[Senate Hearing 113-515, Part 9]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 9
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
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JUNE 4, JUNE 24, JULY 24, and JULY 29, 2014
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Serial No. J-113-1
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Part 9
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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JUNE 4, 2014, 10:02 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 2
Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont........................................................ 1
prepared statement........................................... 185
STATEMENTS OF THE NOMINEES
Witness List..................................................... 13
Crawford, Hon. Geoffrey W., Nominee to be U.S. District Judge for
the
District of Vermont............................................ 3
biographical information..................................... 14
Firestone, Hon. Nancy B., Nominee to be Judge of the U.S. Court
of Federal Claims.............................................. 4
biographical information..................................... 64
Griggsby, Lydia Kay, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 4
biographical information..................................... 121
Halkowski, Thomas L., Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 4
biographical information..................................... 154
QUESTIONS
Questions submitted to Hon. Geoffrey W. Crawford by Senator
Grassley....................................................... 186
Questions submitted to Hon. Nancy B. Firestone by Senator
Grassley....................................................... 190
Questions submitted to Lydia Kay Griggsby by Senator Grassley.... 191
Questions submitted to Thomas L. Halkowski by Senator Grassley... 192
ANSWERS
Responses of Hon. Geoffrey W. Crawford to questions submitted by
Senator Grassley............................................... 193
Responses of Hon. Nancy B. Firestone to questions submitted by
Senator Grassley............................................... 200
Responses of Lydia Kay Griggsby to questions submitted by Senator
Grassley....................................................... 202
Responses of Thomas L. Halkowski to questions submitted by
Senator Grassley............................................... 204
LETTER RECEIVED WITH REGARD TO HON. GEOFFREY W. CRAWFORD
American Bar Association, May 21, 2014, letter................... 207
C O N T E N T S
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JUNE 24, 2014, 10:18 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement........................................... 500
Schumer, Hon. Chuck, a U.S. Senator from the State of New York
presenting Brenda K. Sannes, Nominee to be District Judge for
the Northern District of New York.............................. 215
PRESENTERS
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin
presenting Hon. Pamela Pepper, Nominee to be District Judge for
the Eastern District of Wisconsin.............................. 214
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland
presenting Pamela Harris, Nominee to be U.S. Circuit Judge for
the Fourth Circuit............................................. 211
Johnson, Hon. Ron, a U.S. Senator from the State of Wisconsin
presenting Hon. Pamela Pepper, Nominee to be District Judge for
the Eastern District of Wisconsin.............................. 213
Mikulski, Hon. Barbara A., a U.S. Senator from the State of
Maryland
presenting Pamela Harris, Nominee to be U.S. Circuit Judge for
the Fourth Circuit............................................. 209
STATEMENTS OF THE NOMINEES
Witness List..................................................... 233
Harris, Pamela, Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 218
biographical information..................................... 234
McCarthy, Patricia M., Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 228
biographical information..................................... 420
Pepper, Hon. Pamela, Nominee to be U.S. District Judge for the
Eastern District of Wisconsin.................................. 226
biographical information..................................... 302
Sannes, Brenda K., Nominee to be U.S. District Judge for the
Northern District of New York.................................. 227
biographical information..................................... 385
Somers, Hon. Jeri Kaylene, Nominee to be Judge of the U.S. Court
of Federal Claims.............................................. 229
biographical information..................................... 455
QUESTIONS
Questions submitted to Pamela Harris, Hon. Pamela Pepper, and
Brenda K. Sannes by Senator Cruz............................... 530
Questions submitted to Pamela Harris by:
Senator Grassley............................................. 503
Follow-up questions submitted by Senator Grassley............ 528
Questions submitted to Patricia M. McCarthy by Senator Grassley.. 526
Questions submitted to Hon. Pamela Pepper by Senator Grassley.... 518
Questions submitted to Brenda K. Sannes by Senator Grassley...... 522
Questions submitted to Hon. Jeri Kaylene Somers by Senator
Grassley....................................................... 527
ANSWERS
Responses of Pamela Harris to questions submitted by:
Senator Cruz................................................. 556
Senator Grassley............................................. 531
Follow-up questions submitted by Senator Grassley............ 559
Responses of Patricia M. McCarthy to questions submitted by
Senator Grassley............................................... 581
Responses of Hon. Pamela Pepper to questions submitted by:
Senator Cruz................................................. 569
Senator Grassley............................................. 562
Responses of Brenda K. Sannes to questions submitted by:
Senator Cruz................................................. 579
Senator Grassley............................................. 571
Responses of Hon. Jeri Kaylene Somers to questions submitted by
Senator Grassley............................................... 585
LETTERS RECEIVED WITH REGARD TO PAMELA HARRIS
Adler, Amy, et al., June 20, 2014, letter........................ 590
American Bar Association, May 9, 2014, letter.................... 588
Culvahouse, Arthur B., Jr., et al., June 23, 2014, letter........ 603
Garre, Gregory G., et al., June 20, 2014, letter................. 599
Leadership Conference on Civil and Human Rights, The, June 23,
2014, letter................................................... 597
National Women's Law Center (NWLC), June 23, 2014, letter........ 607
Rolfe, Harold E., June 27, 2014, letter.......................... 605
LETTER RECEIVED WITH REGARD TO HON. PAMELA PEPPER
American Bar Association, May 2, 2014, letter.................... 609
LETTER RECEIVED WITH REGARD TO BRENDA K. SANNES
American Bar Association, May 9, 2014, letter.................... 611
C O N T E N T S
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JULY 24, 2014, 10:15 A.M.
STATEMENT OF COMMITTEE MEMBER
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 621
PRESENTERS
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania presenting Wendy Beetlestone, Nominee to be
District Judge for the Eastern District of Pennsylvania; Mark
A. Kearney, Nominee to be District Judge for the Eastern
District of Pennsylvania; Joseph F. Leeson, Jr., Nominee to be
District Judge for the Eastern District of Pennsylvania; and
Gerald J. Pappert, Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 617
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri
presenting Stephen R. Bough, Nominee to be District Judge for
the Western District of Missouri............................... 614
Toomey, Hon. Patrick J., a U.S. Senator from the State of
Pennsylvania presenting Wendy Beetlestone, Nominee to be
District Judge for the Eastern District of Pennsylvania; Mark
A. Kearney, Nominee to be District Judge for the Eastern
District of Pennsylvania; Joseph F. Leeson, Jr., Nominee to be
District Judge for the Eastern District of Pennsylvania; and
Gerald J. Pappert, Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 615
STATEMENTS OF THE NOMINEES
Witness List..................................................... 633
Beetlestone, Wendy, Nominee to be U.S. District Judge for the
Eastern
District of Pennsylvania....................................... 623
biographical information..................................... 725
Bonilla, Armando Omar, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 623
biographical information..................................... 687
Bough, Stephen R., Nominee to be U.S. District Judge for the
Western
District of Missouri........................................... 622
biographical information..................................... 634
Kearney, Mark A., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 624
biographical information..................................... 807
Leeson, Joseph F., Jr., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 625
biographical information..................................... 856
Pappert, Gerald J., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 626
biographical information..................................... 909
QUESTIONS
Questions submitted to Wendy Beetlestone, Stephen R. Bough, Mark
A. Kearney, Joseph F. Leeson, Jr., and Gerald J. Pappert by
Senator Cruz................................................... 1006
Questions submitted to Wendy Beetlestone by Senator Grassley..... 987
Questions submitted to Armando Omar Bonilla by Senator Grassley.. 986
Questions submitted to Stephen R. Bough by:
Senator Grassley............................................. 980
Follow-up questions submitted by Senator Grassley............ 1003
Follow-up questions II submitted by Senator Grassley......... 1005
Questions submitted to Mark A. Kearney by Senator Grassley....... 991
Questions submitted to Joseph F. Leeson, Jr., by:
Senator Feinstein............................................ 1009
Senator Franken.............................................. 1007
Senator Grassley............................................. 995
Questions submitted to Gerald J. Pappert by Senator Grassley..... 999
ANSWERS
Responses of Wendy Beetlestone to questions submitted by:
Senator Cruz................................................. 1155
Senator Grassley............................................. 1148
Responses of Armando Omar Bonilla to questions submitted by
Senator Grassley............................................... 1144
Responses of Stephen R. Bough to questions submitted by:
Senator Cruz................................................. 1030
Senator Grassley............................................. 1011
Responses to follow-up questions submitted by Senator
Grassley................................................... 1022
Responses to follow-up questions II submitted by Senator
Grassley................................................... 1028
attachment................................................... 1033
Responses of Mark A. Kearney to questions submitted by:
Senator Cruz................................................. 1165
Senator Grassley............................................. 1157
Responses of Joseph F. Leeson, Jr., to questions submitted by:
Senator Cruz................................................. 1179
Senator Feinstein............................................ 1182
Senator Franken.............................................. 1168
Senator Grassley............................................. 1172
Responses of Gerald J. Pappert to questions submitted by:
Senator Cruz................................................. 1193
Senator Grassley............................................. 1185
LETTER RECEIVED WITH REGARD TO WENDY BEETLESTONE
American Bar Association, June 16, 2014, letter.................. 1218
LETTERS RECEIVED WITH REGARD TO STEPHEN R. BOUGH
Adams, Robert T., October 21, 2014, letters...................... 1206
American Bar Association, January 17, 2014, letter............... 1196
Bartle, Matthew V., October 16, 2014, letter..................... 1212
Bradshaw, Jean Paul, II, October 16, 2014, letter................ 1213
Kilroy, John M., Jr., October 20, 2014, letters.................. 1198
Mullen, John L., October 17, 2014, letter........................ 1216
Sanders, William H., Jr., October 16, 2014, letter............... 1214
Watson, Maurice A., November 12, 2014, letter.................... 1210
LETTER RECEIVED WITH REGARD TO MARK A. KEARNEY
American Bar Association, June 16, 2014, letter.................. 1220
LETTER RECEIVED WITH REGARD TO JOSEPH F. LEESON, JR.
American Bar Association, June 16, 2014, letter.................. 1222
LETTERS RECEIVED WITH REGARD TO GERALD J. PAPPERT
American Bar Association, June 16, 2014, letter.................. 1224
Coyne, Gerald J., July 22, 2014, letter.......................... 1227
Sorrell, William H., June 19, 2014, letter....................... 1226
C O N T E N T S
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JULY 29, 2014, 9:41 A.M.
PRESENTERS
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey
presenting Madeline Cox Arleo, Nominee to be District Judge for
the
District of New Jersey......................................... 1232
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut presenting Victor Allen Bolden, Nominee to be
District Judge for the
District of Connecticut........................................ 1230
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky
presenting David J. Hale, Nominee to be District Judge for the
Western District of Kentucky, and Gregory N. Stivers, Nominee
to be District Judge for the Western District of Kentucky...... 1229
STATEMENTS OF THE NOMINEES
Witness List..................................................... 1245
Arleo, Madeline Cox, Nominee to be U.S. District Judge for the
District of New Jersey......................................... 1234
biographical information..................................... 1246
Bolden, Victor Allen, Nominee to be U.S. District Judge for the
District of Connecticut........................................ 1235
biographical information..................................... 1300
Hale, David J., Nominee to be U.S. District Judge for the Western
District of Kentucky........................................... 1236
biographical information..................................... 1390
Stivers, Gregory N., Nominee to be U.S. District Judge for the
Western District of Kentucky................................... 1236
biographical information..................................... 1444
QUESTIONS
Questions submitted to all of the Nominees by Senator Cruz....... 1499
Questions submitted to Madeline Cox Arleo by:
Senator Grassley............................................. 1481
Senator Lee.................................................. 1500
Questions submitted to Victor Allen Bolden by:
Senator Grassley............................................. 1485
Senator Lee.................................................. 1501
Questions submitted to David J. Hale by:
Senator Grassley............................................. 1491
Senator Lee.................................................. 1503
Questions submitted to Gregory N. Stivers by:
Senator Grassley............................................. 1495
Senator Lee.................................................. 1504
ANSWERS
Responses of Madeline Cox Arleo to questions submitted by:
Senator Cruz................................................. 1512
Senator Grassley............................................. 1505
Senator Lee.................................................. 1514
Responses of Victor Allen Bolden to questions submitted by:
Senator Cruz................................................. 1525
Senator Grassley............................................. 1515
Senator Lee.................................................. 1528
Responses of David J. Hale to questions submitted by:
Senator Cruz................................................. 1539
Senator Grassley............................................. 1533
Senator Lee.................................................. 1542
Responses of Gregory N. Stivers to questions submitted by:
Senator Cruz................................................. 1550
Senator Grassley............................................. 1544
Senator Lee.................................................. 1552
LETTER RECEIVED WITH REGARD TO MADELINE COX ARLEO
American Bar Association, June 27, 2014, letter.................. 1553
LETTERS RECEIVED WITH REGARD TO VICTOR ALLEN BOLDEN
American Bar Association, June 16, 2014, letter.................. 1555
Barnett, John W., June 18, 2014, letter.......................... 1557
Dubois, Mark A., July 25, 2014, letter........................... 1558
Esserman, Dean M., July 29, 2014, letter......................... 1562
Fisher, Timothy S., July 25, 2014, letter........................ 1568
Hibson, Emmet P., Jr., Esq., July 28, 2014, letter............... 1560
Hinton, Robert C., July 28, 2014, letter......................... 1566
Malech, Steven B., July 28, 2014, letter......................... 1567
Pepe, Louis R., July 28, 2014, letter............................ 1559
Prout, William H., Jr., July 25, 2014, letter.................... 1573
Ribeiro, G. Evelise, July 28, 2014, letter....................... 1561
Ricci, Frank, Lieutenant, July 25, 2014, letters................. 1564
Saxton, Brad, July 28, 2014, letter.............................. 1569
Schratz, Lorraine M., M.D., July 29, 2014, letter................ 1563
Vitale, Wayne A., M.B.A./S.D.B.L., July 26, 2014, letter......... 1571
LETTER RECEIVED WITH REGARD TO DAVID J. HALE
American Bar Association, June 20, 2014, letter.................. 1575
LETTER RECEIVED WITH REGARD TO GREGORY N. STIVERS
American Bar Association, June 20, 2014, letter.................. 1577
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky,
prepared statement with regard to David J. Hale, Nominee to
be District Judge for the Western District of Kentucky, and
Gregory N. Stivers, Nominee to be District Judge for the
Western District of Kentucky............................... 1579
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of
Kentucky,
prepared statement with regard to David J. Hale, Nominee to
be District Judge for the Western District of Kentucky..... 1582
ALPHABETICAL LIST OF NOMINEES
Arleo, Madeline Cox, Nominee to be U.S. District Judge for the
District of New Jersey......................................... 1234
Beetlestone, Wendy, Nominee to be U.S. District Judge for the
Eastern
District of Pennsylvania....................................... 623
Bolden, Victor Allen, Nominee to be U.S. District Judge for the
District of Connecticut........................................ 1235
Bonilla, Armando Omar, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 623
Bough, Stephen R., Nominee to be U.S. District Judge for the
Western
District of Missouri........................................... 622
Crawford, Hon. Geoffrey W., Nominee to be U.S. District Judge for
the
District of Vermont............................................ 3
Firestone, Hon. Nancy B., Nominee to be Judge of the U.S. Court
of Federal Claims.............................................. 4
Griggsby, Lydia Kay, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 4
Hale, David J., Nominee to be U.S. District Judge for the Western
District of Kentucky........................................... 1236
Halkowski, Thomas L., Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 4
Harris, Pamela, Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 218
Kearney, Mark A., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 624
Leeson, Joseph F., Jr., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 625
McCarthy, Patricia M., Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 228
Pappert, Gerald J., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 626
Pepper, Hon. Pamela, Nominee to be U.S. District Judge for the
Eastern District of Wisconsin.................................. 226
Sannes, Brenda K., Nominee to be U.S. District Judge for the
Northern District of New York.................................. 227
Somers, Hon. Jeri Kaylene, Nominee to be Judge of the U.S. Court
of Federal Claims.............................................. 229
Stivers, Gregory N., Nominee to be U.S. District Judge for the
Western District of Kentucky................................... 1236
NOMINATIONS OF HON. GEOFFREY W. CRAWFORD, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF VERMONT; HON. NANCY B. FIRESTONE, NOMINEE TO BE
JUDGE OF THE COURT OF FEDERAL CLAIMS; LYDIA KAY GRIGGSBY, NOMINEE TO BE
JUDGE OF THE COURT OF FEDERAL CLAIMS; AND THOMAS L. HALKOWSKI, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
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WEDNESDAY, JUNE 4, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Well, good morning. Today we are going to
hear from four very well qualified judicial nominees--one to
the district court in the State of Vermont, without being
overly parochial, and three to the U.S. Court of Federal
Claims.
I am happy to welcome Vermont Supreme Court Justice
Geoffrey Crawford. Justice Crawford has significant criminal
and civil experience. He was a Vermont trial court judge for 11
years; he recently became an Associate Justice of the Vermont
Supreme Court. In fact, the Governor's comment to me when I
recommended Justice Crawford to the President was, ``Hey, you
are taking one of our best Supreme Court Justices.'' He
formerly was a partner in a Burlington law firm. And I am glad
to see Jerry O'Neill here in the audience. Justice Crawford
earned his B.A., cum laude, from Yale and his J.D., cum laude,
from Harvard Law School.
I recommended Justice Crawford to President Obama after he
was vetted and recommended to me by Vermont's nonpartisan
Judicial Nominating Commission. I did not know him before this
process, but I read the report of those who did the work of the
Nominating Commission, and then I met for an extended time,
Kristine Lucius, Chief Counsel, and myself, and John Tracy, the
head of the Vermont office, with Justice Crawford, and I was
struck by his brilliance, his compassion, his humility, and his
devotion to his family. He has earned a stellar reputation in
Vermont's legal community and from those who appeared before
him as a careful jurist who understands the effects that legal
rulings have on people's lives. I have no doubt that once
confirmed he will bring the same understanding and impartiality
to the Federal judiciary in Vermont. We are just one district,
but he will be sitting in Rutland, Vermont.
Then we have three nominees to serve on the Court of
Federal Claims: Judge Nancy Firestone, who is well known to the
most important member of this Committee, Kristine Lucius;
Thomas Halkowski; and Lydia Griggsby, who has served on my
Judiciary Committee staff since 2006 and currently serves as my
Chief Counsel for Privacy and Information Policy. I recommended
Lydia to the President for the position because I know her
intellect and good judgment will make her a fine judge. And
that is what I told the President. Before Lydia came to work
with me on the Committee, she served in the Justice Department.
She tried several matters before the Court of Federal Claims. I
did tell her father this morning that the one reason I might
vote against her is to keep her here on the Committee. But I
will proudly vote for her.
Judge Nancy Firestone has served with distinction on the
U.S. Court of Federal Claims since 1998, and I am sure she will
continue that with another 15-year term.
And Mr. Halkowski is a principal at Fish and Richardson;
that is a law firm specializing in intellectual property law in
Wilmington, Delaware. He started off clerking on the Court to
which he is nominated for Judge Roger Andewelt. He also clerked
for then-Chief Judge Helen Nies on the Federal Circuit, so once
he is confirmed, his career will have gone full circle.
I welcome you all, but I will turn first, of course, to my
friend and colleague Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. First, I congratulate today's nominees,
and I know your families and friends that are here are proud of
you. And, of course, professionally it is an important
milestone in all of your careers, and so I welcome you. I will
not go into the details he did, the Chairman did, but I can
associate myself with those remarks and point out that I know
today's hearing is of particular significance for the Chairman
because I have had an opportunity to have a lot of Iowans in
the same place that you are from Vermont for the Chairman. And
so it is important for the Chairman as well as it is for you.
Not only do we have a nominee for the District of Vermont,
but we also have a nominee for the Court of Federal Claims, Ms.
Griggsby, whom we all know very well. She has been a counsel on
the Chairman's staff, and just like I have people leave my
staff, he is going to miss you as well when you go to this very
important position you have been appointed to. I know that you
joined the Committee staff after being both in the Department
of Justice as well as the U.S. Attorney's Office.
We know Lydia well. She has worked on many important
Committee matters, including the Electronic Communications
Privacy Act, the Freedom of Information Act, and other privacy
issues. Through that work Lydia has a well-earned reputation of
being diligent, very thoughtful, and professional.
Ms. Griggsby, you are now in a seat that several of your
colleagues have occupied before you, fielding questions from
all of us.
So once again, even though I only spoke about two of the
four, congratulations to all of you.
Chairman Leahy. Thank you very much.
Please, all four of you, stand and raise your right hand.
Do you solemnly swear that the testimony you are about to give
in this matter will be the truth, the whole truth, and nothing
but the truth, so help you God?
Justice Crawford. I do.
Judge Firestone. I do.
Ms. Griggsby. I do.
Mr. Halkowski. I do.
Chairman Leahy. Let the record show that all responded in
the affirmative.
We will begin with you, Justice Crawford. If you have any
statement you would like to make, please go ahead, and you may
introduce your family.
STATEMENT OF HON. GEOFFREY W. CRAWFORD, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF VERMONT
Justice Crawford. Yes, Senator, I would like to thank the
Members of the Committee for their time and attention. I would
like to thank you in particular for the trust that you have
placed in me. And I would like to introduce my family, if I
might.
My wife, Leslie, is here, and my children: my daughter,
Jocelyn, and her son, Matthew; and her husband and older
daughter, Evelyn, who is 3, are home in Wisconsin. My son
Tobias and my son Elliott; and my daughter-in-law, Christine,
and her son, James; and my son, Nicholas.
And with me also is my dear friend and former law partner,
Jerry O'Neill.
Chairman Leahy. Who I might add has been a friend of mine
for decades, also.
[The biographical information of Justice Crawford appears
as a submission for the record.]
Chairman Leahy. I would note to the--and I am not trying to
get rid of anybody from here, but please feel free with young
children, if you need to take a break, you can go right
straight through that door, and there is a table there. But I
was delighted to meet all of them before.
That was not a hint.
[Laughter.]
Chairman Leahy. My wife and I just had a chance to spend a
week with two of our five grandchildren, and I enjoyed every
single second of it, even though at times the decibel level was
such that the satellites went out of orbit.
[Laughter.]
Chairman Leahy. Judge Firestone, did you----
STATEMENT OF HON. NANCY B. FIRESTONE, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Judge Firestone. Thank you. I want to thank the Committee
and the President for this honor, and I would like to just
quickly introduce the staff that makes my work possible as a
judge: my judicial assistant, Diana Perez-Kidwell; Richard
Hagerman and Steven Reilly, who are my two law clerks. It is my
pleasure to have them here with me today.
