[Senate Hearing 113-515, Part 2]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
APRIL 10, APRIL 24, AND MAY 8, 2013
----------
Serial No. J-113-1
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PART 2
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-515, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
APRIL 10, APRIL 24, AND MAY 8, 2013
__________
Serial No. J-113-1
__________
PART 2
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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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 Staff Director
C O N T E N T S
WEDNESDAY, APRIL 10, 2013
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coons, Hon. Christopher A., a United States Senator from the
State of Delaware.............................................. 1
Leahy, Hon. Patrick J., a United States Senator from the State of
Vermont........................................................ 2
prepared statement........................................... 108
Grassley, Hon. Chuck, a United States Senator from the State of
Iowa........................................................... 6
PRESENTERS
Warner, Hon. Mark R., a United States Senator from the State of
Virginia presenting Srikanth Srinivasan, Nominee to be Circuit
Judge for the District of Columbia Circuit..................... 3
Kaine, Hon. Tim, a United States Senator from the State of
Virginia presenting Srikanth Srinivasan, Nominee to be Circuit
Judge for the District of Columbia Circuit..................... 4
STATEMENT OF THE NOMINEES
Srinivasan, Srikanth, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 10
Questionnaire................................................ 12
QUESTIONS
Questions for Srikanth Srinivasan submitted by Senator Cruz...... 109
Questions for Srikanth Srinivasan submitted by Senator Grassley.. 110
Questions for Srikanth Srinivasan submitted by Senator Klobuchar. 116
ANSWERS
Responses of Srikanth Srinivasan to questions submitted by
Senator Cruz................................................... 117
Responses of Srikanth Srinivasan to questions submitted by
Senator Grassley............................................... 120
Responses of Srikanth Srinivasan to questions submitted by
Senator Klobuchar.............................................. 136
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Former Solicitors General or Principal Deputy Solicitors General
of the United States, April 1, 2013, letter.................... 138
Bagenstos, Samuel R.; J. Scott Ballenger; Rachel E. Barkow;
Anthony J. Bellia, Jr.; Paul Schiff Berman; Stephanos Bibas;
Elizabeth Cavenagh; Thomas Colby; Laura A. Dickinson; David
Friedman; Lisa Kern Griffin; Deborah Hamilton; Rachel A.
Harmon; Sarah O. Jorgensen; John P. Kelsh; Jeremy Maltby;
Matthew Martens; Gillian E. Metzger; Charles C. Moore; Carl
Nichols; John B. Owens; Mary-Rose Papandrea; Benjamin A.
Powell; Theodore Ruger; Silvija A. Strikis; Harry P. Susman;
John F. Wood; Christopher Yoo, April 4, 2013, letter........... 140
North American South Asian Bar Association (NASABA), Emilie R.
Ninan, Esq., President, April 5, 2013, letter.................. 145
Women's Bar Association of the District of Columbia, Laura
Possessky, President, April 17, 2013, letter................... 147
Constitutional Accountability Center, Washington, DC, Douglas T.
Kendall, President, and Judith E. Schaeffer, Vice President,
April 11, 2013, letter......................................... 150
Hispanic National Bar Association (HNBA), Peter M. Reyes, Jr.,
President, April 8, 2013, letter............................... 152
Hispanic National Bar Association (HNBA), Peter M. Reyes, Jr.,
President, September 27, 2012, email........................... 154
National Asian Pacific American Bar Association, April 10, 2013,
statement...................................................... 156
----------
WEDNESDAY, APRIL 24, 2013
STATEMENTS OF COMMITTEE MEMBERS
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii...... 160
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 279
prepared statement........................................... 289
PRESENTERS
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Jennifer A. Dorsey, Nominee to be U.S. District
Judge for the District of Nevada............................... 160
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii
presenting Raymond T. Chen, Nominee to be U.S. Circuit Judge
for fhe Federal Circuit........................................ 161
STATEMENT OF THE NOMINEES
Dorsey, Jennifer A., Nominee to be U.S. District Judge for the
District of Nevada............................................. 162
Questionnaire................................................ 164
Chen, Raymond T., Nominee to be Circuit Judge for the Federal
Circuit........................................................ 238
Questionnaire................................................ 239
QUESTIONS
Questions for Raymond T. Chen submitted by Senator Cruz.......... 293
Questions for Jennifer A. Dorsey submitted by Senator Cruz....... 294
Questions for Raymond T. Chen submitted by Senator Grassley...... 295
Questions for Jennifer A. Dorsey submitted by Senator Grassley... 298
Questions for Raymond T. Chen submitted by Senator Klobuchar..... 302
Questions for Jennifer A. Dorsey submitted by Senator Klobuchar.. 303
Questions for Jennifer A. Dorsey submitted by Senator Lee........ 304
ANSWERS
Responses of Raymond T. Chen to questions submitted by Senator
Cruz........................................................... 307
Responses of Raymond T. Chen to questions submitted by Senator
Grassley....................................................... 310
