[Senate Hearing 113-515, Part 1]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
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JANUARY 23, FEBRUARY 13, FEBRUARY 27, AND MARCH 19, 2013
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Serial No. J-113-1
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PART 1
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 113-515, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JANUARY 23, FEBRUARY 13, FEBRUARY 27, AND MARCH 19, 2013
__________
Serial No. J-113-1
__________
PART 1
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
91-101 PDF WASHINGTON : 2013
___________________________________________________________________________________
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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
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
WEDNESDAY, JANUARY 23, 2013
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STATEMENTS OF COMMITTEE MEMBERS
Page
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 8
PRESENTERS
Udall, Hon. Mark, a U.S. Senator from the State of Colorado
presenting Raymond P. Moore, Nominee to be District Judge for
the District of Colorado....................................... 2
Bennett, Hon. Michael, a U.S. Senator from the State of Colorado
presenting Raymond P. Moore, Nominee to be District Judge for
the District of Colorado....................................... 3
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York presenting Nelson Stephen Roman, Nominee to be District
Judge for the Southern District of New York, Analisa Torres,
Nominee to be District Judge for the Southern District of New
York, and Claire R. Kelly, Nominee to be a Judge of the Court
of International Trade......................................... 5
Schatz, Hon. Brian, a U.S. Senator from the State of Hawaii
presenting Derrick Kahala Watson, Nominee to be District Judge
for the District of Hawaii..................................... 7
Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii
presenting Derrick Kahala Watson, Nominee to be District Judge
for the District of Hawaii..................................... 8
STATEMENT OF THE NOMINEES
Roman, Nelson Stephen, Nominee to be District Judge for the
Southern District of New York.................................. 9
Update Letter to Questionnaire............................... 76
Questionnaire................................................ 11
Moore, Raymond P., Nominee to be District Judge for the District
of Colorado.................................................... 78
Update Letter to Questionnaire............................... 108
Questionnaire................................................ 79
Torres, Analisa, Nominee to be District Judge for the Southern
District of New York........................................... 116
Update Letter to Questionnaire............................... 169
Questionnaire................................................ 117
Watson, Derrick Kahala, Nominee to be District Judge for the
District of Hawaii............................................. 184
Update Letter to Questionnaire............................... 218
Questionnaire................................................ 185
Kelly, Claire R., Nominee to be a Judge of the Court of
International Trade............................................ 228
Update Letter to Questionnaire............................... 288
Questionnaire................................................ 229
QUESTIONS
Questions for all nominees submitted by Senator Klobuchar........ 313
Questions for Nelson Stephen Roman submitted by Senator Grassley. 314
Questions for Raymond P. Moore submitted by Senator Grassley..... 316
Questions for Analisa Torres submitted by Senator Grassley....... 318
Questions for Derrick Kahala Watson submitted by Senator Grassley 320
Questions for Claire R. Kelly submitted by Senator Grassley...... 322
Questions for all nominees submitted by Senator Cruz............. 324
Questions for Nelson Stephen Roman submitted by Senator Flake.... 325
Questions for Raymond P. Moore submitted by Senator Flake........ 326
Questions for Analisa Torres submitted by Senator Flake.......... 327
Questions for Derrick Kahala Watson submitted by Senator Flake... 328
ANSWERS
Responses of Claire R. Kelly to questions submitted by Senators
Grassley and Klobuchar......................................... 329
Responses of Derrick Kahala Watson to questions submitted by
Senators Grassley, Cruz, Flake and Klobuchar................... 334
Responses of Analisa Torres to questions submitted by Senators
Grassley, Cruz, Flake and Klobuchar............................ 343
Responses of Nelson Stephen Roman to questions submitted by
Senators Grassley, Cruz, Flake and Klobuchar................... 354
Responses of Raymond P. Moore to questions submitted by Senators
Grassley, Cruz, Flake and Klobuchar............................ 365
SUBMISSIONS FOR THE RECORD
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Claire R. Kelly, November 15, 2012, letter................. 376
Customs & International Trade Bar Association (citba.org), James
R. Cannon, Jr., President, and Elizabeth J. Drake, Chairman,
Judicial Selection Committee, New York, New York, March 20,
2013, letter...................................................
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Raymond P. Moore, November 15, 2012, letter................ 388
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Nelson S. Roman, September 21, 2012, letter................ 390
Quirk, Dennis W., President, New York State Court Officers
Association, New York, New York, September 21, 2012, letter.... 392
Vance, Cyrus R., Jr., District Attorney, New York, New York,
September 25, 2012, letter..................................... 393
Velazquez, Elena Goldberg, Esq., President, Puerto Rican Bar
Association, New York, New York, September 27, 2012, letter.... 395
Kaye, Judith S., New York, New York, September 27, 2012, letter.. 397
Marinaccio, Michael A., President, Bronx County Bar Association,
Bronx, New York, October 1, 2012, letter....................... 398
Cusanelli, Thomas W., Esq., Deer Park, New York, October 17,
2012, letter................................................... 400
Friedman, Robert S., Sheppard Mullin Richter & Hampton LLP, New
York, New York, October 23, 2012............................... 402
Robles, Richard R., President, Puerto Rican Bar Association of
Florida, Miami, Florida, November 9, 2012, letter.............. 404
Perez-Vega, Bianka, President, Dominican Bar Association, Inc.,
New York, New York, November 21, 2012, letter.................. 405
Abbene, Vincent, Retired New York Police Department Captain, New
York, New York, January 15, 2013, letter....................... 407
Castro-Blanco, James F., Esq., Yonkers, New York, January 3,
2013, letter................................................... 408
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Analisa N. Torres, November 15, 2012, letter............... 410
Hispanic National Bar Association (HNBA), Peter M. Reyes, Jr.,
National President, and Robert Raben, Chair, Washington, DC,
February 13, 2013, letter...................................... 412
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Derrick K. Watson, November 15, 2012, letter............... 414
National Asian Pacific American Bar Association (NAPABA), Wendy
C. Shiba, President, and Tina R. Matsuoka, Executive Director,
Washington, DC, January 22, 2013, letter....................... 416
Fox, Hugh, Jr., Yonkers, New York, January 15, 2013.............. 418
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WEDNESDAY, FEBRUARY 13, 2013
STATEMENTS OF COMMITTEE MEMBERS
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii...... 420
Lee, Hon. Michael S., a U.S. Senator from the State of Utah...... 428
PRESENTERS
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon
presenting Michael J. McShane, Nominee to be U.S. District
Judge for the District of Oregon............................... 421
prepared statement........................................... 780
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon
presenting Michael J. McShane, Nominee to be U.S. District
Judge for the District of Oregon............................... 422
Casey, Hon. Robert, Jr., a U.S. Senator from the State of
Pennsylvania presenting Nitza I. Quinnones Alejandro, Nominee
to be U.S. District Judge for the Eastern District of
Pennsylvania; Luis Felipe Restrepo, Nominee to be U.S. District
Judge for the Eastern District of Pennsylvania, and Jeffrey L.
Schmehl, Nominee to be U.S. District Judge for the Eastern
District of Pennsylvania....................................... 422
Toomey, Hon. Patrick, a U.S. Senator from the State of
Pennsylvania presenting Nitza I. Quinnones Alejandro, Nominee
to be U.S. District Judge for the Eastern District of
Pennsylvania; Luis Felipe Restrepo, Nominee to be U.S. District
Judge for the Eastern District of Pennsylvania, and Jeffrey L.
Schmehl, Nominee to be U.S. District Judge for the Eastern
District of Pennsylvania....................................... 424
Udall, Hon. Tom, a U.S. Senator from the State of New Mexico
presenting Kenneth John Gonzales, Nominee to be U.S. District
Judge for the District of New Mexico........................... 425
Heinrich, Hon. Martin, a U.S. Senator from the State of New
Mexico presenting Kenneth John Gonzales, Nominee to be U.S.
District Judge for the District of New Mexico.................. 426
STATEMENT OF THE NOMINEES
Gonzales, Kenneth John, Nominee to be U.S. District Judge for the
District of New Mexico......................................... 429
McShane, Michael J., Nominee to be U.S. District Judge for the
District of Oregon............................................. 488
Alejandro, Nitza I. Quinnones, Nominee to be U.S. District Judge
for the Eastern District of Pennsylvania....................... 527
Restrepo, Luis Felipe, Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 587
Schmehl, Jeffrey L., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 650
QUESTIONS
Questions for all nominees submitted by Senator Cruz............. 716
Questions for Kenneth John Gonzales submitted by Senator Grassley 717
Questions for Michael J. McShane submitted by Senator Grassley... 720
Questions for Nitza I. Quinnones Alejandro submitted by Senator
Grassley....................................................... 722
Questions for Luis Felipe Restrepo submitted by Senator Grassley. 724
Questions for Jeffrey L. Schmehl submitted by Senator Grassley... 727
ANSWERS
Responses of Kenneth John Gonzales to questions submitted by
Senators Grassley and Cruz..................................... 729
Responses of Michael M. McShane to questions submitted by
Senators Grassley and Cruz..................................... 738
Responses of Nitza I. Quinnones Alejandro to questions submitted
by Senators Grassley and Cruz.................................. 744
Responses of Luis Felipe Restrepo to questions submitted by
Senators Grassley and Cruz..................................... 752
Responses of Jeffrey L. Schmehl to questions submitted by
Senators Grassley and Cruz..................................... 761
SUBMISSIONS FOR THE RECORD
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Kenneth J. Gonzales, November 15, 2012, letter............. 768
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Michael J. McShane, September 20, 2012, letter............. 770
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Nitza I. Quinnones Alejandro, November 27, 2012, letter.... 772
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Luis Felipe Restrepo, November 27, 2012, letter............ 774
National Employment Lawyers Association (NELA), Patricia A.
Barasch, President: Luis Felipe Restrepo, February 11, 2013,
letter......................................................... 776
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Jeffrey L. Schmehl, November 27, 2012, letter.............. 778
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FEBRUARY 27, 2013
STATEMENTS OF COMMITTEE MEMBERS
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 784
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 786
prepared statement........................................... 823
PRESENTERS
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa
presenting Jane Kelly, Nominee to be Circuit Judge for the
Eighth Circuit................................................. 784
STATEMENT OF THE NOMINEES
Kelly, Jane, of Iowa, Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 788
Questionnaire................................................ 789
QUESTIONS
Questions for Jane Kelly submitted by Senator Grassley........... 833
ANSWERS
Responses of Jane Kelly to questions submitted by Senator
Grassley....................................................... 835
SUBMISSIONS FOR THE RECORD
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Jane Kelly, January 31, 2013, letter....................... 839
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MARCH 19, 2013
STATEMENTS OF COMMITTEE MEMBERS
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 841
Lee, Hon. Michael S., a U.S. Senator from the State of Utah...... 844
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont,
prepared statement............................................. 925
PRESENTERS
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming
presenting Gregory Alan Phillips, Nominee to be Circuit Judge
for the Tenth Circuit.......................................... 841
Barrasso, Hon. John, a U.S. Senator from the State of Wyoming
presenting Gregory Alan Phillips, Nominee to be Circuit Judge
for the Tenth Circuit.......................................... 843
Chambliss, Hon. Saxby, and Isakson, Hon. Johnny, U.S. Senators
from the State of Georgia presenting Karol Virginia Mason,
Nominee to be an Assistant Attorney General, prepared statement 991
STATEMENT OF THE NOMINEES
Phillips, Gregory Alan, Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 845
Questionnaire................................................ 846
Mason, Karol Virginia, Nominee to be an Assistant Attorney
General........................................................ 893
Questionnaire................................................ 894
QUESTIONS
Questions for Gregory Phillips submitted by Senator Cruz......... 926
Questions for Karol Virginia Mason submitted by Senator Grassley. 927
Questions for Gregory Phillips submitted by Senator Grassley..... 930
Questions for Karol Virginia Mason submitted by Senator Klobuchar 934
Questions for Gregory Phillips submitted by Senator Klobuchar.... 925
ANSWERS
Responses of Gregory Alan Phillips to questions submitted by
Senator Cruz................................................... 936
Responses of Gregory Alan Phillips to questions submitted by
Senator Grassley............................................... 939
Responses of Gregory Alan Phillips to questions submitted by
Senator Klobuchar.............................................. 949
Responses of Karol Virginia Mason to questions submitted by
Senator Klobuchar.............................................. 950
Responses of Karol Virginia Mason to questions submitted by
Senator Grassley............................................... 951
SUBMISSIONS FOR THE RECORD
American Bar Association, Judy Perry Martinez, Chair, Washington,
DC: Gregory A. Phillips, January 31, 2013, letter.............. 958
Letter supporting Gregory Phillips to Senators Reid, McConnell,
Leahy, and Grassley from the State Attorneys General of:
Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware,
Guam, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Nebraska, New Hampshire, New Mexico,
North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island,
South Dakota, Tennessee, Utah, Vermont, Washington, Wisconsin;
March 18, 2013................................................. 960
Matthew H. Mead, Governor, State of Wyoming: Gregory Phillips,
March 14, 2013, letter......................................... 964
Alan B. Johnson, United States District Judge, State of Wyoming:
Gregory Phillips, March 18, 2013, letter....................... 965
Hon. G.K. Butterfield, United States House of Representatives,
State of North Carolina: Karol Virginia Mason, February 26,
2013, letter................................................... 967
Hon. Robert J. Dole, Alston and Bird, L.L.P., Washington, DC:
Karol Virginia Mason, February 27, 2013, letter................ 969
Robert D. McCallum, Jr., Atlanta, Georgia: Karol Virginia Mason,
February 28, 2013, email and fax............................... 971
Rodney Monroe, Chief of Police, Charlotte, North Carolina: Karol
Virginia Mason, undated letter................................. 973
Hon. Blanche L. Lincoln, United States Senate, State of Arkansas:
Karol Virginia Mason, March 1, 2013, letter.................... 974
Laurie O. Robinson, Clarence J. Robinson Professor of
Criminology, Law, and Society, George Mason University, Burke,
Virginia: Karol Virginia Mason, March 2, 2013, letter.......... 975
Richard H. Deane, Jr., Atlanta, Georgia: Karol Virginia Mason,
March 4, 2013, letter.......................................... 977
Larry D. Thompson, Greenwich, Connecticut: Karol Virginia Mason,
March 4, 2013, letter.......................................... 979
Randy Byrd, President, North Carolina Police Benevolent
Association, Inc., McDonough, Georgia: Karol Virginia Mason,
March 5, 2013, letter.......................................... 981
Roy Cooper, Attorney General, State of North Carolina, Raleigh,
North Carolina: Karol Virginia Mason, March 7, 2013, letter.... 982
Joseph C. Akers, Jr., Interim Executive Director, National
Organization of Black Law Enforcement Executives, Alexandria,
Virginia: Karol Virginia Mason, March 13, 2013, letter......... 983
W. Ron Allen, Tribal Chairman/CEO, Jamestown S'Klallam Tribe,
Jamestown, Virginia: Karol Virginia Mason, March 18, 2013,
letter......................................................... 984
Timothy Ballew, II, Chairman, Lummi Indian Business Council,
Bellingham, Washington: Karol Virginia Mason, March 14, 2013,
fax............................................................ 985
Bob Kelly, Chairman, Nooksack Indian Tribe, Deming, Washington:
Karol Virginia Mason, March 15, 2013, letter................... 986
Dave Lopeman, Chairman, Squaxin Island Tribe, Shelton,
Washington: Karol Virginia Mason, March 15, 2013, fax.......... 987
George Thurman, Chief, Sac and Fox Nation, Stroud, Oklahoma:
Karol Virginia Mason, March 15, 2013, fax...................... 988
Gregory E. Pyle, Chief, Choctaw Nation of Oklahoma, Durant,
Oklahoma: Karol Virginia Mason, March 15, 2013, fax............ 989
Joseph P. Torre, Chairman, Joe Torre Safe at Home Foundation, New
York, New York: Karol Virginia Mason, March 28, 2013, letter... 990
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ALPHABETICAL LIST OF NOMINEES
Alejandro, Nitza I. Quinnones, Nominee to be U.S. District Judge
for the Eastern District of Pennsylvania....................... 527
Gonzales, Kenneth John, Nominee to be U.S. District Judge for the
District of New Mexico......................................... 429
Kelly, Claire R., Nominee to be a Judge of the Court of
International Trade............................................ 228
Kelly, Jane, of Iowa, Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 788
Mason, Karol Virginia, Nominee to be an Assistant Attorney
General........................................................ 893
Moore, Raymond P., Nominee to be District Judge for the District
of Colorado.................................................... 78
McShane, Michael J., Nominee to be U.S. District Judge for the
District of Oregon............................................. 488
Phillips, Gregory Alan, Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 845
Restrepo, Luis Felipe, Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 587
Roman, Nelson Stephen, Nominee to be District Judge for the
Southern District of New York.................................. 9
Schmehl, Jeffrey L., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 650
Torres, Analisa, Nominee to be District Judge for the Southern
District of New York........................................... 116
Watson, Derrick Kahala, Nominee to be District Judge for the
District of Hawaii............................................. 184
NOMINATION OF HON. NELSON STEPHEN ROMAN, OF NEW YORK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; RAYMOND P. MOORE,
OF COLORADO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO;
HON. ANALISA TORRES, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF NEW YORK; DERRICK KAHALA WATSON, OF HAWAII,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF HAWAII; AND CLAIRE R.
KELLY, OF NEW YORK, NOMINEE TO BE A JUDGE OF THE COURT OF INTERNATIONAL
TRADE
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WEDNESDAY, JANUARY 23, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Christopher
Coons, presiding.
Present: Senators Coons, Whitehouse, Blumenthal, Hirono,
Grassley, and Lee.
Senator Whitehouse [presiding]. The hearing will come to
order. I am Senator Sheldon Whitehouse of Rhode Island. I am
filling in briefly for my friend, Senator Coons of Delaware,
who is in the Benghazi hearings right now. I am doing this as a
favor to him, and when he arrives, I will depart. So if anybody
is speaking when I get up and depart, do not take it
personally. It is nothing you said.
We are here for the nomination hearings of Justice Nelson
Stephen Roman, to be United States District Judge for the
Southern District of New York; Raymond P. Moore, to be United
States District Judge for the District of Colorado; Justice
Analisa Torres, to be United States District Judge for the
Southern District of New York; Derrick Kahala Watson, to be
United States District Judge for the District of Hawaii; and
Claire R. Kelly, to be Judge of the United States Court of
International Trade.
We have a tradition in the Senate of Senators' recommending
to the President nominees for these judicial offices, and so we
will begin this hearing with the statements of Senators who
have nominees for whom they wish to say a word. We will lead
with--the order will be, first, Senator Mark Udall; then
Senator Michael Bennet; then Senator Kirsten Gillibrand, if she
is here; then Senators Brian Schatz and Mazie Hirono.
So that is the order of proceeding, and, Senator Udall, you
have the floor.
PRESENTATION OF RAYMOND P. MOORE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO, BY HON. MARK UDALL, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Udall. Senator Whitehouse, good morning. Thank you
for that kind introduction. I also want to thank Chairman Leahy
and Ranking Member Grassley and the Judiciary Committee for
providing a few minutes for me to speak, as well as my
wonderful colleague, Senator Bennet.
We are here to introduce our nominee to be a federal
district court judge for the District of Colorado, Raymond Paul
Moore. My belief, and I know Senator Bennet's belief, is that
Raymond Moore is exceptionally well qualified to fill this
judicial vacancy, and I would urge his confirmation.
The President nominated Raymond Moore to fill a vacant seat
on the federal district court of Colorado, which was recently
declared a judicial emergency due to a very heavy caseload. Mr.
Moore, who was recommended by a bipartisan judicial selection
panel, I know stands ready and able to fill that vacancy.
Based in part on Mr. Moore's broad experience as a public
defender for Colorado and Wyoming, I have no doubt that he will
serve with distinction. Quite simply, he has the right
temperament, commitment to service, and belief in our Nation's
judicial system--qualities I know that we all look for in a
federal judge.
Mr. Moore is currently the federal public defender for
Colorado and Wyoming where he has served for nearly 20 years,
first as an assistant federal public defender in the trial
unit, where he represented clients charged with federal
criminal offenses who could not afford their own legal
representation. Today, as the leader of that office, he is
responsible for supervising attorneys and managing the
operation of that office.
Prior to his service at the public defender's office, Mr.
Moore spent a total of 10 years with the distinguished Denver-
based law firm of Davis, Graham & Stubbs. During his time in
private practice, Mr. Moore worked in general litigation
covering a broad range of practice fields, including real
estate, water, and oil and gas. He was appointed as partner in
1987.
Originally from Boston, Massachusetts, Ray Moore was raised
in public housing projects. Ray was able to overcome the
adversity and obstacles that he faced in growing up in poverty
and excelled academically. He was the first member of his
family to attend college, graduating cum laude from Yale, where
he met his wife, Reine. Mr. Moore also received his law degree
from Yale in 1975.
Shortly before graduating from law school, he headed to
Denver, where he completed a summer associate position at
Davis, Graham & Stubbs, launching his decades-long connection
to Colorado.
Mr. Chairman, Senator Bennet and I enlisted a bipartisan
judicial selection advisory panel to help us make
recommendations to the President for court vacancies in
Colorado. Former Colorado Supreme Court Justice Rebecca
Kourlis, a Republican, co-chaired the advisory committee with
Hal Haddon, a prominent Denver lawyer and Democrat.
