a decision, and that is
what leads them to alternatives, in looking for mediation or
some other approach.
I do not know if that reflects the caseload. Maybe it does,
in some cases that the judges face, the nature of the judge's
decision process, or just fear of taking on something
controversial. What has been your experience?
Judge White. It----
Judge Rosenberg. Oh, I am sorry. Was that directed to me?
Senator Durbin. Judge--I will come back to you, but Justice
White. And then I will come back to you, Judge Rosenberg.
Judge Rosenberg. All right.
Judge White. My experience, Senator, has been all of the
items you just listed go into the factoring of why judges take
so long to rule.
But it would appear to me that if a judge is actively
involved in the case early on, it could lessen some of that at
the end, because they would have monitored the process of the
case throughout the time it was in their court docket system.
So I think if a judge is actively involved, has rule 16
hearings, watch out for what is happening on case management,
roll up his or her sleeves and decide motions immediately or
shortly after they are filed, that those cases can proceed and
get through to trial or some kind of resolution.
Senator Durbin. Judge Rosenberg?
Judge Rosenberg. Sorry for jumping in.
I think that access to courts is so vitally important. And
encompassed in access to court is the timeliness of a court's
ruling. A judge is there to not only make the substantive
ruling, but to manage a docket and to ensure that cases move
along.
In the State court, our caseload is very high. So I have
been in a civil division in Florida that has had upwards of 900
cases; a foreclosure division that has had 15,000 cases; and
now a criminal division that has about 900 cases, with 200 new
cases coming in every single week.
And so managing the caseload is a very, very important job,
I believe, of a judge. And a judge needs to know his or her
cases. And you can do that in many ways, calling case
management conferences, issuing a scheduling order.
Being involved in the case and knowing that the case needs
to move along in a timely fashion is, I think, very, very
important so that people who need to have their matters heard
do have them heard within a reasonable time period.
Senator Durbin. Mr. Birotte, it was about 30 years ago that
the Congress and President decided to impose mandatory minimums
in the sentencing process in Federal courts. And one could
argue that as a result of that, the Federal prison population
has increased 500 percent in the last 30 years, leading to the
point where the United States has more people in prison per
capita than any nation on Earth.
We are reviewing that now. In fact, this Judiciary
Committee recently took up a bill that I have worked on with my
Republican colleagues on the issue of mandatory minimums.
You faced this issue as a defense attorney in some fashion,
but you certainly faced it as a U.S. Attorney and now may face
it as a member of the Court. What are your thoughts?
Mr. Birotte. Well, obviously, as you mentioned, you have
been proactive in this. The Attorney General has spoken on this
issue. As an employee of the Department of Justice, our job is
to enforce and act out the will of the Attorney General.
As a District Court judge, my role would be to follow the
precedent, whatever the rule of law is at the time. If the
sentencing guidelines change or if there is a reduction in
those, I would apply those and I would make sure that I stay
consistent in that regard.
Senator Durbin. So I am asking you to reflect on your
experience as U.S. Attorney, because you were at a different
point in the process, and you had mandatory minimums on your
side as a prosecutor.
We have in Illinois something known as the Illinois
Innocence Project, which has successfully found many cases
where people were wrongly convicted. And many times they pled
to crimes that they did not commit. They feared going in to a
courtroom, sometimes a black defendant facing an all-white
jury, sometimes facing a mandatory minimum that was awful in
terms of its length and duration.
Reflect on that as U.S. Attorney in how you view that
issue.
Mr. Birotte. As U.S. Attorney, we have been very proactive
in looking precisely at that issue. That is why the Attorney
General has issued his Smart on Crime Initiative. In his
remarks outlining the Initiative, he points to a program that
we have in our district.
It is called the Conviction and Sentencing Alternative
Program, where we look at individual cases, individual
defendants and their individual circumstances and, where
appropriate, we determine if there were some other outlying
circumstances that led them to this path.
So, for example, if someone has a drug or narcotics or
alcohol addiction, we can get them into a program that will
help deal with those issues and perhaps, if they complete the
program, will either rid of that conviction or reduce the
sentence in that program.
In fact, I just spoke at our fourth graduation of that
program. It is something that I have been committed to as U.S.
Attorney, and I have always thought that it is important to
look at our sentencing system to make sure that we are
utilizing it in cases that have the biggest impact on the most
deserving defendants.
Senator Durbin. Mr. Moss, one of the things we are finding,
more at the State level than Federal, are special courts--
veterans' courts, drug courts. And what they are basically
trying to do is to find some other avenue of justice that has a
better outcome and really gives a person a better chance than
they might have in the ordinary criminal justice system as we
know it.
What are your thoughts on that?
Mr. Moss. Thank you, Senator.
That is not an issue that I have focused on in the past. I
do think that it is important that, really more as a matter of
policy than as a judge, that people analyze how best to
dispense justice and look for the opportunities to do so.
As a judge, though, of course, the obligation will be to
simply decide the cases that fall within your jurisdiction, as
has been defined by the Congress. And if I am fortunate enough
to be confirmed, that is what I would do.
Senator Durbin. Thank you.
Mr. deGravelles, I want to return to that issue of
mediation and arbitration, because I think that might be
something of interest in your practice.
Mr. deGravelles. Yes, it is, Senator. All experienced trial
lawyers have seen, over the years, an evolution in the
mediation realm. And when I started practicing law, it was the
old-fashioned way of writing a letter to the adjustor, picking
up the phone and negotiations went on and on and on endlessly.