Responses of Raymond T. Chen to questions submitted by Senator
Klobuchar...................................................... 316
Responses of Jennifer A. Dorsey to questions submitted by Senator
Cruz........................................................... 317
Responses of Jennifer A. Dorsey to questions submitted by Senator
Grassley....................................................... 320
Responses of Jennifer A. Dorsey to questions submitted by Senator
Klobuchar...................................................... 330
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
National Asian Pacific American Bar Association, April 24, 2013,
statement...................................................... 331
The Federal Circuit Bar Association, Terence P. Stewart,
President, Washington, DC: Raymond T. Chen, April 19, 2013,
letter......................................................... 334
Nancy J. Linck, Solicitor, USPTO (1994-1998) and John M. Whealan,
Solicitor, USPTO (2001-2008), April 19, 2013, letter........... 335
David J. Kappos, New York, New York: Raymond T. Chen, April 19,
2013, letter................................................... 337
Knobbe Martens Olson and Bear LLP Intellectual Property Law,
Steven J. Nataupsky: Raymond T. Chen, April 19, 2013, letter... 339
General Counsel of the United States Department of Commerce,
Cameron F. Kerry, Washington, DC: Raymond T. Chen, April 22,
2013, letter................................................... 341
American Bar Association, Washington, D.C., Judy Perry Martinez,
Chair: Raymond T. Chen, February 11, 2013, letter.............. 343
American Bar Association, Washington, D.C., Judy Perry Martinez,
Chair: Jennifer A. Dorsey, September 20, 2012, letter.......... 345
----------
WEDNESDAY, MAY 8, 2013
STATEMENTS OF COMMITTEE MEMBERS
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 347
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement............................................. 643
PRESENTERS
Franken, Hon. Al, a U.S. Senator from the State of Minnesota
presenting Patricia E. Campbell-Smith, Nominee to be a Judge of
the U.S. Court of Federal Claims; Elaine D. Kaplan, Nominee to
be a Judge of the U.S. Court of Federal Claims; William H.
Pryor, Jr., Nominee to be a Member of the U.S. Sentencing
Commission; Rachel Elise Barkow, Nominee to be a Member of the
U.S. Sentencing Commission..................................... 347
STATEMENT OF THE NOMINEES
Campbell-Smith, Patricia E., Nominee to be a Judge of the U.S.
Court of Federal Claims........................................ 348
Questionnaire................................................ 349
Kaplan, Elaine D., Nominee to be a Judge of the U.S. Court of
Federal Claims................................................. 389
Questionnaire................................................ 390
Pryor, Jr., William H., Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 448
Questionnaire................................................ 449
Barkow, Rachel Elise, Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 577
Questionnaire................................................ 578
QUESTIONS
Questions for Rachel E. Barkow submitted by Senator Grassley..... 650
Questions for Patricia E. Campbell-Smith submitted by Senator
Grassley....................................................... 652
Questions for Elaine D. Kaplan submitted by Senator Grassley..... 653
Questions for William H. Pryor, Jr. submitted by Senator Grassley 656
Questions for Rachel E. Barkow submitted by Senator Klobuchar.... 657
Questions for Patricia E. Campbell-Smith submitted by Senator
Klobuchar...................................................... 658
Questions for Elaine D. Kaplan submitted by Senator Klobuchar.... 659
Questions for William H. Pryor, Jr. submitted by Senator Grassley 660
ANSWERS
Responses of Rachel E. Barkow to questions submitted by Senator
Grassley....................................................... 661
Responses of Rachel E. Barkow to questions submitted by Senator
Klobuchar...................................................... 666
Responses of Patricia E. Campbell-Smith to questions submitted by
Senator Grassley............................................... 667
Responses of Patricia E. Campbell-Smith to questions submitted by
Senator Klobuchar.............................................. 668
Responses of Elaine D. Kaplan to questions submitted by Senator
Grassley....................................................... 669
Responses of Elaine D. Kaplan to questions submitted by Senator
Klobuchar...................................................... 676
Responses of William H. Pryor, Jr. to questions submitted by
Senator Grassley............................................... 678
Responses of William H. Pryor, Jr. to questions submitted by
Senator Klobuchar.............................................. 681
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
National Academy of Public Administration, Dan G. Blair,
President, Washington, DC: Elaine D. Kaplan, April 22, 2013,
letter......................................................... 682
U.S. Merit Systems Protection Board, Mark A. Robbins, Washington,
DC: Elaine D. Kaplan, April 17, 2013, letter................... 684
National Whistleblowers Legal Defense and Education Fund, Stephen
M. Kohn, Washington, DC: Elaine D. Kaplan, April 25, 2013,
letter......................................................... 686
Government Accountability Project, Thomas Devine, Legal Director,
Washington, DC: Elaine D. Kaplan, May 3, 2013, letter.......... 688
University of Alabama School of Law, Joseph A. Colquitt, Chair,
Alabama Sentencing Commission, Tuscaloosa, Alabama: William H.