When this process began, we knew that Chief Judge Daniel
would take senior status at the beginning of 2013. However,
with the quick work of our advisory panel, we were able to make
recommendations to the President, and he was able to nominate
Mr. Moore nearly two months before the vacancy came open. What
made that possible was our advisory panel working tirelessly to
interview and put forward the most qualified candidates.
While we were presented with truly impressive and qualified
candidates, it was clear then and it is even clearer now that
Ray Moore will make an excellent judge for Colorado. So I was
not surprised when I learned that the American Bar Association
unanimously rated Raymond Moore well qualified, their highest
rating to serve as a federal district judge.
Mr. Chairman, as I mentioned a moment ago, Colorado's
federal district court was just rated a judicial emergency by
the Administrative Office of the U.S. Courts due to its
caseload. In addition, the Judicial Conference of the United
States recommended the creation of an eighth judgeship on the
district court. Suffice it to say we need to fill this vacancy,
and Ray Moore is the right man for the job.
Senator Coons, Senator Grassley, Senator Hirono, I want to
thank you and the Committee for affording me time this
afternoon to introduce Ray Moore.
Senator Coons [presiding]. Thank you, Senator Udall.
I would now like to invite Senator Bennet to also speak in
support of Raymond Moore.
PRESENTATION OF RAYMOND P. MOORE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO, BY HON. MICHAEL BENNET, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Bennet. Thank you, and I cannot tell you, Mr.
Chairman, what joy I have sitting here addressing you as ``Mr.
Chairman.'' I am delighted to see you and the Ranking Member,
Senator Grassley, and Members of the Committee.
I would like to associate myself with everything my senior
Senator said and join him in this really incredible opportunity
for our State to speak on behalf of Raymond Moore to serve on
the U.S. district court for the District of Colorado. I would
also like to welcome his wife, Reine, and his children, Miles
and Rachel.
As Senator Udall mentioned, Mr. Moore was selected from an
outstanding pool of Colorado candidates through a bipartisan
committee of highly respected leaders and thinkers in
Colorado's legal community. And I want to thank Senator Udall,
in particular, for his leadership in approaching what should
be, and was, in our case, a bipartisan effort to find the very
best person for this vacancy.
As he mentioned, we face an emergency in Colorado in terms
of the number of judges. We do not view this as a partisan
effort. We believe this is a nonpartisan effort, and I think
the process that Senator Udall established to fill this vacancy
is one that could be a model for the entire country, so I want
to thank him for that and for his work. I am incredibly proud
of the seriousness, resolve, and efficiency of the committee in
its approach to its work, and it ensured a fair and accountable
selection process.
I wholeheartedly support Mr. Moore's nomination to serve on
the U.S. district court. Ray grew up in the projects of Boston
in a community that struggled with violence and poverty. He was
part of a working-class family. Neither of his parents ever
completed high school. With determination and drive, Ray rose
from those humble beginnings to eventually graduate from Yale
Law School, as the Chairman did, and became an attorney with an
outstanding career, as Senator Udall said, that spanned 34
years. He has earned a reputation as being a thoughtful and
tireless worker among his peers. His collegiality and quick wit
have earned him many friends along the way. We could use a
little more of the quick wit around here, I think.
He currently served as a federal public defender for
Colorado and Wyoming. He has previously served in the U.S.
Attorney's Office in Colorado and worked as a litigator, as
Senator Udall said, at one of our most respected law firms.
His colleagues from across Colorado's legal community speak
passionately of his work ethic, even temperament, and
commitment to our legal system. Prosecutors talk of Ray's zeal
for ensuring that criminals and wrongdoers are brought to
justice. And public defenders who work closely with Ray praise
his capacity for impartial and apolitical decision making.
As a federal public defender, Ray has seen firsthand how
our broader judicial system is strengthened when a defendant
has access to quality representation. He has also witnessed the
unique challenges that low-income communities often encounter
in our federal courts. Thirty-four years' worth of co-workers,
colleagues, and occasional adversaries praise Ray as a nominee
who goes through life with an open mind. But he has also
demonstrated a passion for those core principles he knows to be
right.
The District of Colorado is one of the busiest federal
judicial district in the Mountain West with a rising number of
total case filings. So I hope that the Senate will act quickly
to fill this vacancy. This will help avoid delays and backlogs
that will affect Colorado's legal system in the months to come.
Raymond Moore truly is an exemplary nominee, a true legal
scholar with a sharp mind, a deep sense of purpose, and a
commitment to the rule of law. He will make a first-rate
federal district judge, and I urge this Committee and my
colleagues to support his confirmation.
Thank you, Mr. Chairman, for your time and for your
consideration of Raymond Moore.
Senator Coons. Thank you, Senator Bennet. I am grateful to
both the Senators from Colorado for contributing to this
introduction. Recognizing your busy schedules, I encourage any
Members who are here for introduction who need to do so to feel
comfortable excusing yourselves.
We now turn to Senator Gillibrand, who will speak in
support of Analisa Torres, nominee to be district court judge
for the Southern District of New York.
PRESENTATION OF HON. NELSON STEPHEN ROMAN, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; HON.
ANALISA TORRES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF NEW YORK; AND CLAIRE R. KELLY, NOMINEE TO BE A
JUDGE OF THE COURT OF INTERNATIONAL TRADE, BY HON. KIRSTEN E.
GILLIBRAND, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. I will also speak on behalf of Claire
Kelly and Judge Nelson Roman as well since Senator Schumer will
not attend today.
Thank you, Mr. Chairman and distinguished Members of the
Committee. I appreciate your being here today. I am very
honored to be able to introduce Analisa Torres, and I am
pleased to offer my strong support for her nomination to the
United States district court for the Southern District of New
York.
Today she is joined by her husband, Mr. Stephen Whitter,
along with her father, the Honorable Frank Torres, former New
York State Supreme Court Justice, and her mother, Mrs. Yolanda
Torres, as well as a number of other family members.
I also want to thank President Obama for acting on my
recommendation in nominating another superbly qualified female
jurist to the federal bench.
My experience with Judge Torres has shown her to be fair-
minded, a woman of great integrity. Her lifetime of public
service and legal experience serving as a jurist, an attorney,
and serving her community has earned her the respect of her
colleagues, and her body of work demonstrates her
qualifications to serve on the federal bench.
Ms. Torres currently serves as a justice on the New York
County Supreme Court. Previously she served on the New York
County Supreme Court as an acting justice for almost 10 years.
In her current role, she exemplified pragmatism and has
demonstrated consistent commitment to thoughtful, sound, and
fair reasoning. Judge Torres received her J.D. from Columbia
University School of Law and graduated from Harvard College.
In addition to her professional work, she has shown an
enduring commitment to her community. She currently chairs the
Women's Housing and Economic Development Corporation, a role
she has served in since 2007, after serving as a director there
for almost a decade.
There is no question that Judge Torres is extremely well
qualified and well suited to serve as a federal court judge. I
strongly believe this country needs more women like her serving
in the federal judiciary, an institution that I believe needs
more exceptional women.
Over the last several years, the number of women in the
federal judiciary has stagnated, hovering at roughly 500, less
than a third of the federal bench. According to the National
Women's Law Center, there are currently 82 vacancies on the
federal district and appellate courts. The nonpartisan
Congressional Research Service recently determined that we are
in the longest period of historically high vacancy rates in 35
years. Accordingly, jurists across the country, including
Supreme Court Chief Justice John Roberts, have urged the U.S.
Senate to act expeditiously on pending judicial nominations.
With greater diversity of gender, ethnicity, and professional
backgrounds, we can ensure our judiciary more closely resembles
the great country we live in. And these are not just ideals
that we should aspire to, but steps we should take to have a
more diverse judicial system.
I have no doubt that having Judge Torres serving in the
federal judiciary will bring us closer to that goal. I was
honored to recommend her for this position, and I urge swift
approval of her confirmation.
I am also pleased to introduce to the committee Nelson
Stephen Roman to be United States district judge for the
Southern District of New York, and Claire R. Kelly to be a
judge in the United States Court of International Trade. They
are joined by their family members, and I would like to take
this opportunity to publicly recognize, acknowledge, and thank
the wonderful and supportive families of all of our nominees.
First, Judge Nelson Roman, currently an associate justice
for the New York State Supreme Court Appellate Division, a
position he has held since 2009. He previously served as a
justice of the New York State Supreme Court, as a judge for the
New York City civil court, and as a judge of the housing part
of the New York City civil court. Prior to becoming a judge, he
was assistant district attorney in Kings County as well as a
special narcotics assistant district attorney.
As a native New Yorker, Justice Roman received his B.A.
from Fordham University and his J.D. from Brooklyn Law School,
where he attended at night while serving as a New York City
police officer.
Claire R. Kelly has been nominated to the U.S. Court of
International Trade. Ms. Kelly is a professor at Brooklyn Law
School where she teaches classes on international trade,
international business law, and administrative law. Before
this, she spent four years as an associate and three years as a
consultant specializing in customs and trade law at Coudert
Brothers in New York City. A native New Yorker, Professor Kelly
received her J.D. from Brooklyn Law School and her B.A. from
Barnard College.
While it is true that we live in a more diverse world and
we have come a long way in filling the ranks of the legal
world, we still have a long way to go to achieve full equality.
Confirming these three exceptional nominees quickly would be a
great step in the right direction.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Gillibrand.
I will now turn to Senator Schatz to offer an introduction
of Derrick Watson, nominee to be district court judge for the
District of Hawaii.
PRESENTATION OF DERRICK KAHALA WATSON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF HAWAII, BY HON. BRIAN SCHATZ, A U.S.
SENATOR FROM THE STATE OF HAWAII
Senator Schatz. Thank you, Mr. Chair, Ranking Member
Grassley, and my great colleague, Senator Hirono. I am honored
to introduce Derrick Kahala Watson for consideration as the
next United States district court judge for the District of
Hawaii.
In Mr. Watson's distinguished career, he has displayed
exemplary legal skills, a strong work ethic, and acted with
integrity and fairness in his decade as a federal prosecutor
and attorney in Northern California and Hawaii. He has also
served in the Judge Advocate General's Corps, United States
Army, where he assisted in mobilizing soldiers with their legal
affairs.
In over 10 years of private practice, Mr. Watson
specialized in product liability, toxic tort and environmental
cost recovery litigation, and principally operated in the
federal court.
From 1995 to 2000 and again from 2000 to the present, Mr.
Watson served as Assistant United States Attorney in the
Northern District of California and now in the District of
Hawaii. His work has covered all manner of civil litigation at
the trial and appellate court levels, including claims under
the Federal Tort Claims Act, employment discrimination and
harassment actions, individual capacity claims brought against
government employees for alleged constitutional violations,
programmatic challenges under the Administrative Procedures
Act, and privacy and information claims under the Privacy Act
and Freedom of Information Act.
In addition to his professional responsibilities, while in
private practice, Mr. Watson has been active in the community,
representing pro bono clients, bringing human-trafficking,
common law tort, and wage and hour claims on behalf of Mexican
nationals in the San Francisco Bay area. He also worked with
the San Francisco Lawyers Committee for Civil Rights to
successfully challenge the Hanford Union High School District's
electoral system, which had prevented the election of a
Hispanic member for decades, despite Hispanics' constituting a
majority of residents in the district, and assisted other
residents with landlord-tenant and credit problems.
If confirmed, Mr. Watson will be only the fourth person of
Native Hawaiian ancestry to serve and the only Native Hawaiian
serving as an Article III judge. Mr. Watson's nomination is an
important step in promoting diversity in the federal judiciary
by experienced and qualified individuals.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Schatz.
And I would now like to offer a very special welcome to
Senator Mazie Hirono from Hawaii. Today is Senator Hirono's
first hearing as a Member of the Senate Judiciary Committee,
and it is an honor to welcome you to it. Senator Hirono will
also introduce Derrick Kahala Watson.
PRESENTATION OF DERRICK KAHALA WATSON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF HAWAII, BY HON. MAZIE K. HIRONO, A
U.S. SENATOR FROM THE STATE OF HAWAII
Senator Hirono. Thank you, Mr. Chairman, and I also want to
thank Chairman Leahy and Ranking Member Grassley for scheduling
this hearing and, in particular, for including Derrick Watson,
the nominee to fill the district court vacancy in my State. And
I would also like to thank Mr. Watson for presenting my
colleague, Senator Brian Schatz, and myself with these
beautiful lei. You can always tell we are from Hawaii because
we are the ones with the leis. Aloha to you.
My colleague, Senator Schatz, has done a great job of
outlining Mr. Watson's qualifications, so I will keep my
comments brief.
Mr. Watson had a distinguished career in the private sector
during two tenures in the United States Attorney's Office and
in the United States Army Reserve JAG Corps. He was born in
Hawaii and moved back in 2007, and we are glad to have him back
home, and I am happy that he is here today.
I want to acknowledge his family members in the audience
because I know that all of our nominees would not be here
without the support of their family, and in Mr. Watson's case,
most of them have traveled from Hawaii to be with him today.
And if you could just wave, because you have come a long way:
his wife, Gloriann; his two sons, Cade and Daly, ages six and
three; his father-in-law and mother-in-law, Frank and Gwen
Dalere; his sister-in-law, Kimberley Holkup; and his two
nieces, Saige and Saber Holkup, ages eight and two. Welcome.
Aloha to all of you. And, of course, Mr. Watson, welcome. I
wish you a very speedy confirmation.
Thank you, Mr. Chairman.
OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Senator Hirono, and welcome again
to the Committee.
Today, as we begin the 113th Congress, there are 83
vacancies in our judiciary. This is a historically high number
for the beginning of a President's second term, nearly three
times the number of vacancies at a comparable time in the
previous administration.
As most of these vacancies are in the district courts, the
courts Americans most need to be fully staffed so they can
receive their day in court, I am pleased we have been able to
move so quickly in this new Congress to convene this hearing
today.
Now, this hearing is an important step in the process of
filling some of these many vacancies and ensuring the courts
are there to do the work our people expect of them. We will
hear from our four district court needs today, and I look
forward to the Senate's swift action on the President's
nominations of those four nominees and our additional nominee
for the Court of International Trade.
Before we--excuse me. Senator Grassley, have you already
had a chance to make your opening statement?
Senator Grassley. I am going to put it in the record.
Senator Coons. You will put it in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Coons. So, Senator Grassley, having completed the
introduction of the nominees, I will now swear in our nominees
today. Would the five nominees please approach and stand, if
you would, at your respective chairs? Please stand and raise
your right hands. Do you solemnly swear that the testimony you
are about to give to this Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Justice Roman. I do.
Mr. Moore. I do.
Justice Torres. I do.
Mr. Watson. I do.
Ms. Kelly. I do.
Senator Coons. Please be seated. Thank you. Let the record
show the nominees have answered in the affirmative.
I would now like to invite each of our five nominees today
to give an opening statement, and I welcome your recognition of
loved ones and supporters who may be with you and very much
look forward to hearing from you.
We might start with the Honorable Nelson Roman.
STATEMENT OF HON. NELSON STEPHEN ROMAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK
Justice Roman. Thank you, Senator. Good morning.
Senator Coons. Good morning.
Justice Roman. Thank you for this opportunity to appear
before you and present my credentials. I would like to take
this opportunity to thank some very special individuals. I
would like to start off with thanking President Obama for his
most humbling nomination; Senator Schumer for his support and
for his longstanding commitment to a strong and independent
judiciary; to Senator Gillibrand for her gracious introduction.
To the Senate Committee Members, thank you for hosting this
hearing.
I would like to take this opportunity now to introduce my
family members, if I can, beginning with my lovely wife of 22
years, Carol Robles-Roman. We met approximately 30 years ago
while we were attending Fordham College. I think it was an
international law class. She was trying to get the notes off
me.
[Laughter.]
Justice Roman. She is an attorney. She is the deputy mayor
and counsel to the mayor of the city of New York. More
importantly, she is the mother of our two children: my oldest,
Ariana Roman, 15 years old and a first-year student in high
school; Andres Roman, who is seven years old and happens to be
a budding soccer star. And I am proud to say that I am his
coach.
My parents, who flew in from Florida: My father, Nelson
Roman, who is a retired New York City fireman, and I am proud
to say he was one of the first firemen to serve with the FDNY.
My mother, Aurea Roman, she is very special because she
instilled in our family a deep Christian faith.
And my two sisters are here with me. My sisters Elizabeth
and Esther, thank you for traveling here to support me.
I would like to acknowledge a family friend, Carlos Ortiz,
who is a former President of the Hispanic National Bar
Association.
And, last, I would like to acknowledge my court family back
in New York State, beginning with Chief Judge Jonathan Lippman,
who graciously appointed me to my first judicial post; my
colleagues on the Appellate Division First Department; and my
court staff.
Thank you, Senator.
[The biographical information of Justice Roman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Coons. Thank you, Judge Roman.
Now I would like to invite Raymond Moore to make your
introductory statement.
STATEMENT OF RAYMOND P. MOORE, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLORADO
Mr. Moore. Thank you, Senator. I would like to begin by
thanking the President of the United States for the nomination
and the faith in me. I am truly humbled by it.
I would also like to thank the Chair, the Ranking Member,
and all Members of this Committee for the opportunity to appear
today and respond to their questions.
I would like to recognize some family that I have here with
me today. My wife of many decades, whom I met in college,
Reine, is here, and without her love and support, I would not
be here or be anywhere near what I am today.
We have three children, the eldest of which is in
California and unable to attend, Nathan Moore. My other
children are here: my daughter, Rachel, and my youngest son,
Miles.
I am also joined by a partner in the law firm of Davis,
Graham & Stubbs, a man named Charles Casteel, who is one of the
first persons that I met when I moved to Colorado initially as
a summer clerk in 1977, I believe. Again, I am humbled by his
support.
I have no other statement to make. Again, I simply express
my appreciation for the opportunity.
[The biographical information of Mr. Moore follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Coons. Thank you, Mr. Moore.
I would like to invite the Honorable Analisa Torres to next
make her statement.
STATEMENT OF HON. ANALISA TORRES, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Justice Torres. Thank you, Chairman Coons, Ranking Member
Grassley, and Senator Hirono, for holding this hearing.
I also thank Senator Gillibrand for her kind words and for
recommending me for nomination.
I am also grateful to Senator Schumer for his support.
And thank you, President Obama, for honoring me with this
nomination.
Before I introduce my family and friends, I must recognize
one person who is not in this room but whose presence is felt.
That is my late grandfather, Felipe Torres, who would have
taken pride in this moment.
Here with me today is my incomparable husband, Stephen
Whitter. Our daughter, Elena, could not make it to Washington,
but is watching the Webcast at Earlham College in Indiana.
My parents, Frank and Yolanda Torres, are present, as are
my brother, Ramon Torres; my sister, Andrea Torres Mahone, and
her husband, Glenn Mahone; their son, Paco Mahone, and his
wife, Denise, are also here, accompanied by their little boys,
Amon and Gabriel, who is my godson. The Mahones flew in from
Pittsburgh.
My mother-in-law, Carol Whitter, jetted up from Florida,
and my two sisters-in-law, Roxanne and Janeen, traveled from
Detroit and Boston.
My aunt, Alma Torres Warner, came down from New York, as
did my cousin, Alexis Rodriguez; and my friends Linda
Arastondo, Emily Goodman, Marcia Johnson, and Carlos Ortiz.
My faithful law clerk, Elba Galvon, is also present.
My uncle, Bob Garcia, is one of the people joining us from
the D.C. area, as are Wendell Jenkins, Meryl Chertoff, Greg
Klass, Melvin Williams, and Michael Fauntroy.
Thank you, everyone, for coming.
[The biographical information of Justice Torres follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Coons. Thank you, Your Honor.
At this point I would like to ask unanimous consent to
introduce to the record statements by Chairman Leahy and
Senator Schumer in support of today's nominees. Without
objection.
[The prepared statements of Chairman Leahy and Senator
Schumer were not submitted for the record.]
And I apologize. I have to excuse myself for five minutes
to join a hearing on Benghazi on the Foreign Relations
Committee. Senator Grassley will act as Chair in my absence,
and I should rejoin you in just a few moments.
Thank you.
Senator Grassley [presiding]. Mr. Watson is the next
person.
STATEMENT OF DERRICK KAHALA WATSON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF HAWAII
Mr. Watson. Chairman Grassley, thank you for this
opportunity. I would like to thank a few people along the way,
including Senator Hirono and Senator Schatz, this morning for
their kind words. Thank you.
I also wanted to thank the late Senator Daniel Inouye for
his support through my nomination back in November as well as
the now-retired Senator Daniel Akaka. Both of them were
instrumental in my sitting here this morning, and I certainly
appreciate their support over the last year.
I wanted to thank Senator--excuse me--President Obama as
well.
I wanted to recognize, Chairman Grassley, my family members
who have traveled from Honolulu to be with me here this
morning: my wife, Gloriann; my two kids, Cade and my three-
year-old, Daly; my father- and mother-in-law, Gwen and Frank
Dalere; and my sister-in-law, Kimberley Holkup, with her two
kids, Saige and Saber Holkup, who is two years old.