[The biographical information of Judge Firestone appears as
a submission for the record.]
Chairman Leahy. Thank you.
Ms. Griggsby, did you wish to say something and introduce
family members?
STATEMENT OF LYDIA KAY GRIGGSBY, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Ms. Griggsby. I would. Thank you very much, Chairman Leahy,
and thank you for your very gracious and kind introduction.
Thank you, Ranking Member Grassley, as well for your kind
introduction and words.
I am very honored and blessed to have my father with me
today, Professor William L. Griggsby, from Pikesville,
Maryland, seated behind me. My mother, the late Mary Kate
Rainier Griggsby, passed away in 2011. She is with us in spirit
today, and I want to honor her as well.
I am also joined by many mentors and friends and
colleagues. I would like to acknowledge Dr. Wyneva Johnson--
please stand--seated behind me, a long-time mentor and attorney
with the Department of Justice.
I also have several friends farther back in the audience,
Delta Sigma Theta sorority sisters, club sisters, and many
other mentors. I thank them all for their love and support. And
many other family members who are watching via the Webcast
today across the country.
[The biographical information of Ms. Griggsby appears as a
submission for the record.]
Chairman Leahy. I remember the sadness of everybody when
your mother passed. I remember that time. And I have a feeling
she is watching.
Mr. Halkowski.
STATEMENT OF THOMAS L. HALKOWSKI, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Mr. Halkowski. Thank you, and thank you to the President
for this truly humbling honor of being nominated to serve on
the U.S. Court of Federal Claims. And thank you, Chairman Leahy
and Ranking Member Grassley, for convening this hearing and the
opportunity to be heard.
I have here just a few folks: my oldest son, Mick, who is
just recently graduated, he is headed down to Texas to work as
a chemical engineer at Dow. And my mother and father, Eleanor
and Phil Halkowski, traveled here from my home town in St.
Francis, Wisconsin. I could go on about their sacrifice and
hard work, but I will simply say that I am indebted to them for
everything.
Also here are my mother- and father-in-law, Michael and
Kathy Philps, who traveled here from California to lend their
support, as well as my brother- and sister-in-law, D'Arcy and
Cecilia Philps, along with their children, Miranda and Spencer.
Unfortunately, my wife, Dana, could not be here, which is
ironic because without her love and support I myself would not
be here. But she is attending the high school graduation of our
youngest son, Benjamin, back in Unionville, Pennsylvania, which
is going on at this very moment. I am assured, though, from my
son, Ben, that I am not missing anything. He is going to be
doing the exact same thing in 4 years at the University of
Pittsburgh. And thanks to this hearing, that promise is now on
the record.
[Laughter.]
Chairman Leahy. And we will make sure he gets a copy of
this record.
Mr. Halkowski. My daughter, Scout, also, unfortunately,
cannot be here due to commitments back at her college in
Pennsylvania.
I have many relatives, two brothers, three sisters, back in
Wisconsin, as well as many others whose support I appreciate.
One person I do need to mention, my Grandma Nuffky back in
Wisconsin. She will be 99 years old on June 14th. She assures
everyone, however, to hold off on the celebration until next
year, because she wants to do her 100th birthday big time.
[Laughter.]
Mr. Halkowski. Finally, there are just two people I need to
acknowledge who are no longer with us today: Judge Roger
Andewelt as well as Chief Helen Nies. Judge Andewelt served on
the U.S. Court of Federal Claims, gave me my first job out of
law school, and was the best mentor I could have ever hoped
for. And Judge Nies similarly provided--generously provided her
time and wisdom. And I miss them both, but I carry with me the
lessons that they taught me over the years.
And with that, I thank you again for convening this
hearing, and I look forward to the opportunity to address your
questions.
[The biographical information of Mr. Halkowski appears as a
submission for the record.]
Chairman Leahy. Well, thank you.
Justice Crawford, I had occasion to talk with the President
shortly after I had met with you, and I told him of your
appreciation for his nomination. And I told him that this was
one nomination he will not have to worry about.
You served as a Vermont State court trial judge for 11
years, and you have been on the Supreme Court now since last
year. What lessons do you take from a State court as you
transfer over to the Federal court?
Justice Crawford. I think the principal lesson is twofold:
one is the real need to stay close to the facts in every case,
to really try and understand what is going on; but even more
important, in dealing with the litigants, to try and keep it
fresh, to try and bring something new to each case, not to
become routine or jaded, to try and really engage with each
case anew. And the State trial court judges do a fine job, I
think, in both those regards.
Chairman Leahy. I enjoyed my years as a trial lawyer and as
a prosecutor. But I left that time with an abiding feeling that
courts' judges should think not just of the people who are in
there all the time--the prosecutors are, a well-known litigant
like Mr. O'Neill is, others--but the people who are there, this
is their one and only time they may be before the court. Can
you give us assurance that everybody who comes in your court,
no matter what their political party or their economic status
or whether they are plaintiff or defendant, government or
defendant, that they will be treated the same?
Justice Crawford. Senator, I can make that commitment. That
has been my effort over the course of the last 12 years, and I
intend to continue as I started out. For many people we are in
the courts the face of government that they deal with very
directly, and it is crucial that they feel that they have been
heard and that they have been treated fairly and listened to
with care.
Chairman Leahy. One of my predecessors as Chairman of this
Committee was Senator Strom Thurmond. We had different
philosophies on a number of things, but one thing I always
agreed with. He always said to somebody coming on to the
Federal bench that, you know, it is a lifetime appointment, you
can do anything you want, but do not forget you are there for
everybody in that courtroom. I am not even going to ask you
that question because I have watched enough about you to know
that is the way you will be.
And the last question, which is sort of the standard one,
the Second Circuit opinions are binding on the district court,
as are the Supreme Court's. Do you have any difficulty in
applying stare decisis even though you might wonder in a
particular case, ``What the heck were they thinking?''
Justice Crawford. Not at all, Senator. I work within and I
have worked within a system of authority where I look to and
respect the judgments of the courts above us.
Chairman Leahy. Well, thank you.
Judge Firestone, you have presided over, I am told by Ms.
Lucius, more than 700 cases. You must have had--in some ways it
must be routine, but it certainly was not when you first came
there. What are some of the difficulties you had to overcome?
Judge Firestone. Well, I would say that the jurisdiction of
the Court of Federal Claims is quite broad. It ranges from tax
to contracts to Indian claims and so forth. One of the big
advantages that Court has is we have the Justice Department
representing the United States in every case, and as an alum of
that organization, they do an excellent job in not only
advocating but I would say educating the Court. And we have had
excellent practitioners on the other side.
And so when you are new as a judge, you spend a lot of time
educating yourself as to what is the law, and you spend a lot
of time ensuring that you understand the arguments of the
parties. But, interestingly enough, it is a very high quality
of representation that appears on the Court, and with hard work
you get to learn different things. But every case actually
comes to you, I would say, pretty new. Although issues
generally repeat, for the most part the reason they are in
front of us is because they could not resolve it on their own
and there is some twist.
And so that is actually what keeps the job fresh and
challenging, as it has been for the last 15 years and, if
confirmed, hopefully for the next.
Chairman Leahy. So you find it still interesting when you
come into the courtroom.
Judge Firestone. I wake up every morning challenged and
enjoying the job. I would say it has been the greatest
privilege of my life to serve on that court.
Chairman Leahy. I know the feeling in the job I have.
Judge Firestone. I share it in a different way, but, yes, I
love the work.
Chairman Leahy. And, Ms. Griggsby, we know you so well from
your past decade in the Senate, both the Ethics and the
Judiciary Committees, and a trial attorney at the Department of
Justice and U.S. Attorney's Office in DC and private
litigation. Sort of somewhat along with what I was saying to
Justice Crawford, how do you feel about how people should be
treated when they come in the courtroom? You are used to
walking into this room, for example. You used to walk into
courtrooms. But a lot of people coming in there, it is their
first time, maybe their only time. How do you feel about that?
Ms. Griggsby. Thank you, Chairman Leahy, for that question.
During my decade as a Justice Department attorney and my decade
here in the Senate, I have always felt that you should treat
people fairly, with impartiality, and with courtesy. That has
always been my practice as an attorney. It was my practice as
an attorney appearing before the court, and that is the
practice I would have as a judge. Every citizen should feel
welcome and that they are going to be treated fairly and
receive justice under the law.
Chairman Leahy. And one of the questions I had for you, Mr.
Halkowski, you already answered when you spoke about your
mentors as judges. But even having worked for judges, clerks
and whatnot, you have now been in private litigation, and all
of a sudden you are not rising when the judge comes into the
courtroom. Everybody is going to be rising when you come in the
courtroom. That can be a heady feeling. But how do you handle
that transition and do it in such a way that you saw it being a
litigant and now you would be an impartial trier of facts?
Mr. Halkowski. Simply, if I am so fortunate to be
confirmed, keep in mind one word really, and that is,
``respect''--respect for the limited role of the courts amongst
the branches of Government, and respect for the law and
applying stare decisis, and so you just simply apply the law to
the facts of each case. And, finally, as Ms. Griggsby alluded
to, respect for each of the parties that come before you and
keep an open mind and listen to them and do your best to
provide justice.
Chairman Leahy. Senator Grassley.
Senator Grassley. Yes, I am going to start out with Justice
Crawford and go across the table. I am going to ask you about
some issues dealing with sentencing, because you have spoken on
that. And at this point I do not find any fault, but I want to
give you an opportunity to expand.
In 2013, you spoke to the press about sentencing practices
in your State. At that time you expressed the opinion that
judges have been, as you put it, ``oversentencing'' criminal
defendants. You also mentioned that many of those defendants
should be placed into drug or mental health courts and that
judges and prosecutors should focus on treatment and
reconciliation instead of incarceration. So these would be--
expand on those statements by saying what--by my asking what do
you mean when you stated that Vermont's criminal defendants
have been oversentenced. And I have one more question.
Justice Crawford. Of course, sir. Thank you. It is an
important issue. Within the State court system, we see two
kinds of criminal defendants, particularly in the area of drug
addiction, drug abuse, and drug trafficking. We see the people
that make it their living to harm our communities by selling
drugs, and for those people I do not see an important change. I
think the sentencing practices have been correct.
For people who are addicted and are more customers than
traffickers, we have had success in Vermont. I have worked for
several years in the drug court, and we have seen real change
in people's behaviors, in their ability to support their
families, in their ability to return to the rest of us as
honest citizens. And it is that group that I think can be
directed toward treatment, directed toward drug court-type
programs, which are no walk in the park--they are strict, and
if you fail in your treatment, you spend the weekend in jail.
It is almost a sterner model than simply putting people on
probation or jailing them for short periods of time.
So what has interested me is a commitment from the courts
for people who are addicted to redirecting them so that we can
get them back in our midst as productive people.
Senator Grassley. What are your thoughts on mandatory
minimums? And can you tell us a little bit about your
experiences with limitations on sentencing discretion within
the Vermont judicial system?
Justice Crawford. Within the State system, we have only a
handful of mandatory minimums. They represent the decision, the
serious decision of the legislature to treat certain offenses
with particular seriousness and care. And I have always
respected that decision and imposed the mandatory minimum
because the legislature is in charge of that decision, and I
would expect to continue to do so in the event that I am
confirmed here.
Senator Grassley. Then that would bring me to the Supreme
Court's Booker decision on Federal Sentencing Guidelines. Of
course, they are no longer mandatory, so let me ask you a
couple questions, and then a third one, but two at first.
What is your view on the guidelines? And do you believe
that the guidelines have resulted in oversentencing of criminal
defendants?
Justice Crawford. I cannot tell you in a numbers kind of a
way what the result of the guidelines has been within the
Federal system. What I can tell you is that what I like about
them is it brings out into the open the concerns about
sentencing, about deterrence, about rehabilitation, about
punishment, which are involved in every sentencing decision. On
the State court side, those things are not always discussed in
an open way in court. Sentencing guidelines compel the judge
and the defendant, his attorney, and the Government to talk
about them in an open way and to apply them in a way which is
more uniform from case to case. So I think those are important
positive aspects of the Sentencing Guidelines.
Senator Grassley. In the cases of nonviolent drug offenders
or drug offenders with little or no criminal history, do you
believe that downward departures would be warranted under the
guidelines? Or do you think that such individuals would be
better off in a drug court setting?
Justice Crawford. What I can tell you, Senator, is that I
have seen success for people that meet in the State system--
that people that meet those criteria in a drug court setting,
where they are involved for 6 or 12 months, meeting weekly,
speaking as you and I are, with the judge, reporting on their
progress. Whether that translates easily into the Federal
system it would be difficult for me to say. I have seen it work
person to person in the State court system.
Senator Grassley. Okay. Then my last series of questions
for you. You mentioned the importance of treatment and
reconciliation during your comments to the press in 2013. Would
you tell us what you meant by that statement? And then let me
quickly add to that. If confirmed, would you focus on treatment
and reconciliation when sentencing criminal defendants in the
Federal system? And if so, how would that focus affect
sentencing in your courtroom?
Justice Crawford. What I have tried to do, Senator, in my
sentencing practices is to look at each person as best I can as
an individual and to make an individual judgment about whether
incarceration is required, whether a mandated treatment program
is going to be sufficient, whether a mixture of those two is
appropriate. And it would be my intention to continue to--
within the framework of the Sentencing Guidelines, to continue
to try and make that judgment, separate out the business people
who are harming our communities from the people who have fallen
into drug addiction and treat those two as different types of
problems.
Senator Grassley. Now, the rest of you are going to feel
like you are not very important if I do not ask you as many
questions.
[Laughter.]
Senator Grassley. But I am not going to, so do not take it
personally.
For you, Lydia, the Court of Federal Claims adjudicates
cases across a broad range of subject matters. Since 2006 you
have served the Committee by providing advice relating to the
Freedom of Information Act, the Privacy Act, the Electronic
Communications Privacy Act. Could you please share how this
experience might help prepare you for the Federal Claims Court
if confirmed?
Ms. Griggsby. Yes, thank you, Senator, for that question.
During my time on the Committee, I have worked on a number of
complex legal issues, including, as you mentioned, ECPA reform
and FOIA reform. In the context of that work, I have had to
work very closely with co-counsel and opposing counsel, various
offices on the Committee, as well as stakeholders with a
variety of different perspectives and competing interests. I
think I have always done that in a very fair and open-minded
way, and I think that those skills have equipped me well to be
a fair and open-minded judge, if confirmed to the Court of
Federal Claims.
Senator Grassley. Okay. And, Ms. Firestone, you have now
served at least one term. Aside from the knowledge of how the
Court works, what have you learned during your first term that
would assist you in a second term, if confirmed? And that does
not mean things have to be any different, but I just wondered
if they would be. And let me follow that up with how, if at
all, would you change your approach in cases from what you have
learned during your first time.
Judge Firestone. Well, Senator, I hope after 15 years I
have become a bit more efficient, and so I will say that there
is--I do not intend to change the way I judge cases in any way.
The oath is the same, and I will abide by that and look at each
case individually and decide each one on its merits based on
the facts and the law.
What it has allowed me to do after 15 years is to become
more of an educator with regard to the Court, and so I have the
opportunity now to do things with regard to the Judicial
Conferences of our Court, with regard to our Advisory
Committee, that allows me to take some of the experience that I
have had and share that with new judges, and to work with
judges and members of the bar to improve the administration of
justice, which I think helps, having had enough experience that
I can judge whether or not I think those recommendations will
be valid. And I hope to continue to do that work as well in the
next 15 years.
Senator Grassley. Okay. In your view, Ms. Firestone, are
there particular challenges facing the Court of Claims? Do you
see any areas where improvement is needed? And this could be
from two standpoints. One, is there any suggestions you have
for Congress to make any changes? Or, number two, any changes
that you would see that the Court itself could make?
Judge Firestone. Well, Senator Grassley, I appreciate the
question. I think that the Court is always looking to find ways
to improve its administration internally, and I do not have
any--we are constantly, by virtue of now the whole new change
in electronic filings and things like that, the efficiency of
the court system has actually improved markedly.
I would say that with regard to things for Congress I leave
that to people different than myself to make those suggestions,
and, indeed, that is why we have advisory committees and so
forth who involve outside attorneys as well as Justice
Department attorneys to make those types of suggestions to the
Congress.
Senator Grassley. My first question is--I am from Iowa, and
you evidently have Midwest roots. Where is St. Francis,
Wisconsin?
[Laughter.]
Mr. Halkowski. Thank you, Senator.
Senator Grassley. And how big is it?
Mr. Halkowski. Thank you, Senator, and I can handle that
question. It is just south of Milwaukee. It is actually a
suburb of Milwaukee. It is right along Lake Michigan, and its
population--well, now it is a little bit smaller, but probably
around 10,000.
Chairman Leahy. You did a heck of a lot better on that
answer than I ever could.
[Laughter.]
Senator Grassley. Well, I was about ready to tell you, even
though I am close to Wisconsin, about all I think about is
Madison and Milwaukee.
Mr. Halkowski. There you go.
Senator Grassley. And do not tell the Green Bay Packers.
Mr. Halkowski. We all suffer with having to root for Green
Bay.
Senator Grassley. Now, to be a little more serious, the
Federal Claims Court adjudicates cases across a broad range of
subject matters. What experience do you have in tax refund
suits, takings cases, Government contract cases, contract
claims, or other claims that come before the Court? And if you
do not have any experience, I am not asking that in a negative
way. I just want to know how you feel you are prepared for it.
Mr. Halkowski. Sure. Thank you again, Senator. I was
fortunate to clerk at the Court starting out my legal career,
so I actually had a bit of experience in a broad range of
cases, including tax cases and Government contracts.
I then went to the court of appeals and had, again, some
experience with cases that are appealed from the Court of
Federal Claims to the Federal Circuit.
Next, I went to the Justice Department where I actually
litigated many, many cases in front of the U.S. Court of
Federal Claims, including takings cases and some breach of
trust cases involving Native American claims.
So I have a broad array of experience, and then most
recently I have been in private practice and focused on
intellectual property and patent claims, which, again, is a
type of claim that is brought before the Court.
There are, of course, some areas that I have less
experience in, and those I would just simply dig in and work a
bit harder on.
Senator Grassley. During your time at Justice, you defended
the Federal Government in cases where plaintiffs sought
compensation under the Fifth Amendment for alleged
uncompensated taking. How would you transition from defender of
the Federal Government to a neutral arbitrator?
Mr. Halkowski. Again, thank you, Senator. My focus as a
judge, should I be fortunate enough to be confirmed, would be
strict fidelity to the law and, again, respecting the parties
that come before me and listening with an open mind and then
applying the law as it is set forth by the Supreme Court as
well as the Federal Circuit, and rendering a decision based on
that and taking into account no other factor.
Senator Grassley. You do not have any problem with that
transition?
Mr. Halkowski. I do not, Your Honor. I will say also that--
and maybe I was unusual. I do not know. But when I worked at
the Justice Department, I always saw my role as not to win the
case but to come up with an outcome that would render justice,
because I felt as someone who was not only representing the
Government but also representing the citizens, that would be
appropriate.
Senator Grassley. Last, congratulations to all of you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. And one of the questions you
asked Justice Crawford made me think, and I am now being
parochial as a Vermonter. You talked about our drug courts and
basically diversion programs and so on. Has it not been our
experience in Vermont that doing that rather than doing a one-
size-fits-all in the court system has actually saved Vermont
taxpayers a huge amount of money and it has kept a more
productive society? Is that correct?
Justice Crawford. I think that has been the case, Senator.
Chairman Leahy. And looking at the budgets--oh, Senator
Grassley. I am going to keep the hearing--no, no. I am going to
keep the hearing record--I just wanted you to know I will keep
the hearing record open until Friday.
And now that you have all had this enormously tough
grilling, we will stand in adjournment. Thank you very much.
Justice Crawford. Thank you.
Judge Firestone. Thank you.
Ms. Griggsby. Thank you.
Mr. Halkowski. Thank you.
[Whereupon, at 10:40 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF PAMELA HARRIS, NOMINEE TO BE CIRCUIT JUDGE FOR THE
FOURTH CIRCUIT; HON. PAMELA PEPPER, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF WISCONSIN; BRENDA K. SANNES, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK; PATRICIA M.
McCARTHY, NOMINEE TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS; AND HON.
JERI KAYLENE SOMERS, NOMINEE TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
----------
TUESDAY, JUNE 24, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:18 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Chuck
Schumer, presiding.
Present: Senators Schumer, Coons, Blumenthal, Grassley, and
Cruz.
Senator Schumer. The hearing will come to order, and to
help our colleagues get on with their busy schedules, Senator
Grassley will put his opening statement in the record.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Schumer. We will proceed immediately to Senator
Mikulski of Maryland.
PRESENTATION OF PAMELA HARRIS, NOMINEE TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY
HON. BARBARA A. MIKULSKI, A U.S. SENATOR FROM THE STATE OF
MARYLAND
Senator Mikulski. Good morning, Senator Schumer, Senator
Grassley. Senator Cardin and I want to thank Senators Leahy and
Grassley for scheduling this hearing and Senator Schumer for
graciously agreeing to preside.
Today Senator Cardin and I are delighted and honored to
bring to your attention a nominee for the Fourth Circuit,
Pamela Harris. You are really going to like Pamela Harris as
you get to know her, and I hope we will get to vote for her.
Senator Cardin and I recommended her to President Obama
with the utmost confidence because of her ability, her talent,
and her competence. The ABA agrees with us. They gave her the
highest rating and said she was unanimously well qualified.
Today, as we bring her to your attention, know that we take
our advise-and-consent responsibility very seriously. I have
four criteria: absolute integrity, judicial competence and
temperament, a commitment to core principles of the
Constitution, and a history of civic engagement in Maryland.
Pamela Harris is the embodiment of these principles. She
has dedicated her practice and her career to furthering the
practice of appellate lawyer activity and enhancing the role
that law plays in the public interest. She is an outstanding
nominee and will be absolutely an asset to the Fourth Circuit.
Ms. Harris' career spans academia, private practice, and
Government with a common thread of public service and public
commitment. We are proud to say that Ms. Harris is a homegrown
girl. Although born in Connecticut, she has called Maryland her
home since she was a child, graduating from our public schools
and then she went on to Yale. We forgive her for that, but we
welcomed her back when she came. At Yale, she received both her
bachelor's and law degrees.
She then went on to complete a clerkship for the D.C.
Circuit Court, and she was also a clerk for Justice Stevens on
the Supreme Court. Serving at the Department of Justice's
Office of Legal Counsel, she then spent 10 years appearing on a
regular basis before the Supreme Court. This is a woman who has
extensive appellate experience while counsel and then partner
to O'Melveny and Myers, taking on very complex issues.