Pryor, Jr., May 3, 2013, letter................................ 690
Seth Hammett, Speaker Emeritus, Alabama House of Representatives,
Andalusia, Alabama: William H. Pryor, Jr., May 3, 2013, letter. 692
Baxley, Dillard, McKnight & James, William J. Baxley, Birmingham,
Alabama: William H. Pryor, Jr., May 6, 2013, fax............... 693
Law Office of Hall & Hall, LLC, John C. Hall, Birmingham,
Alabama: William H. Pryor, Jr., May 8, 2013, letter............ 694
Rosa Hamlett Davis, Assistant Attorney General, State of Alabama:
William H. Pryor, Jr., May 8, 2013, letter..................... 696
Samuel R. Bagenstos et al., Professor of Law, University of
Michigan Law School, Ann Arbor, Michigan: Rachel E. Barkow, May
2, 2013, letter................................................ 698
----------
ALPHABETICAL LIST OF NOMINEES
Barkow, Rachel Elise, Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 577
Campbell-Smith, Patricia E., Nominee to be a Judge of the U.S.
Court of Federal Claims........................................ 348
Chen, Raymond T., Nominee to be Circuit Judge for the Federal
Circuit........................................................ 238
Dorsey, Jennifer A., Nominee to be U.S. District Judge for the
District of Nevada............................................. 162
Kaplan, Elaine D., Nominee to be a Judge of the U.S. Court of
Federal Claims................................................. 389
Pryor, Jr., William H., Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 448
Srinivasan, Srikanth, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 3
NOMINATION OF SRIKANTH SRINIVASAN, OF VIRGINIA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
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WEDNESDAY, APRIL 10, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:32 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Christopher
A. Coons, presiding.
Present: Senators Leahy, Schumer, Whitehouse, Franken,
Coons, Hirono, Grassley, Hatch, Lee, Cruz, and Flake.
Senator Coons. I am pleased to call this nominations
hearing of the Senate Committee on the Judiciary to order, and
I would like to welcome our nominee as well as his family and
friends who are here to offer support.
Today the Committee will hear testimony from Sri
Srinivasan, who is nominated to be a judge on the DC Circuit
Court of Appeals, a court which has not seen a nominee
successfully confirmed to it since President George W. Bush's
nominee to that court was confirmed in 2006. Today more than
1,500 days into President Obama's term, four of the 11 seats on
the DC Circuit are open, putting the remaining judges under, in
my view, undue strain. There are now roughly 188 pending cases
per active judge on the DC Circuit, 50 percent higher than when
the Senate confirmed Thomas Griffith to fill the then-11th seat
in 2005.
Although the cases handled by the DC Circuit are unusually
complex, the caseload per judge on that court is also higher
than that of the Tenth Circuit to which the Senate recently
confirmed Robert Bacharach. The President has nominated
talented nominees to help alleviate this pressure. Caitlin
Halligan waited more than 900 days for an up-or-down vote. She
came with the American Bar Association's highest rating,
glowing recommendations from bipartisan supporters, and a
diverse legal career marked by distinctive service as New
York's Solicitor General. Her nomination, sadly, was
filibustered, and judging from the discussion in Committee and
on the floor, this was in large part because of positions she
had taken on behalf of the State of New York in litigation
against gun manufacturers.
As a Senator, I do not believe I have the right to ask that
judicial nominees have advocated only positions with which I
agree. As Chief Justice Roberts has said, and I quote, ``It is
a tradition of the American Bar that goes back before the
founding of our Nation that lawyers are not identified with the
positions of their clients.''
To do so, in my view, is unfair to advocates, to unpopular
clients, and unfair to the American people. Every time the
Senate holds up a nominee for partisan or political reasons, we
lose not only the contributions of that candidate, but we make
it harder to find talented individuals willing to serve.