In particular, I also wanted to recognize, Chairman
Grassley, the late United States Army colonel and paratrooper
Leroy Bass. Many of you, and probably most of you, do not know
Colonel Bass, but he was a teacher of mine at the Kamehameha
Schools back when I was a sophomore. He taught a course called
simply ``The Law.'' He does not know it and probably never
did--I never had an opportunity to express my appreciation to
him--but he inspired my interest in the law and has as much to
do with me sitting here today as anyone. And I wanted to
express my thank you to him and to his family.
Thank you, Chairman.
[The biographical information of Mr. Watson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Grassley. Now Ms. Kelly.
STATEMENT OF CLAIRE R. KELLY, NOMINEE TO BE A JUDGE OF THE
COURT OF INTERNATIONAL TRADE
Ms. Kelly. Thank you, Mr. Chairman. I would like to thank
you and the Committee for this hearing, and I would like to
thank the President for the honor of the nomination.
With me here today, I would like to acknowledge my husband,
Joseph DiBartolo, and thank him for all his love and support.
Our son, also Joseph, or J.J., is six, so he is in first grade
today, but he will watch this later, so I want to make sure I
thank him for his love and support.
My mother-in-law, Ann DiBartolo, would have loved to have
been here today, but she is making sure my son gets back and
forth to school safely.
I am proud to have my father-in-law, Joseph DiBartolo, also
a New York City firefighter for over 30 years.
My cousins, the Kilgens--Richard, Bernadette, and Krista.
And my good friend and administrative assistant for the last 15
years, Ms. Golda Lawrence, was able to make the trip.
My brothers, Dennis and John Kelly, were not able to make
it because of work commitments, but I do know they will be
watching, and I thank them for that.
Our father, George Kelly, passed away when we were young,
but I wanted to acknowledge his profound effect on our lives.
I would like to also acknowledge my friends and colleagues
at Brooklyn Law School, and especially my students. I had to
cancel Administrative Law to be here, so I appreciate their
understanding.
And, last, I wanted to acknowledge and thank my mother,
Rita Kelly, who is here today. For most of my life, my mom
worked two and sometimes three jobs to give my brothers and I
advantages that she did not have. I would not be here without
her today, and I would not be anywhere. And I am very grateful
for the opportunity to be able to thank her.
And thank you for allowing me to acknowledge my family.
[The biographical information of Ms. Kelly follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Grassley. I will start questioning, and if my
colleagues would not object if I take a little over five
minutes so I can go through the whole panel, so I can go to
another meeting? Okay.
I will start with Mr. Roman, and I think I have just a
couple questions for you. In the case named Matter of Darryl C,
you joined an opinion tossing out a weapons possession case
against a 14-year-old boy stopped by the police and found to be
carrying a semi-automatic pistol. It is my understanding that
this took place during school hours in a high-crime area and
that the police observed him holding a suspicious object.
So, just simply, I am asking you to explain your decision
in the case.
Justice Roman. Thank you, Senator, for the question.
Senator, as an appellate court judge, my role in cases such
as this----
Senator Grassley. Is your microphone on, please? Is the red
light on?
Justice Roman. There it is.
Senator Grassley. Thank you.
Justice Roman. I am sorry, Senator. Thank you for the
question. First, let me start off by saying that as a former
New York City police officer and having conducted quite a
number of search-and-seizures and stop-and-frisk, I am
extremely sensitive to these types of cases. However, I
recognize that my role as a judge is quite different than that
of a police officer or even that of my role as a former
prosecutor.
As an appellate court judge, my role was very simple. In
cases such as this, we defer factual and credibility
determinations to the hearing court, and then we determine
whether or not the proper rule of law was applied.
In this particular case, deferring all credibility and
factual determinations to the hearing officer, the family court
judge, the family court judge just merely got--applied the
wrong standard of law. In this instance, the family court judge
ruled that, upon reaching into the juvenile's pocket and
feeling or finding what he determined to be the handle of a
gun, the police officer the had reasonable suspicion to believe
that the juvenile had committed a crime. That, Senator, is
merely a misapplication of the law, and there are references to
the facts which are, I think, more particularized in the
majority opinion which corresponds to the facts as articulated
by the testifying officer. And for that basis, I ruled that it
was a misapplication of law.
Senator Grassley. Okay. My last question to you would be in
regard to the Supreme Court addressing the Second Amendment in
Heller and again in McDonald. What is your understanding of the
rights afforded by the Second Amendment?
Justice Roman. It is a right that is afforded to all,
Senator. I have not had an opportunity to study those cases.
However, Senator, I am prepared to follow the rule as it is
articulated by the Supreme Court decisions. As I have done in
the past, I have always followed the prevailing rule, absent
any personal feelings that I may have.
Senator Grassley. Okay. Mr. Moore, a couple questions. In a
statement to the U.S. Sentencing Commission public hearing, you
said that district judges should not base their sentencing
decisions on personal sentencing philosophies or on their
``personal views.''
Do you think that this is a problem in the federal courts?
And what did you mean by this testimony?
Mr. Moore. No, Senator, I do not believe that this is a
problem. At the time I was testifying in front of the
Sentencing Commission, I was doing so as a representative of
the defender community and expressing the views of the defender
community as a whole. My comment was simply to say that in
these times, I did not believe that there was a reason to
retreat from the advisory guideline system that we now have,
largely because I believed that judges were being fair and
impartial and applying the rule of law as handed down by the
Supreme Court.
Senator Grassley. Okay. Last question. Are there Sentencing
Guidelines that you feel are unjust or should not be followed?
Mr. Moore. Again, Senator, no is the simple answer.
Senator Grassley. Okay.
Mr. Moore. I have been an advocate, obviously, for the
federal defenders. I have also served as an Assistant U.S.
Attorney. I understand, or at least believe I understand, all
sides of this issue. I bring no preconceived animus against any
guideline or policy or position. All cases, if I am fortunate
enough to be confirmed, that I would decide would be decided on
the basis of the law and the facts.
And if I might take five seconds to correct an oversight, I
want to acknowledge the kind words of both Senators Udall and
Bennet in their introductions and hope that I can live up to
their kind projections.
Thank you.
Senator Grassley. Thank you.
Ms. Torres, just a couple questions. If confirmed, would
you commit to protect an individual's right to possess a
firearm?
Justice Torres. Yes.
Senator Grassley. Number two, you were quoted in an article
as saying, ``I try to listen, not just to legal arguments made
by counsel, but to people's feelings.'' If confirmed as a
district court judge, what role would people's feelings have in
your rulings?
Justice Torres. The role of a judge is to apply the law to
the facts and in that way decide a case. In doing so, a judge
must inform herself about the relative positions that are being
put forth by the parties, and in some cases individuals express
feelings about their positions, and I must understand
everyone's point of view in order to be fully informed. That is
what I meant.
Senator Grassley. Okay. Mr. Watson, I have a few more
questions for you, not to find any fault with anything but to
learn from your experience. And this comes from the fact that
in 1986 I authored an update of the Federal False Claims Act,
which reinvigorated the qui tam provisions and has helped
recover more than $30 billion. In fact, I think the Justice
Department just announced that under the False Claims Act of
1986, it so far has brought in somewhere between $32 billion
and $33 billion.
Your background materials indicate that as an Assistant
U.S. Attorney, you have handled a number of these false claims
cases, so I have got five questions, but I am going to give
them to you one at a time.
Could you please briefly describe your experience with the
False Claims Act in general and specifically any work you did
with qui tam whistleblowers?
Mr. Watson. Certainly, Chairman. The qui tam provisions of
the False Claims Act are perhaps the most significant tool in
my estimation that the Department of Justice utilizes in its
civil prosecutions. As you just mentioned, in fact, the
Department of Justice--not just this past fiscal year but for
the last several fiscal years that I am aware of--has collected
more moneys through the False Claims Act provisions than the
Justice Department as a whole expends, and that alone, I think,
speaks volumes of its utility.
More particularly, Chairman, I have handled a number of
False Claims Act cases, both inside and outside the qui tam
provisions, both as an Assistant United States Attorney with
the Northern District of California, San Francisco, as well as
the District of Hawaii. I have handled cases recovering civil
monetary recoveries against physicians, Medicaid/Medicare fraud
cases exceeding seven figures on multiple occasions. Obviously
I cannot comment on current qui tam cases that are under seal
and pending in our district.
Senator Grassley. Sure.
Mr. Watson. But I have handled many, both in San Francisco
as well as Honolulu, in the last five years.
Senator Grassley. Okay. During the litigation of False
Claims Act cases that you handled, did you ever prepare
memoranda advocating for or against intervening in a case filed
by a qui tam whistleblower?
Mr. Watson. Yes.
Senator Grassley. So you did do memoranda one way or the
other?
Mr. Watson. That is correct, Senator.
Senator Grassley. Okay. In your experience, did you ever
receive approval to intervene in a matter, only to have that
approval reversed or subsequently withdrawn?
Mr. Watson. No, I have not.
Senator Grassley. Okay. If you were to receive such a
subsequent declination, would you find that unusual?
Mr. Watson. It would be unusual in that in my 10-year, 11-
year career now with the United States Attorney's Office, it
has never occurred.
Senator Grassley. And do you have any views regarding--
well, what is your view regarding the constitutionality of the
False Claims Act and qui tam provisions?
Mr. Watson. My view on it is that it is constitutional.
Senator Grassley. Okay. Now, Ms. Kelly--and then I just
have about the same number of questions, but based upon just
getting information, not with any fault with your position, in
2003 you wrote an article analyzing the legality of Executive
Order 13303, a 2003 Executive order issues by President Bush.
Your analysis began with Youngstown, the famous steel seizure
case, where the court described the limits of Executive power.
Justice Jackson described three areas or levels of
Executive power:
First, the President's authority to act is strongest when
he acts with the express authorization of Congress;
Second, the President's authority is in, according to
Jackson's words, ``a zone of twilight'' when Congress is
silent;
And, third, the President's authority is at its lowest ebb
when the President takes measures ``incompatible with the
express or implied will of Congress.''
So about three or four questions. Based on your
understanding of Youngstown, if Congress expressly granted the
President authority to take an action and the President did so,
would it be correct to say that the President would be
operating safely within his constitutional powers?
Ms. Kelly. Yes, it would.
Senator Grassley. Second, based on Youngstown, is it your
understanding that the President has the least constitutional
authority when he acts against the express or implied will of
Congress?
Ms. Kelly. Yes, Senator.
Senator Grassley. Three, based on Youngstown, if Congress
expressly prohibited an agency from taking a particular action
and yet the President nonetheless issued an Executive order or
Presidential memoranda directing the agency to perform that
action, do you believe a court would view the Presidential
Executive order as constitutionally suspect?
Ms. Kelly. Well, speaking in the abstract, that is what
Youngstown seems to say. I mean, I would have to look at all
the Supreme Court precedent, Dames & Moore, other precedent
carefully and look at the act and how Congress had acted. But
just based upon my article, what I wrote in the Arizona Law
Review, that is the framework that Youngstown sets out.
Senator Grassley. And then, last, if you were presiding
over a case where the President acted in the lowest ebb of
Presidential authority--and I am not talking about a specific
case, just generally--what factors would you consider when
analyzing whether the President's action was unconstitutional?
Ms. Kelly. Well, I would look to the Youngstown factors and
any other Supreme Court factors that are laid out for that
specific context--in the Law Review article, for example, the
Dames & Moore case--but I would look to what the Congress had
said on the matter specifically and what the Congress might
have done implicitly in case there were any implied
authorization, and I would look to inherent Presidential power.
Senator Grassley. Okay.
Mr. Chairman, you see I went over a long time, but I asked
permission of my colleagues before I started.
[Laughter.]
Senator Grassley. You are not Mr. Coons. You are Mr.
Blumenthal. So that is why----
Senator Blumenthal [presiding]. I would have happily given
you permission.
Senator Grassley. Thank you. Thank you. I am done now.
Senator Blumenthal. Thank you, Senator Grassley.
Senator Grassley. Thank you all very much for your time.
Senator Blumenthal. Thank you.
Unless my friend Senator Lee objects, I am going to call on
the distinguished Senator from Hawaii to ask questions at this
point, and then we will go to Senator Lee.
Senator Hirono. Thank you, Mr. Chairman.
First of all, I wanted to commend all of our nominees. You
have very interesting and extensive personal backgrounds as
well as, of course, your legal backgrounds. So I just have a
few questions.
Mr. Moore, you have had extensive experience in the federal
courts. Can you discuss your views on what qualities the best
judges possess?
Mr. Moore. Thank you, Senator. I think the qualities
include the ability to narrowly constrain oneself to the issue
before the court; fairness, obviously; impartiality; the
ability to be transparent in explaining one's decision and the
rationale for it; adherence to the principles of stare decisis;
a commitment to the work necessary; patience; listening to the
analyst and the parties.
I may have missed some qualities, but I think that that
generally would sum up what I believe would be the qualities
that would make for a good judge.
Senator Hirono. Would the other nominees be in agreement?
If any of you have any other qualities that you would consider
to be very important for someone sitting on the federal bench,
please, federal court? Did you want to add something, Ms.
Torres.
Justice Torres. First, the ability to listen well; to be
evenhanded; to have the courage to do what you believe is
right; to speak and write clearly so that people who are not
lawyers understand what you are saying; to know the Rules of
Evidence and to know the substantive law.
Justice Roman. I would only add that we not prejudge any
particular case and not bring our own individual opinions into
the matter.
Senator Hirono. I have a question for you, Mr. Roman. You
have served on the State court for 15 years. Can you tell us
why you at this point would like to serve on the federal bench?
Justice Roman. Senator, thank you for the question. I have
a long-lasting commitment to public service. I have been in
public service for 30 years now, having started as a New York
City police officer when I was only 21 years old. And now I
currently serve as an appellate court judge in the New York
State intermediate court, which is one of the most prestigious
courts in the country.
That being said, I could think of no greater honor than to
serve my country at the national level as an Article III judge.
Senator Hirono. Thank you.
Ms. Torres, you mentioned being able to listen very
carefully, so can you describe a time when your background or
experience allowed you to approach a case in a different way
than someone without your kind of background or experience
might have looked at a case?
Justice Torres. I have tried to approach all of my cases
with impartiality and fairness, and my colleagues on the New
York State bench, I believe, have also done the same. I do not
know that there is anything special about my background that
would make me more impartial or more fair.
Senator Hirono. I am going to save the last question for
the nominee from Hawaii. You practiced law in California for 15
years before moving back home, and we are glad to have you
home. What motivated you to leave California and come back to
Hawaii at that point in your career?
Mr. Watson. After being away for so long, Senator Hirono, I
could use one word to sum it up: family. The reason for my
move--or our family's move--was the birth of our first son,
Cade, in November 2006. We moved--I looked for a job
immediately that month, recognizing that his grandparents on
both mother's and father's side were in Hawaii, still are in
Hawaii, make their homes in Hawaii, and have no intention of
leaving Hawaii. And, quite frankly, neither do we. That was the
reason for our decision to leave the Bay Area at that time.
Senator Hirono. Thank you.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you.
Now Senator Lee.
Senator Lee. It is good to have all of you here, and it is
also nice to have your families with you. Why don't we start
with Judge Roman. I saw you brought Ariana but not Andres. Is
that punishment--oh, he is here.
Justice Roman. They are both here.
Senator Lee. Okay. The soccer star is here. I just wanted
to make sure that Andres was not getting left out or that he
was not in trouble for something.
[Laughter.]
Senator Lee. So when you were in practice, your practice
was primarily criminal. Is that right?
Justice Roman. I started as a prosecutor, as an assistant
DA in Kings County, and as a special narcotics prosecutor.
Senator Lee. And then since you have been on the bench, you
have been largely civil?
Justice Roman. Largely civil, but in the past three years
as an appellate court judge, I have handled--in addition to
complex civil matters, complex commercial matters--I have also
handled criminal appeals.
Senator Lee. How did you find that transition from
primarily criminal practice into handling civil matters
routinely, particularly before you went on and started
handling----
Justice Roman. It was quite an adventure, but it was the
most amazing adventure for me. I love research and writing, and
I love immersing myself in the subject matter. I love the law,
and I was a quick learner, and I was fortunate enough to have
clerked for two years for a judge who served in the civil
court. I learned a great deal. And as a result, I must say I
was very fortunate to have been able to serve shortly
thereafter as a judge in the housing court part and then as a
civil court judge and then as a Supreme Court judge.
Senator Lee. One of the differences that I see between a
civil practice and a criminal practice is that there is really
no analog to the motion for summary judgment in a criminal
practices. You have got motions to dismiss. You have got
evidentiary motions. But there really is not a summary judgment
process, and the summary judgment motion plays a pretty
prominent role in civil litigation.
I see a tendency on the part of some judges sometimes to
handle summary judgment motions in one of two ways. In a close
case, where they are not sure whether they have got a genuine
issue of material fact, some judges might be inclined to cut
the cards one way, saying let the plaintiff have his or her day
in court. Others might be inclined to say, no, let us clear up
my calendar and move it forward.
Overall, I think the pull for judges is more naturally in
the direction in a close case of denying a motion for summary
judgment because it produces less work for the judge in the
short term. They do not have to write an opinion which might
get overturned on appeal, and the case may well settle long
before it gets to trial. So there is something of a perverse
incentive on the part of a judge to deny a motion for summary
judgment as long as it is close.
Do you have any thoughts on that matter?
Justice Roman. Senator, I have had the opportunity to
resolve a host of dispositive motions, motions to dismiss,
summary judgment motions, both at the trial court level and I
have reviewed hundreds of dispositive motions at the appellate
level. I believe it is each and every judge's responsibility to
address each and every motion on its merits and let the chips
fall where they may. I have never shied away from making a
decision.
Senator Lee. There are things a judge can do to look out
for this natural tendency to want to deny it rather than grant
it?
Justice Roman. As I said, I have never shied away from a
motion no matter how difficult it is, and if it warrants a
certain conclusion, that is how I call them.
Senator Lee. Great.
Judge Torres, I wanted to talk to you about your career.
You have had a very accomplished and interesting career,
started out largely in real estate, as I understand it, and
then you moved into the judicial system, serving as a law clerk
in your State judicial system. Was that a difficult transition,
moving from real estate into sort of a judge support model, and
then into the role as a judge?
Justice Torres. I did not find it difficult. I found it
fascinating, exhilarating. I enjoyed very, very much the
opportunity to get back to reading cases and writing decisions.
It was a wonderful experience working for Judge Wilk.
Senator Lee. More interesting in some ways than writing up
the land deals and things like that, I would imagine. I have
never been a transactional lawyer, so I do not know, but I
would imagine that would have been a fun transition to make.
Justice Torres. Contracts and mortgages do have their level
of interest.
[Laughter.]
Senator Lee. Well said. Very well said.
So your experience has been largely, perhaps entirely,
within the State court system?
Justice Torres. Yes.
Senator Lee. And now that you have been nominated to be a
federal district judge, your role would be changing. Should you
be confirmed, you will be transitioning into a completely new
system with new rules. What do you think you can do to help
prepare yourself for that transition and help ease it and make
sure that it goes out smoothly?
Justice Torres. The first thing that I have done is that I
have spoken to the three Southern District judges who went from
the State to the federal bench to get their guidance about how
they made that transition.
I have also taken advantage of the materials that are
available through the Federal Judicial Center. I have been
studying on my own the Federal Rules of Civil Procedure and the
Criminal Procedure Rules, and I believe that I can get up to
speed quickly. I am confident about that.
Senator Lee. Great. Thank you very much, and I see my time
has expired, Mr. Chairman.
Senator Coons [presiding]. Thank you, Senator Lee.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
to each of our nominees for being here today. And I want to
join in thanking your families and friends who have stood by
you with such loyalty and support in a very arduous process. I
note that each of you was nominated during the last session,
and you have hung in there, so to speak, and braved this
process a second time around. And I want to thank you for your
endurance in this process and say very seriously it should not
be the kind of marathon that it has been, in many instances,
for many of our nominees because the demands of that process
itself are in a sense discouraging and deterring to some of our
most able people. And I am glad that some of our most able
attorneys like yourselves are willing to continue and go
through it and then to serve.
And I know, as a trial lawyer myself before having this
job, that your service is supremely important to our Nation. As
Judge Roman has remarked, an Article III judge for countless
people across the country is the voice and face of justice.
People tend to focus on the U.S. Supreme Court, but for many
litigants, as you well know, the district court is the place
where they go to seek justice. And so is the Court of
International Trade.
So this is a really awesome and profoundly significant
responsibility, and I thank you for devoting the work that you
will do, the countless hours. People do not realize that the
hours that you spend on the bench are a fraction of the time
that you will devote to your opinions and research and
evidentiary considerations. So I am here primarily to express
my thanks.
Each of you is very well qualified, in my view, and I am
delighted particularly that a number of you have law
enforcement backgrounds. Judge Roman, Judge Torres, Mr. Watson,
you have been prosecutors, and, Mr. Moore, as a public
defender, you have very direct experience in the criminal
justice system as well, and I think that kind of experience
bodes very well for the kind of real-life experience that you
will bring to the bench, which is so important.
Let me just ask a question, perhaps of Judge Roman and
Judge Torres and Mr. Watson, about your experience as a
prosecutor. Do you think that will inform or impact your
judgments in sentencing, in criminal justice issues? Just as a
personal or human impression, if you could answer.