She has a distinguished career in academia, being a
professor at the University of Pennsylvania Law School, at the
Harvard Appellate Practice Clinic, and later at Georgetown. She
served as the executive director of the Supreme Court
Institute.
But at the same time, she found her way back to Maryland
and stayed very close to people. Whether it was a pro bono
appellate clinic at O'Melveny, to work with Maryland's public
defender on an amicus curiae brief involving Montgomery County
Schools, or other activity, she has worked to enhance law, to
give her services pro bono, and to work with people.
I believe her temperament is such that you are going to
find her a keen mind and yet a humble personality, unusual
among many lawyers at that level, but she then is an unusual
nominee. She comes with a great personal narrative that I know
she will share with you, an incredible resume, but a real
commitment to our Constitution and our core principles. I think
she would be a great asset in the Fourth Circuit.
So I hope that the Committee reports her favorably to the
full Senate and we act on this expeditiously before we adjourn
in November--in October.
Senator Schumer. Thank you, Senator Mikulski. I got scared
when you said November.
[Laughter.]
Senator Schumer. Senator Cardin.
PRESENTATION OF PAMELA HARRIS, NOMINEE TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY
HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF
MARYLAND
Senator Cardin. Chairman Schumer, Senator Grassley, thank
you very much for the courtesy of allowing us to introduce Pam
Harris.
I am very proud to be a partner with Senator Mikulski in a
process on judicial nominations in which we have an interview
process where we try to get the very best to serve on our
courts. And as a result of Senator Mikulski's leadership, I am
very proud of the nominees that have been brought forward to
this Committee by President Obama with the strong support of
Senator Mikulski and myself.
Pam Harris is an exceptional candidate. I have interviewed
several candidates for judgeships. I do not think I have ever
seen a person more suited and more qualified to sit on our
appellate court than Pam Harris. She has devoted her entire
career basically to appellate law and to understanding our
judicial system. She is well qualified. She has worked in the
executive branch. She has worked in Justice. She has worked for
our courts as a clerk, as Senator Mikulski has pointed out. She
is exceptionally well qualified with tremendous legal
experience in Government, the private sector, and academia. She
is an excellent Supreme Court litigator and in my view one of
the best in the country for this type of practice.
Ms. Harris has an appreciation for the rights and
responsibilities of each branch of Government, having clerked
at the Federal appellate courts, supervised policy initiatives
at the Department of Justice. She has dedicated her career and
professional life to improving the administration of justice as
a public servant. She has demonstrated a commitment to protect
civil rights and individual liberties through her pro bono
work. Her roots are in Montgomery County, Maryland. She is an
active member of her community, giving back to her local
schools and volunteering in the community.
Let me just tell you a little bit of background about her
family because I think it is telling, because this truly is the
American dream. Her grandmother was a Polish Jewish immigrant
to the United States who valued education and worked hard to
overcome personal adversity. Her mom put herself through law
school with young children after a divorce and died from cancer
a few years later. Ms. Harris herself relied in part on a Pell
grant to attend college at Yale, and I understand that all of
Ms. Harris' siblings are now lawyers. So it is safe to say that
her family story and history is truly the American dream and
the American experience, and the public service and seeking to
uphold the rule of law runs in the blood of her family.
You have heard Senator Mikulski talk about her
extraordinary background, the law firms that she has worked
for, her public career. Ms. Harris co-directed Harvard Law
School's Supreme Court and Appellate Practice Clinic and was a
visiting professor at Georgetown University Law School. In
2009, Ms. Harris was named the executive director of the
Supreme Court Institute at Georgetown, serving as executive
director until 2010. Ms. Harris then joined the Justice
Department Office of Legal Policy where she served as the
Principal Deputy Assistant Attorney General until returning to
Georgetown in 2012. She is currently a visiting professor at
Georgetown University Law Center and a senior adviser to the
Supreme Court Institute.
As Senator Mikulski pointed out, it is not surprising that
she has been given the highest qualifications by the American
Bar Association's Standing Committee on the Federal Judiciary.
Let me just mention one or two other points, if I might.
First, there is a letter--and I will ask these letters be made
part of the record.
Senator Schumer. Without objection.
[The letters appear as submissions for the record.]
Senator Cardin. They are from a long list of distinguished
lawyers who have served in Republican and Democratic
administrations who praise Pam Harris' qualifications and urge
the Committee to quickly confirm--recommend confirmation of her
appointment. She has taken hundreds of cases before the Federal
Court of Appeals and the U.S. Supreme Court, and her practice
has been pretty evenly divided between civil and criminal
matters, so she understands both of them exceedingly well. She
has experience also at the State court level, so she has the
whole package. She has the experience, criminal, civil,
private, public; she has an incredible career for pro bono
work.
So I personally want to thank her, and I want to thank her
family for being willing to serve in this capacity. We know it
is going to be a challenge as far as the demands that will be
on her time, and we strongly recommend her confirmation.
Senator Schumer. Thank you, Senator Cardin. And that
completes the introductions for Pamela Harris.
We have five members of the bench--and I understand you
both have busy schedules, so feel free to go on to your
business if you would prefer that.
Senator Mikulski. Mr. Chairman, we ask unanimous consent
that two letters of support--one from the list of bipartisan
legal professionals supporting Ms. Harris--be entered into the
record, and then a letter from the National Women's Law Center
on her----
Senator Schumer. Without objection.
[The letters appear as submissions for the record.]
Senator Schumer. Okay. Good. Now we have five district
court nominees to speak about. They are Brenda Sannes, of the
Northern District of New York; Pamela Pepper, of the Eastern
District of Wisconsin; Patricia McCarthy, of the Federal Court
of Claims; and Jeri Somers, of the Federal Court of Claims. We
will let our two guests--I want to say a few words about Ms.
Sannes from the Northern District, but I will do that after our
two guests say their words about Pamela Pepper. And I know that
Senator Coons, who has graciously agreed to take over for me
chairing this hearing, has some words to say about Patricia
McCarthy and Jeri Somers. So if that is okay with everyone, we
will go Johnson, Baldwin, Schumer, Coons.
Senator Ron Johnson, of Wisconsin.
PRESENTATION OF HON. PAMELA PEPPER, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
WISCONSIN, BY HON. RON JOHNSON, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Johnson. Thank you, Chairman Schumer, Ranking
Member Grassley, Members of the Committee. I am here to
recommend to the Committee another Pam, the Honorable Pamela
Pepper, to be the United States District Judge for the Eastern
District of Wisconsin. Pam has served with distinction as the
current chief judge of the United States Bankruptcy Court for
the Eastern District of Wisconsin. Although not native to our
State, she has set down deep roots in Wisconsin, first serving
in the office of the United States Attorney for the Eastern
District of Wisconsin, followed by private practice in
Milwaukee, and finally serving 9 years as a bankruptcy court
judge.
Pam was born in the Delta of Mississippi in a town called
Leland. Her parents were both teachers and instilled in her an
intellectual curiosity which has been apparent throughout her
career. She migrated north for college and attended
Northwestern University in Chicago, where she received a degree
in theater. After helping a friend get through the LSAT review
course, she realized she might want to explore other careers
and ended up taking the LSAT herself.
She obviously had prepared herself well because she
performed well on the LSAT and was accepted into Cornell
University School of Law.
Senator Schumer. An excellent school, I might add.
[Laughter.]
Senator Johnson. Apparently.
After graduation, she clerked with distinction for Judge
Frank Johnson on the Eleventh Circuit Court of Appeals and then
moved on to become a prosecutor in the United States Attorney's
Office in Chicago.
Pam is widely respected within the profession, evidenced by
having held offices as the president of the Milwaukee Bar
Association and the chairperson of the Board of Governors of
the State Bar of Wisconsin. She is an instructor of national
stature and speaks frequently on trial practice and evidence.
She is currently an instructor at the Federal Judicial Center.
I have had the opportunity to speak to practitioners that
have appeared before her bankruptcy court. They have told me of
her patience with attorneys, which is a virtue of hers they all
value. Pam possesses a great sense of humor, which she often
uses to put litigants at ease.
She displays compassion in making tough decisions by
explaining the rationale for those decisions clearly so her
reasoning is understood by all. She has shown great dexterity
in reacting to difficult situations in court with calm
reasoning.
Finally, Pam has been described as a practical judge who
promptly resolves disputes while faithfully adhering to the
rule of law. Pam's intellectual curiosity, her demonstrated
ability to learn new areas of the law, and efficiently
administer her office has convinced me she would continue to
excel in a new role as a Federal district court judge.
Judge Pepper has my full support, and I am happy to
recommend her to the Senate for swift confirmation.
I would like to conclude my remarks by thanking the hard-
working members of our bipartisan nomination commission for
their dedication and efforts. I would also like to thank
Senator Baldwin for her continued support of this successful
nominating process that has once again resulted in the
selection of a well-qualified jurist, Judge Pamela Pepper, who
will serve the Nation and the people of Wisconsin's Eastern
District well.
Thank you.
Senator Schumer. Thank you, and I thank both you and
Senator Baldwin for your bipartisan efforts in this area.
Senator Baldwin.
PRESENTATION OF HON. PAMELA PEPPER, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
WISCONSIN, BY HON. TAMMY BALDWIN, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Baldwin. Thank you, Chairman Schumer, Ranking
Member Grassley, Senator Coons, and all other Members of the
Committee who may be here today. It gives me great pleasure to
appear before you this morning to introduce Judge Pamela
Pepper, the President's nominee for the United States District
Court for the Eastern District of Wisconsin. And I am proud to
speak before you for the second time this year in support of a
highly qualified individual nominated to fill a judicial
vacancy in my home State of Wisconsin.
Ensuring that the people of Wisconsin are supported by
dedicated public servants in our judicial system has been a top
priority of mine since I joined the Senate last year, and I am
proud of the work that my colleague Senator Johnson and I have
done together to advance this important goal.
Judge Pamela Pepper has had a distinguished career as a
judge, a Federal prosecutor, public defender, and an attorney
in private practice, and I applaud the President for nominating
her. She will continue her outstanding service on the bench,
and the people of Wisconsin will benefit from having this
experienced and dedicated public servant as a U.S. district
judge.
Pamela Pepper has served as the chief bankruptcy judge for
the Eastern District of Wisconsin since 2010 and has served as
bankruptcy judge on that court since 2005. Judge Pepper has
also contributed significantly to the field of bankruptcy as a
leader in the National Conference of Bankruptcy Judges and the
American Bankruptcy Institute, and as associate editor for the
American Bankruptcy Law Journal.
Before assuming her position as a bankruptcy judge, Pamela
Pepper spent 8 years as a solo practitioner engaged in criminal
defense work, including through appointments by the Wisconsin
State Public Defender Service and the Federal Defender Service
of Wisconsin.
Judge Pepper began her legal career in public service
working for 7 years as a Federal prosecutor in the U.S.
Attorney's Offices in Chicago and then in Milwaukee, Wisconsin.
Prior to assuming her role on the bankruptcy court, Judge
Pepper also held numerous leadership positions in the legal
community, including with the Board of Directors of the Federal
Defender Service of Wisconsin, the State Bar of Wisconsin, and
the Eastern District of Wisconsin Bar Association, and the
Milwaukee Bar Association.
As you heard, Judge Pepper received her J.D. from Cornell,
where she was an editor in the Cornell Law Review and a winner
of the Sutherland Moot Court competition.
From 1989 to 1990, she was a law clerk to the Honorable
Frank J. Johnson, Jr., of the U.S. Court of Appeals for the
Eleventh Circuit.
Judge Pepper lives in Shorewood, Wisconsin, with her son,
Leland, who I am delighted joins us here today. Senator Johnson
and I strongly support Judge Pepper's nomination to the U.S.
District Court for the Eastern District of Wisconsin, and I
urge this Committee and the entire Senate to confirm her
expeditiously.
Senator Schumer. Thank you, Senator Baldwin, and I thank
you and Senator Johnson for being here. I know you two have
busy schedules, so we understand if you cannot stay to listen
to the rest of the proceedings.
Now I am going to read my remarks about Brenda K. Sannes of
the Northern District, and then I will turn the gavel over to
Senator Coons, who has graciously agreed to continue chairing
this panel, and I believe he has remarks for Patricia McCarthy
and Jeri Somers. Then we will, at Senator Grassley's request,
first do the circuit court judge nominee, Pamela Harris, and
then do the four district court nominees--Ms. Sannes, Ms.
Pepper, Ms. McCarthy, and Ms. Somers. Four women, excellent.
Okay, five women altogether. Yes, that is very good.
PRESENTATION OF BRENDA K. SANNES, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF NEW YORK, BY HON. CHUCK SCHUMER, A
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Good morning, and I want to thank Ranking
Member Grassley for being here, and I want to thank Senator
Coons, who I said a moment ago has graciously agreed to chair
the hearing--he has many good qualities, and graciousness is
indeed one of them--and for all our witnesses.
Now, I could not be more pleased to come before the
Committee today to introduce my 20th nominee to the Federal
district court bench in New York, Brenda K. Sannes. Ms. Sannes
is the very model of a Federal judge in both qualification and
temperament. Ms. Sannes passes my three-part test for becoming
a Federal judge within an A-plus, a grade that she appears to
have received at every juncture in her career. Indeed, my first
criteria is excellence, to be legally excellent, not a
political hack or anything like that.
Ms. Sannes earned her B.A. magna cum laude from Carleton
College and her law degree, also magna cum laude--it is too bad
our two witnesses are gone--from the University of Wisconsin
Law School, where she was articles editor of the Law Review.
After graduating, Ms. Sannes clerked for the renowned Judge
Jerome Farris of the United States Court of Appeals for the
Ninth Circuit. She settled first in Los Angeles, where she
worked as a litigation associate with the law firm of Wyman,
Bautzer, Christensen, Kuchel and Silvert, and then moved to the
U.S. Attorney's Office for the Central District of California.
But, fortunately for central New York and for upstate New York,
Ms. Sannes next moved to Syracuse where, since 1988, she has
dedicated her talents to our Nation's service as Assistant U.S.
Attorney for the Northern District of New York. Most recently,
her work as head of the appellate division there has earned her
the respect and accolades of judges all over the Second
Circuit.
Along the way, Ms. Sannes has received awards that are
literally too numerous to mention here. By way of example, she
has been lauded by the FBI, the L.A. Police Department, the
U.S. Postal Inspection Service, and the Organized Crime Drug
Enforcement Task Force.
Ms. Sannes' experience in public service has helped her to
meet my second important qualification for becoming a judge:
moderation. I do not like ideologues on the bench, far left or
far right, because they tend to--they often impose their views
rather than interpret the law. Talk to anyone who has practiced
law with her or judges before whom she has appeared or even
counsel who have been on opposing sides of cases from her. They
will tell you she is unerringly fair, listens intently, makes
reasonable decisions, and presents only the most solid argument
in her cases. And not only has she dedicated herself and her
entire career to public service, she has found time to mentor
young lawyers and teach and lecture aspiring lawyers on a host
of criminal justice issues.
Finally, all other things being equal, I look for diversity
in candidates on the bench. I think it is important that the
communities served by our Federal judges see judges who are
like them and whose values and experiences are likely to
reflect their own. Ms. Sannes will be only the second female
judge in the history of the Northern District of New York, one
whose arrival will be welcome not just by women, of course, but
by everyone who values the quality and fairness of the Federal
judiciary. I was proud to nominate the first woman nominee to
the bench in the Northern District, and now I am equally proud
to nominate the second.
In fact, Ms. Sannes' entire family reflects the great
community that they come from. Here today with her is her
husband, Steve Clymer, and he has earned very high marks for
his service in the U.S. Attorney's Office in the Northern
District of New York. She is also accompanied by her sons
Matthew, 19, a physics major at Cornell--as I mentioned, a
great institution--Samuel, who is 16; and Benjamin, who is 10.
I am told that Ben will be missing his second to last day of
school, which is Movie Day, to be here with his mother. I hope
they are showing a good legal movie, you know, like ``The Last
Angry Man,'' or I do not know, some legal movies or other.
Anyway, I am not going to pretend that this is going to be
better than a movie, but I do think that, Ben, you will
remember it a lot longer.
I know you are all very proud of your wife and your mother,
and I am pleased to have you all here today.
With that, I am going to call on the gracious Senator Coons
to chair the hearing and to make two introductions.
Senator Coons [presiding]. Thank you very much, Senator
Schumer, Senator Grassley. Let me, if I might, just conclude
the introductions for our panel today.
It is to me impressive that we have five such exceptional
nominees with a wealth of experience, and I applaud my
colleagues for making progress in continuing to fill the
vacancies in our Federal judiciary. We do have 61 current
vacancies, and although we have made progress in the past few
months, we still have much work to do. Seven percent of the
Federal bench remains vacant, and this is an important step
toward filling those vacancies.
Today's nomination hearing is also a key step toward making
our Federal judiciary more diverse. This is the first all-
female judicial nomination hearing in over a decade and the
first such hearing ever with five female nominees. Let me, if I
might, continue to introduce the remaining two nominees for
today.
Patricia McCarthy, a nominee to the United States Court of
Federal Claims, and since 1994, Patricia has served in the
Commercial Litigation Branch of the Civil Division of the
United States Department of Justice, where she currently serves
as Assistant Director. Prior to Government service, Ms.
McCarthy worked as an associate at Bingham, Dana and Gould in
Boston from 1989 to 1994. Born in Medford, Massachusetts, she
received her B.A. cum laude from Colby College and her J.D.
from Cornell Law School, about which we have already heard a
great deal.
[Laughter.]
Senator Coons. Our last nominee today is Jeri Kaylene
Somers, who is nominated to the United States Court of Federal
Claims. Since 2008, Judge Somers has been Vice Chair of the
United States Civilian Board of Contract Appeals where she
formerly served as a board judge. She is also currently a
lecturer in law at George Washington University Law School. For
the first 21 years of her legal career, she also served as a
judge advocate and a military judge in the United States Air
Force. Born in Wichita, Kansas, Judge Somers earned her B.A.
from George Mason University and earned her J.D. from the
American University Washington College of Law.
Now, by prior agreement, we will move now to nominee Pamela
Harris for the Fourth Circuit Court of Appeals. Ms. Harris, if
you will come forward and, following the tradition of this
Committee, be sworn.
Please stand and raise your right hand. Do you solemnly
swear that the testimony you are about to give to the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Harris. I do.
Senator Coons. Thank you. Let the record show the nominee
has answered in the affirmative. Please be seated.
I would now like to invite you, Ms. Harris, to give an
opening statement and feel free to recognize loved ones and
supporters who may be with you today as well.
STATEMENT OF PAMELA HARRIS, NOMINEE TO
BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Ms. Harris. Thank you, Senator Coons, and thank you for
chairing this hearing. I would like to thank Chairman Leahy and
Ranking Member Grassley and the entire Committee for its
consideration. It is a great honor for me to be here today, and
I appreciate it.
I also would like to thank Senator Mikulski and Senator
Cardin for their exceptionally kind introductions and for their
support.
And, finally, I would like to thank my family and my
friends who are here today, and if I may just briefly introduce
my family.
Senator Coons. Please.
Ms. Harris. I have my cousin, Lauren Kline, with her
husband, Andrew, and daughter, Becca. Lauren is just a few
years older than me, but that is old enough to make her the
matriarch of our family. So she is here also representing my
entire extended family.
I also have my brother, Geoffrey Harris, and my two
sisters, Elizabeth Harris and Tiffany Harris. And as has been
mentioned already, all three of them are lawyers as well
because all of us followed in the footsteps of my mother, Ellen
Harris, who went to school at night to become a lawyer and then
did become a lawyer while she was raising the four of us as a
single parent. Her dedication and her integrity as a lawyer
were an inspiration, and I know that she would be very proud of
us today.
Finally, I have my husband, Austin Schlick, and my two
children: Henry, who is 15, and Ellen, who is 13. My family is
the joy of my life, and I am very happy that they are here
today.
And, with that, I am very happy to answer your questions.
[The biographical information of Ms. Harris appears as a
submission for the record.]
Senator Coons. Thank you very much, Ms. Harris. We will
begin with 5-minute rounds.
First, would you just start by describing for us your
judicial philosophy?
Ms. Harris. Senator, I do not have an overarching judicial
philosophy. I believe that the role of a judge is to decide
cases through impartial application of law and precedent. It is
a limited role. Judges do not make law. But it is an important
role. What they do is they decide the concrete disputes in
front of them with attention to particular facts, attention to
the arguments of the parties and their briefs, and, again, by
applying law and precedent to those facts. And that is the only
philosophy I would take with me if I were confirmed.
Senator Coons. You have had a distinguished career, as
mentioned by the two Senators who introduced you, as an
appellate litigator, as an academic professor and scholar at
three of our Nation's leading law schools, and you have helped
to found and lead prominent law and policy organizations.
During your career you have been able to advocate for and
publish your views on a very wide range of legal issues. If
confirmed to the Fourth Circuit, how would your prior advocacy
influence your judging?
Ms. Harris. It would not, Senator. I understand these as
being very, very different roles. I think that as an advocate,
your position is essentially given to you. You start with a
position that benefits your clients, and then from there you
develop the best, reasonable legal arguments that can be made
on your client's behalf.
I think as a judge the role is entirely different. You
start with neutral, careful, fair consideration of the law, and
then you apply it to the facts in front of you without regard
to how it affects any particular party. So I do think of them
as very different roles.
Senator Coons. And I would agree. Over the course of your
private practice, you have helped to defend a wide range of
issues in your advocacy, for example, compulsory arbitration
agreements in the employment context. You have argued on behalf
of Mobil Corporation, plaintiffs injured by Mobil-produced
asbestos ought not to be able to pursue their claims through
mass adjudication. These positions are quite in contrast to
some of the other advocacy organizations you have been involved
in. But I would wager that you are able to resolve that tension
in some way going forward.
Would you help us understand how you would distinguish
between positions taken on behalf of clients and positions
taken on behalf of policy organizations, and how you would view
different sources as you move toward being a judge?
Ms. Harris. Senator, with respect to my representations of
clients when I was at O'Melveny and Myers, where I worked for
10 years as an appellate and Supreme Court litigator, I took
positions based on what was best for my client, and that was
true whether they were some of the corporate and business
interests you have identified, whether they were indigent
individuals, organizational pro bono clients. I took those
positions without regard to any personal views I might have had
on the matter.
I think the through line there is that, of course, as a
judge I would fairly and impartially apply precedent, again,
without regard to any personal views I might have on any
matter, and without regard to any advocacy positions I might
have taken on behalf of clients.