The nominee before us today appears--from his
qualifications, from my discussion with him, from my reading of
his work, and from the many strong and bipartisan
recommendations his nomination has received--to possess an
exceptionally talented legal mind. He has served in the
Solicitor General's Office for both Republican and Democratic
administrations. He has served with such distinction that 12
bipartisan, high-ranking officials in the Office of the
Solicitor General have publicly endorsed his nomination.
Mr. Srinivasan has also represented an astonishingly
diverse range of clients, from criminal aliens to large
corporations to the United States itself. As a result, he has
advocated legal positions that are sure to run counter to at
least a few policy preferences of any elected official. But I
will not judge him on a standard of ideological purity,
particularly not with regard to any client he might have
advocated on behalf of.
The DC Circuit is perhaps the most important appellate
court in our Nation. It is called upon to decide issues of
national importance, such as the legality of agency action and
the tools employed in the work and the fight against terrorism.
The cases that come before the DC Circuit require sober
consideration, legal acumen, not ideological purity. In my
view, when a President submits a qualified candidate of high
character and sound legal mind, absent exceptional
circumstances, that candidate is entitled to a vote.
I look forward to the testimony we will hear today, which I
am confident will confirm what is apparent for Mr. Srinivasan's
qualifications. I hope that my colleagues will join with me to
show the American people the Senate is not broken and that
regular order is capable of addressing the vacancy crisis on
the DC Circuit.
Before we turn to introductions and to the witnesses, I
will yield to my distinguished Ranking Member, Senator
Grassley, and then to our Committee Chair.
Senator.
Senator Grassley. I asked for the right to speak after the
two Senators introduce and after Senator Leahy speaks, because
I, like you, have some philosophical points of view I want to
make, not about the nominee but just things that need to be put
on the record, so I do not want to hold up my colleagues.
Senator Coons. Thank you, Senator Grassley.
Senator Leahy, Chairman Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Well, thank you. First, I want to thank
Senator Coons for chairing this extremely important hearing. He
has done this time and time again, and it means a great deal to
me, especially as I have to be at another matter that requires
my presence.
We originally planned this hearing for January. It was
delayed. It had already been delayed from last year when this
nomination was first made by the President. I agreed to an
additional delay at the request of the Ranking Member to allow
time for our staffs to better understand what, if any, role he
had in the current position as Principal Deputy Solicitor
General in the events leading up to the city of St. Paul,
Minnesota, withdrawing a petition before the Supreme Court. I
believe we have fully explored that issue, and certainly I am
pleased with the very strong bipartisan support we have
received for this nominee. So if anybody has some other
questions about his qualification, come here now and raise
them, because I would like to get this matter voted on.
We have the Republican filibuster that we just went through
with the nomination of Caitlin Halligan, certainly one of the
most qualified people, man or woman, that we have seen before
this Committee in 25, 30 years. But after that filibuster, the
DC Circuit has just seven active judges. It has got four
continuing vacancies even though they have extraordinarily
complex cases. They have a caseload per active judge of 188
pending appeals. We were told that we had to move judges on the
First, Third, and Tenth Circuits, as Senator Coons indicated.
They have less of a caseload.
I would also note, for those who are wondering, that the
caseload today per active judge is higher than when Senate
Republicans said we had to move forward to confirm President
Bush's nominations to the DC Circuit just a few years ago. We
were told because of the caseload it was essential that we move
President Bush's nominees. It is a greater caseload now. It is
time we start moving this one.
I thank you, Senator, and I will put the rest of my
questions and statement in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Coons. Thank you, Chairman Leahy.
And at Senator Grassley's suggestion, I will now move to
Mr. Srinivasan's home State Senators from the Commonwealth of
Virginia to introduce the witness, following which Senator
Grassley will make his opening statement.
Senator Warner, please proceed.
PRESENTATION OF SRIKANTH SRINIVASAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. MARK R.
WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Mr. Chairman, although I am not sure I get
the etiquette of this, Mr. Chairman, Mr. Ranking Member, and
Senator Coons, and Senator Hatch, Senator Schumer, it is an
honor for me to introduce my fellow Virginian and President
Obama's nominee to the U.S. Court of Appeals for the DC
Circuit, Sri Srinivasan.
Sri is exceptionally well qualified to carry out the duties
and responsibilities of a judge of the U.S. Court of Appeals,
as has been mentioned by Senator Coons, one of the most
important courts of our land. He has got an exceptional
background, exceptional broad bipartisan support. Let me add a
few other comments about his background.