Justice Roman. Senator, as I indicated before, I believe
the role of a judge is to render decisions in a neutral fashion
and not to do so--or not to impose one's personal belief. I
believe my experience just makes it--it gives me a different
perspective on the law, and it brings a certain sensitivity.
However, my role is very specific, and that is to apply the
rule of law and only the rule of law on the particular facts.
And that is what I have done in the past, and that is what I
will continue to do.
Senator Blumenthal. Thank you.
Judge Torres.
Justice Torres. Senator Blumenthal, although I have handled
criminal matters for 11 years, I did not serve as a prosecutor
beforehand.
Senator Blumenthal. But you have handled felony cases,
serious criminal matters?
Justice Torres. Oh, absolutely.
Senator Blumenthal. And do you think that will impact your
service as a district court judge?
Justice Torres. Yes, that will inform me, as well as the
amount of civil matters that I handled during my 20 years
serving the New York State judiciary.
Senator Blumenthal. Mr. Watson.
Mr. Watson. Senator Blumenthal, I would echo the comments
of Judge Roman ahead of me that this is the challenge that all
of us who have litigated extensively throughout our careers
face in the transition between being an advocate and what will
hopefully be our upcoming roles as a jurist. We have that
challenge of impartially applying the rule of law regardless of
what we have done prior to now, and that includes my work with
the United States Attorney's Office as well as my work as an
advocate in the private sector. So while that will be a
challenge, it is one that I am confident I can meet.
Senator Blumenthal. And, Mr. Moore, how do you think your
service as a public defender will impact, if at all, your
service as a judge?
Mr. Moore. Senator, the parallel I would draw is this one:
I have spent a number of years serving the government
representing individuals without regard to public opinion as to
the individuals' conduct, without regard to what I might
personally think about that individual's defense or any of the
other matters that are the topic of conversation between
counsel and client.
I would think the ability to do that would hopefully serve
me well as a judge, being able to apply the law, do what is
best and right, without regard to public opinion, without
regard to any personal beliefs that I may have with respect to
the subject matter, to be neutral and to give the service every
ounce of energy that I can.
Senator Blumenthal. Thank you. Thank you all for your
willingness to serve, and I look forward to considering your
nominations. Thank you.
Senator Coons. Thank you, Senator Blumenthal.
Recognizing the press of time, I might ask one question
that gives an opportunity for each of you to reflect on some of
the balance between your previous service and the service on
which we hope you are about to embark as judges in our federal
system.
You have a very broad range of experiences. Whether in
private practice, as an academic, as a prosecutor, as a judge,
as a police officer, as someone who has been involved in
advocacy or who has handled cases in the private sector on a
pro bono basis, you have seen a very wide range of human
experience and a very wide range of the roles that our courts
can play and our judiciary can play in ensuring access to
justice and ensuring a swift and legally sound decision.
So I would just ask if you might, each of you in turn,
offer some comment about the most important lessons you have
learned in the various legal positions you have held about how
do we ensure fair access to justice in our legal system and how
will you apply the lessons more broadly that you have learned
in your service as attorneys in your role as a federal district
court judge or a judge on the Court of International Trade,
should you be confirmed. Judge Roman, if you might.
Justice Roman. Senator, one of the most important lessons
that I have learned over the course of 30 years is to listen
very carefully and to allow individuals who seek our services,
whether it be as a police officer, as a prosecutor, or as a
judge who seek our services, to listen very carefully and to
give them their fair respect and to give them their day in
court, regardless of how minor the claims may be or how serious
the claims may be. So it is important to give everyone their
fair day in court and to pay them respect.
Senator Coons. Thank you, Judge.
Mr. Moore.
Mr. Moore. Senator, I have seen the courtroom from a lot of
different perspectives.
Senator Coons. Yes, you have.
Mr. Moore. What is clear to me is that, regardless of what
perspective or what branch or segment of litigation appears in
front of a judge, everyone wants the same thing. They want to
be heard; they want to be listened to; they want to have their
views considered; and they would like to have their issues
resolved promptly.
I would hope and do commit that I would do everything in my
power to be fair, to be prompt, to be decisive, to be
transparent, and to give, if you would, a fair shake to
everyone who appears--criminal, civil--and hopefully be able to
increase the number of cases that can get through the Colorado
system, give everyone their day in court, if they would, and
their day out of court as well.
Senator Coons. It is my only hope that the Senate could
begin to model that behavior of being fair, prompt, and
decisive.
Judge Torres.
Justice Torres. The most important lesson that I have
learned is that a judge must adhere to the law and apply it
impartially.
Senator Coons. Thank you.
Mr. Watson.
Mr. Watson. Mr. Chairman, two things come to mind in
listening to your question. The first is utilizing the tools of
case management to allow litigants--primarily I am thinking
civil litigants--access to the district court, and that, I
think, require the use--and, fortunately, in Hawaii we have
three excellent magistrate judges that assist the district
court judges in promptly resolving both our cases criminal and
civil.
The second thing that comes to mind is adjudicating motions
for appointment of counsel, and in the criminal context it is
quite different, but in the civil context, there is a limited
right to representation and appointment of outside counsel in
certain cases. And that is my commitment to this Committee, is
to promptly adjudicate those motions and looking for those
cases. Usually those who are looking are pro se at that point
in time, not looking to change counsel, and determining whether
outside counsel can benefit litigants in the most need.
Senator Coons. Thank you, Mr. Watson.
Professor Kelly.
Ms. Kelly. Yes, Senator. The two things that I have found
most important are fidelity to the rule of law and clarity in
expressing the rule by the judges, both as a practitioner, as a
teacher, and in my work with the Customs and International
Trade Bar Association. If the courts are faithful to the rule
of law, apply the law as written, and then explain it clearly,
everyone benefits.
Senator Coons. Thank you.
Professor Kelly, you have both written and spoken about the
need to expand the jurisdiction of the Court of International
Trade. I would be interested if you might just expound on that
briefly.
Ms. Kelly. Well, I have worked with the Customs and
International Trade Bar Association over the years regarding
their effort to expand the court's jurisdiction. There are some
very specific proposals that I think are under consideration in
a bill by the Congress. So there are some instances where
perhaps a matter would be heard currently in district court,
where there are very busy dockets, criminal dockets, and so one
might have to go to district court to get a subpoena where it
is involving an import matter. It would be just as easy and
would seem to make a lot of sense to go to the Court of
International Trade. So it is my understanding there is a very
detailed proposal to better use the Court of International
Trade.
Senator Coons. I have been interested in your trade secret
work and in this jurisdictional work. I will not engage
everyone on it now, but I would certainly be interested in
following up with you on that.
Of the four of you who are nominated for Article III
judgeships, for district court judgeships, you have in
different roles at different times been engaged in reviewing
the role of legislated standards, whether it is mandatory
minimums or otherwise. And I would just be interested if our
four district court nominees would, in turn, speak to the
question of what is the role of the federal judiciary at the
district court level in interpreting acts of the legislative
body, particularly ones that might expand jurisdiction or might
change rules of procedure, might impose mandatory minimums. How
do you go about correctly interpreting and applying the will of
the legislative branch as a member of the federal judiciary? If
you might, Judge Roman.
Justice Roman. What I do each and every time that I look at
a statute is to read the statute, give words their plain
meaning, and then I would look to judicial precedents for
guidance. If confirmed, I would look to the Second Circuit and
to the Supreme Court for guidance on those issues.
Senator Coons. Thank you, Your Honor.
Mr. Moore.
Mr. Moore. I agree with what Judge Roman has to say. I
would say that the paramount thing that one must do is to be
true to the language of the enactment, whether it be statute or
regulation, whatever is under consideration at that time. If
its meaning is plain, then apply it. If there is some
ambiguity, then one can begin to look to the precedent that
applies, obviously the Supreme Court and, in my case, the Tenth
Circuit Court of Appeals as well. And there are other rules of
statutory interpretation that would come into play, but the
critical aspect is to apply the words of the statute and give
them their plain meaning, respect the intent of Congress as
expressed in that plain meaning, and that is what I would hope
to do.
Senator Coons. Thank you, Mr. Moore.
Judge Torres.
Justice Torres. I concur with what Judge Roman and Mr.
Moore stated.
Senator Coons. Mr. Watson.
Mr. Watson. Well, at the end of the line, Senator, I really
do not have any--I cannot create new rules of statutory
interpretation than have already been expressed.
Senator Coons. Very wise answer.
[Laughter.]
Senator Coons. And a reminder to those of us who serve in
Congress to draw what lines we draw with precision and clarity.
Senator Hirono, do you have any additional questions?
Senator Hirono. Thank you. With your indulgence, I started
this hearing by thanking Chairman Leahy and Senator Grassley
for scheduling this hearing so that we can fill these vacancies
as promptly as possible and for including, of course, Mr.
Watson from Hawaii in this panel and lineup.
I also want to thank the Chairman's staff and the Ranking
Member's staff for making this hearing possible and all of the
other hearings to follow. We could not do it without all of
you. So thank you very much.
Senator Coons. Thank you, Senator Hirono.
I would like to ask unanimous consent to include letters of
support in the record of this hearing. I understand there are
15 such letters for Justice Roman, and any other letters. So,
without objection, if we might include letters of support in
the record.
[The letters appears as a submission for the record.]
Senator Coons. There being no further questions from this
panel, we will hold the record open for a week so that Members
of the Committee who were not able to attend today due to
conflicts in their schedules who wish to submit written
questions have the opportunity to do so.
I would like to thank each of our five superbly qualified
and determined and dedicated to public service nominees today
and your families for your patience and your endurance and your
dedication to improving the quality of justice in our country.
I thank you for being here today and congratulate you on your
nominations, and I know I share the wish of all of you and your
families that you might proceed swiftly to consideration by the
full Senate.
Thank you. We stand in recess.
[Whereupon, at 11:18 a.m., the Committee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF KENNETH JOHN GONZALES, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO; MICHAEL J. McSHANE, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF OREGON; NITZA I. QUINNONES
ALEJANDRO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF PENNSYLVANIA; LUIS FELIPE RESTREPO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; AND JEFFREY L. SCHMEHL,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
----------
WEDNESDAY, FEBRUARY 13, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:36 a.m., Room
SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono
presiding.
Present: Senator Lee.
OPENING STATEMENT OF HON. MAZIE HIRONO, A U.S. SENATOR FROM THE
STATE OF HAWAII
Senator Hirono. This hearing will come to order. Good
afternoon, everyone. I'm pleased to call this nominations
hearing of the Senate Committee on the Judiciary to order. This
is my first nominations hearing, so I'm sure you'll be very
kind and all of that. So as a Member of the Committee, my first
opportunity to chair a hearing.
I'd like to welcome each of the nominees, their families,
and friends to the U.S. Senate and congratulate them on their
nominations. I would like to welcome the Senators who are here
to testify on behalf of their nominees, Senators Wyden,
Merkley, Casey--aloha!--Toomey, Tom Udall is not here yet, and
Heinrich. And you are all here to introduce your nominees. I
know that Ranking Member Lee will be joining us in a little
bit; however, we will proceed.
We'll turn to the introduction of the nominees. I know that
you all have pressing other commitments, so when you finish
your introductions, please feel free to go to your other
appointments.
We shall start with Senator Wyden.
PRESENTATION OF MICHAEL J. MCSHANE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF OREGON BY HON. RON WYDEN, A U.S.
SENATOR FROM THE STATE OF OREGON
Senator Wyden. Thank you, Madame Chair. I want to say how
pleasurable it is to refer to you as Madame Chair. I know this
is your first hearing, and we're so glad to have a chance to be
here to introduce Judge Michael McShane. For Senator Merkley
and I, we take special pride in this nominee. Oregon has been
blessed with a long list of distinguished judges, and we have
every confidence that Judge McShane is going to join that list.
With your leave, Madame Chair, I'll spare you the
filibuster this afternoon and maybe make just a few comments.
Then I know we want to hear from my colleague, Senator Merkley,
as well.
Judge McShane is a Multnomah County Circuit Court judge. He
has worked there since 2001. He graduated magna cum laude from
Gonzaga University and went to the Northwestern School of Law,
Lewis & Clark College. He was at the top of his class, and he
then began a long odyssey of public service. He worked in the
metropolitan public defender's office.
He also was appointed by the Oregon Supreme Court as a
full-time pro tem judge. He's earned very high marks for his
work by his fellow lawyers, by the American Bar Association.
He's been singled out for his work by the Oregon State Bar
Presidents' program, particularly getting the public service
award for his service to the community. That's what I would
like to highlight just for a moment, Madame Chair, is the
extraordinary community service that Michael McShane has given
to particularly his hometown and my hometown of Portland.
I think, for example, what he has done for at-risk kids--
we're talking about middle school youngsters, say, sixth grade.
He has tutored them, he has been a mentor to them. He has
bought clothes for them, Madame Chair, with his own money. He
has been there for some of the most vulnerable young people in
our community. I think this is really representative of his
commitment to service.
In my prepared remarks I list all of the various other
areas he's been involved in with the Job Corps internship
program, the Cascade AIDS program where he's been a volunteer.
But anybody who, on his own time, is involved in practically
every good community service cause in our community, extending
to the point where, for needy youngsters, he goes out and buys
them clothes, that's the kind of role model, that's the kind of
person who, when they have the extraordinary professional
qualifications that Michael McShane has, that's the kind of
person that we would like to see on the Federal bench.
So let me put my prepared remarks into your hearing record,
and perhaps just yield to my friend and colleague, Senator
Merkley. We do make our judicial recommendations together and
we both thought that, without reservation, Michael McShane
would make an exceptional judge.
[The prepared statement of Senator Wyden appears as a
submission for the record.]
Senator Hirono. Senator Merkley.
PRESENTATION OF MICHAEL J. MCSHANE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF OREGON BY HON. JEFF MERKLEY, A U.S.
SENATOR FROM THE STATE OF OREGON
Senator Merkley. Thank you, Madame Chair. It is an honor to
be here to be with my senior Senator to mutually endorse Judge
Michael McShane's nomination. Over his entire career, as
Senator Wyden has pointed out, he has demonstrated a commitment
to the law, a commitment to public service, and a commitment to
the State of Oregon.
He first came to Oregon as a member of the Jesuit Volunteer
Corps. This is an extraordinary organization where young folks
dedicate a year to simple living, direct service to the poor,
and spiritual community. Since that time he has remained deeply
dedicated, both to Oregon and to public service.
I'm going to pass over the points that Senator Wyden has
covered well and I just want to say that in the nearly 15 years
he has served on the Circuit Court, Judge McShane has developed
a reputation for fairness, for thoroughness, and for accuracy,
and he has continued to serve the community as well as an
adjunct law professor at Lewis & Clark College, an outstanding
school of law.
In a letter of support that I received, one member of the
Portland law community summed up his nomination by saying,
``What stands out to me is that Judge McShane lives and
conducts his personal life with the same integrity, honor,
compassion, diligence, and commitment that he displays as a
judge.'' Judge McShane will be an excellent addition to the
U.S. District Court for the District of Oregon, and my thanks
to the Committee for hearing his nomination today.
Senator Hirono. Thank you. Senator Toomey.
PRESENTATION OF NITZA I. QUINNONES ALEJANDRO, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA;
LUIS FELIPE RESTREPO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND JEFFREY L. SCHMEHL,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA BY HON. ROBERT CASEY, JR., A U.S. SENATOR FROM THE
STATE OF PENNSYLVANIA
Senator Casey. Madame Chair, thank you very much for this
opportunity. Senator Toomey and I will speak about three
nominees for the federal bench in Pennsylvania. I'd say by way
of summary of all three that they possess all of the qualities
we would hope for in a judge.
You could make a long, long list, but just a couple that I
try to focus on: the intellect, ability, and the integrity that
you need to be a federal judge, also the experience. Each of
these three individuals has broad experience. Finally, then,
the judicial temperament and the ability to conduct yourself
appropriately as a United States District Judge. So, I can say
that about all three.
Just by way of a quick summary with their academic and
their experience either as lawyers, judges, or both, first, on
the list, Nitza Quinnones Alejandro. Judge Quinnones, since
1991, has served as a trial judge in Philadelphia, Philadelphia
City--meaning Philadelphia County. It's really the same. It's
one and the same. So she's been on that bench all those years.
She was first nominated for judicial appointment in May 1990 by
Governor Casey, someone I knew pretty well. At that time she
was the first state court judge that was Hispanic. I remember
at the time when that appointment was made, and we were very
proud of it at that time, and nothing has happened in the
interim to diminish that pride that we have in her work.
Judge Quinnones served as an arbitrator for the
Philadelphia Court of Common Pleas. Prior to that, between 1980
and 1991, she was a staff attorney with the Department of
Veterans Affairs. She's been very active in the Bar
Association, the Hispanic Bar Association in Philadelphia in
recruiting young lawyers to serve.
She was a graduate of the University of Puerto Rico School
of Business Administration with honors, as well as the
University of Puerto Rico Law School. I have no doubt that
she'll serve with distinction as a member of the federal bench.
Next, Luis Restrepo, who has had a wide and varied set of
experiences: magistrate judge for the United States District
Court for the Eastern District of Pennsylvania since June 2006.
As you know, Madame Chair, when you serve as a magistrate judge
you are chosen by federal judges, so it's a pretty high bar to
surmount to get to that position.
Now, prior to that he was a highly regarded attorney and
founding member of the Krasner and Restrepo law firm in
Philadelphia. He was an assistant federal defender with the
Community Federal Defender for the Eastern District of
Pennsylvania, a professor at Temple Law School.
I'm skipping over some details, but just by way of his
personal background, he's a native of Colombia. Judge Restrepo
became a United States citizen in 1993. He earned a Bachelor of
Arts degree from the University of Pennsylvania, as well as a
law degree from Tulane University. He, as well, I have no
doubt, will serve with distinction.
Finally, Jeffrey L. Schmehl has now already served a judge,
president judge for the Berks County Court of Common Pleas,
since 1998. Berks County is on the eastern side of our State, a
very big county, with always complex matters that come before
the Common Pleas court in a county like that.
Prior to his service on the bench, Judge Schmehl was a
partner at a law firm in Reading, where he worked as an
associate since the mid-1980s. He was a County Solicitor for
Berks County, had his own law firm in the early 1980s. He was
an Assistant District Attorney and prosecutor in Berks County.
He's a graduate of Dickinson College, as well as the University
of Toledo School of Law in 1980.
Again, I have no doubt that he'll serve with distinction.
It's been a great honor to get to know these individuals
better, some of whom I knew before, but getting to know them in
this process. It's also been a great privilege to work with
Senator Toomey on this process, which can be long and
laborious, but we're finally here at this point today. Thank
you.
Senator Hirono. Thank you very much, Senator.
Senator Toomey.
PRESENTATION OF NITZA I. QUINNONES ALEJANDRO, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA;
LUIS FELIPE RESTREPO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND JEFFREY L. SCHMEHL,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA BY HON. PATRICK TOOMEY, A U.S. SENATOR FROM THE
STATE OF PENNSYLVANIA
Senator Toomey. Thank you. Good afternoon, Madame Chairman
and Ranking Member Lee. I appreciate your giving me this
opportunity to help introduce Judges Schmehl, Quinnones, and
Restrepo before this Committee. Following my and Senator
Casey's recommendation, President Obama nominated these three
very qualified individuals last fall, and then re-nominated
them on January 3. I appreciate also your timely scheduling of
this hearing.
I would like to begin briefly by thanking Senator Casey for
his collaboration in recommending these three nominees for the
Eastern District of Pennsylvania. Our joint efforts over the
last two years have resulted in five successful confirmations
for the Keystone State, and he and I are committed to
continuing to work together in a bipartisan fashion to fill the
remaining Federal District Court vacancies in Pennsylvania.
Having extensively reviewed each of these nominees' records
and having personally spoken with each at length, I am
confident that they each possess the crucial qualities
necessary to be outstanding federal judges: the intelligence,
the integrity, and the commitment to public service and respect
for the limited role of the judiciary.
Since my colleague, Senator Casey, has already introduced
and described some of their background, I just want to take a
quick moment to share a couple of additional thoughts.
As you've heard, Judge Schmehl is a well-respected judge
who brings a keen intellect and a breadth of experience to the
federal court. But in addition to his work on the court, he has
really demonstrated a strong commitment to his community,
establishing a veterans court in Berks County to assist
veterans in need of legal assistance.
If he's confirmed, Judge Schmehl has made a commitment to
sit in Reading, in Berks County. That's a courthouse that has
not had an active judge in over three years, and it's very
important that we fill this vacancy and provide the people of
Berks County with the judicial representative that they ought
to have.
Judge Quinnones is an accomplished and respected 21-year
veteran of the First Judicial District of Pennsylvania Court of
Common Pleas. Her record reflects an enduring commitment to the
Pennsylvania legal community where, in 1982, she helped found
the Hispanic Bar Association of Pennsylvania. She is widely
lauded in the community for her commitment to mentoring law
students and advancing civic education for high school
students.
Our third nominee, Judge Restrepo, is an excellent
magistrate judge with a strong record as an attorney in both
the public and private sectors. Aside from his legal duties, he
has devoted significant time to his community, founding the
Police Barrio Project, an organization focused on improving
relationships between the Philadelphia Police Department and
the Latino community in Philadelphia.