Senator Coons. Thank you.
While in private practice, you did establish an admirable
cooperative program between O'Melveny and Myers and the
Maryland Office of the Public Defender, through which the firm
provides pro bono appellate representation to indigent
defendants in Maryland State court.
What led you to do that? And what role do you think judges
broadly should have in ensuring access to justice?
Ms. Harris. Senator, access to justice has been an
animating value of my entire career. I just think the appellate
process works best and appellate judges depend on vigorous
advocacy on both sides of the issue. The whole system depends
on the idea that the best arguments will be put forward on both
sides of the argument regardless of a client's ability to pay
and regardless of any other issues.
I was happy to help found that partnership with the
Maryland Public Defender's Office, in part because Maryland is
my home State and I was always looking for ways to contribute
in Maryland, and in part because I believe so deeply in this
value that people must be represented before the courts because
that is how the courts work best.
Senator Coons. A last question, if I might. You have spoken
publicly and litigated cases that advanced the cause of
diversity, in particular diversity in education. Speak a bit,
if you would, about your views on the importance of diversity
in the Federal bench as well and how you think that impacts the
functioning of the judicial system and access to justice.
Ms. Harris. I think as a general matter, if the courts
broadly reflect the diversity of the litigants who come before
them, that is good for the courts. I think it helps encourage
public confidence in the courts. It helps a sense of legitimacy
about the courts.
I also think that having a broad range of judges can
provide valuable role models for young students--I see this all
the time with my own law students--for other young people
considering professional careers.
Senator Coons. Thank you very much, Ms. Harris, for your
answer.
Senator Grassley.
Senator Grassley. I am well aware of the answers to your
first two or three questions of Senator Coons, and I respect
that answer. I think my line of questioning will be along the
lines of some things you have said in the past and how they
seem to be inconsistent with your view of judging.
In a Washington Post article on same-sex marriage issues,
you are quoted as saying, ``Justice Kennedy should be changing
the same way the whole country is changing''--regarding same-
sex marriage.
First question: Why do you believe a Supreme Court Justice
should change his or her views and, therefore, judicial
interpretation based upon public sentiment if we have a
judiciary that is supposed to do what you just said, apply
precedent and fact to deciding the case?
Ms. Harris. Senator, thank you for that question. I am
happy to have an opportunity to clarify. That was a comment I
made to a journalist. I am often asked as a Supreme Court
litigator to sort of opine and speculate about issues before
the Court.
I would never suggest that a Justice of the Supreme Court
or any judge should change his or her opinions based on public
opinion. That is not the way I view the role of a judge. I am
confident it is not the way Justice Kennedy views his role or
any other judge views his or her role.
When we talk as commentators about the individual views of
Justices, we are usually talking about their written record as
it has developed through their majority opinions, their
separate writings. And what I was doing in that comment is
likely I had been talking about Justice Kennedy's distinct
record on issues involving classifications based on sexual
orientation and predicting where those legal views might bring
him in future cases.
Senator Grassley. Okay. In the same interview, you also
stated that you thought ``the tide of history is going one
way,'' and that you did not think that--well that is the end of
that part of the quote--and that you did not think that the
Justices ``wanted to be on the wrong side of that.''
Do you believe it is appropriate for a judge to consider
which ``side of history'' their judicial interpretation should
be?
Ms. Harris. Again, no, Senator, I do not. And I did not
mean to suggest that. I think there is another sentence in the
article that makes clear, the context makes clear that what I
was talking about was a notion of judicial restraint that
courts, the Supreme Court, might want to be especially cautious
on social issues when the political branches and political
institutions sort of deeply and rapidly engaged in those
issues, that the courts might want to take small steps, not
take big steps, and leave as much as possible to the democratic
process.
Senator Grassley. In 2013, you moderated a panel on the
Supreme Court's upcoming term during which you said, ``The
Constitution evolves. It has to keep pace with changes in the
factual predicates. And, yes, our readings of constitutional
provisions ought to change and evolve in light of circumstances
on the ground like that.''
Before I ask a question, I would like to say that you have
been very clear on your views of the Constitution. We know
where you stand. But I would like to know how you intend to
decide what changed particular societal circumstances you will
consider, if confirmed.
Let me say it this way: It is clear from your writings and
speeches that you are talking about shifting public opinion
rather than simply technological advances. For example, in the
introduction of a book, ``It Is a Constitution We Are
Expounding,'' you wrote, ``Justice Brennan explores the
importance of the judge's obligation to speak for the
community, the current community, in interpreting the
Constitution.'' You have also discussed what you call
``constitutional legitimacy coming from social movements.'' The
problem with this view is that it tends--or it leads to a
judge's imposing personal views into cases. Justice Scalia
expressed it this way well in dissent regarding the Eighth
Amendment, writing, ``Of course, the risk of assessing evolving
standards is that it is all too easy to believe that evolution
has culminated in one's own views.''
Once you start considering shifting public opinion, you are
essentially reducing constitutional interpretation to public
poll. So assuming you will interpret the Constitution in a way
that all of your writing suggests--and I know the answers to
Senator Coons suggest otherwise--how do you intend to guard
against imposing your own views as opposed to what you view as
shifting public opinion?
Ms. Harris. Senator, let me start by saying that as a
Supreme Court litigator and appellate litigator, as someone who
has specialized in preparing other advocates for their
arguments before the Court, I always have been keenly aware of
the boundaries of judicial decisionmaking. And as a litigator,
every argument I ever advanced took as its starting point the
methodologies that have been used by the Supreme Court and the
lower courts and the methodologies that have been approved by
those courts. That is how I have conducted my career.
In terms of some of the other comments you have raised, I
do not believe that it is the view of a judge ever to import
his or her own personal values into judicial decisionmaking. In
cases in which the Court has looked to things, to social
conditions, things like that, what the Court--and, again, I
would follow the Court's precedent on this. What they have
looked to is objective indicia of such things. They have looked
to State laws. They have looked at common law. They have looked
at practices in the States. I am aware of no account of
legitimate judicial decisionmaking that has judges either
taking public opinion polls or using their own personal
preferences to decide cases.
Senator Grassley. My time is up. I would submit some more
questions for answer in writing.
Ms. Harris. Of course.
Senator Grassley. I would appreciate a response, and
sometimes if you raise questions with your answers to us,
sometimes we followup. So do not expect--or, I mean, expect
some questions.
Ms. Harris. Of course, Senator.
[The questions of Ranking Member Grassley appears as a
submission for the record.]
Senator Grassley. Thank you.
Senator Coons. Thank you, Senator Grassley.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
your service in the past, and your willingness to do it in the
future, and thanks to your family as well for supporting you.
You have an extraordinary career, a career of distinction
and dedication to public service. And with anyone who has
served or written or done things over the course of public
life, obviously there are things that you can say could be
misinterpreted, could be interpreted in different ways. And I
would like to ask you about one point in particular. In your
questionnaire to the Committee, you submitted letters that you
sent in support of President Bush's, George Bush's judicial
nominees: Judge Brett Kavanaugh for the United States Court of
Appeals for the District of Columbia Circuit and Judge Neil
Gorsuch for the Tenth Circuit. And in one of those letters, you
stated that you are sometimes in disagreement with Judge
Gorsuch on political matters, and I assume the same could be
said of Judge Kavanaugh.
Ms. Harris. Yes, it could.
Senator Blumenthal. And given those opposing views on
political issues--and some on this panel may disagree with you
on some political issues--what led you to support them as
nominees to the court of appeals?
Ms. Harris. Senator, I supported them as nominees because I
think judging has nothing to do with politics. I was very
confident that both of those nominees would put to one side any
political views they might have in judging the issues that came
before them and that they would approach those issues with an
open mind, impartially, and base their rulings on law and
precedent. I do not think politics are relevant. I would do
exactly the same thing if I were confirmed that I was so sure
those two nominees would do.
Senator Blumenthal. And that is really one of the key
points here, is it not? That a nominee's past political views
ought not to shape his or her service on the court and ought
not determine the outcome of our decisions here, because we
want to look to the qualifications and the willingness of a
nominee to put those past views aside. And I believe that you
would. That would certainly be your goal.
Ms. Harris. Yes, Senator, that is right. As a litigator for
so many years in private practice, I always had full
confidence, when I came to a court, that those judges would be
deciding the cases on the law, that they would approach the
briefs and arguments with an open mind, fairly and impartially.
It is the cornerstone of the system, and I would be honored to
do the same if I were confirmed.
Senator Blumenthal. And you have been a prolific writer
going back to your days on the Yale Daily News.
Ms. Harris. Yes.
Senator Blumenthal. Some of us regret what we may have
written on school newspapers in the past when it is presented
to us years or decades later. But I assume that you would
follow the law and attempt to conform your views to what the
U.S. Supreme Court says the law is.
Ms. Harris. Senator, I would conform my views to what the
U.S. Supreme Court says the law is.
Senator Blumenthal. Tell me, in the short time I have
remaining, the Georgetown University Law Center's Supreme Court
Institute, which you have headed, is a real resource for anyone
who advocates before the Supreme Court. I do not think I have
ever used it, but I have heard a lot of great things about it.
As executive director of the institute, how did you determine
who participates in the program?
Ms. Harris. Senator, the institute runs on a strictly
nonpartisan basis, on a first-come/first-served basis. We
prepare advocates for their arguments before the Supreme Court
without regard to the position being taken, without regard to
the nature of the client.
The commitment really is to the appellate process, to
ensuring that the best legal arguments are presented on either
side of the issue to the Supreme Court.
Senator Blumenthal. And one reason why that is important is
that the courts make better decisions when both sides are
represented ably. Is that----
Ms. Harris. That is the entire value behind the Supreme
Court Institute, that it is a matter of assisting the Court by
ensuring that the best possible legal arguments are presented.
Senator Blumenthal. And your goal, one of your goals, to
the extent that you are able to do so, I hope would be to
assure that both sides of an argument are represented ably
before your court.
Ms. Harris. Absolutely, Senator.
Senator Blumenthal. Thank you.
Ms. Harris. And I would give full and careful respect to
both sides as they represent it.
Senator Blumenthal. Thank you. I appreciate your very
helpful answers to my questions. My time has expired.
Ms. Harris. Thank you.
Senator Blumenthal. Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Blumenthal. And Senator
Blumenthal is going to take over chairing while I run to cast a
first vote, and we are going to do a little back-and-forth on
that.
If I might, before I turn to Senator Cruz, I just wanted to
make sure that we have introduced for the record letters
submitted to the Committee in support of Ms. Harris'
nomination. These are letters--there is one from former law
firm partners, one from professional colleagues, classmates,
from the Leadership Conference on Civil and Human Rights and
the National Women's Law Center. I will just note that across
them they praise you for your professionalism, grace,
collegiality, your humble and down-to-earth approach. Signers
of these letters span the ideological gamut and include A.B.
Culvahouse, former White House Counsel to President Reagan;
Cailley Balak, former Chief Counsel and Staff Director of the
Permanent Subcommittee for Investigations, who worked for
Senator Collins; Brian Boyle, who previously served President
Bush; Ted Kassinger, who served in the Bush administration; and
Greg Garre, Solicitor General in the Bush administration.
And if I might quote from your former law partners at
O'Melveny, ``Some of us have served in Republican
administrations or worked for Republican Senators. Others have
served in Democratic administrations or worked for Democratic
Senators. Some of us are members of the Federalist Society
while others members of the American Constitution Society. We
may not all share Pam's views on a range of legal and political
issues, but we are united in the belief that she possesses the
intellect, fair-mindedness, humility, and decency to make an
excellent Federal judge.''
With that, Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Professor Harris. Good morning. Welcome.
Ms. Harris. Thank you.
Senator Cruz. In a couple of sentences, how would you
define ``judicial activism''?
Ms. Harris. Senator, I think that can mean different things
to different people. I would define ``judicial activism'' as a
judge who allows his or her personal views to color decisions
made as a judge, and perhaps also as a judge who goes beyond
the facts of a case or further than necessary to decide an
issue.
Senator Cruz. I agree with that definition, and I will
confess I am troubled by some of the public comments you have
made, so I would like to give you an opportunity to address
them.
Ms. Harris. Thank you, Senator.
Senator Cruz. In 2009, at an American Constitution Society
panel, you described yourself as ``a profoundly liberal
person'' who sees the Constitution as ``a profoundly
progressive document.'' And you went on to say, ``I always feel
unapologetically, you know, left to my own devices, my own best
reading of the Constitution, it is pretty close to where I
am.''
Now, given the definition you have just given of ``judicial
activism,'' those public comments raise some concern. How would
you respond to those concerns?
Ms. Harris. Well, Senator, I would respond first, I think,
by pointing to my entire professional career where, as a
Supreme Court and appellate advocate at O'Melveny and Myers,
running the Supreme Court Institute on an entirely nonpartisan
basis, I have never let any personal views I have, political
views I may have affect the discharge of my professional
responsibilities. And I would not do that if I were confirmed
as a judge.
With respect to those specific comments, if I can just give
you a little bit of context, they came when I was arguing--
basically arguing against audience members who thought that the
Constitution should be amended to address certain Supreme Court
decisions that they found too conservative. And my point was
that commitment to the Constitution actually ought to transcend
that kind of political difference, and that that was not an
appropriate reason for amending the Constitution. I described
myself as ``liberal'' just as a matter of context to suggest
that even though I might share some of their political
commitments, I did not believe the Constitution should be
amended for that reason, and that I did believe commitment to
the Constitution transcends politics.
Senator Cruz. Looking to those comments, is it a fair
inference when you said that your best reading of the
Constitution pretty much always conforms to your own personal
political views, which you described as ``profoundly liberal''?
Do you agree with that statement?
Ms. Harris. Senator, only in the absolutely most broad
sense in which I was using those terms in that comment. I do
believe that the Constitution is committed to values that were
very forward-thinking at the time, and this is what I meant by
``progressive,'' values like democracy, rule of law, equality,
individual liberty. I think that is a very noncontroversial
proposition, and that is all I was saying there.
Senator Cruz. As I understand it, you have been committed
to liberal values your whole life, which I commend you for the
consistency. My understanding is in college, with respect to
President Reagan, you said, ``The greatest American nightmare
of our time would be a second term for Ronald Reagan.'' Do you
still have that view?
Ms. Harris. Senator, I do not, and I am happy to have the
chance to address those columns. You know, those columns were
written 30 years ago as a college student. They represent what
were then my very earnestly held, though somewhat uninformed
views.
As I sit here before you, I cannot really accept them
today. I am proud of my youthful passion. I deeply regret my
tone. I think if you talk to people I have worked with over the
last 20 years, they will tell you that I pride myself on my
open-mindedness, my respect for people with whom I disagree.
And in knowing what it is I do not know, to the extent that my
early columns do not reflect that, I regret that.
Senator Cruz. Well, I appreciate your comments clarifying
that.
Let me ask an additional question. Also in 2009, you
criticized liberals for believing that the Warren Court's
decisions were ``as liberal as it gets,'' and you responded,
saying, ``That is not right.'' And you went on to say, ``We
have stunted the spectrum of legal thought in a way that
removes the possibility that there could have been more
progressive readings of the Fourth and Fifth Amendments.''
Now, as you know, the reaction to the Warren Court criminal
procedure rulings that were widely perceived to be creating
loopholes and allowing dangerous criminals back onto the street
was fairly dramatic, and it is unusual for judicial nominees to
have taken a position suggesting that the Warren Court was not
nearly liberal enough and it should have been more liberal. Is
that your view? I want to understand what your view is on that
question.
Ms. Harris. Senator, that is not my view, and it is also
really not what I said. And, again, if I can just give you the
context on that. I was responding on that panel to an argument
that Justices perceived as liberal, like Chief Justice Warren,
had never--and I think the phrase was ``had never felt the pain
of reaching a constitutional decision that disagreed with
liberal views.'' And the only point I was making was that
several of Chief Justice Warren's criminal procedure decisions
had not, in fact, adopted what was being presented as the
liberal view. And I believe I talked about the Terry case, and
that was the only point I was making, that sometimes people
assume that because Chief Justice Warren wrote an opinion, it
must have been terribly liberal. I was simply pointing out that
in the criminal procedure context, Chief Justice Warren wrote
opinions that did not adopt what was being advanced as the most
pro-defendant or liberal position. It is just a descriptive
point about certain criminal procedure decisions.
Senator Cruz. Well, thank you for being here and answering
the questions. My time has expired.
Senator Blumenthal [presiding]. Thank you, Senator Cruz. I
think that completes our hearing. Thank you very, very much,
Ms. Harris, for being with us today.
Ms. Harris. Thank you, Senator.
Senator Blumenthal. I think we have another panel.
I would like to call up the next panel, who are: Pamela
Pepper, Brenda Sannes, Patricia McCarthy, and Jeri Kaylene
Somers. If you would come forward and you have name
identifications on the desk.
If you would please stand and be sworn. Do you affirm that
the testimony you are about to give before the Committee will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Judge Pepper. I do.
Ms. Sannes. I do.
Ms. McCarthy. I do.
Judge Somers. I do.
Senator Blumenthal. Thank you. We are in the middle of a
vote, which is reflected by the lack of attendance right now,
and Senator Coons will be coming back shortly. But if you would
like to do so, perhaps you could begin with your opening
statements, identifying the family members who are with you,
and saying anything you would like to say by way of
introduction. Judge Pepper.
STATEMENT OF HON. PAMELA PEPPER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF WISCONSIN
Judge Pepper. Thank you, Senator Blumenthal. First of all,
I would like to thank Senators Baldwin and Johnson who spoke
earlier. Not only I but many people in the legal community in
Wisconsin are very grateful for their bipartisan efforts to
present judicial nominees to this Committee, and I wanted to
express my gratitude for that, as well as to you and the
Members of the Judiciary Committee for scheduling this hearing
and for allowing us to testify. I would also like to thank the
President for his nomination.
There are a number of people who could not be here today.
My parents, Bruce and Beverly Pepper, and my aunt and uncle,
Tom and Fay Cook, are not with us today because jointly they
are in an effort to get my 18-year-old niece, Sophie, on her
high school graduation trip to Paris. So there are machinations
around plane trips and schedules and things like that, so that
is what they are doing. My niece, Sasha, was also not able to
be with us. My brother, Cliff, however, is here in the
audience, and I am pleased to have him here as well.
Also not with us today are my courtroom deputy and my law
clerk, Chris Roble and Emily Steadman. I could not do my job
without them. They are watching via webcast back in Wisconsin,
as are the clerk's officers of the bankruptcy court and the
district court. I suspect there is food involved in that
activity, and I am grateful to them for watching, many
bankruptcy judge colleagues and friends also.
Here in the hearing room today, I am grateful to have a
number of friends and family, some of my friends from the
American Bankruptcy Institute: Ted Gavin, a member of the board
of directors; Sam Giordano, executive director of that
organization. I am grateful to them for being here today.
In addition, my friend Denise Neary, who is a senior
litigation attorney with the Federal Judicial Center, which is
responsible for educating the judges in the Federal system.
They do a wonderful job. I am very grateful for their help and
also for her being here.
My cousin, David Cook, with the Administrative Office of
U.S. Courts; my judicial assistant Paula Macomber and her
husband, Mac, have made the trip to be here. And I am grateful
to Paula for all of her help.
And, finally, my son, Leland, who is seated just behind me,
and his father, Jeff Hanewall, are here today, and I am very
proud for them to be here.
Finally, I would like to acknowledge the judge for whom I
clerked, Frank Johnson, Jr., who no longer is with us. I had
the opportunity to learn what a great judge is by clerking for
Judge Johnson, and I am grateful for that.
[The biographical information of Judge Pepper appears as a
submission for the record.]
Senator Blumenthal. Ms. Sannes.
STATEMENT OF BRENDA K. SANNES, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF NEW YORK
Ms. Sannes. Thank you. I would like to thank President
Obama for the incredible honor of this nomination. I would like
to thank Senator Schumer for recommending me to President Obama
and for his gracious and kind remarks. Then I would like to
thank Senator Blumenthal for chairing this hearing.
And I would like to introduce my family: my husband of 20
years, Steve Clymer. Steve is an accomplished lawyer and law
professor who has inspired his colleagues and the hundreds of
young lawyers who he has trained.
We have our three sons here today: Matthew, who just
finished his freshman year at Cornell University; Samuel, who
just finished his sophomore year in high school; and Benjamin,
who, as Senator Schumer noted, is missing Movie Day. He has a
half-day left of school before he finishes fifth grade.
My parents are watching via webcast in Billings, Montana. I
would like to thank them. Their hard work in running small
businesses in Billings put me through college and has given me
a strong work ethic.
Finally, I would like to thank my mother-in-law, who is
watching from Pasadena, California, for her love and support.
[The biographical information of Ms. Sannes appears as a
submission for the record.]
Senator Blumenthal. Thank you.
Ms. McCarthy.
STATEMENT OF PATRICIA M. McCARTHY, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Ms. McCarthy. Thank you, Senator. I would like to thank the
Members of the Committee for convening this hearing and
allowing me to participate.
First of all, I would like to thank President Obama for the
incredible honor of nominating me to the Court of Federal
Claims. It is a court in which I practiced for 20 years, and I
am incredibly grateful to the President.
My family is here with us. We are local so we did not have
to travel. My husband, David, is here, and my three daughters:
My oldest daughter, Isabelle, is 19, and she is home from
her first year away at college. And as parents of firstborns
know, probably it was more difficult for my husband and me than
it was for her to be away, but she is back here for the summer.
My daughter Sarah is 16 years old, and she is a rising
junior at the Lab School of Washington, which is an incredibly
amazing and fantastic school here in the district.
My daughter Madeline is also 16 years old and a rising
junior at the Lab School, and Madeline and Sarah are actually
extremely close in age. Sarah is 28 minutes older, and she
lords it over Madeline all the time.
Also here, people who have traveled, my mother has traveled
from Massachusetts, Mary McCarthy, and her partner of more than
25 years and spouse of 10 years, Bonnie Winokar. My mother is a
retired chemist, and Bonnie is a retired high school math
teacher, and my daughters profit from her generous provision of
free tutoring services via Skype and Google Chat.
My brother, Michael McCarthy, is also here from Boston, and
my sister-in-law, Daphne Minner, could not be here. She is home
at work at the Arnold Arboretum in Massachusetts.
My brother, Brian McCarthy, and sister-in-law, Tessa Cale,
did make the trek from New York, and I am very grateful for
them to be here.