Sri was born in northern India. His family immigrated to
the United States when he was four years old. He did not have--
I can say this since Senator Moran and Senator Roberts are not
here right now. He did not have the good sense initially to
move to Virginia. He settled initially in Kansas where he
became a beloved fan of the KU Jayhawks. Sri, like me, is still
an avid basketball player and fan.
After earning his bachelor's, J.D., and M.B.A. from
Stanford, Sri moved to the Commonwealth to begin his legal
career as a law clerk for Judge J. Harvie Wilkinson of the
Richmond-based U.S. Court of Appeals for the Fourth Circuit. In
addition, Sri clerked for Supreme Court Justice Sandra Day
O'Connor, who was quoted as saying she believes he is ``a
splendid choice for the appellate court position.''
As has been mentioned already as well, Sri spent time in
the Office of the Solicitor General for both President Bush and
President Obama and was most recently named Principal Deputy
Solicitor General in August 2011.
Going through some of his professional recognition, he has
been recognized by Chambers USA, Legal 500, Law Dragon, and the
Best Lawyers in America as one of the country's leading
appellate litigators. He was also named one of the 50 Most
Influential Minority Lawyers in America by the National Law
Journal and given the Cornerstone Award by the North American
South Asian Bar Association.
As has also been mentioned, Sri, I think, brings a unique
bipartisan support from both Democrats and Republicans. I have
already mentioned his support by Justice Sandra Day O'Connor,
but recently 12 former top officials in the Solicitor General's
Office expressed their support in a letter to this Committee's
leadership. And, again, that group included Democrats Walter
Dellinger, Republicans Paul Clement, Ted Olson, and Ken Starr.
I also want to make one final comment before I turn it over
to my good friend, Senator Kaine. I am very proud as well to be
co-chair of the India Caucus. If this Committee moves forward
on Sri's nomination and we, as I will expect to do, support him
on the floor, Sri will be the first South Asian American ever
to be nominated to the United States Court of Appeals. And I
think he will bring an added both immigrant and unique
perspective to the bench and will be a great asset to our legal
system and judicial system in America.
Thank you.
Senator Coons. Thank you, Senator Warner.
Senator Kaine.
PRESENTATION OF SRIKANTH SRINIVASAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. TIM KAINE,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Kaine. Thank you, Chairman Leahy, Ranking Member
Grassley, Committee Members. It is a treat to be with you
today. It is a treat to be here with my colleague, Mark Warner.
We were in law school together, Mark and I. I became a lawyer
and he became a client.
[Laughter.]
Senator Kaine. So it is nice to share the same table with
him. And it is also wonderful to be here with four Members of
the House who have come here to support Sri Srinivasan's
nomination: Mike Honda from California, Judy Chu from
California, Ami Bera from California, and Grace Meng from New
York. And to have you here in support of the nomination is a
wonderful thing.
I just will begin by saying I care deeply about judges.
Deeply about judges. I clerked for an appellate judge on the
Eleventh Circuit, Lanier Anderson, who was a wonderful, long-
serving member of the appellate court in Georgia. I practiced
as a trial and appellate lawyer for 17 years and came before
many, many judges. I have been a witness in courtrooms, both as
a fact witness and as an expert witness, and observed judges in
that capacity. As a city councilman, mayor, Lieutenant
Governor, and Governor, I have taken place in the writing of
laws and been sued for how the laws have been written. Then I
really cared about the quality of the bench in those
circumstances. And as Governor of Virginia, I chose judges,
trial court judges, and judges on the intermediate court of
appeals and two members of the Virginia Supreme Court when the
legislature would deadlock in Virginia. Both Governor Warner
and I had the chance to choose judges.
But the most important thing is I was married to a judge.
Now, I am still married to her. She is not a judge anymore, but
my wife, Anne, was a juvenile court judge for nine years, and
all of those experiences make me care very, very deeply about
the caliber, the character, and the skills of those who will
occupy any judicial position in this country. And this position
on the DC Circuit is incredibly important.
As Senator Warner mentioned, Sri Srinivasan is extremely
well qualified. Maybe I am biased. As a Kansan who moved to
Virginia, he and I have had at least that similarity. But he
trained under two very superb appellate judges, and having done
an appellate court clerkship with a wonderful judge, Lanier
Anderson, you know, that beginning to a professional career for
a lawyer is incredibly formative, because you work with
somebody and get to learn about judicial temperament and the
work ethic that is required.