The Pennsylvania nominees before you today are highly
accomplished in the field of law and exceedingly qualified for
the federal bench. They are well-regarded members of their
communities, and they possess an admirable sense of civic duty.
Judges Schmehl, Quinnones, and Restrepo's commitments to
being impartial and upholding the law will serve them and the
Commonwealth of Pennsylvania well, if they are confirmed for
the federal bench. I hope that this Committee will favorably
report these nominees to the full Senate, and again want to
thank you for giving me the opportunity to join you today, as
well as giving these qualified judges the opportunity to
testify today.
Senator Hirono. Thank you, Senator Toomey.
Senator Udall, would you like to introduce your nominee.
PRESENTATION OF KENNETH JOHN GONZALES, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO BY HON. TOM
UDALL, A U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Udall. Yes. Thank you. Good afternoon. Thank you,
Madame Chairwoman Hirono and Ranking Member Senator Lee. I
appreciate this opportunity to speak today, along with Senator
Heinrich, and I'm very pleased to introduce Mr. Kenneth
Gonzales to be U.S. District Judge for the District of New
Mexico. Ken is an exceptional candidate, and I congratulate him
and his family on this nomination, especially his wife
Jennifer, their son Alex, and their daughter Abigail, who I
believe are all here today.
Ken is a native of New Mexico. He grew up in the beautiful
Pojoaque Valley in northern New Mexico. He was the first in his
family to graduate from college. With the help of scholarships
and grants, he received his undergraduate and law degrees from
the University of New Mexico, a school, I might add, that I am
also proud to call my alma mater.
After law school, Ken served as a law clerk to New Mexico
Supreme Court Judge Joseph Baca. Then he went to work as a
legislative assistance for our esteemed former colleague,
Senator Jeff Bingaman. Ken began his career as a federal
prosecutor in the U.S. Attorney's Office for the District of
New Mexico in 1999.
He has prosecuted a wide range of federal offenses,
including immigration, narcotics, and violent crime cases. He
also holds the rank of major as a judge advocate in the U.S.
Army Reserve, which he joined in September 2001. During his
service, he has provided critical legal assistance to hundreds
of active and retired soldiers and spouses, both here and
overseas.
In 2008, he was called to active duty as a part of
Operation Enduring Freedom, where he was away from his family
for many months. He was stationed at Ft. Bragg and served as a
senior trial counsel in the Office of the Staff Judge Advocate.
Today, Ken is the U.S. Attorney for the District of New
Mexico after being unanimously confirmed for that position by
the U.S. Senate in 2010. He oversees a broad array of criminal
and civil cases and has earned great respect in our legal
community in New Mexico.
I'd also like to note that Ken has made Indian country
prosecutions a priority in the U.S. Attorney's Office. It's an
area he knows well, having grown up in the backyards of Nambe,
Pojoaque, and San Ildefonso Pueblos.
During his tenure, he has made a real difference in
prosecuting cases of violence against women and children. In
his current capacity, Ken serves on the Attorney General's
Advisory Committee, Subcommittee on Native American Issues and
Southwest Border and Immigration Issues.
He is also a member of the Attorney General's Advisory
Committee's Environmental and Natural Resources Working Group.
He's a member of the New Mexico Hispanic Bar Association and,
if confirmed, he'll join only 56 other Hispanic active District
Court judges, less than 10 percent of the country's 677
District Court judgeships.
Ken Gonzales is an exceptionally well-qualified nominee. He
has shown a reverence for, and dedication to, the law
throughout his career in both civilian and military positions.
He has exhibited great expertise, commitment, and depth of
judgment. I urge his confirmation. While he will be missed as
our U.S. Attorney, I know that he will serve New Mexico well on
the federal bench.
I would just ask, Madame Chair, if I could be excused. The
Foreign Relations is in the middle of a business meeting, and
I'm going to try to make it back because they apparently need
my vote. But I'm going to leave you in the very good hands of
Senator Heinrich, and with that, thank you very much.
Senator Hirono. Thank you very much for your testimony.
Senator Heinrich.
PRESENTATION OF KENNETH JOHN GONZALES, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO BY HON. MARTIN
HEINRICH, A U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Heinrich. Thank you, Madame Chair, Ranking Member
Lee, for allowing me to speak briefly in favor of the
nomination of Ken Gonzales to serve as a judge on the U.S.
District Court for the District of New Mexico.
I would also like to thank the leadership of this Committee
from both sides of the aisle, Senator Leahy and Senator
Grassley, for granting Mr. Gonzales a hearing.
I want to echo the remarks that you heard from Senator Tom
Udall, our senior Senator, about Mr. Gonzales. I think that
Senator Udall and former Senator Jeff Bingaman did a great job
of providing the President with a list of very well-qualified
candidates to fill a vacancy on the federal bench in New
Mexico, but Mr. Gonzales is truly a standout.
I'm pleased that the President has nominated him to fill
this vacancy, and I'm pleased to be here today to support him.
As we've already heard, Mr. Gonzales has a very long and
distinguished record of public service, including service in
our military.
Most recently, Mr. Gonzales has served as the U.S. Attorney
for New Mexico, as you heard from Senator Udall, a position
that he was confirmed to by the Senate in April 2010. His
elevation to lead that office follows more than a decade of
service there as an Assistant U.S. Attorney.
I'd like to focus some attention on the work that Ken has
done as the head of that office. I think that his efforts there
demonstrate not only his character and his intellect, but the
dedication that he has to serving his home State and making it
a better place for all of our residents.
As U.S. Attorney for New Mexico, Ken has taken an
aggressive approach to combatting drug trafficking and the
related gun and gang violence that can have a particularly
devastating impact on border States like New Mexico.
For example, under his leadership the U.S. Attorney's
Office for New Mexico has partnered with State and local law
enforcement officials to identify the worst of the worst
offenders in their communities so that they can be brought into
the federal criminal justice system and face more substantial
punishments.
In response to concerns about a particularly alarming drug
and gun violence problem in Chaves County, particularly in the
city of Roswell, Ken helped develop and implement a strategy
that engaged community stakeholders to combat the problem. As a
result, more than 80 individuals have been arrested and charged
by State and federal prosecutors.
New Mexico also has significant portions of sovereign
Native American lands within its borders, for which the U.S.
Attorney has responsibility to prosecute criminal activity. Ken
has taken the initiative to reorganize and focus the U.S.
Attorney's resources to more effectively combat the higher-
than-average rates of violent crime, sexual assault, and sexual
abuse that plague Indian country.
This includes creating the first Indian country crime
section within a U.S. Attorney office. This section includes a
team of lawyers responsible for pursuing felony offenses in
Indian country. Under his leadership, the office is also
collaborating with tribal prosecutors to investigate and
prosecute domestic violence occurring in more than 20 Pueblos
and tribes located within New Mexico.
In addition to his qualifications as a licensed attorney
for more than 20 years, Ken is a long-time New Mexican. He was
born and raised there, and all of his accomplishments make me
believe that he is more than qualified to serve on the federal
bench in New Mexico. But it is his career-long determination
and dedication to serving the people of New Mexico that makes
me believe that he will make an outstanding addition to the
federal bench.
I strongly support his nomination, and I urge this panel to
act quickly to move his nomination to the full Senate for a
vote. Again, thank you, Senator Hirono and Ranking Member Lee,
for this opportunity to speak today.
Senator Hirono. Thank you very much, Senator Heinrich.
I think we should set up for the panel of nominees now. If
our nominees could step up. Please have a seat. Welcome,
everyone. As we say in Hawaii, aloha.
There are currently 90 District vacancies in the federal
judiciary. This is 50 more vacancies than existed at the same
point in George W. Bush's presidency. More than 10 percent of
the federal courts are now, or will soon be, vacant.
According to the Congressional Research Service, this is
the longest period of historically high vacancy rates in the
federal judiciary in more than 35 years. We need to continue to
work to confirm judges so that our judiciary is able to resolve
cases in an expeditious manner and so all Americans can receive
swift access to justice. Most of these vacancies are in the
District Courts, which are the courts that Americans look to
for their day in court. It is these, of course, that need
staffing the most.
This hearing, which I know consists of five District Court
nominees, is an important step in the process of filling some
of those vacancies and ensuring that the court is able to
quickly resolve cases and do the work that the people require
of them.
Because federal judges are required to give priority to
criminal cases over civil ones and the number of criminal cases
has increased 70 percent in the past decade, judges are forced
to delay the civil cases, often for years. This means long
delays for American individuals and businesses seeking justice.
In a recent interview, senior Judge Dave Ezra of Hawaii
compared his decision to quadruple his caseload by moving from
Hawaii to a Southwest border State in order to help judges
there try criminal and civil cases within a reasonable
timeframe, ``having a big wildfire in the Southwest border
States and firefighters from Hawaii going there to help put out
the fire.'' In other words, this is a crisis situation. I look
forward to the Senate's swift action on the President's
nominations.
Now I would like to first give Ranking Member Lee an
opportunity to say a few words.
STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF
UTAH
Senator Lee. Thank you, Madame Chair. Thanks to each of you
for joining us. It's a pleasure to be part of this process. We
take this very seriously. I think, of all of our obligations as
Senators, there is none more important than making sure that
our federal courts are staffed with good judges. Once those
people get nominated, it's our job to review them and proceed
from there.
I would like to respond to the point that we do have a
number of vacancies. We do need to point out at the same time
that currently 54 out of the 90 judicial vacancies open in the
United States are not moving forward precisely because we have
no nominee. So we are moving forward, I think, pretty
expeditiously on those nominees that we have, but we can't move
forward where we don't have nominees.
These hearings are an important function for the Senate
Judiciary Committee. The Constitution places in the Senate the
authority to advise and consent the President on the
President's nominees, and we take that obligation very
seriously. The oath that each judge of the United States takes,
and the oath that each of you will take, should you be
confirmed to become Article Three judges, will require you to
take an oath to affirm that you will administer justice without
respect to persons, that you'll do equal right to the rich and
the poor, and that you'll faithfully and impartially discharge
and perform all duties incumbent upon a federal judge under the
Constitution and laws of the United States.
As Senators fulfilling our constitutional role, we look to
ensure that a nominee is prepared to honor this oath. I look
forward to hearing from each of you throughout this hearing.
Thank you.
Senator Hirono. Thank you.
Now I'd like to ask all of you to stand so that I can
administer the oath.
[Whereupon, the nominees were duly sworn.]
Senator Hirono. Thank you. Please be seated. Let the record
show that the nominees have answered in the affirmative.
I would now like to invite each of the nominees to give an
opening statement and to recognize your loved ones and
supporters. We will start with Nominee Gonzales and then we'll
proceed to my right.
STATEMENT OF KENNETH JOHN GONZALES, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO
Mr. Gonzales. Well, thank you very much, Madame Chair, and
thank you very much, Ranking Member Lee, for holding this
hearing and inviting me to be here. I don't have an opening
statement. I would like to introduce, though, my family, if I
may. With me here is my wife of 25 years, Jennifer Gonzales. My
being here has just as much to do with Jennifer as it does with
anything I've done.
And in addition, I have my son Alex, who is 15 years old.
He's a sophomore in high school. And my daughter Abigail, who
is eight years old. She is a second grader.
With me also is a good friend of mine who also happens to
be my mother-in-law, Anita Poots, and some very good friends
who have made it to be here, Dan Alpert and Anne Franke, who
live here in Washington and are very good friends of mine, and
I'm so glad that they are here. Virginia White, who, after 30
years of service to Senator Bingaman and to the people of New
Mexico, we are proud of her. She has as much of a legacy as
anybody in New Mexico, and I'm so glad that she is here, as
well as Rhonda Oye-Brochner, who lives here as well, and I'm
very glad that she is here. And Anna Marie Baca, who is here as
well, and I'm very glad she is here.
Of course, Madame Chair, I'd like to thank Senator Udall
and Senator Heinrich for their very kind words when they
introduced me today, and for their strong support of me in this
process. I'd like to thank, of course, the President for the
nomination and the confidence that he has placed in me, both in
the nomination to be U.S. Attorney and then now to be District
judge.
I would certainly like to thank Senator Bingaman, who just
retired just very recently, for the strong support that he has
shown me over the years, and including support for this
nomination.
Madame Chair, there are a lot of people that are not here
that I'd like to acknowledge as well and I believe are watching
on the Webcast. First and foremost, my parents: my father,
Santiago Gonzales, Jr., 82 years old, Korean War veteran and my
personal hero; my mother, Florence Gonzales, who is defined, I
think, by how she has put her children and grandchildren ahead
of herself in every way; my siblings, my six siblings, Donna,
her husband Clint; Monica, her husband John; Dennis, my brother
and his wife Charlene; my sister Carol and her husband Curt; my
sister Katrina, her husband Ward; and my brother Steve and his
wife Mandi, as well as my 22 nieces and nephews.
I'd also like to acknowledge, Madame Chair, the man who set
me on this course years ago by giving me the first job I had
out of law school, and that was the now-retired Chief Justice
of the New Mexico Supreme Court, Joseph Baca. I very much
appreciate everything that he did for me. I learned so much
from him and it was by his example that I really saw how
honorable the judges and the judiciary are in our system of
government. He and his wife, Dorothy, could not be here, but
they are represented by their daughter, Anna Marie Baca. I'm
very glad that she is here.
Last, Madame, I'd like to acknowledge all the outstanding
men and women in the U.S. Attorney's Office in the District of
New Mexico, as well as my colleagues in the United States Army.
Thank you very much.
Senator Hirono. Judge McShane.
[The biographical information of Mr. Gonzales follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF MICHAEL J. McSHANE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF OREGON
Judge McShane. Thank you, Chair Hirono and Ranking Member
Lee. I'd like to thank both of you, as well as the other
Members of the Judiciary Committee and their staffs, for your
work on this important matter.
I would like to thank President Obama for giving me this
opportunity. I'd like to thank Senators Wyden and Merkley for
their kind and warm remarks here today, and I appreciate it
very much.
I have no statement to make. I would like to introduce some
family members who are here with me. First and foremost is
Jeannine McShane, my mother, who is directly behind me. She's
been praying to St. Jude for many years for me, which, if you
don't know, is for desperate causes, the patron of. But I'm so
proud that she could be here, and I'm so lucky to have her and
my father's guidance.
Also, family members who are with me is my oldest brother
Jim McShane, my oldest sister Colleen McShane, my youngest
sister--Jim is from L.A., Colleen is from Seattle. My youngest
sister, who has recently moved to Boston from the West Coast,
has come down with--Katie McShane has come down with her
husband, Michael Peters.
My niece--nieces that are here are Clara and Parker Peters,
as well as Claire McShane. Then my immediate home group is--my
partner, Greg Ford, is here, and our nephew, Trevor Nyce. I
would like Trevor to stand for just a moment. He's here. Trevor
is so excited to be here. This is the first suit he's ever
worn.
[Laughter.]
Judge McShane. It's been a big excitement for him, and I'm
so glad he could participate in this. Thank you.
Senator Hirono. Judge Quinnones.
[The biographical information of Justice McShane follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF NITZA I. QUINNONES ALEJANDRO, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Quinnones. Thank you, Madame Chair. I'd like to thank
Senator Leahy for having convened this hearing, and you for
having--presided over it, as well as you, Senator Lee, the
Ranking Member of this Committee.
I also would like to thank Senator Robert P. Casey, as well
as Pat Toomey, for their warm words of encouragement and
introduction, as well as their bipartisan support, and their
nomination to the President as well. I'd like to thank the
President also for having nominated me for your consideration.
With me today are my partner of 23 years, Sanjuanita
Gonzalez, who is the managing partner of her law firm, Cohen,
Floor, Gonzalez, and Panillos; my friend and judicial
assistant--I'm sorry, judicial secretary, Carey D. Widman, my
law clerk, Christine Millan--I'm sorry, Christine Beck Millan.
She just recently got married. And my court officer, Alfredo
Jennings and his wife, Sondra.
There are members of my family who were not able to come
but who are probably watching on Webcast: my brother, a retired
Colonel, Algondo Emilio Quinnones Alejandro; his wife, Maria
Cruz Quinnones; my sister, Iliaudis Quinnones Alejandro; my
nephews. I have four nephews and family members in Puerto Rico,
New York, Pennsylvania, and New Jersey.
Last, I would like to mention my parents, they're both
deceased, Emilio Quinnones Figueroa, and my mother, Ilia Maria
Alejandro Dis. They worked so hard to provide us an education
and to motivate us for public service. I'm sure they would be
so extremely proud of me today.
Last, I want to thank you again for the opportunity of
appearing before you, and I welcome any questions.
Senator Hirono. Thank you.
[The biographical information of Justice Quinnones
follows.]
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Judge Restrepo.
Judge Restrepo. Restrepo.
Senator Hirono. Restrepo. Apologies.
STATEMENT OF LUIS FELIPE RESTREPO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Restrepo. Good afternoon. Thank you for having me.
I'd like to start by thanking the President for having
nominated me to this position. I'd like to thank you and
Senator Lee for chairing this hearing, and for all the Members
of the Judiciary Committee and their participation in the
process. A very special thanks to Senators Casey and Toomey for
their kind words and their generous support.
I have no opening statement, but I do have a lot of family
members here, and if you'll indulge me for just a minute, I'd
like to start by recognizing my wife, Cathy, who is seated
directly behind me, and my mother, Maria Restrepo. She is maybe
two rows back. My father-in-law, Gene Maier; my sister,
Patricia Loria, and four of her 10 children are here: Phil,
Trish, Elena, and Nick. Four of my children are here:
Catherine--I only have four.
[Laughter.]
Judge Restrepo. Catherine, Andrew, Nicholas, and Matthew.
My brother, Nicholas, is here. My sister-in-law, Kate, is here
with three of her children, Isabella, Maria, and Kristina. I
also have quite a few friends and close family friends, as well
as supporters in the room today, some students from Rutgers Law
School that work with me up in Philadelphia. I'd like to thank
all my friends and the folks that have helped me get this far
that might be watching this by way of the Webcam. Thank you,
Senator.
Senator Hirono. Thank you so much.
Judge Schmehl.
[The biographical information of Justice Restrepo follows.]
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STATEMENT OF JEFFREY L. SCHMEHL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Schmehl. Madame Chairman, Ranking Member Lee, I want
to thank you for this opportunity. I'd first like to thank
Senators Casey and Toomey for their warm and kind remarks and
their confidence in recommending me to the President. I'd also
like to thank the President for honoring me with this
nomination. I'd like to thank the Chairman, the Ranking Member,
and all the Members of this Committee for scheduling this
hearing so promptly.
Since most of my colleagues took up most of the audience, I
don't have a whole lot of people here.
[Laughter.]
Judge Schmehl. But I'll explain that. My wife, April, is
behind me, and she has been my rock and support through this
whole process. My three children have all graduated from
college and are gainfully employed, thank God. They are
scattered all over the United States at various locations and
they cannot be here.
My father, unfortunately, passed away two years ago. My
mother is 86 and in not good health, so she's back in Reading
and she doesn't know how to work a computer, so she's not
watching it on Webcast.
[Laughter.]
Judge Schmehl. I'd also like to recognize two of my
colleagues who I've worked very closely with over the last five
years that have come down here. Christian Leinbach is the
chairman of the Berks County Commissioners and our District
Attorney, John Adams, is seated behind my wife. So, John Adams
is back in Washington.
[Laughter.]
Judge Schmehl. I would also like to recognize my staff at
the Berks County courthouse. They are watching, I'm sure, my
friends and colleagues in Reading. I've got a lot of messages
that they're going to be watching. I just appreciate this
opportunity, and I stand ready to answer any and all of your
questions.
Senator Hirono. I thank all of the nominees. We'll start
with questions.
Mr. Gonzales, you are the first U.S. Attorney whose office
has a full section focused exclusively on addressing crime in
the Native American communities. Can you tell us more about
that and what challenges might exist in combatting crime and
violence on Native American reservations?
Mr. Gonzales. Certainly, Madame Chair, and thanks for the
question. The--we do have a section of prosecutors in my office
specifically dedicated to working felony prosecutions relating
to Indian country. That was important to me to set up because
of the prevalence of violent crime and drug trafficking that
occurs in all 22 of our Indian tribes and Pueblos in New
Mexico. It was important because it takes a special expertise
to do the kind of work that's done in that section.
But beyond that, it takes a relationship, in my opinion,
that must be developed between my office and, really, the
Federal Government and the people that live in each one of
these communities. These 22 Indian tribes and Pueblos are
scattered all over New Mexico so there's a geographic
challenge, just being able to reach out and do the job that
we're supposed to be doing. Lots of time and road miles are
expended to be able to have that presence.
There is a part of the job that requires investigation and
prosecution, and there's a part of it that requires
relationship building, and there's a part of it that requires
training of law enforcement. That takes special expertise, and
that's the idea behind the section.
[The biographical information of Justice Schmehl follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Hirono. Thank you very much.
Judge Schmehl, did I hear correctly that you had formed a
veterans court?
Judge Schmehl. That is correct.
Senator Hirono. Can you tell me what led to you creating
this special court and how it's working?
Judge Schmehl. Yes, Madame Chairman, I'd be glad to. Okay.
This is on now. Right. We were not the first county in
Pennsylvania to form a veterans court. A veterans court was
first formed in Philadelphia, and maybe some other counties,
but we tried to jump on the bandwagon pretty quickly.