There is one person I would like to mention who could not
be with us, and that is my late father, Leonard McCarthy. He
has been dead for several years. He actually died when I was in
law school at the age that I am at now, which is not a terribly
old age, and I obviously wish that he could be here. But I am
joined by my friends and colleagues from the Department of
Justice, and many are here in person, and others are watching--
they are streaming, which is probably causing consternation to
our Department of Justice IT Department, but maybe they will
cut us some slack for this morning.
But I am truly grateful to the Committee for holding this
hearing, and I welcome any questions, would be delighted to
answer any questions you have.
[The biographical information of Ms. McCarthy appears as a
submission for the record.]
Senator Blumenthal. Thank you. We are going to have to take
a brief recess--I do apologize--because Senator Coons is on his
way back but is not yet here. So this Committee will stand in
brief recess. It will just be a couple of moments, and I do
apologize for the delay. Thank you.
[Whereupon, at 11:18 a.m., the Committee was recessed.]
[Whereupon, at 11:24 a.m., the Committee reconvened.]
Senator Coons [presiding]. I would like to return this
hearing to order.
Ms. Somers, I believe you were on the verge of your opening
comments, and I will comment, if I might, given that we have
begun a series of four votes. I do not know whether other
Members will return. I myself have to go back to cast a vote.
You may be the luckiest judicial confirmation panel in history.
[Laughter.]
Senator Coons. And I know you have all prepared at great
length for this very demanding confirmation today, but given
the press of votes and the distance from here to the Capitol,
we may end up submitting questions for the record.
Ms. Somers, let us proceed with you and see how we do.
STATEMENT OF HON. JERI KAYLENE SOMERS, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Judge Somers. Thank you, Senator Coons. Thank you so much
to the Committee for convening this hearing. Thank you for the
very kind comments that you made at the very beginning about me
and my colleague. Thank you for President Obama's nomination. I
am honored to be here.
I just wanted to introduce my family briefly and my
friends. So behind me is my father, Christopher Somers. He is a
retired Air Force colonel, having gone through the ranks of the
lowest enlisted to colonel. He came here from Jamaica, and
after graduating from--I mean, after retiring from the Air
Force, he went to law school and is now a practicing attorney.
My mom, Jacqueline Somers, is also here. She recently
retired from being a neonatal nurse. She was born in Chicago
but grew up in the town that President Obama's grandparents are
from, a small town in Kansas.
My daughter, Kristen Somers, is here. She is a rising
senior and goes to Yorktown High School and plays lacrosse and
does lots of other teenage activities. Her friend, Scarlett
Cruz, is also here to support me.
My boss, Chairman Daniels, of the Civilian Board of
Contract Appeals is here. He has always been a strong
supporter, and despite the fact that he does not want me to
leave, he is here giving me all the support he can.
My friend Tamara Ashford, who is the Assistant Attorney
General for Appellate Tax and also a tax court nominee, is here
to support me, as well as two of my friends from my
neighborhood running group, Hot Lava, Darla Gonson and Ellen
Hemstreet.
With that, thank you so much for the opportunity to speak
to the Committee.
[The biographical information of Judge Somers appears as a
submission for the record.]
Senator Coons. Thank you, Ms. Somers. And as someone who
has his own neighborhood running group, not with the nickname
Hot Lava----
[Laughter.]
Senator Coons. Home in Wilmington, Delaware, that I ran
with this morning, I understand the importance of friends and
support, and, Colonel, welcome. Clearly both your parents led
you to a career of great success and service, public service.
Let me, to all four of the nominees, thank you for your
willingness to serve. Thank you for your preparation for this
hearing, and thank your friends and your family for supporting
you through this process.
I would like each of you, if you could, in series, to
simply answer the question: Describe your judicial philosophy,
and how will the experiences you have had in public service or
in legal service, or both, how have they prepared you for the
judicial position to which you have been nominated? Judge
Pepper.
Judge Pepper. Thank you, Senator Coons. My judicial
philosophy, I suppose, is first a description of what I
perceive to be the role of a good judge, and that is, to be a
neutral party who applies the law to the facts, who is
responsible for determining what the appropriate law should be,
and then listening carefully to each side and giving fair
weight to each side's arguments before making a determination.
I suppose that is a description of a role, and so I would
add to that my own philosophical gloss, which is the importance
of giving each side or every party the opportunity to be fully
heard and to know that they were fully heard before rendering a
decision, as well as to explain as clearly as I can the basis
for that decision.
Senator Coons. Thank you.
Ms. Sannes.
Ms. Sannes. Yes, I agree with Judge Pepper's views of
judicial philosophy. As a litigator for the past 25 years in
Federal court and appellate court, I understand the importance
of appearing before judges who are fair, impartial, open-
minded, and will follow the law. And if fortunate enough to be
confirmed, I would aspire to be that as a judge.
For the last 8 years, I have done appellate work, and I
think my experience doing appellate work has given me a lot of
training in the proper way to have a district court record, in
trying to prevent--make sure the facts are developed well and
make sure that the record is as solid as possible so it can be
upheld on appeal.
Senator Coons. Ms. McCarthy.
Ms. McCarthy. Thank you, Senator. I concur with the
statements of my co-panelists, but I would also like to add
that I, in my 20 years at the Department of Justice, have had
the privilege of practicing not only in the Court of Federal
Claims but also in the Court of International Trade and the
Court of Appeals for the Federal Circuit. So I think I have an
overview of the national court system and the adversarial
system that Congress devised for the resolution of claims
against the United States. And I think I have an insight as to
the importance of having a fair and impartial decision so that
litigants who come to the court with claims against the
Government understand the rulings and respect the rulings and
feel that they have had their fair day in court.
Senator Coons. Agreed.
Ms. Somers. Judge Somers.
Judge Somers. Senator Coons, I do not really have much to
add other than to say that I believe my philosophy is informed
by my more than 21 years as a military officer, including as a
military judge, my time at the Department of Justice, the U.S.
Attorney's Office, and in the private sector as well as
teaching young law students about the rule of law.
My philosophy is very focused on making sure that justice
is given expeditiously but fairly so that parties have a chance
to provide their analysis of their cases without me
predetermining their answers and the response and the decision,
and also taking the opportunity to try to ensure that decisions
are rendered as quickly as possible.
Senator Coons. Thank you. I would like to thank all four of
you. We have had five outstanding nominees today. Each of you
has in your own way served our court system, served justice,
served our Nation, and I do think it is absolutely essential
that we continue to advance access to justice, diversity in our
Federal judiciary, and excellence. And I think all of you have
been strong nominees from those perspectives.
I am going to keep the record of this hearing open for a
week, so as you heard from Senator Grassley before, there may
be other Senators unable to attend due to the voting schedule
who will submit questions for the record. In any event, I would
like to join, I know, all of my colleagues in thanking your
family and your friends for supporting you here today. Breathe
a great sigh of relief.
With that, this confirmation hearing is adjourned.
[Whereupon, at 11:32 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF STEPHEN R. BOUGH,
NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MISSOURI; ARMANDO OMAR BONILLA, NOMINEE TO
BE JUDGE OF THE COURT OF FEDERAL CLAIMS; WENDY BEETLESTONE, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; MARK A.
KEARNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA; JOSEPH F. LEESON, JR., NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA; AND GERALD J. PAPPERT, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
----------
THURSDAY, JULY 24, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Whitehouse and Grassley.
Senator Whitehouse. Well, I was going to call this hearing
to order, but it looks like it has come to order on its own. It
must be the distinguished presence of Senator McCaskill and
Senator Toomey here.
We welcome both of you. I understand that Senator Casey
will be joining us shortly. I welcome my Ranking Member,
Senator Grassley, who has agreed with me that rather than make
our opening statements first and have the Senators who have
candidates before us wait through all that, we will proceed
directly with those Senators so they can go on about their
business. And then we will make our opening statements
afterwards.
So we will begin with Senator McCaskill. You are recognized
to make your statement in support of your nominee, and we
welcome you to the Judiciary Committee.
PRESENTATION OF STEPHEN R. BOUGH, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF MISSOURI, BY HON. CLAIRE McCASKILL,
A U.S. SENATOR FROM THE STATE OF MISSOURI
Senator McCaskill. Thank you, Senator Whitehouse, and thank
you, Senator Grassley. I know you all do great work here and
have an awesome responsibility in terms of moving these
nominees through so they can take their place on the bench and
judicial economies can be realized by having a full complement
of judges to hear cases.
I better turn that off before I go any further.
Typically, I do not bring a sheet of paper to talk off of
when I talk about nominees that I have urged the White House to
put in play because I know them pretty well, and this is no
exception, except I was afraid I would forget all the stuff
that Steve Bough has done if I did not bring a cheat sheet,
because he has an amazing record of leadership within the legal
profession in my State.
He grew up in a small town called Republic, Missouri, and
attended Missouri State University, which is located in
Springfield in the southwest corner of our State. That is where
he met his wife, Andrea. He attended law school at the
University of Missouri, located in Kansas City, and he was
editor-in-chief of the Law Review during his time at law
school.
After law school, he clerked for a very distinguished judge
in our history in the State, Judge Scott Wright. After that, he
began practicing law, and he has been a partner in his own law
practice for a number of years. Prior to that, he was an
associate at a very respected law firm, Shamberg, Johnson and
Bergman.
But he has been practicing on his own since 2002, in his
own law firm, where he is a partner. So he understands the
challenges of small businesses and that fear that you have
gnawing in your stomach that everyone gets paid before you do.
And, therefore, you must work hard.
He is active in a lot of bar organizations and has served
in leadership roles in almost every bar organization in our
State. He has been president of the Kansas City Bar
Association, Young Lawyers Section. He has been on the Board of
Directors of the Kansas City Metropolitan Bar Association, the
Board of Governors of the Missouri Bar Association, and
currently serves on the Board of Governors of his university,
Missouri State.
He serves as an adjunct professor at UMKC Law School
teaching Federal Jurisdiction and Trial Advocacy. Additionally,
he serves on the Professor Robert Downs Scholarship Committee,
an endowed scholarship at UMKC Law School.
Steve has been president of the UMKC Law Alumni Association
and is a member of the Board of Trustees for the UMKC Law
Foundation.
Now, the best part about Steve Bough are the people he has
with him today. He has with him today his wife, Andrea, who is
a lawyer in her own right. She is an accomplished attorney who
works in a very respected law firm in Kansas City doing real
estate development work, municipal bonds, and has specialized
in making sure people understand their obligations under our
Sunshine law, which is the State equivalent of FOIA.
Then they have two children, and, boy, they look good
today, and I have got to mention their names. I mean, Grant is
sporting a bow tie, Mr. Chairman, that you should long for.
Ashley and Grant are their two children, and they are very
active in the community. Both Mr. and Mrs. Bough serve as
elders in their church, and I remember my mother when she met
Steve Bough at her church. He came up to her, as did his wife,
and made sure that she knew that they were there for her at the
church. And I remember her telling me not long after she met
Steve Bough, ``You know, you need to do something for him
someday. He is a class act. He is a smart man.''
I am really pleased that the White House has nominated him
for this important job as district judge. He has been in the
courtroom so many times. He understands that litigants need
fair and--fair decisions that are made quickly, that all of the
pleadings need to be read and appreciated, and the work that
lawyers put into cases need to be consumed by judges, not just
by people who work for them. And he will never get ``robitis.''
This is somebody who does not have an arrogant bone in his
body, and even though his appointment is for his life, he will
be humble his entire life as he sits in this important position
in our judiciary.
I appreciate very much the opportunity to introduce him to
you today. I can confidently recommend his confirmation, and
thank you very much for giving me this time.
Senator Whitehouse. Thank you very much, Senator McCaskill.
And I know that you have important and pressing business, so
feel free to excuse yourself whenever you wish.
After Mr. Bough, the rest of the nominees make this
Pennsylvania Day here in the Judiciary Committee, so let us
begin with my distinguished colleague, Senator Toomey.
PRESENTATION OF WENDY BEETLESTONE, NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA; MARK A. KEARNEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; JOSEPH
F. LEESON, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA; AND GERALD J. PAPPERT, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY
HON. PATRICK J. TOOMEY, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Toomey. Thank you very much, Chairman Whitehouse,
and Pennsylvania Day is always a good day. So I am delighted to
have this opportunity----
Senator Whitehouse. We are partial to Rhode Island Day and
Iowa Day, too.
[Laughter.]
Senator Toomey. I am sure those are lovely days as well.
Ranking Member Grassley, thank you very much also for all
of your cooperation. Thank you for the opportunity to introduce
four outstanding Pennsylvanians: Mr. Jerry Pappert, Ms. Wendy
Beetlestone, Mr. Mark Kearney, and Mr. Joseph Leeson, all
nominated by President Obama on June 16th of this year. And I
appreciate the timely scheduling of this hearing and the
efforts that you have made, in particular Senator Grassley, and
others, to keep these four together so that we can continue to
fill the vacancies that occur in Pennsylvania's three
districts.
I also want to thank Senator Casey, who is not here at the
moment. I think he will be joining us. But Senator Casey has
been a terrific colleague for collaboration in particular with
respect to filling these vacancies. Together he and I have now
been able to usher 11 Pennsylvanians through this process--10
district court judges, one of whom is now sitting in Reading,
Pennsylvania; another in Easton, Pennsylvania. I mention those
two because those courthouses had been vacant for many years
prior to the confirmation of judges there. We have also placed
a judge in Williamsport, also a courthouse that had been vacant
for some time.
We have had a judge confirmed to the Third Circuit Court of
Appeals, Cheryl Krause, who was confirmed just earlier this
month. And we are committed to continuing to work with each
other to fill the handful of remaining vacancies that we have.
Senator Casey, I have just been talking about you, and I
just appreciate the very cooperative effort that we have had
together and the success we have been able to enjoy.
Let me just say a few words briefly about the four
candidates we have before us today.
First, Jerry Pappert has a terrific and diverse and very
extensive legal experience. He is a partner with Cozen
O'Connor. He has worked extensively on commercial litigation.
He is a former Attorney General for Pennsylvania. He has
successfully argued cases before the U.S. and the Pennsylvania
Supreme Courts, won a landmark U.S. Supreme Court decision
unanimously, the Booth v. Churner decision, that set forth the
administration exhaustion requirement for a prisoner seeking to
sue in Federal court.
Jerry Pappert has enforced Pennsylvania's consumer
protection laws, sued drug companies for price fixing, received
a $19 million settlement. Mr. Pappert's diverse experience and
really very keen intellect will serve him very well on the
Federal bench.
Wendy Beetlestone is also a very experienced litigator. She
also happens to be an expert in education law. She is currently
a shareholder at Hangley, Aronchick, Segal and Pudlin. She has
litigated a number of very complex, major commercial disputes.
She has been the general counsel for the Philadelphia School
District, led 19 lawyers serving the school district, and
represented the Philadelphia School District in a number of
important litigations.
She serves on numerous boards and advisory committees, on
the Education Law Association, which is a nonprofit that offers
information on current legal issues affecting education, on the
Pennsylvania State Boards of Higher Education and Vocational
Education. Ms. Beetlestone's litigation experience and the care
and commitment she has demonstrated to her community will make
her a great addition to the Eastern District Court of
Pennsylvania.
Mark Kearney is a very successful attorney. He is a
managing shareholder at Elliott, Greenleaf, and Siedzikowski,
where he has worked for 24 years practicing principally
commercial litigation. He has done a lot of pro bono work,
especially helping victims of child abuse. Mr. Kearney has also
worked on an issue that is very important to me personally, and
that is, helping to protect our children from predators in the
first place. He has worked with the Montgomery Child Advocacy
Project, representing children in criminal, dependency, and
civil matters. Mr. Kearney is an outstanding lawyer and I
believe an excellent candidate for the Federal bench.
And then, finally, Joseph Leeson. Jay Leeson is a very
respected lawyer in Allentown, Pennsylvania. He is a partner in
Leeson and Leeson, has ample trial experience. His practice
includes litigation, municipal law, nonprofit, and religious
law. His commitment to public service is exemplary. He is
currently the solicitor for Northampton County. He has served
as the Bethlehem city solicitor. If confirmed, Mr. Leeson will
sit in the Allentown courthouse, and I think that is important,
Mr. Chairman, because it will be the first time that Allentown
has had two Federal judges serving in the Allentown courthouse
at the same time. And as the third largest city in
Pennsylvania, and as the heart of the third largest region, the
Lehigh Valley of Pennsylvania, we need to have a second Federal
judge in the Allentown courthouse, and Mr. Leeson has indicated
his intention to serve there.
So all of these candidates have the crucial qualities that
are necessary to be an outstanding Federal judge. They have the
intellect, they have the integrity, they have the commitment to
public service, and they have respect for the limited role that
the judiciary has in our constitutional system.
So I am delighted that each of them is willing to serve in
this capacity. Again, I want to thank the Committee for this
timely hearing, and I hope that they are favorably reported.
They are all outstanding nominees, and I thank you, Mr.
Chairman.
Senator Whitehouse. Thank you, Senator Toomey.
The senior Senator from the great State of Pennsylvania has
now arrived, and I recognize Senator Bob Casey.
PRESENTATION OF WENDY BEETLESTONE, NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA; MARK A. KEARNEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; JOSEPH
F. LEESON, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA; AND GERALD J. PAPPERT, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY
HON. ROBERT P. CASEY, JR., A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Casey. Mr. Chairman, thank you very much. I am
honored to be before you, Senator Grassley as well. And I want
to thank Senator Toomey not only for providing a summary of the
experience and the qualifications of each of our nominees, but
in a larger sense, even beyond today, for the work that we do
together to try to arrive at a consensus in our State when it
comes to candidates who come before both of us to seek
nomination from the President for the district courts in our
State. We have three Federal judicial districts. We get a lot
of qualified people that come before us, and to arrive at a
consensus is difficult and challenging. But it has been an
honor to work with him in that process.
I will not reiterate every part of the biographies and
credentials of each of our candidates. I will summarize. But I
think when it comes to each of these four, let me say first
that I know each of them individually, have known them all for
years, literally, some longer than others but many years in
each case.
I think probably what unites all of them is a combination
of factors or credentials or qualifications which prepares them
well to serve on the United States District Court for the
Eastern District of Pennsylvania. One of those would be
academic achievements. You know from their educational
background, both undergraduate and law schools, you know of
that part of their record.
Second, I would say by way of experience, wide and diverse
experience in the law, experience in front of all kinds of
courts, including Federal courts.
And then, third, in addition to that--I should say in
addition to that experience, I would say public service as well
in each of their cases.
And then, third, the character and temperament, what we can
best anticipate as what would be their judicial temperament as
judges. But I think in each case they are people of high
integrity.
Let me just do a quick highlight of some of them.
I have known Wendy Beetlestone for about a decade now or
more, and Senator Toomey outlined her background, her academic
background at the University of Pennsylvania Law School and
Liverpool University, as well as her work as a law clerk for
Federal Judge Gawthrop in the Eastern District--I am sorry, the
Court of Appeals in Pennsylvania, as well as her work on
education law and the public service that that entailed for the
school district of Philadelphia, her private practice at the
Hangley, Aronchick firm. So I know her to be someone who not
only possesses the qualifications and the capability to be an
effective Federal judge, but also the character as well.
Mark Kearney I have known for more than--probably more than
10 years now, it is more like 20 or 25. Senator Toomey outlined
his work at the Elliott, Greenleaf and Siedzikowski firm since
1990, clerking on the Delaware Court of Chancery, one of our
most significant courts in the country dealing with matters--a
range of matters with corporations and other matters that come
before that court. Senator Toomey mentioned his advocacy for
children, especially in a volunteer capacity, and his academic
background.
Mark is someone who I think understands, just as Wendy
does, that when people come before Federal courts, they do not
always come with power and influence. Sometimes the only shot
they have is to come before that district court and that judge,
and I think he will be a very strong Federal judge, as would
Wendy.
Jay Leeson I have known probably the longest of our
candidates. I have known Jay not since he started in 1980 with
his family's law firm, but not long after that, getting to know
him in the world of government and politics, as well as our
parents knowing each other for literally decades. Public
service on the city council of Bethlehem, city solicitor as
well. He went to the same law school I went to. That should
not--we should recommend him in every instance, but I think it
is a very strong law school, Catholic University of America, of
course, graduating from DeSales University as well. Jay is
someone who takes his job as a lawyer and advocate very
seriously. I think he is the kind of person that we want in a
Federal court because of his integrity and because of his broad
experience as a lawyer and his commitment to public service.
And then Jerry Pappert, someone that I got to know when I
was in State government, he was the first Deputy Attorney
General for Attorney General Mike Fisher, who was elected the
same year I was elected as Auditor General. We were both
statewide elected officials and had to work together and did
work together well. I got to know Jerry in those years. Then
later, of course, he became the Attorney General of the State
after Attorney General Fisher became a Federal court of appeals
judge, working as a partner at Cozen O'Connor and prior to that
at the Duane Morris law firm. Again, tremendous public and
private sector experience, the right kind of temperament and
qualifications that we would expect from anyone serving on the
United States District Court.
So I think in each of these cases, they are people that do
possess the experience and the commitment to public service we
would hope for, but also that very critical ingredient, which
is integrity and the kind of judicial temperament we would hope
every judge possesses.
So with that, and we can certainly supplement the record
with more, I want to thank you for this opportunity and
recommend all four of these with enthusiasm and gusto. And,
again, I want to thank Senator Toomey for his commitment to
working through our process.
Senator Whitehouse. Let me thank you both. The process by
which United States Senators make recommendations to the
President as to who should be the nominee to the United States
District Court in their home State is a very important one, and
it is one that I think we on the Judiciary Committee should
value a lot. Nobody knows their community better than the
Senators from that community in the Senate, and these are very
public acts to recommend someone. And when that comes, I think
our colleagues take that responsibility very seriously. And the
importance of not only the recommendation to the White House
but the willingness of Senators to depart from their busy
schedules to come here and speak for their nominees is
something that is significant and appreciated.
But I do know you both have busy schedules to get to, so
let me excuse you from this hearing, and we will bring forward
the nominees and proceed with our opening statements and get
underway.
Thank you very, very much.
[Pause.]
Senator Whitehouse. Does everybody know where to sit? Well,
before you sit, let me ask you all to stand and 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?
Mr. Bough. I do.
Mr. Bonilla. I do.
Ms. Beetlestone. I do.
Mr. Kearney. I do.
Mr. Leeson. I do.
Mr. Pappert. I do.
Senator Whitehouse. Please be seated, and welcome to the
Judiciary Committee. I know this is a proud day for you and for
your families, and we appreciate that very much.