So while I am a trial lawyer, I also recognize the value of
mediations. And in the context of a United States District
Court judge, I think some of these judges have been very wise
to assign to the magistrates in their courts the duty to
encourage settlement, to involve the parties in settlement
discussions and mediations. Because in terms of case
management, that is oftentimes a very fair and a very efficient
way to resolve cases.
So I think mediation is very much in vogue and, I think,
rightly so.
Senator Durbin. The last question I will have relates to
community service and pro bono work.
As a profession, lawyers, I think, have a special
responsibility in that regard. And I would like each of you, if
you would reflect for just a moment on something that you have
been involved in, a case or a cause involving pro bono work in
your career.
Mr. White.
Judge White. Over the course of my career, I have been
involved in a number of pro bono actions. Right now, I am a
member of the Guardian Angels Settlement Association Board in
St. Louis, which is a social service agency that helps
underprivileged children get started in life with housing,
education and food and stuff like that.
I have also participated as a coach of Little League
baseball, football, soccer, and I think that is important.
So that is what I have done in my career.
Senator Durbin. Judge Rosenberg.
Judge Rosenberg. I, for the past seven or 8 years, have not
been able to sit on boards and to be active in the community in
the same ways that I was before I became a judge, because of
the ethical constraints placed on a judge.
Prior to becoming a judge, some of the endeavors that I was
most interested and active in were a program called the
Children in Crisis, to help children in need of services. The
Cystic Fibrosis Foundation, a very close friend of mine has
died of Cystic Fibrosis and I have devoted a great deal of my
time, before I became a judge, to starting an organization in
memory of him. So those are some of the activities prior to
becoming a judge that have been important to me in my
community, as well as my children's schools and their
activities as well, of course.
Senator Durbin. Mr. Moss.
Mr. Moss. Thank you, Senator Durbin.
Over the course of my career, I have been involved in a
broad range of pro bono matters, both involving civil law as
well as criminal law.
One of the observations I would have about pro bono, if it
is someone who is practicing in a law firm, is that it is not
only of a great service to the community, but it actually is a
great service to the younger lawyers in the law firm, to give
them the opportunity to obtain experiences that they might not
be able to obtain in very large, complex, paying cases. So I
think that is another important aspect of pro bono work.
Senator Durbin. Mr. deGravelles.
Mr. deGravelles. Yes, Senator, as Senator Landrieu
mentioned in the introduction, following Katrina, Hurricane
Katrina, we had many, many lawyers whose homes were destroyed,
whose offices were destroyed, whose files were destroyed. They
were entirely displaced and looking really to survive
professionally.
And so I headed a committee at the Louisiana Association of
Justice to assist in finding places for these folks to live,
finding places for them to practice and helping to rebuild
their practices and, really, in the circumstance of their lives
as well.
In addition, I volunteered to be a pro bono attorney in a
post-conviction proceeding for a death row inmate at Angola,
Allen Robertson, and for six or 7 years participated actively
in his post-conviction proceedings. In fact, we were encouraged
to do it as civil lawyers because there was a lack of public
defender-type resources to really do the kind of job that these
folks deserved.
Senator Durbin. I might just add, before I ask Mr. Birotte
the same question, we recently had a hearing on segregation and
solitary confinement. One of the witnesses had been on death
row at Angola for 15 years before he was released and
exonerated for the charges.
He would not be alive today, were it not for his attorney,
who begged him not to give up at the very end. And now he is
back leading a life. So it can make a significant difference.
Mr. Birotte.
Mr. Birotte. Senator Durbin, as Inspector General and as
United States Attorney, I have been limited somewhat in their
traditional pro bono activities. But what we have tried to do,
certainly in my time as U.S. Attorney, is to make sure and
translate that, if you will, to a very extensive community
outreach campaign.
We have hosted a host of summits and seminars to educate
the residents of our district on the various crimes, scams, et
cetera, to educate them.
But one program that I think was innovative in our office
that we did to connect with our community is our participation
in what is known as a Summer Night Lights program. Every summer
the Los Angeles Unified School District--or the city of Los
Angeles, I should say--opens parks.
The statistics have shown that crime spikes during the
summer months between Thursdays and Sundays, and the city took
a leadership role in opening parks from 6 p.m. till midnight on
those days to provide a forum where the community could engage
and have a safe venue.
I participated in that program and got our office to
participate in that program over the last several years, and we
have adopted a park in South Los Angeles where Assistant United
States Attorneys and the staff of our office go out there every
Thursday night, cook hamburgers, hot dogs, engage in reading
circles, face painting.
In fact, this past summer we started a tennis clinic, and
it was so successful that every Thursday evening we had lines
of more than 30 or so young folks and adults wanting to learn
how to play tennis. And it allowed us an opportunity to connect
with the community in a way that they were not used to.
In fact, I often tell the story of being out there during
the summer months and speaking with individuals. And we do not
really fly the flag, if you will, and tell folks what we do.
But someone asked, ``What do you do?'' And I said, ``I am a
lawyer.'' ``Where do you work?'' ``At the Department of
Justice.'' And his reaction was, ``I thought all you all do is
put us in jail.'' And my response was, ``We do do that, and we
do it well.'' [Laughter.] ``But we also believe in the
importance of engaging in our community so that they see us in
a different light.''
Senator Durbin. Thanks.
Thanks to the nominees and your family and friends in
attendance today. We will keep the record open for a week. You
may have a question come your way, and if you have any other
additional letters or statements and such, they will be entered
in the record during that period.
I thank you all for being here today, and this Committee
will stand adjourned.
[Whereupon, at 11:12 a.m., the Committee was adjourned.]
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