It is a court--it's really part of a specialty court--and
it's for veterans who are charged with crimes, but the cases
are handled on the same day. The reason for that is their
access of services. A discharged veteran, of course, has
benefits available through the VA.
There are many, many veterans who wish to mentor other
veterans. This way we can bring all these people together in
the courtroom at the same time. We can have the mentors there,
we can have representatives from the VA there, we can actually
take people out of the courtroom directly to treatment, if
necessary.
So it's just a matter of efficiency and it's a matter of
utilizing services, and we believe it's something well worth,
you know, looking into and utilizing.
Senator Hirono. Thank you. It sounds like a good idea. So
it's only a minority of jurisdictions that have this kind of a
specialty court?
Judge Schmehl. Yes. I think you would need the volume of
criminal cases to do it, so smaller jurisdictions, it would not
make sense. But in the third-class counties and larger of
Pennsylvania, it makes a lot of sense to do that in criminal
courts.
It's really only like two days a month where those cases
are handled, but that way we do have, like I said, the
representative from the Veterans Administration and mentors who
want to mentor people who have fallen on hard times. We have
them present in court that day.
Senator Hirono. Thank you.
Judge Quinnones, I think it's important that we have
diversity in the judiciary, just as we should seek diversity in
Congress. Can you describe for the Committee what more can and
should be done to increase the diversity of the bar, and what
steps have you taken professionally to diversify the bar in
Pennsylvania?
Judge Quinnones. As the Senator has indicated, Madame
Chair, I was involved in creating the Hispanic Bar Association
in Puerto--in Philadelphia, I'm sorry--in 1982 or 1983, and we
also created the Hispanic Bar Association Legal Education Fund,
of which I was the first president for four years. I stepped
down when I became a judge, since part of your judicial duties
and the Code of Ethics prohibit you from fundraising.
The purpose of the Bar Association was to provide an avenue
for young graduates from college interested in going to law
school seeing role models and being able to communicate with
them, share experiences. The Hispanic Bar Association Legal
Education Fund was to provide them assistance to be able to go
to school. I've made it a point of, in the summer, hiring law
students. Mostly have been Latinos, but they've also been non-
Latinos.
I think there is an awareness of the Bar Association to
become more inclusive and to open different--as an example,
they created a position in the Bar Association for the minority
bars, for them to be part of the governing bodies of the Bar
Association. With that, they gave them exposure to the
different law firms, the different opportunities that the law
provides.
To the extent that I can assist someone, as I introduced my
staff, my staff is completely diverse. I mean, as I was
introducing them, I thought about that first as the second--I
think it's important to continue reaching out and assisting
others to understand that we all have our opportunity, we all
have the knowledge to contribute to our society.
Senator Hirono. Thank you.
My time is up, so I'd like to turn to Ranking Member Lee
for his questions.
Senator Lee. Thank you very much. Thanks to all of you for
coming here and introducing us to those who have come to
support you.
Why don't we start with Mr. Gonzales. First of all, you and
I have a number of things in common. Among other things, we
both have six siblings, so that tells me something about your
growing up. Where did you fall in the birth order, just out of
curiosity?
Mr. Gonzales. Second to the last.
Senator Lee. Second to the last? Okay. So you had to hold
up. I would imagine there was some bullying that went on among
older siblings that probably has served you well as a
prosecutor, and will as a judge, should you be confirmed. So, I
think that ought to be a qualification in and of itself.
I'm not going to ask Jennifer, Alex, and Abigail whether
they wish that you also had a family including seven children;
we'll leave that for another day.
But I wanted to talk to you a little bit about a couple of
things. First of all, you've got a very impressive resume.
You've got a lot of experience in court, and I think it's very
difficult to find somebody who has more experience in federal
court than someone who has served as an Assistant U.S.
Attorney, and later as a U.S. Attorney.
On your questionnaire, we do see, as is understandable for
someone who has served most of their career in the U.S.
Attorney's Office, that it is overwhelmingly criminal. You list
about three percent civil. Do you feel like you'd be prepared
for the civil litigation component of your docket should you be
confirmed as District Judge?
Mr. Gonzales. Thanks, Senator Lee, for the question. Yes.
My strength is on the criminal side. A substantial amount of my
legal career has been as a criminal prosecutor. I've had some
exposure to criminal--excuse me--to civil work as a law clerk
relating to review of decisions on Rule 12(b)(6) or Rule 56.
That was a long time ago, though.
But nevertheless, I believe I can come up to speed. I'm
fortunate the District Judges in the District of New Mexico,
who pride themselves on being collegial within the court, have
already reached out to me and offered assistance. I feel very
confident I could get up to speed on the rules of civil
procedure, the discovery practices, and be effective in this
new role.
Senator Lee. I'm glad to hear you mention Rule 12(b)(6) and
Rule 56 because I think those, in handling your civil docket,
will be two of the most important to become very familiar with
initially. It's been my fear for a long time that the natural
inclination of most judges might be to, in a close case, in a
case where they might be able to go either way, to cut the
cards in favor of denying dispositive motions, motions to
dismiss or motions for summary judgment, because it's easier.
That has the possibility of affecting a judge's exercise of
discretion, consciously or otherwise. It's easier to deny the
dispositive motion, the case might settle on its own, the case
might never go to trial, you don't have to write an opinion,
that opinion won't be subject to an appeal the same way a
denial would.
So anyway, I think it's important for judges, particularly
those who come from a primarily criminal law background, to
focus on those and remember that denying one of those motions
when the motion is warranted is just as bad as granting one
where it's not warranted.
Judge Schmehl, I wanted to talk to you about sort of a
related topic. So you do have--in your prior life as a
litigator you had considerable--more considerable civil
experience, but almost all of it was in State court, as I
recall.
Judge Schmehl. That's correct, Senator. Most if it was in
State court, although I did represent municipalities, police
departments that were charged with civil rights violations, and
I did do some work in federal court. But most of it was in
State court. As a trial court judge over the last eight years,
I've tried major civil cases in our county.
Senator Lee. You're certainly familiar with the dynamic
that I described?
Judge Schmehl. I am certainly familiar with that, Senator.
In fact, I had a recent case. It was an attractive nuisance
case where a small girl fell into, like, a pond the neighbors
created, and I granted the motion to dismiss because I felt
there was no liability on the property on her. Of course, I've
been appealed. So, we'll see that.
Senator Lee. What are the major differences that you think
you'll need to prepare yourself for, should you be confirmed
and should you have to make this transition, between being a
State court judge and a federal judge?
Judge Schmehl. Senator, I've been in a courtroom almost my
whole life as a prosecutor, a trial attorney, and a trial
judge, so I'm very familiar with the Pennsylvania rules of
evidence. The federal rules of evidence are not that
dissimilar. I've dealt with criminal statutes, I've dealt with
Pennsylvania's sentencing guidelines. Of course, the federal
sentencing guidelines are different, but it's the same concept.
In civil cases, in diversity cases, it's the same thing:
discovery, motions. There are some parts of the civil issues
and some of the criminal statutes I will have to bring myself
up to date on. I will study them. I will avail myself of any
educational opportunities. I will consult with fellow members
of the bench, and I feel that I'm a quick learner and I will be
able to get up to speed and make this transition smoothly.
Senator Lee. Wonderful. Thank you. Thank you, Judge.
I've got more questions, but I see my time for this round
has expired so we'll go on to the next.
Senator Hirono. Please proceed.
Senator Lee. You want me to keep going?
Senator Hirono. Yes.
Senator Lee. Okay. Great. Thank you. Thank you, Judge
Schmehl.
Next, I've got a couple of questions for Judge Restrepo.
When you, Judge, graduated from law school you worked at the
ACLU Prison Project, and I think that was here in DC. Can you
just explain to us on the Committee what your responsibilities
were in that job and how that might have shaped the rest of
your career?
Judge Restrepo. Sure, Senator Lee. It was my first job out
of law school. I wanted to come back to the northeast from
Tulane where I went to law school. I was fortunate enough to
get a clerkship. It was not an attorney's position with the
Prison Project. I worked there for about three or four months
before I was fortunate enough to get a job with the Defender's
Association of Philadelphia, and that was my first job as an
attorney with the defenders in Philadelphia.
Senator Lee. Okay. Thank you.
In 1993, you wrote an article for the National Law Journal
regarding the war on drugs and you said, ``We must demilitarize
our approach in the drug problems, emphasizing social,
economic, educational, and family policies targeting groups
ignored during the Reagan/Bush years.'' What were the groups
who were ignored during the Reagan and Bush years?
Judge Restrepo. Well, I think, Senator, the gist of the
article is really that we should emphasize the war on drugs
from a demand side as opposed to a supply-side problem. Again,
it was my personal opinion in 1993, some 20 years ago, and the
article is making an argument, an editorial piece, suggesting
that we should also take a look at the other side of the
equation as opposed to what everybody traditionally thinks of
as the war on drugs.
Senator Lee. In other words, instead of focusing primarily,
sometimes exclusively, on suppliers, we ought to look at who
and what's driving the demand also.
Judge Restrepo. Exactly. What's causing the demand? I guess
on the theory that supply doesn't create its own demand.
Senator Lee. Right. Yes, that's right. Federal law
recognizes that there are both components, but the way federal
law is enforced doesn't always reflect that, so that's a fair
point.
Judge Alejandro, in 2008 you participated in a panel
discussion of the Philadelphia Bar Association's Bench and Bar
Annual Conference and it was entitled, ``Wake Up Everybody:
Race in the Law, a Conversation About Diversity.''
There's no notes that we're aware of or transcript or
recording of the event, as would be customary for an event like
that, so I can't yet ask you any specific questions about that
presentation. But generally speaking, do you think that a
judge's gender diversity or any other demographic factor has
any influence or should have any influence on the outcome of a
particular case in that courtroom?
Judge Quinnones. I do have an opinion, and it should not
have any bearing whatsoever in one deciding the case.
Senator Lee. It shouldn't have. Maybe sometimes does, but
if it does, it shouldn't. Is that what you're saying?
Judge Quinnones. A judge definitely should not have their
own personal ethnicity or circumstances involved at all in the
case. You should decide the case based on the facts before you
and the law and precedents that have been established.
Senator Lee. Yes. That's certainly--certainly is how it
should work and I suppose consistent with the judges' oath that
federal judges must take. That's the natural outgrowth of that,
so yes, I agree.
Last but not least, Judge McShane, so it's my understanding
you're one of four judges that's assigned to hear death penalty
cases in your county. Is that right?
Judge McShane. That's correct.
Senator Lee. How many capital punishment cases do you think
you might have presided over?
Judge McShane. If you include both the trials I've been
assigned and the cases for settlement, probably 25 to 30. Nine
have gone to trial that I've presided over.
Senator Lee. How many of these cases resulted in the
defendant being sentenced to a capital punishment?
Judge McShane. One.
Senator Lee. Can you tell us something about your ruling in
a case--in the case of State vs. Dassa----
Judge McShane. Dassa. Yes.
Senator Lee [continuing]. Dassa, where I believe you
vacated a jury conviction for aggravated murder and reduced it
to the lesser offense of intentional murder.
Mr. McShane. Correct.
Senator Lee. Can you just give us sort of an overview of
that?
Judge McShane. Yes. So that was a case of first impression
on statutory construction, not a constitutional issue, but a
case of first impression in Oregon. The issue was whether the
State's factual theory fit one of our definitions of aggravated
murder. I looked at the language of the statute and, in looking
at the language, it was ambiguous.
I could not decide how to rule solely on the language of
the statute so, with no controlling precedent in Oregon, I
looked at the four States that had resolved the same issue,
Alaska, Utah, and New York--maybe Nevada, I'm not sure on that.
I was--all four States ruled against the prosecution on
that same issue. The New York high court had issued an opinion
that it seemed to me is persuasive of anything I had read. It
seemed consistent with the way I was approaching the case, and
so I did set aside then the jury verdict.
The one thing I would point out is I was being asked to
make that ruling pre-trial, which would have disallowed the
case to go forward under--as a capital case. So we went through
the trial, and I allowed the jury verdict to go into place so
that if I was reversed--and I was--we could simply put the jury
verdict back into place without putting the family and the
witnesses back through a trial.
Senator Lee. Probably a merciful approach to take under the
circumstances. But it sounds like the ruling was, in your
opinion, the inexorable command of the statutory text?
Judge McShane. Correct.
Senator Lee. And you found the other jurisdictions'
interpretation of corresponding text in those States
persuasive----
Judge McShane. Yes.
Senator Lee [continuing]. Using canons of statutory
construction?
Judge McShane. Yes.
Senator Lee. Let me ask you just one more question about
that. Let's suppose, in that case, there hadn't been other
jurisdictions that had decided the issue, and you found
something indicating that the statutory text at the time of its
adoption had a meaning that was attributed to it in the floor
debates of the State legislature, several State legislators had
said I think it means X, and X would decide the case one way or
another. Tell me what effect, if any, that might have had on
you.
Judge McShane. The parties did bring up some legislative
history. I think, that the clearest intention of the
legislature is the language. In the statute, it is--especially
on a State court level where our legislative history is not
always particularly clear.
Senator Lee. As opposed to federal legislation.
[Laughter.]
Judge McShane. You often get--you're not necessarily
getting the consensus of the legislature by hearing the
statement of one State legislator, so I think you have to look
to the language.
Senator Lee. Does that reflect, then, a danger that inheres
in an intentionalist approach to statutory construction, that
you're not really sure who's intention you're looking at and
it's impossible to divine the intentions of 100 people, or 435
people all at once?
Judge McShane. I think that's the tension that we always
face going back in time.
Senator Lee. Right. It's why the cases that direct us to
look, as you said, first and foremost--first and last--at the
statutory text are probably the best. Thank you very much. I
appreciate that.
Thank you, Madame Chair.
Senator Hirono. Thank you. I would like to just do one
follow-up question. I mean, clearly in the case that you were
describing, Judge McShane, it just may explain why criminal
statutes have to be very, very clear, and there shouldn't be
much room for statutory construction in a criminal statute. But
often that is not the case.
So, after you did your ruling, did the State legislature
clarify that statute to make it clearer?
Judge McShane. No. It's interesting, in Alaska they did do
that. The Alaska legislature did clarify the language after the
ruling of the court.
Senator Hirono. Thank you very much.
I want to thank all of you for being here. The record will
remain open for one week for Members to submit questions or
statements.
We are adjourned. Thank you very much.
[Whereupon, at 4:22 p.m. the hearing was adjourned.]
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NOMINATION OF JANE KELLY, OF IOWA, NOMINEE TO BE CIRCUIT JUDGE FOR THE
EIGHTH CIRCUIT
----------
WEDNESDAY, FEBRUARY 27, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:05 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Amy
Klobuchar, presiding.
Present: Senators Klobuchar, Franken, and Grassley.
OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM
THE STATE OF MINNESOTA
Senator Klobuchar. I am pleased to call this nominations
hearing of the Senate Judiciary Committee to order. I want to
thank Chairman Leahy for inviting me to chair this hearing.
I want to give a warm welcome to our nominee, Jane Louise
Kelly, who has been nominated to the Eighth Circuit Court of
Appeals. That is the circuit that includes not only Iowa but
also Minnesota.
We also welcome any family and friends that have
accompanied you, Ms. Kelly, and you will have an opportunity to
introduce them shortly.
If confirmed, Ms. Kelly will be only the second woman to
ever serve on the Eighth Circuit Court of Appeals. The other
one I know well. Judge Diana Murphy is a friend of mine, and I
know she could use some company.
Given this important milestone, I want to acknowledge the
Infinity Project, which is based in Minneapolis and was created
to advance getting more women on the Eighth Circuit bench and
in State courts. I am happy to see their efforts paying off,
and, of course, a lot of it has to do with the great qualities
of this fine nominee.
I would like to call upon my colleagues now. Senator
Grassley, who is the Ranking Republican on the Judiciary
Committee, has graciously said that he wanted Senator Harkin to
go first, who is a visitor, and a welcome visitor, to our
Committee. And with that, I will turn it over to Senator
Harkin.
PRESENTATION OF JANE KELLY, NOMINEE TO BE CIRCUIT JUDGE FOR THE
EIGHTH CIRCUIT, BY HON. TOM HARKIN, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Harkin. Well, thank you very much, Madame Chair,
Ranking Member Grassley, and other Members of the Committee who
may be watching or arriving shortly. It is a great honor for me
to introduce Jane Kelly, who has been nominated to serve as a
judge on the United States Court of Appeals for the Eighth
Circuit. I was honored to recommend this outstanding attorney
to the President. I thank him for nominating her, and I urge
this Committee's swift approval.
I also want to thank Senator Leahy and the Committee for
scheduling such a prompt hearing. I also want to thank my
senior colleague from Iowa, Senator Grassley, and his staff for
making this hearing possible. For many years, Senator Grassley
and I have worked in a collaborative spirit on judicial
nominations in our State, and I am grateful that that tradition
has continued.
Madame Chair, I believe Jane Kelly possesses all of the
qualifications necessary to assume the responsibilities of a
federal appellate judge. Before recommending Ms. Kelly to the
President, I reviewed an unusually strong field of candidates
for this position. She stood out as a person of truly
outstanding intellect and character, with a reputation as an
extremely talented lawyer with a deep sense of compassion and
fairness. It is no surprise that she enjoys wide bipartisan
support from the Iowa legal community.
Judge Michael Melloy, who was nominated by President George
W. Bush and whose seat on the Eighth Circuit Ms. Kelly is
nominated to fill, said that Ms. Kelly, and I quote, ``is very
intelligent and thoughtful, is a good writer, which is
important on the appellate court.''
Federal District Court Judge Stephanie Rose recently noted
that Ms. Kelly ``has a great blend of personality, skills, and
common sense to make a great lawyer and judge.''
Iowa State Court Judge Casey Jones said that Jane Kelly is
``one of the most brilliant people I have ever met.''
So it is no surprise that the American Bar Association gave
her a unanimous ``Qualified'' rating.
Ms. Kelly is a credit to all of us who have chosen to be
public servants. She earned her bachelor's degree summa cum
laude from Duke University, received her J.D. cum laude from
Harvard Law School. After law school, she was a law clerk to
both Judge Donald Porter of the District Court of South Dakota
and a long-time friend of mine, and I know of Senator
Grassley's, Judge David Hansen, nominated by President George
H.W. Bush to serve on the Eighth Circuit.
She could easily have commanded a big salary with a top law
firm. Instead, for over 20 years, she has opted for public
service and long hours as a federal defender, working to uphold
the rule of law and ensure the rights of all Americans. We are
fortunate that she seeks to continue her public service to Iowa
and our Nation by serving as a federal judge.
Madame Chair, let me conclude with two additional notes
about Ms. Kelly's nomination.
First, to sort of repeat what you have already said, if
confirmed, Ms. Kelly will be only the second female judge in
the history of the Eighth Circuit, established in 1891. I might
add, while 56 men have sat on that court, to date, as you
pointed out, only one woman, Diana Murphy from Minnesota. And
so now, hopefully, she will be joined by Jane Kelly from Iowa.
Second, I would note that President Obama has nominated 100
former prosecutors to the federal bench, including one that I
recommended and supported by Senator Grassley, which is
Stephanie Rose for the Southern District of Iowa. Among recent
Presidents, that is the highest percentage of former
prosecutors nominated. These are all outstanding attorneys and,
of course, dedicated public servants. But as Judge Melloy
recently noted with respect to Ms. Kelly, ``It will be good to
have someone from the public defender realm on the bench.''
Ms. Kelly has served for more than 20 years in the federal
defender's office where she has argued hundreds of cases on
behalf of indigent clients. She has fought tirelessly to ensure
the rights of all are protected and has worked to give meaning
to the phrase above the Supreme Court ``Equal Justice for
All.'' This is a critically important perspective that she will
bring to the court, and I might add that our research showed
that she will be the first career public defender since 1891 to
serve on the Eighth Circuit Court of Appeals.
Members of the Committee, Jane Kelly is very highly
qualified to serve as United States Court of Appeals judge for
the Eighth Circuit. I urge this Committee to act swiftly to
approve her.
Thank you, Madame Chair.
Senator Klobuchar. Senator Grassley. Thank you, Senator
Harkin.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Before I speak about Jane Kelly, I want
to follow up on something that Senator Harkin has said about
our working relationship and ratify what he said but go beyond
it.
I suppose there are 50 different ways of doing this in the
50 different States, and I know that in some places they have
been very contentious. And in our particular case, he and I
have been doing this together for 28 years, and I do not think
we have had one single disagreement when we had a Republican
President who nominated somebody and you supported them, and
now we have a Democrat President for a second time and I have
supported your nominees. And there has not been one dispute, as
far as I know, and I think it is something that maybe other
States ought to take a look at, this relationship. So I thank
Senator Harkin for that cooperation that he has given, and he
has already thanked me.
I am particularly pleased to welcome the nominee, Ms. Jane
Kelly, and her family and friends and guests. Ms. Kelly is
nominated to be U.S. Circuit Judge for the Eighth Circuit. She
presently serves as assistant Federal public defender and as
supervising attorney of the office in Cedar Rapids. Ms. Kelly
is a native of Indiana. She received her B.A. degree from Duke
University in 1987. She spent the next 10 months in New Zealand
as a Fulbright scholar. She received her J.D. from Harvard in
1991. Upon graduation, she clerked for Judge Donald J. Porter,
U.S. District Court, District of South Dakota, and then for
Judge David R. Hansen of the Eighth Circuit.