We are here to consider six nominations to the Federal
bench: Stephen Bough, nominated to the U.S. District Court for
the District of Missouri; Armando Bonilla, nominated to the
U.S. Court of Federal Claims; Wendy Beetlestone, Mark Kearney,
Joseph leeson, and Gerald Pappert, all nominated to the U.S.
District Court for the Eastern District of Pennsylvania.
I welcome each of you and your families and your friends to
the U.S. Senate, and for those who are participating
electronically, I welcome them as well.
Voting to confirm an individual to the Federal bench is one
of the most important and lasting decisions that a Senator can
make. Every day Federal judges make decisions that affect the
lives of ordinary Americans in all walks of life, often in
vital ways for that individual.
In performing that function, judges must respect the role
of Congress as the elected representatives of the American
people. They must decide cases based on the law and the facts.
They must not prejudge any case but listen to every party that
comes before them with an open mind. They must respect
precedent, and they must limit themselves to the issues that
the court must decide in the matter before them. I hope that
each judicial nominee that we hear from today understands the
importance of those baseline principles.
Judicial nominees also must have the requisite legal skill
to serve as a Federal judge. Each of today's nominees has an
impressive record of achievement. As a result, I believe that
each nomination deserves prompt and favorable consideration. We
need good judges for our system of justice to function.
I also think it is important that our judges respect the
function of the jury. The jury is an important element in our
constitutional system of Government. Blackstone himself wrote
that, ``The most powerful individual in the state will be
cautious of committing any flagrant invasion of another's right
when he knows that the fact of his oppression must be examined
and decided by 12 indifferent men.'' Now, of course, to him,
``indifferent'' meant something a little different than what we
now mean. It meant ``impartial.'' And ``men'' is now ``men and
women,'' thankfully. But the principle behind Blackstone's
comment I think is true. The jury is an important element in
our structure of Government that can hold to actual individuals
and institutions that may not be able to be held to account in
any other form of Government, which is why de Tocqueville in
``Democracy in America'' wrote that the jury is, before
everything, a political institution, one ought to consider it
as a mode of the sovereignty of the people. Each of you will
have the chance to manage juries, I hope, and I hope that you
treat them with respect and allow them to have the role that
they deserve.
Before I turn to our Ranking Member Senator Grassley, let
me do two brief orders of business.
One, I would like to welcome and introduce Armando Bonilla.
As an appointee to the Federal Court of Claims, he does not
have a home State Senator to make his introduction. He is
nominated to the U.S. Court of Federal Claims for a 15-year
term. He spent his entire legal career serving in the
Department of Justice. Since March 2014, he served as an
Associate Deputy Attorney General in the U.S. Department of
Justice's Office of the Deputy Attorney General, and for those
of us who have served in the Department of Justice, we know
that that office is an extraordinarily busy one where virtually
every difficult issue the Department faces comes.
He before that served as senior counsel and previously as a
trial attorney in the Civil and Criminal Divisions of the
Department. He has also taught as an adjunct professor at the
George Washington University School of Law. Although born in
New York, Mr. Bonilla received his B.A. from West Virginia
University and his J.D. magna cum laude from Seton Hall
University. After graduating law school, he clerked himself for
U.S. District Court Judge Garrett E. Brown from the District of
Delaware.
So now everyone stands introduced, and I would like to ask
unanimous consent to put into the record a letter that I
received from Gerald Coyne in support of Mr. Pappert, who is
here. When I was the Attorney General in Rhode Island, I hired
Jerry to be my Deputy Attorney General. He did a good enough
job that every successive Attorney General after me has kept
him on as the Deputy Attorney General. He is one of these quiet
guys who just makes sure that everything runs calmly, on time,
efficiently, and that the right answer is achieved. And so I
take his recommendation very seriously, and I am very pleased
that he wrote this letter, and without objection, it will be
made a part of the record. Congratulations, Mr. Pappert, on a
wonderful letter from somebody who in Rhode Island we value
very highly.
[The letter appears as a submission for the record.]
Senator Whitehouse. I will turn now to my distinguished
Ranking Member.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Mr. Chairman, even though Mr. Bonilla did
not have anybody to introduce him, you did a good job of that.
Tim Kelly of my staff spoke very highly of him last night and
made a 12-hour advanced introduction of him.
First of all, to all of you, you are to be congratulated on
this advancement of your political career, a very important
milestone for you but also for your families and friends, and
so we welcome you and congratulate you.
Although we have these nomination hearings regularly--this
is our 11th hearing this year--each one of them is a very
serious and important event, much as the Chairman has just
pointed out.
All but one of you have been nominated to lifetime
positions. When I consider each candidate, I look at their
legal background and qualifications. I look at how long they
have practiced law and what kind of experience they have. And I
also consider what we refer to as temperament, demeanor, and
commitment to integrity.
I believe that temperament is just as important as legal
qualifications. Our Federal judges need to be able to
thoughtfully, calmly, and impartially consider each case before
them. They need to treat all litigants that come before them
with respect and dignity.
Many of the candidates who come before us today have been
politically active, and I have no problem with that. And I have
voted for nominees whose political preferences are far
different from mine. But I do believe that we can learn a lot
about someone's potential judicial demeanor based on how they
have treated those who disagree with them politically. Have
they been fair and respectful in their political discourse?
I understand political passion. And as the old saying goes,
``Politics ain't beanbag.'' But the power of our judiciary
rests entirely on the people's confidence in impartiality. And
we can debate how far is too far in politics, but we can all
agree that what may be in bounds in the political arena may not
be appropriate for the Federal judiciary.
If litigants doubt a judge's ability to be impartial and
treat those in front of him or her with respect, then
confidence in our judicial system will erode quickly if they
cannot count on that. And, of course, that concerns me.
During today's hearing I look forward to engaging in a
discussion with each of you. I doubt if I will have time to ask
each of you the length and breadth of questions I would like
to, so you will probably get some questions to respond in
writing. I appreciate your responses to those.
While the President's job to nominate, it is the Senate's
job to consider whether to confirm each of you to the position
you have been nominated for. Congratulations once again, and I
yield.
Senator Whitehouse. Thank you very much, Senator Grassley.
Let me give each of the nominees a chance to make an
opening statement here, and we would welcome your introduction
of family members and friends who are with you. So let us
proceed right across the table. Let me see. It is not quite
alphabetical, but anyway, we will go from left to right,
starting with Mr. Bough. Please proceed.
STATEMENT OF STEPHEN R. BOUGH, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MISSOURI
Mr. Bough. Thank you, Senator. I would like to thank the
President for nominating me and Chairman Leahy and Chairman
Whitehouse and Ranking Member Grassley. I would like to thank
both Senator McCaskill and Senator Blunt for giving me the
opportunity to be here today.
I would also like to introduce my family again: my
daughter, Ashley, who just turned 16; my wife, Andrea Bough,
who is an attorney in Kansas City at Lewis, Rice and Fingersh;
and my son, Grant Bough, who will be turning 11 next month.
Senator Whitehouse. He would be the one in the bow tie?
Mr. Bough. He would be the good-looking young man in the
bow tie.
Senator Whitehouse. Very good.
Mr. Bough. Thank you, Senator.
[The biographical information of Mr. Bough appears as a
submission for the record.]
Senator Whitehouse. Mr. Bonilla, please proceed.
STATEMENT OF ARMANDO OMAR BONILLA, NOMINEE
TO BE JUDGE OF THE COURT OF FEDERAL CLAIMS
Mr. Bonilla. Thank you, Chairman Whitehouse, for that kind
introduction, and Ranking Member Grassley and Members of the
Senate Judiciary Committee for scheduling this hearing to
consider our nominations.
I would also like to thank President Obama for bestowing
upon me the highest honor of my professional career in
nominating me to serve on the court where I learned to be a
trial lawyer 20 years ago.
Here with me today are my wife of 10 years, Dr. Jacqueline
Wright Bonilla, who served as an administrative patent judge;
our daughter, Brycen, who is 9; and our son, Armando, who goes
by ``AJ,'' who is 6; my mother, Aleida Bonilla; and a dear
friend of the family for over 40 years, Harold Paul.
Seated with my family are my closest friends and the
godparents to my children, Amy Brown and Karen Fisher, who has
the honor of serving for Senator Wyden; and two people who
started with me 20 years ago at the Department of Justice:
Federal Circuit Judge Todd Hughes and Laura Loomis Ramone.
Sadly, my father passed away shortly after I joined the
Department of Justice and can only be here in spirit. He was a
man who worked two and three jobs to make sure that my life's
ambitions and dreams would not be limited. And he and my mother
raised me to truly believe that a person who grows up cleaning
law firm offices at night with his parents can someday be
nominated by the President and considered by the Senate for a
seat on the Federal bench. He truly would have loved this day.
I would like to welcome via the Webcast my sister, Barbara,
and her partner, Bob Feldman, who I believe are sitting on a
beach somewhere watching this on their iPad; and a dear friend
of mine for over 20 years, Colleen Conrey; and from the west
coast, my mother-in-law, Joy Adams; my father-in-law, Paul
Wright, and his partner, Lenora; and my brothers-in-law Mike,
Mark, and Alex Wright, and his wife, Nicole, who welcomed their
first child into this world earlier this week.
And, finally, I would like to thank my Justice Department
colleagues, past and present, some of whom are here today, for
their service to this Nation and for making the Department of
Justice an amazing place to work and to learn and for sharing
with me their talents.
I thank you again for considering my nomination.
[The biographical information of Mr. Bonilla appears as a
submission for the record.]
Senator Whitehouse. Thanks, Mr. Bonilla.
Ms. Beetlestone, welcome.
STATEMENT OF WENDY BEETLESTONE, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Ms. Beetlestone. Thank you, Senator. I would like to take
this opportunity to thank President Obama for honoring me with
this nomination. I would also like to thank Senators Casey and
Toomey for their kind words and their support through this
process.
Senator Whitehouse and Ranking Member Senator Grassley,
thank you so much for the hard work that you do on this
Committee.
I have a fair number of family members today in the
audience: my husband, John, John Detre; our daughter Claudia
Detre, who is going into the University of Pennsylvania
engineering program in just a few weeks; and daughter Naomi
Detre who is 16 and just about to go into the process of
deciding which college she is going to go to; my mother, Clare,
my sister, Linda, and her husband, Andy Bowen; as well as my
niece, their daughter, Eleanor ``Nell'' Bowen; my brother,
Philip, who flew all the way from Botswana; and I am
particularly appreciative that the hearing actually occurred
when he was here in the country; and our dear friends, Chris
Simpson and Joanna Crawford.
Thank you so much.
[The biographical information of Ms. Beetlestone appears as
a submission for the record.]
Senator Whitehouse. Thank you very much, Ms. Beetlestone.
Mr. Kearney.
STATEMENT OF MARK A. KEARNEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Kearney. Good morning, Senator.
Senator Whitehouse. Good morning.
Mr. Kearney. Thank you, Mr. Chairman, thank you, Mr.
Ranking Member, for the opportunity to address you.
I want to thank Senator Bob Casey and Senator Pat Toomey.
We sit here in this spot realizing how fortunate we are in
Pennsylvania to have two distinguished servants who really
benefit all Americans by the process that they engage in for
this service.
I want to thank President Obama. The honor that he has
given my family is humbling and will be forever--we will be
forever grateful for his confidence.
I also have a series of family members who commuted from
Pennsylvania and elsewhere to be here, and I would like to take
a moment to recognize them.
I would like to start, of course, where I always start,
with my wife, Eileen. Eileen is the bedrock of everything we
see, and I thank her for being here and being here every day.
I would like to introduce my son, Seamus. Seamus is going
into 9th grade at Ian Academy; my daughter, Mary, is going into
7th grade at Norwood-Fontbonne. Both schools are in Montgomery
County, Pennsylvania, where we are from.
I would like to introduce my sister, Karen Finnegan. Karen
is here with her husband, Michael Finnegan; my godson, Michael
Finnegan; and my niece, Kate Finnegan.
My father passed a few years ago, and he would have greatly
enjoyed this. The person who most looks like him in the world
is here, and that is his sister, my aunt Marie, known as Peony
Scullin, who is here at every one of these events my entire
life, and she is here today with her daughter, my cousin,
Teresa Scullin.
My mom passed in 2012. The woman who looks most like my mom
is here, and that is Mrs. Agatha Kane, known as Aunt Aggie. And
I am so grateful that she is here. She is here with her
daughters, my cousins, Eileen and Denise.
I am also blessed that two friends drove down from
Philadelphia this morning, two very busy lawyers and
businesspeople.
First is my best man and dearest friend, Tom Egan. Tom
Egan's name resonates in the Eastern District of Pennsylvania.
His grandfather was a distinguished jurist on the Eastern
District of Pennsylvania. Tom is a very distinguished trial
lawyer in the Eastern District of Pennsylvania, and I am
honored that he is here. He is also the godfather of my
daughter, Mary.
I am also blessed that my friend, Ken Tepper is here. Ken
also worked with me at the Elliott, Greenleaf firm and is a
long-time friend and confidante. I am honored he would take
time to come see me.
I also have to thank those people who could not be here but
are, I am sure, watching on Webcasts, and I started, of course,
with Eileen's family: her mom, Eve Brennan, who I am sure is
watching. I also thank the very talented and extraordinary
trial lawyers at my law firm, Elliott, Greenleaf, for all they
have done for me and for all they have taught me.
I want to thank my friends in the Delaware bar. I was
hoping to say hello to Senator Coons. As you may know, I
started in the Delaware bar and clerked in the Court of
Chancery, and I have a great affection for the practice of law
in the Chancery Court.
And I would like to thank my friends at the Montgomery
County bar and bench who have been so instructive to me, both
in collegiality and excellence, and in demeanor, and I thank
them.
And, last, I have had the opportunity, Mr. Chairman, to
serve as a baseball coach for many years. It is a great
opportunity to train and teach. And I want to thank the many
people who are watching on webcast, and, in fact, a family that
drove down here who I had the opportunity to coach.
So thank you very much. I look forward to answering your
and the Ranking Member's questions.
[The biographical information of Mr. Kearney appears as a
submission for the record.]
Senator Whitehouse. You are most welcome.
And we will turn now to Mr. Leeson.
STATEMENT OF JOSEPH F. LEESON, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Leeson. Senator Whitehouse, I would like to thank you
and Senator Grassley for convening this hearing to evaluate and
consider my nomination as well as that of my fellow nominees
here today.
I would like to thank the President for making this
nomination. I would like to thank Senators Casey and Toomey for
their recommendation of me to the President and for their kind
and supportive words this morning.
I would like to acknowledge and thank the presence of my
wife, Loretta Leeson, who is here today; my son Joseph Leeson
III, who is also with us today; my daughter Patricia Leeson,
who is here with us today; my son Robert Leeson, who is here
with us today; and my other two children, Maureen Leeson and
Kathleen Leeson. Maureen is in Seattle, Washington, working,
and my daughter Kathleen is in Pennsylvania working today, and
I know they will be watching either contemporaneously by
Webcast or later today watch the Webcast of this. And I thank
them for their love and support. They are the joy of my life,
my wife and my children. And I thank you again for convening
this hearing.
[The biographical information of Mr. Leeson appears as a
submission for the record.]
Senator Whitehouse. Thanks, Mr. Leeson.
And the final member of the panel, Gerald Pappert. Let me
also offer, without objection, into the record of this hearing
a letter that Chairman Leahy has provided me from my former
colleague, the Attorney General of Vermont, Bill Sorrell. And
without objection, that will be added to the record also in
support of Mr. Pappert.
[The letter appears as a submission for the record.]
Senator Whitehouse. Please proceed.
STATEMENT OF GERALD J. PAPPERT, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Pappert. Senator Whitehouse, thank you very much for
those kinds words and for passing along the support of General
Sorrell and Chief Deputy Coyne.
Thank you to all of the Members of the Committee. Senator
Grassley, thank you very much for everything you did along with
the other Members of the Committee to enable me to be before
the Committee for your consideration today. I am deeply
grateful to you.
I want to thank, of course, Senators Toomey and Casey for
their confidence and trust in me and their recommendation to
the President, and thank the President for the honor of
nominating me to this very important position.
Of course, all thanks start with, for all of us, our
spouses and our children. I want to thank my wife, Ellen, and
daughter, Mary, for their love and support. Mary will be
beginning high school this year. They are watching us on the
Webcast.
And I want to thank some family and friends who are here
with me today, specifically my niece, Kate Dugan, who joined us
today, and particularly my friend and mentor and former boss,
Judge Mike Fisher, former Attorney General Fisher, and his
wife, Carol.
Of course, I was Mike's first deputy in the office, which
is where I got to know Jerry Coyne so well, and if I have the
honor and privilege of being confirmed to this position by the
Senate, Mike, who now sits on the Third Circuit, will once
again be reviewing my work. So I hope he looks forward to that
as much as I do. But I am grateful to Mike and Carol and to
Kate for being here.
I am honored to be before you today, Senator, and I look
forward to answering any questions that you or any other
Members of the Committee may have.
Thank you.
[The biographical information of Mr. Pappert appears as a
submission for the record.]
Senator Whitehouse. Thank you very much, Mr. Pappert. Thank
you for mentioning that Judge Fisher is here. I see him now,
but I did not see him earlier. We served as Attorneys General
together along with Attorney General Sorrell from Vermont, and
it is terrific that he has taken the trouble. General, Your
Honor, welcome. Thank you for joining us.
You were here for my opening statement. I made a list of
what I think are the baseline rules for district judges to
follow. To repeat, they are that judges should respect the role
of Congress as the elected representatives of the American
people; that they should decide cases based on the law and the
facts; that they should not prejudge any case but listen fairly
and with an open mind to everyone that comes before them; that
they should respect the precedent that has been laid down; and
that they should limit themselves to the issues that are before
them that the court must decide. I think those are, as I said,
baseline considerations, but baseline considerations are always
worth reiteration, and I just want to hear from each of you
that you support those rules and will abide by them as United
States district judge, if confirmed.
Mr. Bough. Senator Whitehouse, I have heard those rules,
and I will fully abide by them.
Senator Whitehouse. Mr. Bonilla.
Mr. Bonilla. Yes, Senator, I agree.
Senator Whitehouse. Ms. Beetlestone.
Ms. Beetlestone. I agree also.
Mr. Kearney. I agree.
Mr. Leeson. I agree, fully committed.
Mr. Pappert. Yes, Senator, I agree as well. Thank you.
Senator Whitehouse. Thank you. I know that is pretty
straightforward stuff, but, still, it is good to make that
record.
The other concern that I bring to this hearing is that, in
the way that I look at our history and in the way that I look
at our system of justice, the jury plays a very important role.
It is one of the few places where ordinary men and women have
the opportunity to participate in an office of government,
which the jury is, and to make firsthand and in the community
decisions that can be vital to that community and are very
often absolutely vital to the party that is before them.
I would also note that the jury is an institution that is
very hard to play politics with. Tampering with the views of
the executive branch and the legislative branch is a constant
pastime, and we license it through lobbying and campaign
finance activities. Tampering with a jury is a crime, and that
means that the jury can be the last place where someone who is
unpopular or someone who has powerful adversaries can get a
fair shake. And what I look out and see is an institution of
government that is dying and shriveling, that is increasingly
hard to get before, that is increasingly rare, and my concern
is that too many judges now see the jury as sort of a fact-
finding appendage to the court that if you can get cases by
them without going to them, then it will save them the trouble
of having to sit on cases, and it will allow the court to move
its calendar, and that is kind of the end of the lesson.
I think that there is harm done by that view of the world
to the very structure of our Government, and that the more we
can take as democratic and powerful an institution as the jury
into our lives, the better off we are.
So, in any event, some of you had lots of experience with
juries. I would like to hear a word from each of you about the
jury and its role in our system of Government and how you would
see operating with juries in your courtroom if you are
confirmed. We will start again--let us go the other way this
time, just to shake it up. Mr. Pappert, you lead off.
Mr. Pappert. Thank you, Senator, very much. The jury
system, of course, is the bedrock of our judicial system and
our constitutional structure here in the country, and I think
that it is crucial to respect at all points along the timeline
in a litigation matter the role of the jury and to allow the
jury to serve its function.
Finally, I think it is important for a trial court judge to
recognize the sacrifice that the individual jurors make to sit
on juries and to provide the essence of the system for us and
to treat them respectfully and accordingly.
Thank you.
Mr. Leeson. Senator, I have spent much of my professional
life trying cases in front of juries. They are a fundamental
part of the bedrock of our democracy. No less a personage than
Thomas Jefferson himself once said that the jury system is the
great equalizer between the powerful and the powerless. And I
have observed that in my own work that people can come into
court, get a fair shake from 12 citizens, their peers, hear
their case and decide it fairly.
I am fully committed to the jury system. I want to see it
strong, and I believe fully in it 100 percent.
Senator Whitehouse. Thank you very much.
Mr. Kearney.
Mr. Kearney. Thank you, Senator, for the question. As a
commercial trial lawyer, I recognize, maybe uniquely, the role
the jury has in those type of disputes. Oftentimes, as Mr.
Chairman mentioned, courts will look beyond that because they
may be business disputes and they can be decided on paper.
My experience has always been that the jury is the great
equalizer, to borrow my colleague's quote. It is absolutely
what works in the system.
Like Mr. Pappert, I would absolutely agree that the members
of the jury, having served on a jury, the members of the jury
deserve all the respect that should be accorded to them under
the principles that have been, I think, since the 12th century.
And I strongly believe that the lawyers who come--if I am
honored enough to join that court, the lawyers that come before
the judges should recognize at the end of the day this is a
jury trial in most contexts.
Senator Whitehouse. Thank you very much.
Ms. Beetlestone.
Ms. Beetlestone. Thank you for that question, Senator. If I
am confirmed, I certainly would respect the jury. I have always
respected and been honored in being called to jury selection,
and if I were to have the honor of running a courtroom, I would
honor the people who give their time and effort to serve on
juries.
My view is that in being a judge, one should respect
procedure, one should respect substantive law, and also respect
the parties, and the parties--by the ``parties,'' I mean
litigants, attorneys, and particularly the jury.
Thank you.
Senator Whitehouse. Thank you, Ms. Beetlestone.
Mr. Bonilla.
Mr. Bonilla. Thank you, Senator. I agree with all the
statements of my colleagues. Having tried a number of cases
before juries and having observed a number of jury trials
during my clerkship and having actually sat on a jury that went
to verdict, I am in awe of how serious all the jurors take
their responsibilities.
Unfortunately, the Court of Federal Claims does not have
jury trials. We only have bench trials, so I will not be given
the privilege and the honor of working with jurors.
Senator Whitehouse. You are exempt.
[Laughter.]
Senator Whitehouse. Mr. Bough.