J. Harvie Wilkinson, the former chief judge of the Fourth
Circuit, was a judge's judge, somebody deeply admired. I live
in Richmond where the Fourth Circuit is headquartered. I
practiced in that court. He set a standard for output and work,
but also for civility. The Fourth Circuit is an interesting
court. If you have ever practiced before it, it is the only
appellate court in the country that, after an argument, the
judges come down from the bench, and they come down and shake
the hands of the attorneys. And that has been a tradition for a
very long time that bespeaks a civility and courtesy, and that
is a trait that Sri learned and that he has.
And then he clerked, obviously, on the Supreme Court with a
wonderful jurist, Justice Sandra Day O'Connor. Both Judge
Wilkinson and Justice O'Connor, as Senator Warner mentioned,
are strongly in support of Sri's nomination.
He has had the background of a private practice that has
been thriving and diverse, of work for the United States in the
Solicitor General's Office, and also as a teacher. And there is
nothing that challenges your own thinking more than having to
stand up in front of live minds and explain it and get
questioned, and Sri has had that experience as well.
He has the complete support of all that he has worked with
in any of those capacities--Government service, teaching, his
work in the clerkship area, work in the Solicitor General's
Office--and that speaks highly because lawyers are opinionated
people, and usually two lawyers will have three opinions. But
if all the lawyers and others he worked with are of a uniform
opinion about his credentials, that says something very
positive.
But the last thing I will say before letting him proceed is
that ultimately to be a judge the most important thing is
character. There is intellectual training, and there is work
ethic. But the challenges that a judge faces, having to make
decisions that literally are life and death in many instances,
and to remember that it is not about the legal brief and it is
not about the presentation of counsel, however skilled they
are, but ultimately every case comes down to the lives of
individuals to be able to do that with a firmness and with a
conviction, but also with a humility and a willingness to learn
and a willingness to improve. Those are the kinds of character
traits that you want to see in judges, and I believe you may
have already had the experience to interact with him, but you
will see that he brings that humility--a sense of confidence
that is well borne by his experience, but a sense of humility
that would equip him well for the awesome task of being a Title
III judge with life tenure.
You know, life tenure is a wonderful thing, but it can be a
challenge as well to maintain a freshness of perspective and a
humility in dealing with others. There would be no doubt that
Sri Srinivasan would maintain those character traits that have
brought him to this point if he is confirmed, and I am glad to
be here and support him.
Senator Coons. Thank you. Thank you very much, both Senator
Warner and Senator Kaine. I know you have a press of other
business. We are grateful for your appearance before this
Committee today.
I would like to turn to Senator Grassley for his opening
comments before we swear in the witness.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. Thank you very much.
First of all, I welcome the nominee and his family and
friends to the Committee today. This is obviously a very big
moment in your career. You and your family should be proud of
your nomination. It is quite a significant accomplishment.
As I indicated waiting to speak, I have some different
views than Senator Coons does on the issue of the circuit, and
I would like to express those. But before turning to that, I
also want to have an opportunity to do what I do frequently,
kind of set the record straight by what I think is a misreading
of our actions on the court, and it probably goes back to--on
the courts generally--or nominees, I should say. It goes back
to something I said to the President after he spoke to our
Republican caucus about three weeks ago, and he brought up
about judges. And when he shook my hand, I said, ``Do you mean
you are not really satisfied that we have approved 178 of your
nominees and only disapproved of two?''
And then I brought up that we always get from the other
side of the aisle complaints about not moving fast enough. And
I said, ``Do you realize out of, I think at that time, maybe
about 85 vacancies that there are, that there are 65 that we do
not even have the nominations for? Do you realize that we
cannot work on your nominees unless you get them up here?'' He
says, ``Well, I think I will have to talk to my Democratic
colleagues to get the names of their district judges up
sooner.''
So that is where I am coming from in the statement I am
going to read at this point.
There are a number of individuals from the press here
today. Based on what I have been reading, there appears to be
some confusion about facts, so I want to take a couple of
minutes to go over these.
Yesterday, the Senate confirmed yet another judicial
nominee. That was the tenth judicial nominee was confirmed so
far this year, including four circuit court nominees. To put
that in perspective, as of today's date in 2005--so this would
be a comparable time in the previous Presidency--we had
confirmed zero judicial nominees. So, once again, yesterday we
confirmed the tenth judicial nominee this year. As of April 10,
2005, the Senate had confirmed zero of President Bush's
nominees, and a 10-0 record is one that any President should be
proud of.