From 1993 to 1994, she was visiting instructor, University
of Illinois College of Law. Since 1994, Ms. Kelly has served as
an assistant federal public defender in the federal public
defender's office for the Northern District of Iowa. She
handles criminal matters for indigent defendants and has
handled a wide range of crimes.
Since 1999, she has been a supervising attorney. Ms. Kelly
has spent her entire legal career in litigation and has
appeared in court frequently. She has tried 14 cases to jury
verdict and has also represented clients before the Eighth
Circuit Court of Appeals.
Ms. Kelly is active in the bar and in district court
matters. She presently serves on the Criminal Justice Act Panel
Selection Committee, the blue-ribbon panel for criminal cases,
and the Facilities Security Committee of the district court.
She has been a member of Dean Mason Ladd Inn of Court as well
as National Association of Criminal Defense Lawyers.
In 2004, her peers honored her with the John Adams Award
from the Iowa Association of Criminal Defense Lawyers and Drake
University Law School. She was unanimously chosen for this
award, which recognizes individuals who show a commitment to
the constitutional rights of criminal defense, and probably
John Adams represented that best when he defended British
people that committed something wrong up there in
Massachusetts.
[Laughter.]
Senator Grassley. Well, that is where he lived.
Senator Klobuchar. It is just a nice Iowa way of describing
it.
Senator Grassley. Judge Hansen, for whom Ms. Kelly clerked,
has submitted a letter of support, and I read that entire
handwritten note last night, and every sentence of it speaks
highly of your work.
In that letter, he states that Ms. Kelly has practiced law
in an exemplary fashion. He notes, ``She is a forthright woman
of high integrity and honest character.'' He observed that she
possesses an exceptionally keen intellect and is a fair and
compassionate advocate for her clients. Judge Hansen concludes
that she will be a welcome addition to the court, if confirmed,
and I have a great deal of confidence in Judge Hansen because,
when I was first a candidate for Congress, I was in the
University of Iowa Hospital, and he was a Republican chairman
in one of my counties, and he went out and campaigned for me.
And, you know, you do not find county chairmen doing that very
often in our State. And I won that primary and won that
election, obviously.
[Laughter.]
Senator Grassley. And he gets all the credit for it.
The ABA Standing Committee on the Federal Judiciary has
unanimously rates Ms. Kelly as ``Qualified.''
Again, I welcome Ms. Kelly and look forward to her
testimony. Thank you.
Senator Klobuchar. Okay. Very good. And we have also been
joined by Senator Franken, who I know will have some questions
when we go forward.
Senator Franken. I think so.
Senator Klobuchar. Okay. Very good. Excellent.
Senator Harkin, we thank you for being here. We do not want
to swear you in under oath, so you are welcome to join us, but
we know you have many pressing things to do. So thank you very
much for coming.
Okay. Ms. Kelly, could you please come forward and we will
administer the oath? Do you affirm that the testimony you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Ms. Kelly. I do.
Senator Klobuchar. Thank you very much, and I know you have
some people here that you want to introduce, and so please take
a moment to do that.
STATEMENT OF JANE KELLY, NOMINEE TO BE CIRCUIT JUDGE FOR THE
EIGHTH CIRCUIT
Ms. Kelly. Thank you very much. I wish to thank--that was
the first thing I was supposed to remember.
[Laughter.]
Senator Klobuchar. We will give you a break.
Ms. Kelly. Back to the true first thing I would like to do
is to thank the Chair and the rest of the Committee for this
opportunity to appear here today. And I appreciate the
opportunity to introduce the handful of people who are here
with me today.
My partner, Tom Lidd, and my sister, Lisa Kelly Vance, are
both here with me today. And I also have a handful of friends
who have made the trip from Iowa to support me as well.
[The biographical information of Ms. Kelly follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Klobuchar. Very good. Well, we really appreciate
you being here. We are excited about your nomination, and I
wanted to ask you about that. I think many of us referenced the
fact that of the 61 judges that have served on the Eighth
Circuit, only one has been a woman. As I noted, Judge Murphy is
someone I know well, and, in fact, she currently serves with 10
male judges.
How important do you think it is to include an additional
woman on that bench in the Eighth Circuit?
Ms. Kelly. Well, I think it is very important to include
quality judges on every level of the federal judiciary, and I
truly believe through the course of my practice that there are
plenty of very highly qualified women, men, and individuals
from a variety of backgrounds, whether that be racial or ethnic
or otherwise. So I think we are at a point where we really do
have a big pool of folks to choose from.
Senator Klobuchar. And many commented about the fact that
we have so many former prosecutors, including myself, that get
into positions, whether it is in the U.S. Senate or on the
federal judiciary. Could you talk about the importance of
including a public defender like yourself on the bench?
Ms. Kelly. I think that each individual judge would bring
his or her own perspective and experience, and we all come from
different legal experiences. I have, perhaps, an unusual one,
at least as the current state of the judiciary stands. But I
think it is very helpful to have a variety of views, a variety
of backgrounds, and a variety of experiences to reach the best
result possible.
I know that if I were fortunate enough to be confirmed, I
would be welcoming the views of other members of panels of the
Eighth Circuit, and I believe that they would be welcoming mine
as well.
Senator Klobuchar. And during your service as a public
defender, you have had the opportunity to represent a broad
array of clients from veterans to immigrants, Americans of many
different backgrounds. Can you talk about how the diversity of
your clients has impacted the view that you have of the justice
system?
Ms. Kelly. It is true, I have represented a wide range of
people from all walks of life who have been charged with a wide
variety of criminal offenses, from drug trafficking to high-
level fraud, and those individuals vary just like any other
litigant that would be presenting their case to a district
court or to an appellate court. So I would hope that one thing
that my experience has brought me is a broader view of issues
and a broader view of the types of experiences that the folks
who come into a federal courtroom bringing their cases or
controversies to the court, I would hope I would have a good
understanding of that.
Senator Klobuchar. You also served as a law clerk to Judge
David Hansen on the Eighth Circuit, and as public defender, you
have had the chance to argue cases in front of the Eighth
Circuit. How will these experiences impact your perspective and
decision making as a member of the court?
Ms. Kelly. I think those experiences have been very
valuable to me, first of all, as a practicing attorney, but I
also believe that they would be very valuable if, again, I were
fortunate enough to be confirmed with the circuit court.
Working with Judge Hansen was a wonderful experience.
Senator Grassley has spoken a bit about Judge Hansen. He is a
very well respected jurist in our community, as well as the
Eighth Circuit. And so, very early in my career, I was able to
watch what we might call a master at work, and I valued that
experience very highly.
I have also, as the Chair has noted, been able to argue
cases in front of the Eighth Circuit Court of Appeals on my
own, on behalf of my own clients. I think that having clerked
for Judge Hansen, it took a bit of the mystique out of going--
or the scare out of going into court, but it is still a very
solemn task to represent a client at that level of the federal
judiciary. And I have had the honor of being able to submit
written briefs to the Eighth Circuit Court of Appeals and argue
a number of cases in front of the court of appeals as well. So
I have that experience from the other side of the bench as
well.
Senator Klobuchar. And given those experiences you have had
and your experiences as a public defender, what do you see as
some of the greatest challenges facing the federal judiciary?
Ms. Kelly. Based on my experience in the federal defender's
office and being in court as much as I am, I think I would say
one of the more significant challenges to the federal courts
right now would be simply the sheer volume of cases that are
moving through the courts. Because I work in the criminal area,
our cases take priority because of the Speedy Trial Act, the
speedy trial restrictions in the Constitution. And there are an
increasing number of criminal cases that are being brought, at
least that I have noticed over the past couple of decades.
Unfortunately, I think that is sort of squeezing out some
of the civil cases from getting docket space, so I would say
that that would be one of the biggest challenges I have seen
facing the federal courts.
Senator Klobuchar. And one last question. I know they have
televised hearings in Iowa in the State court level, and when
now-Justice Kagan had her confirmation hearing, she was asked
about televising Supreme Court proceedings and was in favor of
that. And I know that there can be different arguments made for
different levels and concerns at the trial level. But what has
been your experience seeing what is happening in Iowa? And do
you think it is worth looking at at the Supreme Court level?
Ms. Kelly. I personally do not have any experience with
cameras in the courtroom. We do not have them in the Northern
District of Iowa, so I have never had that particular
experience.
My understanding is that in the Southern District of Iowa,
they are working through a trial run of using cameras in the
courtroom in at least some limited circumstances. I would be
very interested to see how that came out, what the litigants'
reactions were, the judges' responses, jurors' responses, to
see whether that might be something that we should look out for
in more district courts as well.
Senator Klobuchar. I appreciate you being open to that.
With that--and so does Senator Grassley--I will turn it over to
Senator Grassley.
Senator Grassley. If I live long enough, you will have
cameras in the courtroom.
[Laughter.]
Senator Grassley. But having failed now for 10 years, I do
not know whether I will live that long.
I think my staff would tell you what I was going to ask, so
there should be no surprises here. Given that most of your
career has been in trial court, would you please explain your
experience at the appellate level and how you are prepared to
assume the duties of a circuit judge?
Ms. Kelly. Yes. As noted in a previous discussion, one of
my first experiences as a lawyer was working with Judge Hansen
on the Eighth Circuit Court of Appeals. That was excellent
experience for me and a wonderful one that taught me a great
deal about how the appellate process works.
Early, during the first several years of my practice at the
federal defender's office, I had a fairly active appellate
practice. We did a lot of our own appeals, and I was regularly
writing briefs on behalf of my clients and submitting those to
the court of appeals and arguing some of those at oral argument
in either St. Louis or St. Paul on behalf of my clients. I
enjoyed that part of my practice very much and got a lot out of
that.
The only reason I have not been doing that as much lately
is because of the decision on the part of the federal defender
who had decided he wanted to specialize the appellate work in
one attorney in the defender's office. So now the vast majority
of our appeals go through that one attorney.
I have done some appellate work in brief writing since that
time, but none of those have gone to oral argument. But I do
try to stay active or connected to my cases that go up on
appeal. I communicate closely with our appellate lawyer. I am
very interested in the issues that he raises, and we have
discussions about strategy concerning those appeals.
Senator Grassley. Thank you.
You have not worked with civil law--at least I would say
limited experience. It appears your work has been almost
exclusively criminal. How will you get up to speed on civil
matters that might come before you, if confirmed?
Ms. Kelly. That is an excellent question, Senator. Thank
you. You are correct, I have worked in federal court in
criminal law for the bulk of my professional career. As noted,
I have had a couple of clerkships, and through those clerkships
I was exposed to varied civil matters in that context. But I
recognize that was very early in my career and several years
ago.
I fully recognize that I have work to do to get up to speed
on civil matters because any litigant who comes into the Eighth
Circuit Court of Appeals is entitled to that. They are entitled
to have a panel of three judges who are fully well versed in
the law that is being presented to them.
I will say that through the course of my practice in
federal court in the criminal side, I have become very
accustomed to using the Rules of Evidence. I am very accustomed
to courtroom procedure. And I would hope that some of those
experiences would overlap with the civil law. And because I
feel very comfortable in the area of criminal law, I would hope
that I would have that extra time to spend whatever is
necessary to get up to speed on the civil cases because I do
think that that is extremely important and I recognize that I
would have work to do.
Senator Grassley. The next question comes because you have
been a defense attorney. What assurances can you give to the
Senate and the Committee and future parties that would appear
before you that you would be impartial and fair to all sides?
Ms. Kelly. I can assure you, Senator, that I would do
everything I could to make each litigant who appeared before
the court not only feel like they were being treated fairly but
that I would treat them fairly. I have been in the courtroom
enough to know how important it is that a judge treat both
parties or all parties participating fairly and impartially. As
a criminal defense attorney, I am often representing someone
who, shall I say, is not the most popular person in the room.
So I, as much as anyone, know how important it is to be fair
and impartial and make decisions based on things other than
bias, favor, or prejudice.
Senator Grassley. I think you just answered my next
question, but I am going to ask it anyway, and it comes from
the fact that you do have this reputation for compassion and
fairness. So my question is: To what degree should compassion
influence a judge's decision?
Ms. Kelly. Well, if by that you mean, Senator, that a
person's case would be viewed differently or a finger would be
placed on the side weighing in favor of one party over another
because of sympathy or compassion, that does not have a place
to play in the courtroom. I would be bound to decide a case
based on the facts, the relevant law, and any precedent that
would apply.
Senator Grassley. My next question, and I am getting almost
to the end: There is a person, Louis Michael Seidman, professor
of constitutional law at Georgetown University, who authored an
article that you probably have not read, but it is entitled,
``Let's Give Up on the Constitution.'' He argued that many of
our Nation's problems are a result of ``our insistence on
obedience to the Constitution with all its archaic,
idiosyncratic, and downright evil provisions.''
While you might not be familiar with the article, do you
have any thoughts on giving up on the Constitution or on the
necessity of judges to obey the Constitution?
Ms. Kelly. We should not give up on the Constitution, and
judges should not give up on obeying the Constitution and
applying it properly.
Senator Grassley. Thank you.
Senator Klobuchar. And we just hope the person that wrote
the article does not come before you in a judicial nomination
hearing. [Laughter.]
With that, we turn it over to Senator Franken.
Senator Franken. Thank you, Madam Chairwoman.
I was holding my breath to see how you would answer that.
[Laughter.]
I think you did well. Congratulations on your nomination.
Of course, the Eighth Circuit covers Minnesota, so Senator
Klobuchar and I are very glad you are here. We congratulate you
on your nomination.
Senator Klobuchar and I worked together almost as well as
Senator Harkin and Senator Grassley claim to.
Senator Klobuchar. Thank you for mentioning that.
[Laughter.]
To clarify the record.
Senator Franken. And the fact that you are so heartily
supported by both Senators speaks very well of you and this
mysterious Judge Hansen. And I know that the Chairwoman
mentioned the Infinity Project at the University of Minnesota.
I work closely with them as well, and it is good to see added
diversity in the form of a second woman in the history of the
Eighth Circuit.
I want to talk to you about the role of diversity in terms
of--because this compassion and empathy and sympathy and all
these words floating around that have become a little
controversial. Oliver Wendell Holmes--and I think I have this
accurate--said that, ``The life of the law has not been logic.
It has been experience.'' And to me, I would like to get your
view on the role of experience in terms of why that is, why
diversity in the courts is important--and I think you spoke to
that a little bit when Senator Klobuchar was talking to you--
and what the role of experience is for a judge and how it
relates to diversity.
Ms. Kelly. I think it is extremely important, and at the
risk of repeating some of what I had mentioned earlier, I think
that one of the values at least at the Eighth Circuit Court of
Appeals is that you are deciding cases as a panel, and so you
have multiple people giving their input and their viewpoints on
a particular issue.
I think we are all defined by our experiences. That is not
to say that that changes the law or how one would necessarily
apply the law. But I do think we are shaped by those, and we
can certainly learn from other individuals a great deal if they
can help us understand their experience as well. And I think
that translates into the courtroom as well. While compassion
and empathy do not decide the case, I do think it allows judges
to be more open minded and to maybe hear or listen for things
that they would not necessarily otherwise have heard or
listened for.
Senator Franken. I would like to kind of make a distinction
between compassion and empathy and sympathy. To me, empathy
means that you can understand what someone else is--their
feelings and see into their experience, not necessarily
compassionately or not necessarily sympathetically, but empathy
means that you can kind of feel what their experience is. And I
think that is important in terms of having a woman. I think
that is important in terms of having racial diversity, because
different people's experiences are different, and there is no
one who does not have experience. Everyone has experience. So
it would be nice if there was not everyone with a uniform
experience on the court.
You are different in that--I think prosecutors are great,
former prosecutors are great. For example, the Chairwoman is a
former prosecutor. So there you have it. [Laughter.]
But public defenders, that is kind of unusual, isn't it? Do
we know how many former public defenders have been on the
Eighth Circuit?
Ms. Kelly. I personally do not know of any.
Senator Franken. Okay. So can you tell me something, when
you have been in trials, that you have noticed from either
prosecutors or judges that in your experience, when you are on
the circuit court, that you might--something that you have
experienced in that role that might make you more open to an
appeal?
Ms. Kelly. My role in the courtroom compared to the role of
the prosecutor or the judge is to represent the rights of the
individual person, and I--more than anyone in the courtroom
understands--I think on a very personal, professional level, if
that makes sense. I have spent a lot of time with this
individual person--how important the court's result, rulings
are to their lives, to their families' lives. And so I think
that my perspective would be in viewing it from the individual
client's standpoint than perhaps the prosecutor's bigger role,
albeit important role nonetheless, of enforcing the laws and
reaching justice in their definition.
Senator Franken. Okay. But there is nothing like a certain
kind of thing you have seen judges do or prosecutors do that
might give you a particular perspective on an appeal?
Ms. Kelly. As I sit here, I cannot think of particular
things they do, but certainly when you read transcripts, you
can find them.
Senator Franken. Okay, great. I thank you, and, again,
congratulations on your nomination.
Ms. Kelly. Thank you, Senator.
Senator Klobuchar. Well, thank you very much.
Are there any other questions? Senator Grassley, do you
want to say any closing comments?
Senator Grassley. Good luck to you.
Ms. Kelly. Thank you, Senator.
Senator Grassley. I do not think that you have got to worry
about this, but if any Senator writes you questions and wants
answers to them, our general practice is you do not come up
until those questions are answered. And that really does not
cause anybody a problem, but sometimes you do not get the
answers, so somebody is going to--you know, any one Senator can
stand in the way for a while.
Ms. Kelly. Thank you.
Senator Klobuchar. Well, very good. We are very impressed
by your credentials, and hopefully you will even get a positive
tweet coming out from Senator Grassley, since he is the Twitter
king of the U.S. Senate. [Laughter.]
And hopefully he will spell your name correctly.
Senator Grassley. I am going to hit----
Senator Klobuchar. Oh, no. This is my fault. I asked him if
he was going to do one.
Senator Franken. It used to be years ago that ``Twitter
king'' meant something totally else.
Senator Klobuchar. Thank you, Senator Franken.
I suppose you want your hearing to come to an end now, Ms.
Kelly. [Laughter.]
Ms. Kelly. I am sort of enjoying it.
Senator Klobuchar. Well, you may be the first person to
come before us that said that.
I do want to thank you. As Senator Franken said, we were
just so impressed by the strong support you have from both your
Senators from both sides of the aisle. It really means a lot.
So thank you so much.
The record will remain open for a week, and with that, this
hearing is adjourned.
Ms. Kelly. Thank you.
[Whereupon, at 2:38 p.m., the Committee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF GREGORY ALAN PHILLIPS, OF WYOMING, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT; AND KAROL VIRGINIA MASON, OF GEORGIA,
NOMINEE TO BE AN ASSISTANT ATTORNEY GENERAL
----------
TUESDAY, MARCH 19, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:36 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard
Blumenthal, presiding.
Present: Senators Blumenthal and Lee.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Welcome, everyone. Today we are
considering two very qualified nominees to fill important posts
that ensure that the American people are truly served with
justice and have access to our justice system. And I am very
proud to preside as the Chairman. My name is Richard
Blumenthal, and I am a Senator from Connecticut and a member of
the Judiciary Committee.
Gregory Phillips, the nominee for the U.S. Court of Appeals
for the Tenth Circuit, is currently Attorney General of
Wyoming. He has a long and distinguished legal career. He also
has the support of the two Wyoming Senators, whom we welcome
today, and we appreciate your being here, both Senator Enzi and
Senator Barrasso. Thank you.
Karol Mason is the nominee to be Assistant Attorney General
for Justice Programs, a very, very important position in the
Department of Justice, and she has a very distinguished career
as well, having spent 31 years in private and public practice,
rising to the top of the legal profession in both areas, and
she is a nominee of the highest quality and I hope will be
given prompt consideration by the Committee.
I would like to offer Senators Enzi and Barrasso an
opportunity to present their nominee, Gregory Phillips, and
await Senator Lee or Senator Grassley, when they also have the
opportunity to make an opening statement.
Thank you.
PRESENTATION OF GREGORY ALAN PHILLIPS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT, BY HON. MICHAEL B. ENZI, A U.S.
SENATOR FROM THE STATE OF WYOMING
Senator Enzi. Thank you, Mr. Chair. It is an honor to
introduce Greg Phillips to the Judiciary Committee, who is the
nominee for the U.S. Tenth Circuit Court of Appeals. I want to
thank the Chairman and the Ranking Member as well as their
staff for acting on Mr. Phillips' nomination in a timely
manner.
I believe that Mr. Phillips has all the characteristics
necessary to serve as a Federal appellate judge. I served with
Greg in the Wyoming Legislature and can say with confidence
that he is recognized throughout the Wyoming legal community as
a talented and respected and thoughtful attorney. And while I
served with him in the State Senate, I can assure you that he
was recognized as a talented and respected legislator as well.
And I should probably also mention that he sat right across the
aisle from me, so we were able to confer a lot and occasionally
had differing views.
But Mr. Phillips is currently Wyoming's Attorney General,
and this is important to not because the Wyoming Attorney
General is not an elected position. Mr. Phillips is a Democrat
who was appointed by a Republican Governor and confirmed
unanimously by the Wyoming Senate, which is largely Republican.