Mr. Bough. As a trial lawyer who has resolved many cases in
front of a jury, I am a strong believer in the Seventh
Amendment right to trial by jury. It is often said that the two
most important boxes in the world are the ballot box and the
jury box, and I strongly believe that.
In my role as an attorney in Kansas City, I serve on an
organization called the Missouri Institute for Justice, which
has plaintiffs' lawyers and defense lawyers; the Chamber of
Commerce is a member, and we collectively work in Jefferson
City with Democrats and Republicans to ensure that our jury
system is not tampered with and to ensure that our judges are
nonpartisan in their actions. That is one of the proudest
things I do.
Senator Whitehouse. Thank you very much.
I am now honored to turn to our Ranking Member, Senator
Grassley.
Senator Grassley. I hope none of you will be disappointed
if I do not ask all of you questions. I think I am only going
to take time for a couple questions of a couple people and then
submit the rest of my questions for answer in writing.
I am going to start with Mr. Bough. You have a reputation
for writing quite a few blogs as a political leader. You wrote
on a lot of political topics, but you also wrote about other
issues such as what makes a good judge and what does not. And
one time you maybe said something you might regret: ``Who reads
this blog will agree I should not be a judge.''
[Laughter.]
Senator Grassley. So there are some who--now, I am not
going to ask you questions about your blog. I am going to ask
you questions about another matter. But I just wanted to make
you aware that some question whether you possess the
temperament we typically look for in a candidate for a Federal
judge. I just wanted you to know in fairness that we will be
taking a close look at your writings in the blog, and I imagine
some of my colleagues will as well.
Today, though, in the limited time, I would like to ask
about some complaints you filed with the Federal Election
Commission. According to the FEC records, you filed two
complaints--one in 2008, one in 2012. The FEC dismissed both
complaints. They dismissed the 2008 complaint with a brief
summary opinion, and in 2012, you appeared to redouble your
efforts. You filed a 93-page complaint against the same
candidate. The FEC responded to the filing by dismissing all
your complaints. Their dismissal provided a meticulous response
to each of your claims and found that your complaints had ``no
basis for its allegations.'' The ruling criticized your
allegations as ``lacking adequate specificity,'' for being
``vague and speculative and unsupported.''
The bottom line is this: These complaints strike me as
frivolous, and what troubles me about them is you appear to be
utilizing this Government entity for purposes of harassing
political opponents. So I would like to ask if you would
identify, either now or you could do it later in writing, what
evidence you had to support the following accusations that were
not included in your complaint.
In your 2012 complaint, you accused the candidate's
campaign of, among other things, ``continuing failing to report
expenditures'' related to billboard advertising. The Commission
noted that your complaint provided ``no basis for its
allegations,'' found that the allegations were ``vague and
speculative,'' and concluded that there was ``no reason to
believe the campaign failed to report expenditures.''
Other than the de minimis material included in the appendix
to the complaint, upon what evidence then did you base this
allegation? That is one question. And then I will ask another
question, and that will be it.
Mr. Bough. Senator, thank you for that question. I did make
those FEC filings relating to congressional races in the Kansas
City area while I served as the Democratic Chairman. I believe
that the FEC found that there were violations, but found that
they were de minimis violations. However, I am a strong
believer, as I think would serve me well if I have the honor to
serve as a judge, that all the rules are to be followed, and
that the system should work out those differences.
The 2012 filing was 93 pages with attachments. I believe
that there was specificity, which had to come through 93 pages
and all the attachments.
In particular, as to the billboard, the billboard was paid
for, I believe, for 1 month and it was up for the entirety of
the campaign season, and I will be more than glad to provide
that additional information to you after this hearing.
Senator Grassley. You also accused the candidate's campaign
of illegally coordinating communication with a political action
committee, Missouri Right to Life. The Commission noted that
there was ``no substantial similarity'' between the two ads
compared in your complaint and found that there was ``no reason
to believe''--that is a quote--the campaign illegally
coordinated communications other than the photograph of a
Missouri Right to Life ad and the printout of the candidate's
campaign website you included with your complaint. Upon what
evidence did you base the allegation?
Mr. Bough. Thank you, Senator. What we did provide the FEC,
which shows a great level of specificity, that on the Right to
Life web page that it mirrored the information on the
candidate's web page, different word-for-word, verbatim
coordination, and that will be information I will provide to
you after this hearing.
Senator Grassley. Okay.
[The information referred to appears as a submission for
the record.]
Senator Grassley. Mr. Leeson, in June 2012, you
participated in a religious freedom forum. The forum discussed
the Health and Human Services mandate which is part of the
Affordable Care Act. You made the comment that the HHS mandate
is ``un-American, unprecedented, and blatantly
unconstitutional'' and that it violated the First Amendment,
the Administrative Procedures Act, and the Religious Freedom
Restoration Act. Presumably, you were speaking about the
mandate included in the Affordable Care Act that required some
employers to provide abortion-inducing drugs.
A, could you provide a context for that comment? What exact
elements of the Affordable Care Act were you discussing? First
question. And then I will follow it up.
Mr. Leeson. The context is I was asked by one of my
clients, the Catholic Diocese of Allentown, to represent it at
this forum on the subject of the First Amendment and religious
liberty. That was the context in which I was representing the
client and made those remarks.
Senator Grassley. And is that the exact element of the
Affordable Care Act that you were discussing?
Mr. Leeson. By sheer coincidence, my remarks were made 24
hours, unknowingly, before the U.S. Supreme Court handed down
its ruling declaring the Affordable Care Act constitutional. So
at the time that I was discussing it, I was discussing the Act
overall. There was a specific discussion on the mandate as
well. And in retrospect, the use of the term ``un-American'' I
think was not an appropriate choice of words on my part.
Senator Grassley. Okay. And the last question, do you have
any views that would make you unable to discharge your duties
faithfully as a U.S. district judge?
Mr. Leeson. No, Senator Grassley, there is nothing in my
personal beliefs or my faith that would prevent me from
applying and upholding all precedents, without exception, of
the U.S. Supreme Court and the Third Circuit Court of Appeals.
No exceptions.
Senator Grassley. Thank you. And for the other four of you,
I will have questions to submit in writing, and maybe for the
other two some followup questions.
[The questions of Ranking Member Grassley appear as
submissions for the record.]
Senator Grassley. Thank you very much.
Mr. Bough. Thank you, Senator.
Mr. Bonilla. Thank you, Senator.
Ms. Beetlestone. Thank you, Senator.
Mr. Kearney. Thank you, Senator.
Mr. Kearney. Thank you, Senator.
Mr. Pappert. Thank you, Senator.
Senator Whitehouse. Very well. Thank you very much for the
time you have spent with us this morning. Congratulations on
your nominations. We wish you well in the process going
forward. As you know, it is cumbersome, unwieldy, uncertain,
among its other advantages. But very often it ends in a happy
result, and 1 day you will be, with any luck, sitting behind
the bench and this will only be a dim and distant memory, all
that you have been through to get here.
But I really do appreciate that each of you has
demonstrated sufficient leadership in your communities and
sufficient legal skill and sufficient character that your home
State Senators and the President of the United States have
recommended and selected you for these different positions.
They are positions of great honor and trust, and we hope that
as you go forward you will not only meet with success through
the confirmation process, but that you will equip the duties
that you will then assume with the distinction that they
deserve.
The hearing record will remain open for further materials
for one additional week----
Senator Grassley. We probably need to add that other
Members will have questions in writing as well.
Senator Whitehouse. Yes, and obviously your nomination will
not go forward until those questions have been responded to. So
I would advise dispatch in doing that.
So best wishes to you all, and that will conclude the
hearing.
[Whereupon, at 11:14 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. MADELINE COX ARLEO, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY;
VICTOR ALLEN BOLDEN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
CONNECTICUT; DAVID J. HALE, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF KENTUCKY; AND GREGORY N. STIVERS, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF KENTUCKY
----------
TUESDAY, JULY 29, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:41 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard
Blumenthal, presiding.
Present: Senators Blumenthal, Coons, and Grassley.
Senator Blumenthal. We will now call the Judiciary
Committee to order. We are today considering four nominees to
district courts in the States of New Jersey, Connecticut, and
Kentucky. And in consideration of the Senators' very busy
schedules, I would like to begin by inviting Senator Paul of
Kentucky and Senator Murphy of Connecticut to make introductory
remarks about the nominees from their respective States.
Senator Paul.
PRESENTATION OF DAVID J. HALE, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF KENTUCKY, AND GREGORY N. STIVERS,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
KENTUCKY, BY HON. RAND PAUL, A U.S. SENATOR FROM THE STATE OF
KENTUCKY
Senator Paul. Thank you, Senator Coons, and thank you,
Ranking Member Senator Grassley. Both Senator McConnell and I
support these nominees, Greg Stivers and David Hale, to become
district judges from Western Kentucky. We believe both of these
gentlemen are highly regarded and would make great additions to
the district court.
I have known Greg Stivers for over 20 years. I have known
him as a friend, a neighbor, and a father. He is respected in
the community. He has wisdom, a sense of justice, and a
fidelity to the rule of law.
Greg Stivers earned his J.D. from the University of
Kentucky in 1985, has practiced law in my home town of Bowling
Green for many years, primarily focusing on employment,
business, and real estate. Greg has served as president of the
Big Brothers Big Sisters of South Central Kentucky. He is a
founding board member of Western Kentucky Research Foundation
and has served as president of Hilltopper Athletic Foundation.
I think Greg Stivers will make a great Federal judge.
David Hale is another proud graduate of the University of
Kentucky College of Law. He was confirmed as a U.S. Attorney
for the Western District of Kentucky in 2010. Formerly, David
served as Assistant U.S. Attorney. During that time he
prosecuted a vast array of criminal cases and represented the
Government in numerous cases of civil litigation involving
fraud against the Government. Previously, David served on the
board for the Urban League of Louisville and Kentucky
Educational TV, the State's public television network. In my
interactions with him as a Senator, I have been particularly
pleased by his responsiveness and respect for Congress. I think
David will make a great Federal judge as well.
Both of these nominees understand the role of a judge and
will approach the job with a sense of justice expected by those
who enter the courts. Their nominations are an example of all
sides coming together in a bipartisan way for the good of the
Commonwealth and the country. I look forward to their
confirmation as a district judge and to your consideration of
their confirmation.
Thank you.
Senator Blumenthal. Thank you very much, Senator Paul.
And I do not know yet whether Senator McConnell----
Senator Grassley. Could I speak to that point?
Senator Blumenthal. Certainly. Senator Grassley.
Senator Grassley. Senator McConnell was planning to be here
this morning to introduce and show his support for the nominees
from his State of Kentucky, as Senator Rand Paul has now. But
because we got started late and his presence was needed on the
Senate floor, he could not be here in person. So he was
disappointed he could not be here and sent along a statement
for the record that I would like to have inserted.
Senator Blumenthal. Without objection.
[The prepared statement of Senator McConnell appears as a
submission for the record.]
Senator Blumenthal. Thank you, Senator Paul.
Senator Murphy, would you like to introduce the nominee
from the State of Connecticut?
PRESENTATION OF VICTOR ALLEN BOLDEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. CHRISTOPHER
MURPHY, A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Murphy. Thank you very much, Mr. Chairman, Ranking
Member. Thank you for having me here today. It is my honor to
introduce my friend, Victor Bolden, before the Committee. Mr.
Bolden is one of Connecticut's most experienced and well-
qualified lawyers. He has clearly demonstrated the intellect,
the integrity, and the life experience that will make him a
capable Federal court judge.
It is also terrific to see so many of his family members
here with us today. I know he will introduce them to you.
Victor was born in New York City in 1965 and received his
bachelor's degree from Columbia University, went on to receive
his law degree from Harvard. He has demonstrated a unique,
lifelong commitment to public service, serving as an attorney
for two national civil rights organizations, and as a
corporation counsel for the city of New Haven. Along the way he
has worked on some of the most significant civil rights cases
of our time with distinction. And in addition, he has worked
pro bono for a number of very important organizations in
Connecticut, among them the Connecticut Food Bank and the
Connecticut Veterans Legal Center.
His experience and success as an advocate has been wide-
ranging. One of his colleagues wrote in support of his
nomination to the bench, ``I am struck by the depth and breadth
of Victor's experience as a trial and appellate lawyer in
private practice, as a teacher, writer, and public speaker, as
counsel to the NAACP and ACLU, and as corporation counsel to
the State of New Haven. In each of these roles, Victor has
impressed not only his colleagues but even those who have
argued against him.''
He previously worked at the NAACP Legal Defense and
Educational Fund, serving as their general counsel. He then
worked at the law firm--or before that worked at the law firm
of Wiggin and Dana, one of our biggest firms in New Haven,
Connecticut. He began his career at the American Civil
Liberties Union Foundation.
Most recently he has served New Haven as its corporation
counsel, a position that he has held since 2009. It is there
that he has gained broad bipartisan respect throughout the
city, region, and State. It does not hurt that Victor is known
for bringing cake to the staffers at City Hall every Friday
afternoon. But he has gotten a reputation as a go-to guy in New
Haven, especially from many of the young lawyers that he
mentors.
In short, Victor is a man who has consistently used his
talents and passion to give back to the community around him.
His entire life experience has prepared him to be a
compassionate and impartial judge, and I am confident that
Victor Bolden will be an outstanding addition to the Federal
bench.
Thank you very much, Mr. Chairman, for allowing me to
introduce him today.
Senator Blumenthal. Thank you both very much. Thank you for
being here.
For those who may not be familiar with our process, our two
Senators who are here to introduce nominees from their States
have other obligations, and they will probably leave to attend
to Committee hearings and other business. Thank you so much for
being here this morning.
We will have one more Senator to introduce a nominee from
his State, and I would just like to welcome everyone. And,
Senator Menendez, thank you for joining us.
PRESENTATION OF MADELINE COX ARLEO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY, BY HON. ROBERT MENENDEZ,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Mr. Chairman, thank you very much for the
opportunity, and to you and to the distinguished Ranking Member
and to all the Members of the Committee, it is my pleasure and
honor to come before the Committee today to introduce Madeline
Cox Arleo, nominated to the U.S. District Court for New Jersey.
She is a New Jerseyan who in her life and her career has
embodied the qualities of respect for justice, the rule of law
that we look for in all our judicial nominees.
In nominating her, the President recognized her
``unwavering commitment to justice and integrity and an
impressive record of public service.'' And the American Bar
Association rated her unanimously well qualified for the
nomination, and I agree, as all who have practiced before her
or served with her and known her would agree with that
unanimously well qualified.
I applaud the President's nomination of Judge Arleo. She is
sharp, experienced, committed to justice, has the appropriate
respect and deference to precedent, has the right type of
judicial temperament that we want to see in district court
judges, all of which are essential qualities of any great
judge.
She has demonstrated an impressive ability to manage
complex legal cases throughout the course of her career and is
clearly an incredibly great choice to serve as New Jersey's
district court judge.
I will look forward to her swift confirmation before the
Committee and the full Senate and will work with Members of the
Committee to be sure we can expedite the process as quickly as
possible.
Very briefly, prior to her appointment to the bench, Judge
Arleo was a partner at Tompkins, McGuire, Wachenfeld and Barry,
where she practiced and focused on civil litigation in State
and Federal courts. She began her legal career as a law clerk
to Justice Marie Garibaldi of the New Jersey Supreme Court. She
received her J.D. summa cum laude from Seton Hall, her M.A.
from Rutgers University, and her B.A. from Rutgers College. And
as distinguished as a resume that may be, it does not paint the
full portrait of her as a judge, as a respected and
contributing member of the New Jersey community, or as a public
servant.
For the last year, she has run the Renew Program in our
State to help ex-offenders who graduate from a program that
requires them to attend 52 court sessions to become eligible to
have their supervisory release reduced by a year. Judge Arleo
oversees the program that involves intensive monitoring and the
cooperation of attorneys and probation officers who select ex-
offenders still under court supervision. The fact is the
program works. It reduces recidivism and helps qualify ex-
inmates to reintegrate into society and build a crime-free
life.
Clearly, Mr. Chairman, this is not someone who is just
handing down decisions from the bench. She is involved in the
judicial process from the beginning to the end.
She has spent 14 years as a Federal magistrate judge in New
Jersey after a decade of very involved State and Federal
litigation. She is accomplished, successful, and I think that
the Committee, upon your review, will agree with me and Senator
Booker, who also supports this nominee, that she is eminently
well qualified and the type of judge we want to see on the
Federal courts.
And with that, Mr. Chairman, I am happy to answer any
questions. If not, I have a hearing on Iran that I will excuse
myself to.
Senator Blumenthal. You are excused. Thank you so much for
being here. We really appreciate it. Thank you. And I know it
means a lot to the nominees and their families, particularly to
Ms. Arleo.
If I could ask the nominees to please come forward and take
your seats at the witness table. Let me just make a couple of
introductory remarks, and then turn to Senator Grassley, if he
has any.
I cannot exaggerate the importance of the job that you have
been nominated to fill. As a practicing attorney for many years
and United States Attorney and the Attorney General of our
State, I was in Federal court frequently, intensively,
actively, and I know firsthand that you will be the voice and
face of justice for countless people. There is always the right
of appeal. People can always go to a higher court. But for many
litigants, the result in your court will be the final outcome
in their cases. When they seek justice, they will be turning to
you to vindicate their rights. And that responsibility is truly
awesome.
Our responsibility in making sure that we confirm people
who are truly qualified is profoundly significant, one of the
most significant, in my view, that we have in the Senate of the
United States.
And so, first of all, let me thank you for your willingness
to serve. People often do not appreciate the amount of work,
the sacrifice that is required for this service on your part
and on your family's part. So I thank your families as well.
I am hoping that we can move expeditiously on these
nominees. We have increasing cooperation across the aisle. I
want to thank my colleague Senator Grassley for his
cooperation. And I want to say a word about Victor Bolden
because he comes from my State. I have great respect for the
three other nominees as well, but I know Victor Bolden and have
strongly supported and endorsed his nomination, not only
because his previous service as corporation counsel and in his
law firm and community activities has impressed me, but also he
has the skill, temperament, and intellectual acumen for this
job.
My colleague Senator Murphy described very well his
background, his qualifications in terms of his previous jobs,
but he has really dedicated his legal career to public service,
and he has fought and worked for the citizens of New Haven as
well as Connecticut through his work to fulfill the promise of
equal education in our Nation's schools as well as affirmative
action and school desegregation cases. He is a dedicated and
accomplished civil rights litigator, a compassionate, respected
attorney. He has a strong commitment to the rule of law, and he
has a keen and very impressive intellect.
One of the things that has most impressed me about Mr.
Bolden, and also about the other nominees, is the amount of
support that he has received in Connecticut. We have a legal
community, as you do in your States, I am sure, that knows each
other and works with each other. And in Connecticut, Mr. Bolden
has the highest respect in his profession. He is well liked and
extraordinarily well respected, and I believe he will make an
excellent judge. And I am pleased to welcome him as well as all
of you here today. So thank you so much for participating in
this hearing and for being willing to serve.
And then I am going to ask you to be sworn. As is the
custom of our Committee, all of our nominees are sworn. If you
would please rise and raise your right hand. Do you affirm that
your testimony today will be the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Arleo. I do.
Mr. Bolden. I do.
Mr. Hale. I do.
Mr. Stivers. I do.
Senator Blumenthal. Thank you.
I am going to introduce the other nominees as well, even
though some of you have already received introductions from
Senators.
Ms. Arleo has served as a United States magistrate judge
for the District of New Jersey for the past 14 years. She is
nominated to serve as United States District Judge for the
District of New Jersey, as you know. She was previously a
partner at Tompkins, McGuire, Wachenfeld and Barry, and Barry
and McMoran. She also served as a law clerk for Judge Marie
Garibaldi on the New Jersey Supreme Court, and she received her
bachelor's and master's degree from Rutgers University, her law
degree summa cum laude from Seton Hall University School of
Law.
Mr. Hale served as United States Attorney for the Western
District of Kentucky since 2010, and he was previously an
Assistant U.S. Attorney for that same district for 4 years
ending in 1999. He is nominated to serve again as U.S. District
Judge for the Western District of Kentucky, and he previously
practiced as a partner and counsel at Reed, Weitkamp, Schell
and Vice for 11 years. Mr. Hale received his law degree from
the University of Kentucky Law School in 1992 and his
bachelor's degree from Vanderbilt University in 1989.
Mr. Stivers has spent his entire legal career at Kerrick,
Bachert and Stivers. He began his career as an associate,
became partner in 1990, and is now nominated to serve as U.S.
District Judge also for the Western District of Kentucky. He
received his law degree from the University of Kentucky in 1985
and his bachelor's degree from Eastern Kentucky University.
Thank you all, and I would invite each of you to make a
brief opening statement. You can introduce the family members
who are with you today and make whatever other remarks you
would like to do. Thank you. Go ahead, Ms. Arleo.
STATEMENT OF HON. MADELINE COX ARLEO, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
Judge Arleo. Thank you, Senator, and thank you for
convening today's hearing. A special thank you to Senator
Menendez for his kind remarks, and thank you to President Obama
for the honor of this nomination.
I have with me a number of family members and friends from
New Jersey: my husband, Frank Arleo, who, like me, is a New
Jersey lawyer; my daughter, Alexandra, who is 16 and will be a
junior at Mount St. Dominic Academy in Caldwell, New Jersey; my
son, Peter, who is 14 and will be a freshman at Seton Hall Prep
in New Jersey.
I also have with me my cousin, Drew Niekrasz, who I had the
privilege of swearing in as chief of police of Bayonne, New
Jersey, just last week; my aunt, Alice Niekrasz; my uncle,
Frank Niekrasz, who served this country proudly in World War II
in the United States Navy, and tomorrow is his 94th birthday,
and I am so grateful that he could be with me today.
Also with me is a number of friends, my staff, my excellent
staff; my law clerk--Amy Anderson, my deputy clerk; and Amanda
Lauffer, my law clerk; as well as my friend Tom Scrivo, one of
my closest colleagues from law school.
I saved the best for last: my mother, Elizabeth Cox, who
has supported me throughout my life. And I would like to just
acknowledge the presence of my father, who passed away some
time ago, but I know he is here with me in spirit.
I think that is everyone, and I would also like to thank
all the members of our Federal family and friends who are
watching at home on the Webcast.
Thank you.
[The biographical information of Judge Arleo appears as a
submission for the record.]
Senator Blumenthal. Thank you.
Mr. Bolden.
STATEMENT OF VICTOR ALLEN BOLDEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF CONNECTICUT
Mr. Bolden. Thank you, Mr. Chair, and thank you, Senator
Blumenthal, for your very kind remarks on my behalf.