Those ten nominees are on top of the near record-setting
112th Congress. During that Congress, we confirmed 111 of
President Obama's judicial nominees. We have to go back 20
years to find a more productive Congress.
So today we have confirmed a total of 181 of President
Obama's judicial nominees, 171 during the first time and 10 so
far this term.
During the same time, the Senate has defeated only two
nominees. That record now, three weeks passing from the
previous figures I gave you, is 181 with two disapprovals.
Stated another way, the President has a batting average of
.989. I do not know how any President could complain about that
kind of an average.
Finally, on this subject, I would note that we hear a lot
about the vacancy rates. There are currently 86 vacancies for
federal courts, but, of course, you never hear the President
mention the 62 vacancies that have no nominees that we cannot
possibly act upon in the U.S. Senate until they get up here.
This is because--and those 62 vacancies represent about 75
percent of the total vacancies.
So, to sum up, whether you consider the 10-0 record we have
set up so far or the record-setting 112th Congress or the
overall record of 181-2, the Senate has been doing its job and
doing it quickly. In fact, there is only one record this
President should not be proud of, and that is the record he
controls, namely, 62 vacancies that have no nominee.
Now I would turn to the second point that Senator Coons
brought up, discussing the DC Circuit. As most of my colleagues
know--and my participation in this goes back to the early 1990s
when I was on the only court study committee that the Congress
has ever set up to review the activities of the court, so this
has been something that has been on my mind for a long time.
As most of my colleagues know, the DC Circuit is the least
busy circuit in the country. In fact, it ranks last or almost
last in nearly every category that measures workload. Based on
the 2012 statistics from the Administrative Office of the U.S.
Courts, the District Circuit has the fewest number of appeals
filed per authorized judgeship with 108. By way of comparison,
the Eleventh Circuit ranks with over five times as many appeals
filed per authorized judgeship with 583. We have a chart here
that shows that.
Likewise, the DC Circuit has the fewest appeals terminated
per authorized judgeship with 108. By way of comparison, the
Eleventh Circuit ranks first with 540 appeals terminated per
authorized judgeship. The Second Circuit has the second highest
number of appeals terminated per authorized judgeship with 440.
And, again, this is four times as many appeals terminated per
judgeship than the DC Circuit.
The same is true for appeals pending per authorized
judgeship in 2012. The DC Circuit has 120 appeals pending per
judgeship, which is essentially tied with the Tenth Circuit for
the least number of appeals pending per judgeship. By contrast,
the Second and Eleventh Circuits have 343 and 323 appeals
pending per judgeship.
Now, given this imbalance in workload, today I am
introducing the Court Efficiency Act. A number of my colleagues
are cosponsoring the legislation: Senators Hatch, Sessions,
Graham, Cornyn, Lee, Cruz, and Flake. The legislation is very
straightforward. It would add a seat to the Second and the
Eleventh Circuit. At the same time it would reduce the number
of authorized judgeships for the DC Circuit from 11 to 8. If
adopted, this legislation would be a significant step forward
recognizing disparities between the DC Circuit, the Second, and
the Eleventh.
Now, I want to make sure that everyone understands what
this legislation would do or would not do.
First of all, the legislation would not impact the seat of
today's nominee. Today's nominee has been nominated to the
eighth seat in the DC Circuit, and this legislation would
reduce the total number of seats on the DC Circuit from 11 to
8. So, again, this legislation would have no impact on today's
nominee.
Second, it is important to note that the legislation would
take effect upon enactment, meaning legislation introduced in
the Senate altering the number of judgeships has often been
postponed of enactment until the beginning of the next
President's term. Our legislation does not do this. Instead, we
have drafted the legislation to take effect immediately. As a
result, President Obama would still have the opportunity to
make two of these appointments. The only difference is that
those appointments would be to the Second and the Eleventh
Circuit, where they are needed, rather than to the DC Circuit,
where they are clearly not needed.
Finally, I would note that this legislation would save
taxpayers' dollars. Last Congress, the Congressional Budget
Office scored legislation that would have created a number of
new district judgeships. The CBO concluded that the costs
associated with those new judgeships would be approximately $1
million per year. We do not have the score from the
Congressional Budget Office for this bill, but it would
certainly be a cost saver. So I urge my colleagues to support
this legislation.
Thank you very much for your consideration of my time that
I----
Chairman Leahy. Well, if I just might note, Mr. Chairman, I
appreciate the Senator's concern about getting judges through.
There are 13 or 14 pending on the Senate floor right now,
almost all of which came out of this Committee unanimously. I
would hope that his concern about getting those vacancies
filled would mean that we could get them all confirmed this
week. We move them very quickly here.