Wyoming Governor and former U.S. Attorney Matt Mead comments
that Greg is ``a first-rate legal thinker, a tireless worker,
and has an abiding sense of fair play.'' Governor Mead goes on
to say that, ``if confirmed, all those who appear before Mr.
Phillips will find a judge fully prepared, engaged, and
respectful to all.''
It should be no surprise that the American Bar Association
unanimously gave Mr. Phillips its highest rating. Greg has
extensive experience practicing law as a deputy county attorney
and in private practice with his father and brother.
Before becoming Wyoming's Attorney General, Mr. Phillips
served 7 years as Assistant U.S. Attorney for the District of
Wyoming, handling criminal prosecutions and appeals. Greg has
argued nearly 20 cases before the Tenth Circuit and submitted a
variety of briefs, criminal appeals, and responses to the
court.
Greg studied economics at the University of Wyoming and
graduated with honors from the Wyoming College of Law, where he
was on the Law Review. Immediately following law school, Mr.
Phillips served as a clerk to U.S. District Judge Alan Johnson
of Wyoming. Judge Johnson writes that Greg is devoted to the
rule of law and will honor the remarkable judicial officers who
preceded him. Specifically, Mr. Phillips' thorough study of the
U.S. Sentencing Guidelines, experience as a Federal criminal
prosecutor, and an understanding of State and Federal legal
issues will serve him well on the Tenth Circuit.
I respectfully ask the Chairman to include the following
letters: one from Governor Mead, one from Judge Johnson, and
then a very important one from the National Association of
Attorney Generals. And one reason that is important is that he
has the approval here of 34 of the U.S. Attorney Generals. The
only reason there are not more is the time was very short
because you scheduled this hearing so quickly. And we are glad
for that. We would rather have a quick hearing than a lot of
signatures. But I do recall that you were one of those U.S.
Attorney Generals for about 20 years.
Senator Blumenthal. Twenty years, right.
Senator Enzi. So you know what credibility those people
carry.
I would like to conclude by saying that I can personally
attest to his qualifications to serve in the position. As I
mentioned, he served in the legislature with me. He also served
on the Judiciary Committee, and Wyoming is proud to call Greg
one of our own, and I know that he will bring a depth of
knowledge and legal experience to the Federal bench.
Mr. Phillips also brought his family with him today, whom
he will introduce when he speaks.
Members of the Committee, Mr. Phillips is highly qualified
to serve the U.S. Circuit Court of Appeals for the Tenth
Circuit. I thank you again for holding this hearing and ask
that you move swiftly to approve the nomination.
Senator Blumenthal. Thank you, Senator Enzi.
Senator Barrasso.
PRESENTATION OF GREGORY ALAN PHILLIPS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT, BY HON. JOHN BARRASSO, A U.S.
SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you very much, Chairman Blumenthal,
thank you, Senator Lee, for allowing me to speak in support of
the nomination of Greg Phillips to be a judge on the Tenth
Circuit Court of Appeals.
Greg is going to make an outstanding judge in the Tenth
Circuit. As Senator Enzi has commented, he graduated with
honors from the University of Wyoming College of Law and has a
distinguished legal career both in the private sector and in
the public service. He has prosecuted numerous cases in Federal
court. He has appeared in and argued more than a dozen cases
before the Tenth Circuit Court of Appeals.
He is an experienced attorney who is up to the challenge of
being an outstanding Federal circuit court judge. Greg's peers
uniformly praise his intellect, his diligence, and his
thoroughness. They also praise his fairness.
His former boss--and Senator Enzi read a little bit of a
letter from U.S. District Judge Alan Johnson. Judge Johnson
went on to say, ``Again and again, local defense attorneys have
expressed their appreciation for the fair-handed, respectful,
and even-tempered treatment that they have received from Greg
Phillips.''
Greg Phillips possesses the character and the traits
necessary to be a successful and respected member of the Tenth
Circuit Court of Appeals. I am confident, Mr. Chairman, that
when the Committee has completed the review of his nomination,
you will agree that Greg Phillips is an ideal candidate to join
the court.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you both, Senators.
Before turning to Senator Lee for his comments, I just want
to say about Senator Enzi's remark regarding the timeframe and
the pace of moving forward, I think it reflects the
qualifications of these nominees. I am sorry that we did not
get all the Attorneys General that might have commented, but I
am sure there will be time for them to comment as well. We will
hold the record open.
But I am hopeful also that the full Senate will move, as
well as this Committee, to approve these nominees, and others,
because we need to fill openings on our courts. As you well
know, there are states of emergencies that have been declared
in various circuits, and I very much appreciate your support
for this nominee, who is extraordinarily qualified. I will not
hold against him that he is a former Attorney General--or a
present Attorney General, and I hold them in the highest
respect.
Now, Senator Lee, if you would like to comment.
STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF
UTAH
Senator Lee. Thank you very much, Mr. Chairman, and thanks
to both of you for coming today. I am particularly pleased to
welcome the nominees today, as well as their family members,
their friends, and their guests.
Mr. Phillips has been nominated to serve on the U.S. Court
of Appeals for the Tenth Circuit. That is a court that I am
familiar with and that is important to me since it includes my
State. It is also a court where I have argued a couple dozen
cases, and so I look forward to our discussion on that
nomination.
Mr. Phillips, of course, serves as the Attorney General for
the State of Wyoming, which is our peaceful neighbor and one
that has never caused Utah any trouble.
Karol Mason is nominated to be an Assistant Attorney
General to head the Office of Justice Programs. This is an
important office within the Department of Justice, managing a
significant portion of the Department's grant programs. In
addition, it is an important source of information, training,
and coordination for the criminal justice system, for law
enforcement, and for the victims of crime.
And with your permission, Mr. Chairman, I will put the rest
of my comments that I have prepared in writing for the record.
Senator Blumenthal. Without objection, and also without
objection, the letters that have been submitted by Senators
Enzi and Barrasso as well will be part of the record. Thank
you.
[Letters submitted by Senators Enzi and Barrasso were
submitted for the record.]
Senator Blumenthal. Just by way of explanation to folk who
are attending, our two Senators may not stay because they have
commitments elsewhere with hearings and Committee meetings and
so forth. So if they want to excuse themselves, they are free
at any time to do so, and we very much appreciate your taking
the time. It has been very helpful and informative to have you
here, and your support for Mr. Phillips will mean a lot to this
Committee. Thank you so much.
I would like to introduce Ms. Mason, who, as I mentioned
earlier, has a very distinguished career. She spent 31 years in
both private and public sectors. She has been a partner at
Alston & Bird, and during her previous service in the Justice
Department, she focused on helping State and local governments
achieve results for citizens.
She was Deputy Associate Attorney General from 2009 to
2012, and she worked in New Orleans and Memphis to help those
cities harness the Department of Justice resources to keep
their citizens safe.
She also led the Attorney General's Defending Childhood
Initiative and was a driving force behind the Task Force on
Children Exposed to Violence. As a partner at Alston & Bird,
she helps States, cities, counties, school districts, and
nonprofits fund themselves through the bond market, and she has
mastered the art of helping governments and nonprofits use
private funds for public purposes.
She has received letters of support from both former
Senator Robert Dole, who writes, by the way, that she is an
outstanding lawyer; and former Senator Blanche Lincoln, who
gives her the ``highest recommendation.'' Those letters will be
placed in the record unless there is an objection.
[The letters appears as a submission for the record.]
Senator Blumenthal. I also will place in the record two
letters of support from Senators of Georgia, unless there is an
objection.
[The letters are available as a submission for the record.]
Senator Blumenthal. She is a very highly experienced and
qualified nominee, and I am pleased to welcome both her and Mr.
Phillips to the witness stand, if you would please take your
places. And now if you would please stand so we can swear you
in. Do you affirm that the testimony that you are about to give
before this Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Phillips. I do.
Ms. Mason. I do.
Senator Blumenthal. Each of you now has the opportunity to
make an opening statement, and I will turn first to General
Phillips.
STATEMENT OF GREGORY ALAN PHILLIPS, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT
Mr. Phillips. Thank you very much, Mr. Chairman----
Senator Blumenthal. And you need to turn on your
microphone, if you would.
Mr. Phillips. Thank you very much, Mr. Chairman and Ranking
Member Lee. Let me begin by thanking the Committee for setting
this hearing so speedily. It is wonderful to be here.
I would next say thank you to the President of the United
States for his faith in nominating me to this important
position.
And, finally, I would like to thank Senator Enzi and
Senator Barrasso for their very kind comments in support of my
nomination just now.
Mr. Chairman, I would at this time like to introduce
members of my family. Seated immediately behind me is my
mother, Clare Elaine Phillips, from Wyoming. And next to her at
the far end is my wife, Donna Phillips. And in between the
two--so that eyes are watching them, I suppose--are my 16-year-
old son, Ryan, and my 14-year-old daughter, Rachel.
In the row behind that, my older brother John is here, my
younger brother David is here, my older sister Clare is here
together with her husband, Chris Tayback, from California,
Washington, and Utah. And my little sister, Lisa, is watching
from Thermopolis, Wyoming.
Thank you.
[The biographical information of Mr. Phillips follows:]
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Senator Blumenthal. Ms. Mason.
STATEMENT OF KAROL VIRGINIA MASON, NOMINEE TO BE AN ASSISTANT
ATTORNEY GENERAL
Ms. Mason. Thank you, Senator Blumenthal, for your kind and
generous introduction, and thank you, Senator Lee, for holding
this hearing.
I would first like to thank the President for the
confidence he has shown in nominating me; the Attorney General
for his strong support; and, of course, Chairman Leahy and
Ranking Member Grassley and all of the members of the Committee
for holding this hearing and considering my nomination.
I would like to take a moment to introduce members of my
family who are here with me today: my twin brother, Dr. Kevin
Mason, in the second row behind me; my younger brother, Glenn
Mason. Kevin is a pediatrician who serves a low-income
population at Atlanta, Georgia, and Glenn is a high school
social studies teacher in Harlem, New York.
I also want to acknowledge and thank my many friends who
are my extended family for joining me today. Thank you for
traveling here to Washington to be my rock.
I want to say a special thank you to Cindy Hamilton,
sitting here in the front, who has been my assistant and friend
for nearly 20 years. Thank you for understanding how much I
want to return to public service and for forgiving me for
leaving you again.
I am so grateful for the opportunity, if I am confirmed, to
lead the Office of Justice Programs to play a role in making
the Nation's criminal justice and juvenile justice systems more
responsive to the needs of State, local, and tribal governments
and their citizens.
My sister and mother are retired public school teachers,
and my late father was a public health and hospital
administrator. I grew up teaching adult literacy at night,
working as a summer counselor for underprivileged youth, and in
programs for migrant children. We learned early that education,
health care, and programs to engage youth early are critical to
creating an environment to break the cycle of crime, and that
knowledge was reinforced many times over during my time at the
Department of Justice working with the many dedicated
professionals at the Office of Justice Programs.
If I am confirmed, I look forward to continuing that work
and partnering with law enforcement, victims' advocates, the
science community, and other national and community-based
organizations to leverage the taxpayer dollars you have
entrusted to the Office of Justice Programs to create safer
communities. I look forward to answering the Committee's
questions. Thank you.
[The biographical information of Ms. Mason follows:]
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Senator Blumenthal. Thank you both, and welcome to all of
your family, loved ones, friends who are here. I think that the
two nominees would agree that you have had a very pivotal role
in their being in these positions of great responsibility and
distinction today, and thank you for being here, and thank you
to the immediate families for the sacrifices in time and effort
that you have made because your understanding, I think we all
know in public life, is very, very important to their being
able to do what they have done. So welcome and thank you.
I will begin the questioning by simply asking General
Phillips, you have had a really wide array of experiences, and
I wonder if you can cite particular cases that may have
especially impacted your view of the law and how you would
conduct yourself as a judge.
Mr. Phillips. Thank you, Mr. Chairman. I have had--as you
say, I have been in State courts and Federal courts with civil
and criminal matters and appeal as well as trial. I do not know
that any particular case sticks out, but in the almost 8 years
that I prosecuted Federal crimes on behalf of the District of
Wyoming, certainly there were some cases there that I will
never forget and some intervention by victims services people
that has made a huge difference in people's lives. I would say
that those stand out the most because they have the most effect
on human beings.
Senator Blumenthal. Would you say that there is a need for
greater advocacy on behalf of victims?
Mr. Phillips. I cannot speak to that nationally, Mr.
Chairman, because I do not know. But within my own district, I
think that we do a good job with that, both State and Federal.
As Attorney General, we have a Division of Victims' Services,
and I have seen with my own eyes what they do across the State
with limited funds, and it is quite a bit.
Senator Blumenthal. And would you as a member of the Tenth
Circuit have a particular interest, whether it is civil or
criminal--I recognize that the cases would be in both, but
would you have a particular interest in terms of writing or
taking opinions?
Mr. Phillips. Mr. Chairman, I think I would be more versed
in the criminal right off the bat. I have seen a lot of the
civil-type actions when I was a law clerk and then also some in
civil practice. And I think that the ones that I would be the
most prone to want to get involved with the most are in areas
that I do not know anything about. For example, I have never
had an antitrust case, and so I would be eager to learn in
those areas that I have not been exposed to.
Senator Blumenthal. Thank you.
If I may ask you, Ms. Mason, I noticed that a number of the
letters of support--well, you have a diverse group of people
writing on your behalf, a very impressive list, but I was
particularly interested in the letters from tribal nations,
from Native American groups. And I wonder if you could talk a
little bit about how your new position, assuming that you are
confirmed, would impact or serve those Native American tribal
nations.
Ms. Mason. Thank you, Senator. During the time when I was
with the Department of Justice as an Deputy Associate Attorney
General, a Deputy to Tom Perrelli, one of the things that Mr.
Perrelli charged me with was simplifying the grantmaking
process for our tribal applicants. And I like to tell the story
that when I met with the staff in December 2009, I told them
that in the grants that we were going to release in 2010 we
were going to manage to put all the grant programs across the
Department into a single solicitation. And to their credit,
they looked at me like I was crazy, but then they really rolled
up their sleeves and did it. And I do not know if you all
remember that we had a huge snowstorm in the interim, and those
people worked night and day through the snowstorm from their
homes to make sure that we kept that on track.
So if I am fortunate enough to be confirmed to head the
Office of Justice Programs, one of my priorities will be to
continue moving that forward to making sure that we provide the
necessary resources to help our tribal partners improve
community safety in their tribal lands.
Senator Blumenthal. Thank you. Would your office have
jurisdiction over the school resource officer grants that are
made to local school boards and communities for school resource
officers?
Ms. Mason. Senator, the Office of Justice Programs, as is
the whole Department, is very interested in figuring out how we
can protect the safety of our children, as you know what
happened in your own State. And we were all deeply moved by
what happened. That particular grant is handled by the COPS
office, but the Department of Justice and the Office of Justice
Programs does work closely to figure out how we can make sure
that we leverage the resources that we are given appropriately.
Senator Blumenthal. Well, I would suggest that that be an
area of interest for you, because I think that school districts
around the country, not just in Connecticut but really all
around the country, have a much greater and heightened sense of
interest in school safety. And so I would suggest respectfully
that someone in your position could inform and improve that
program by taking an active interest in it.
Ms. Mason. I agree, Senator. Thank you.
Senator Blumenthal. Thank you.
Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman, and thanks
to both of you for joining us.
Mr. Phillips, why don't we start with you? I have got one
important question to address at the outset. Will Ryan and
Rachel call you ``Dad,'' ``Your Honor,'' ``Judge,'' or will
they keep calling you ``General'' if you are confirmed?
[Laughter.]
Mr. Phillips. I would take any of the above over what I get
now.
[Laughter.]
Senator Lee. I will have to consult with Ryan and Rachel
afterwards and see if they agree with that.
I want to start with a question about constitutional
interpretation. Justice Scalia a few years ago, while giving a
speech--I think it was in 2005--said, ``I think it is up to the
judge to say what the Constitution provided. Even if what it
provided is not the best answer, even if you can think it
should be amended, if that is what it says, then that is what
it says.''
Do you agree with Justice Scalia on that point?
Mr. Phillips. I agree as far as I understand what he was
saying, which is that the judge ultimately is responsible to
interpret the Constitution with the tools that are available to
the judge.
Senator Lee. What about the judge's own preferences? Should
those factor into the constitutional analysis?
Mr. Phillips. I think the Constitution, like any written
document, should be determined based on the meaning of the
words that are used.
Senator Lee. And the words that were used should control
then, even to the extent that they are at odds with the judge's
preferences, with the judge's views on what the policy should
be?
Mr. Phillips. Absolutely. I think that the judicial branch
is given a lot of ground already when we go back 210 years ago
to what Chief Justice Marshall said. It is emphatically the
duty and the province of the courts to say what the law is.
That is a lot of real estate. And so my own opinion on this is
that, to the extent a judge goes further than that and starts
to weigh whether a constitutional decision or a statutory
interpretation decision based on what that particular judge
thinks is good policy, that judge has strayed.
Senator Lee. My personal record for handling a case before
the Tenth Circuit is 27 months that a case was held under
advisement after argument. I will not tell you who was on the
panel because we do not need to get through that. Do you think
that is an acceptable amount of time for a single case to be
held under advisement?
Mr. Phillips. Senator, I do not, and my own cases, I argued
19 and briefed others that were not heard, and I did not have
any that were nearly that long. And it seems like the ones I
lost----
Senator Lee. Neither did I, fortunately. That was an
outlier.
Mr. Phillips. So I think that to the extent that it is
taking more than a few months, that that would be the far end
of what it should be.
Senator Lee. Okay. On several occasions you joined some of
your fellow State Attorneys General in a letter supporting
Richard Cordray to be nominated to head the Consumer Financial
Protection Bureau. As you know, the President purported to make
a recess appointment of Mr. Cordray on January 4th of 2012. I
strongly disagreed with that action and disputed the
President's authority to make that as a recess appointment
because, among other things, it was made at a time when the
Senate did not consider itself in recess.
In Noel Canning v. NLRB, the D.C. Circuit ruled that
recesses are limited to intersession recesses and, therefore,
appointments the President made to the NLRB and to the CFPB
were invalid from their inception.
Regardless of the views that you may have expressed with
regard to Richard Cordray's qualifications, do you agree with
that ruling by the D.C. Circuit?
Mr. Phillips. If I am lucky enough to be confirmed as a
member of the Tenth Circuit Court of Appeals, I would apply
whatever the binding precedent is from the U.S. Supreme Court
as well as the Tenth Circuit.
To the extent that I start to announce a view early, then I
think I have done the court a disservice because--and the
litigants who would come before me with a similar or the same
issue and that they would always question my impartiality. If I
were to rule the same way that I opined, they would think they
did not get a fair shake. If I were to go the other direction
on this issue or any other, then they may think I overcorrected
so I would not appear to be unfair. So I do not think it is
appropriate for me to respond.
Senator Lee. Understood. Understood. I suspect that case
may be resolved finally by the time or not too far after the
Senate processes your nomination, but we will leave it at that.
Thank you.
Ms. Mason, with the Chair's indulgence, I will continue on
even though my time is running short. Ms. Mason, as I recall,
you left the Department of Justice a little over a year ago, I
think in January 2012, and you went back to private practice, I
believe. Are you ready to come back for more?
Ms. Mason. Very much so.
Senator Lee. And the reasons that caused you to go back
into private practice are not going to continue to apply
anymore if you are confirmed to this position, you will feel
comfortable jumping back into the Department of Justice?
Ms. Mason. Senator, if I am fortunate enough to be
confirmed, I will be retiring from private practice, and I will
actually--I am old enough to retire this time from the law
firm.
Senator Lee. I sense a tremendous amount of relief from you
as you make that statement.
[Laughter.]
Ms. Mason. Yes.
Senator Lee. With no apologies to the managing partners at
Alston & Bird.
Ms. Mason. None whatsoever.
Senator Lee. That is great. That is great. It has got to
feel good.
You have been a high-profile supporter of our President and
were very involved in fundraising activities and other campaign
activities. Is there anything about your participation--you had
a very close involvement with the Obama campaign--that you feel
might in any way jeopardize your objectivity, your ability to
administer these important programs within the Department of
Justice which serve all the country, regardless of political
affiliation?
Ms. Mason. None whatsoever, sir.
Senator Lee. Okay. Thank you very much.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Lee.
That ends the questioning. I think in this hearing either
of you is free to make a closing statement if you wish.
Mr. Phillips. Nothing from me. Thank you, Mr. Chairman.
Ms. Mason. Nothing from me other than thank you.
Senator Blumenthal. Wisely said.
[Laughter.]
Senator Blumenthal. I just want to assure, again, members
of the audience that the lack of full attendance at this
hearing and its apparent speed really reflects the lack of
controversy, which is a good thing. So I want to again thank
everyone for being here today, and most especially the two
nominees for your willingness and determination to seek a
career of public service, which makes you, I think, role models
for all of us in the sacrifices that you are willing to make,
that your families are willing to make, that your friends and
loved ones have supported you in making.
So, with that, I am going to close the hearing. The record
will be kept open for 1 week in case there are any questions
from other members of the Committee or any additional
submissions.
And with that, this Committee is adjourned.
[Whereupon, at 3:06 p.m., the Committee was adjourned.]
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