Senator Blumenthal. I think your microphone is off. There
you go.
Mr. Bolden. Thank you, Mr. Chair, and thank you, Senator
Blumenthal, for your kind remarks and support of my nomination
as well as Senator Murphy. I want to also thank the President
for nominating me.
I do have the pleasure and honor to have my family here.
First and foremost, my wonderful son, Caleb, is here, who is 11
years old. Caleb, to actually be here, missed an opportunity to
be in the Ranking Member's great State of Iowa to compete in an
athletic event to be here in support of me, and I appreciate
that very much.
My parents, the Reverend Isaac and Mary Bolden, are here
today. My siblings are here: my brother, Isaac, III, my sister,
Alecia; my other sister, Veronica. My sister, Alecia, and her
three children are here as well: William, Aviana and Karina.
And my sister, Veronica, is here with her husband, Charlie, and
their two daughters, Ella and Alana.
Unfortunately, my sister Alecia Goode's husband, William,
could not be here. He has been home recovering from an illness.
I also have my uncle, Willie Harris, my mother's brother,
who has also been a long supporter and helped throughout the
course of my life; and his son, Thomas Hardin.
I am very, very grateful to be here, and I appreciate the
opportunity this Committee has provided me.
[The biographical information of Mr. Bolden appears as a
submission for the record.]
Senator Blumenthal. Thank you very much.
Mr. Hale.
STATEMENT OF DAVID J. HALE, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF KENTUCKY
Mr. Hale. Thank you, Mr. Chairman and Ranking Member
Grassley. I want to say a thank you to the Committee for having
us here today. I look forward to the opportunity to be here and
to answer your questions.
I want to begin by thanking Senators McConnell and Paul for
their support and Senator Paul's kind words this morning.
Also, I would like to thank the President for the
nomination and for the opportunity to serve as United States
Attorney for the past 4 years.
I have with me my family. I will begin with my wife of 25
years, Ann. She is a registered nurse in Louisville. And our
kids are with us here today. My daughter, Caroline, is 19 and
will be beginning her sophomore year of college this fall. Our
son, John David, is 17 and in a couple of weeks he will start
his senior year of high school.
My parents are with us as well. My mother, Brenda, is a
retired registered nurse in Louisville, and my father, David,
is a banker in Louisville.
Again, thank you, Mr. Chairman.
[The biographical information of Mr. Hale appears as a
submission for the record.]
Senator Blumenthal. Thanks, Mr. Hale.
Mr. Stivers.
STATEMENT OF GREGORY N. STIVERS, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF KENTUCKY
Mr. Stivers. Thank you, Chairman Blumenthal, Ranking Member
Senator Grassley. I would like to also thank the entire
Judiciary Committee for their diligent work in reviewing my
submissions, and I would like to express my sincere thanks to
Senator McConnell and Senator Paul for their recommendation and
for their support throughout this process. And certainly I
would like to thank President Obama for his confidence in my
qualifications to nominate me to this important job.
I have got some family and friends here that I would like
to introduce as well, first, my wife and three daughters, whose
love and respect are my primary motivations in life.
My wife, Alicia, whose father was a county attorney in
Bracken County in northern Kentucky for over 30 years, and
whose grandfather was a Commonwealth's attorney who argued a
case in front of the U.S. Supreme Court.
My daughters: Elizabeth, who is in her final year of
pharmacy school at the University of Kentucky; and my daughter,
Laura, who is about to start her final semester of accounting
at Western Kentucky University; and my youngest daughter,
Lillie, who just graduated from high school and is getting
ready to enroll--start classes at the University of Kentucky in
the fall. I think that Lillie may actually be the fourth
generation of attorneys in our family.
Also with me today is my sister, Lynne Stivers Smith, who
is down from Lancaster, Pennsylvania; and my two dear friends,
Rob Porter and Bruce Fane, who have come up from Bowling Green,
Kentucky, for the hearing today.
I would also like to recognize, if I could, some folks who
could not be here today but are watching the Webcast: my
parents, Ken and Susie Stivers, who are watching in
Elizabethtown, Kentucky, and all my friends and colleagues at
Kerrick, Bachert and Stivers, who are watching in the upstairs
conference room of our Bowling Green office.
Finally, I would like to recognize three family members who
have been an important influence on me in my legal career:
first, my grandmother, Lillian Parish, who was a court reporter
in the Hardin County court when I was growing up, and her
stories of courtroom drama and humor are still among my
earliest memories. And I know Lillie is here in spirit today.
I also would like to thank my two uncles, Tom Cooper and
Bill Cooper. Tom is an accomplished trial attorney in
Lexington, Kentucky, with the firm of Landrum and Shouse, and
Bill is a former Hardin circuit court judge who served 10 years
as a Justice on the Kentucky Supreme Court. I would like to
thank Tom and Bill for acting as role models and mentors to me
over the years.
Thank you.
[The biographical information of Mr. Stivers appears as a
submission for the record.]
Senator Blumenthal. Thank you all for your opening remarks.
I know that your families whom you have introduced are very
proud of you today.
I am going to put in the record a statement from Senator
Rockefeller in support of Mr. Hale's nomination. Evidently, he
worked with your dad when your dad was banking commissioner and
he was Governor of West Virginia. So that will go in the
record, without objection.
[The prepared statement of Senator Rockefeller appears as a
submission for the record.]
Senator Blumenthal. And I am going to turn to Ranking
Member Senator Grassley because he has another commitment. I
will have my questions after his. Senator Grassley.
Senator Grassley. Thank you for your courtesy, and for all
the Members, we do not have a lot of time to ask each of you
questions, so on the Republican side, you will probably get
some questions in writing that we would appreciate your
answering before your nomination comes before the Committee.
I enjoy asking nominees about something they wrote a long
time ago to see if they share the same view now, and Mr. Bolden
had the prestige of having a Harvard law article written. That
is pretty good that you could do that. You wrote something
called, ``Judge not that you may be not judged.'' In that
article, which reads like a script for a play, you wrote
imaginary dialogue between certain deceased Supreme Court
Justices and God, and the conversations do not turn out too
well for the Justices.
[Laughter.]
Senator Grassley. As I am sure you remember, you had God
cross-examine the Justices about some of their opinions. After
God finds fault with them, he condemns them to justice, as you
put it, ``to spend eternity in Hell.''
[Laughter.]
Senator Grassley. Now, as I read your article, it quickly
became clear that the God character was actually a vehicle for
your own views. I hope I have interpreted that right. Looking
back, I am sure you intended for part of the article to be
amusing and to read like a parody. But you do get serious at
the end.
What I would discuss specifically is what you do at the end
of the article. That is where you describe four principles
which you argue define proper judicial decisionmaking. You
write that you intended those principles to be a ``visionary
statement of how judges ought to look at themselves and how
they consider deciding cases.'' I think that is important
because we usually do not encounter nominees who have
previously expressed their views on judging in such a concrete
way. So I would ask you questions about those principles.
Your first principle is, ``If the decision affects
society's dispossessed and oppressed, the decision must be made
in a way that eases their burden and does not add to their
woes.'' Would you adhere to that if you are confirmed?
Mr. Bolden. Senator, thank you very much for the question
and the opportunity to address this issue. Let me say that I
can assure you that, if I have the opportunity to be confirmed
and serve as a judge, that my decisionmaking will be based
solely on the applicable law and the facts and evidence before
me, not based on my musings in fictional form written when I
was a law student. It was before I had practiced law and had
the various experiences I have today that I think make me
qualified to be a judge.
Senator Grassley. It could be that the next three points
you might give the same answer, but let me ask anyway.
The second principle, that ``the judge must be
considered''--I will start over again. ``The judge must
consider how she or he would want to be treated if they were in
the same circumstances as the person they were about to affect
with their decision.''
Do you still think that way?
Mr. Bolden. My answer would be the same, that, you know, if
confirmed to be a judge, my decisions would be based on the
applicable law and the facts, not based on the musings I had
almost a quarter century ago.
Senator Grassley. Okay. Let me read the third principle.
``A judge has to be held accountable when their talent is not
used to restructure a legal system gone awry if that is what
needs to be done.'' I just would like to have you explain that
statement.
Mr. Bolden. I am sorry?
Senator Grassley. Should I read it again?
Mr. Bolden. Yes, please. Would you?
Senator Grassley. ``A judge has to be held accountable when
their talent is not used to restructure a legal system gone
awry if that is what needs to be done.''
Mr. Bolden. Again, Senator, I appreciate the opportunity to
sort of clarify that what I would--if confirmed, my approach to
the law, my approach to decisions before me would be based on
the law and the facts, not based on thoughts I had when I was a
law student nearly a quarter century ago.
Senator Grassley. Okay. And the last principle: ``Judges
must be mindful of the fruits or consequences of their
decisions.''
Mr. Bolden. Senator, I think the answer would be the same,
that my approach as a judge, if confirmed, would be to apply
the binding precedent to the facts in the case as they come
before me, not based on musings I had as a law student.
Senator Grassley. Then I would have one question for Mr.
Stivers, and the other two people I will submit questions for
answers in writing.
Mr. Stivers, in 2011, you wrote an amicus brief on behalf
of some of Kentucky educational institutions and nonprofit
organizations for a case before Kentucky's something
challenging gun ownership rights. In the brief, you argued that
State colleges could ban gun possession by college employees on
campus. Part of your argument was that college campuses were
``sensitive places that could be regulated to ban guns.'' The
State high court held that the Second Amendment allowed the gun
possession so long as the owner had a valid concealed carry
permit and properly secured the gun in his home.
So my single question: In light of that Kentucky case and
the Supreme Court's recent Second Amendment cases Heller and
McDonald, could you discuss how you understand the scope of the
Second Amendment with respect to possession of firearms?
Mr. Stivers. Yes, sir. Thank you, Senator. Of course, the
arguments in my brief on behalf of Western Kentucky University
were as an advocate on behalf of my client and did not reflect
my personal views. If confirmed, any case I dealt with with
regard to the Second Amendment I would follow Heller and
McDonald.
Senator Grassley. Thank you.
[The questions of Ranking Member Grassley appear as
submissions for the record.]
Senator Grassley. Thank you, Mr. Chairman, for your
courtesy. Thank you.
Senator Blumenthal. Thanks very much, Senator Grassley.
Let me ask a question of each of you, and it is a very
general question, but I think it may elicit views and
information about your qualifications that are of value to our
Committee.
Let me ask each of you what you think in your experience is
the most important qualification or preparation for becoming a
United States district court judge, and, likewise, what you
wish you might have done that would have been even a better
preparation. And if you are confused by the question, you
should not hesitate to tell me. But let me begin going left to
right, if I may--or my left to right, your right to left.
Judge Arleo. Thank you, Senator. I have had the privilege
of serving as a magistrate judge now for almost 14 years, and I
have learned many things. The most important is that respect
for the rule of law. Judges must be fair and impartial at all
times, carefully scrutinizing the record, the evidence, and
applying the settled law of the circuit, in my case the Third
Circuit, and the Supreme Court. That to me are the most
important qualities of a judge, and if I have the honor of
being confirmed, I will continue to work toward them.
If I had to think of one thing I could change about my
legal career, that I would add that would perhaps make me a
stronger candidate, it would have been to have spent time at a
prosecutor's office or perhaps a public defender's office,
perhaps a U.S. Attorney's office. And although I do not have
that experience, I have relied on advice from colleagues and
taken the opportunity to learn the law as best I can on the
criminal side. And that is how I--that would be the one thing I
would change if I could.
Thank you.
Senator Blumenthal. Thank you.
Mr. Bolden.
Mr. Bolden. Thank you, Senator. I think the most important
qualities of a judge is that ability to listen impartially and
fairly to the cases that come before you and to apply the law
likewise, to apply the binding precedent, and in such a way
that it shows a respect for the rule of law so that either side
the party before you has confidence that justice has been
served, whether or not they agree with the ruling or not. And I
think the concept of the rule of law is so vital to our society
and making sure that people have confidence that the law works
for everyone and works for everyone in the same way I think is
critical in terms of being a judge. And I am fortunate to have
had a variety of experiences to be on different sides of a
variety of issues, having represented employers and employees,
having been on the other side suing a municipality and
representing a municipality, that you begin to have a real
respect for the various roles that people play in life, public
safety officers and, you know, the day-to-day work that people
go through. And I think that that experience in that respect I
think hopefully will bode me well if I am fortunate enough to
be confirmed.
I think there are always more experiences I would wish to
have had, and perhaps more in the criminal law area might have
been something that would actually--would also serve me well on
the bench. But I am fortunate for the experiences that I have
had, and I believe they will serve me well.
Senator Blumenthal. And an experience that you wish you had
had that you did not?
Mr. Bolden. Yes, I was going to say, more in the area of
criminal law, I would say.
Senator Blumenthal. Thank you.
Mr. Hale.
Mr. Hale. Thank you, Mr. Chairman. My answer will sound
similar. I think that the commitment to impartially apply
precedent and law is critically important. I think treating all
litigants fairly, allowing a full hearing, is also critically
important to a judge's service.
I have been very fortunate to have had the career
experiences that I have had, and in particular these last 4
years to serve as United States Attorney. And that has given me
the ability to appreciate ever so more the role that our
Federal courts play in our justice system.
And I suppose if I would look to one experience, I have no
insight into the inner workings of the court because I was
never a judicial clerk, and so I think that folks who are
afforded that opportunity sometimes have a bit of an insider
view. But, again, I am very fortunate to have served as an
Assistant and as the U.S. Attorney.
Thank you.
Senator Blumenthal. And is there an experience that you
wish you had had? I am not sure whether you identified that?
Mr. Hale. Yes, sir. If--I would--I have not had the
opportunity to be a judicial clerk, and so----
Senator Blumenthal. The role of judicial clerk would be one
you----
Mr. Hale. That would be one, yes.
Senator Blumenthal. Thank you.
Mr. Hale. Thank you.
Senator Blumenthal. Mr. Stivers.
Mr. Stivers. Thank you, Senator Blumenthal. I would say my
best qualification is the fact that I have tried cases in front
of juries, in front of judges, for the last 29 years, and
through each of those cases you learn a little bit from the way
judges handle things, and so you take a little piece from every
case, I think, as you stack up your experience.
The one area that I wish I could put down on my resume as
being accurate would be having some criminal law, which I do
not have. However, I do have an interest in the human drama
that is inherent in all criminal cases. I also had an
opportunity to serve as the foreman of the Federal grand jury
in Bowling Green for a period of 18 months, which was very
enlightening with regard to the indictment process and the law
enforcement efforts in our area. Sadly, also I learned the
extent of the methamphetamine problem in western Kentucky.
But with regard to the criminal law, I have read the Rules
of Criminal Procedure. I have had an opportunity to sit in on
several hearings and dockets over the last couple of months.
And if confirmed, I would work hard to familiarize myself with
the issues and the procedures of criminal cases and bring
myself up to speed.
Senator Blumenthal. Thank you. I have a few more questions,
but I am going to defer to Senator Coons.
Senator Coons. Thank you, Senator Blumenthal. And my
apologies. We have three different Committees conducting
hearings at the same moment, so you may see some Senators come
and go as they go to different hearings.
I just would be interested if each of you would briefly
speak to the question of, as a judge, how would you ensure fair
access to our legal system? How would you be certain that the
doors of the courthouse are open to all who might seek justice?
Judge Arleo. Thank you, Senator. I have had the privilege
for the last 14 years of serving as a magistrate judge, and one
of my most important functions is to make sure that every
person who comes in the courtroom, whether they are pro se or
they are a multi-million-dollar corporation, has an opportunity
to be heard, to be respected, to be listened to, and to be
treated equally.
If I have the privilege of being confirmed to the United
States district court, I will continue to treat all litigants
fairly and make sure that they all have access to the Federal
courts.
Senator Coons. Thank you, Your Honor.
Mr. Bolden.
Mr. Bolden. Yes, thank you very much for the question,
Senator. I agree very much with Judge Arleo. The issue of
respect and how you sort of send a message of how you treat
people I think goes a long way to letting people know that the
doors of justice are open and that you will be treated fairly
once you come there.
Senator Coons. Thank you.
Mr. Hale.
Mr. Hale. Yes, sir, Senator, I would echo the comments of
my fellow nominees, that it is incredibly important to treat
all litigants fairly, large or small, and impartially, to
ensure equal access and equal treatment.
Senator Coons. Mr. Stivers, any difference? Anything you
would like----
Mr. Smith. Honestly, just that I would echo the comments
from my fellow nominees.
Senator Coons. Thank you.
Mr. Bolden, if I might, in the Mount Holly case, you
appeared on a brief of several city governments which argued
that local governments and constituents are benefited, not
burdened, by the requirement to avoid unnecessarily
discriminatory housing policies. Could you just elaborate on
that for me?
Mr. Bolden. Yes, Senator, and thank you for the question.
That was a brief that was done on behalf of the city of New
Haven, my client, and was done in conjunction with other
governmental entities. And I think that the fundamental point
was that--and it actually goes back to your last question in
terms of access to justice--is that when governments make sure
that people feel they are being treated fairly and take steps
to treat people fairly, that it is actually a beneficial thing
for everyone.
Senator Coons. If I might, I think it is particularly
important that a judicial candidate demonstrate the ability to
be a balanced, fair-minded, consistent, yet open to changed
facts or new ideas, and your representation in the Ricci
firefighter discrimination case and in the Heller and McDonald
Second Amendment cases have drawn some questions. And in my
view, in each case you succeeded in representing your client's
position zealously, and yet ultimately did not prevail, and
then demonstrated an ability to respect and abide by the
Court's ruling, which I think is an important piece of judicial
temperament. In your case, in particular the fact that Frank
Ricci, your lead adversary for 6 years in the Ricci case,
submitted to this Committee a letter of support speaks volumes,
I think, to your character and to your appropriateness for the
bench.
If you will forgive me, I have another hearing. Thank you,
Mr. Bolden. Thank you to all four of our nominees. And thank
you to your families who are enduring this interesting
nomination hearing.
Thank you, Senator Blumenthal, for chairing today. Thank
you very much.
Senator Blumenthal. Thank you, Senator Coons.
Let me just pursue the line of questioning that Senator
Coons began about the Ricci v. DeStefano case, if I may, Mr.
Bolden. As he pointed out, you represented the city of New
Haven in that case when it declined to certify the results of a
promotion exam because certification would have led to no
African American firefighters working for the IT of New Haven
to be promoted. You represented your client in trying to
persuade the Supreme Court to rule that New Haven did not have
to certify the exam results. The Supreme Court ruled the other
way. You played an active role then in implementing the Supreme
Court's decision, in fact, even going beyond what the Court
demanded in an effort to comply with the spirit as well as the
letter of the Court's ruling. And like other nominees here
today, you have indicated your allegiance to the rule of law,
which you really exemplified in implementing the Supreme
Court's decision.
Did you find it hard to implement the Supreme Court's
decision that rejected your position during the litigation? You
were responsible, in effect, for implementing a U.S. Supreme
Court decision from the highest court in the land that was in
conflict with the position you had advocated. Was that a
difficult work for you to do? And could you talk a little bit
about how it indicates your allegiance and fidelity to the rule
of law?
Mr. Bolden. Thank you, Senator, for the question. The
answer is no, it was actually--it was very easy. The Supreme
Court had spoken. The city had an obligation to comply with the
law. And I honestly believe that if the Supreme Court has
spoken and the law is very, very clear, it is important
certainly for a government to send the message that it is going
to comply with the law, to send the message that it respects
the law, to send the message that what the Supreme Court has
said is what the city is going to comply with. And we moved
with as much dispatch as possible to make sure the Supreme
Court order was complied with.
Within a week of when the district court order came back
clarifying that the city needed to certify the exams and
promote, we were able to promote. I mean, we actually got the
order the Tuesday before Thanksgiving, and by the following
friday, everyone had been promoted.
And I am proud of that, and I am proud of that because it
was important. And that day when we certified the exams that
allowed them to be promoted, I said it was a great day for the
rule of law, and I meant it. And it was important for the city
to see that, because after you have a case that is contentious,
because as a Nation we have a variety of views and we may be
divided in a number of ways, but we should be united around the
law and the importance of following the law.
Senator Blumenthal. Thank you.
Mr. Stivers, you answered very well to Senator Grassley's
question about the case that you did involving the Second
Amendment issue that was raised in that litigation. And I am
not asking you what your personal views are on the Second
Amendment or related issues, but I have no doubt that in the
course of 29 years of litigation you represented clients whose
views may not have coincided with your own, either on politics
or even on the merits of the case that you were litigating.
Could you talk a little bit about the duty of a lawyer as
an advocate to represent the views of clients as zealously and
vigorously as possible, whether or not you agree or disagree
with them?
Mr. Stivers. Yes, sir. I think the rule actually is similar
whether you are an attorney representing a client as it would
be for a judge, and that is to set aside your personal beliefs.
Your duty as an attorney is to zealously represent your client
and to study the law, study the facts, and make sure that you
identify the best arguments that you can in favor of their
position. It is not your position. It is their position. And
that is what I have done, and in that one case that is what I
was doing.
As a judge, by contrast, your function is to not act as an
advocate, of course. You are supposed to be impartial. But the
similarity is you are supposed to set aside your personal
beliefs and to decide the case solely on the merits of the case
presented to you.
Senator Blumenthal. Thank you.
Mr. Hale, you have served as a prosecutor and as the chief
Federal prosecutor of your district, and I know from having
been a prosecutor that we could be as impassioned about those
cases as any civil lawyer could be about the merits of his or
her case. And I would like to ask you whether you would have
difficulty dismissing a case if you found that the Government
had failed to prove a critical element of the crime as required
under the United States statutes?
Mr. Hale. Thank you, Mr. Chairman. No, I would follow the
law, and if it were to prescribe a dismissal for failure to
present adequate evidence, that is the ruling that I would
give.
Senator Blumenthal. I thank you all for answering my
questions. If there is anything that any of you wish to add, I
would be happy to hear from you. That exhausts our questions
this morning.
We are going to have the record stay open for 10 days, and
you will probably be getting--we will make it 1 week. That may
save you some questions. The record will be open for 1 week,
and you may receive, as Senator Grassley indicated, some
written questions from my colleagues.
If any of you has anything more to say, I would be happy to
hear from you.
[No response.]
Senator Blumenthal. If not, the record will be open for 1
week. Senator Grassley indicated to me that he has some remarks
that he wanted to be made part of the record, which I will do
without objection.
Senator Blumenthal. This hearing is adjourned.
[Whereupon, at 10:31 a.m., the Committee was adjourned.]
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