I would also note that, of course, it is all in the eye of
the beholder. The DC Circuit has a caseload per active judge of
188 pending appeals, not the number shown. And the other thing
is when it had less of a caseload but a Republican President,
the Republicans fought very much to make sure we confirmed a
number of President Bush's nominations.
So I do not want to suggest that these numbers show any
kind of a partisan difference, but we appear to need the judges
with less of a caseload when there is a Republican President.
The suggestion is we do not need the judges when there is a
Democratic President. And I would also note that if we are
concerned about vacancies, we could easily confirm all of these
noncontroversial judges that are on the floor. They have been
held up for month after month after month after month after
month.
So, with that, wearing my hat in another Judiciary matter,
I will leave, but I know the most important thing is to hear
from the nominee. And I look forward to seeing that transcript.
Thank you. And I will submit questions for the record.
[The questions of Chairman Leahy appear as a submission for
the record.]
Senator Grassley. Could I please have 15 seconds?
Number one, I would like to say when we moved a seat from
DC to California, that was in the Bush administration. And I
have no hold on any judge that is now on the calendar.
Thank you.
Chairman Leahy. Well, every single Democrat has agreed to
move in the next hour, if they want, on all the judges. The
hold, unfortunately, is from the Republican side, but I have
found the Senator from Iowa to always be very truthful to me,
so I assume he is not the one with a hold, but he may want to
talk to the people on his side of the aisle.
Senator Coons. I am grateful for the opportunity to proceed
to hear from our nominee. I was pleased that the Third Circuit
nominee, Patty Shwartz, was recently confirmed, and it is my
hope that at the conclusion of today's hearing, we can come to
a shared consensus that Mr. Srinivasan would make an excellent
member of the DC Circuit.
So I would like to invite our nominee, Mr. Srinivasan, to
stand. If you would and repeat after me--this is customary for
this Committee. Please raise your right hand and repeat after
me. Do you solemnly swear that the testimony you are about to
give to this Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Srinivasan. I do.
Senator Coons. Thank you. Please be seated, and let the
record show the nominee has answered in the affirmative.
I would like, if I might briefly at the outset, simply to
recognize that five Members of the House were also here to lend
their support to Mr. Srinivasan's nomination: Members of
Congress Judy Chu, Ami Bera, and Mike Honda of California,
Tulsi Gabbard of Hawaii, and Grace Meng.
I would like to invite--Mr. Srinivasan, you are free to
deliver either an opening statement or also to welcome and
recognize any friends and family who are with you here today.
STATEMENT OF SRI SRINIVASAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Srinivasan. Thank you very much, Mr. Chairman. I do not
have an opening statement, but with the Committee's indulgence,
I would like to introduce some people and express some
gratitude.
Thanks to you and the Committee for convening this hearing.
It is a high honor to be here today.
I want to thank the Congressmen and Congresswomen who were
here earlier. I appreciate their presence as well.
I would like to thank Senators Warner and Kaine for their
exceptionally gracious opening remarks. I think one can ask for
no more than to have remarks like that heard about oneself in
the presence of one's mother.
[Laughter.]
Mr. Srinivasan. And so I got to live that today, which is a
wonderful thing.
I would like to thank many people who are here today, if I
might as well. There are scores of friends from my boyhood days
in Kansas to present day and colleagues, both past and present,
who are here, and I am really deeply appreciative of their
presence, particularly given the busy schedules that they all
have.
I would like to thank some extended family who are here as
well. They, as well as friends and former colleagues, have
traveled quite a great distance to be here.
And I would like to introduce my immediate family who is
here, if I might, to the Committee.
My sisters Srija and Srinija are here, and I think anyone
who knows them and anyone who sees them today will appreciate
that they got a disproportionately favorable allocation of my
parents' gene pool. But I have grown accustomed to that over
the course of decades, and I am comfortable with it.
My brother-in-law, Brad Joondeph, who is Srija's husband,
is here, my former law school classmate and former moot court
partner; their son, Akhil, is here. Wonderful to have you here.
I would like to pay deep respects to my mother, Saroja, who
is here with us today. My father, unfortunately, cannot be for
health reasons, but we all know that he is here with us in
spirit.
And last, and most, I would like to introduce the Committee
to my twins, Maya and Vikram, and I will say Vikram and Maya as
well so they both to get to be mentioned first.
[Laughter.]
Mr. Srinivasan. They are the lights of my life, and they
are going to have to exhibit a great deal of patience today.
But I will give them a message that their patience, if it is
manifested in the right way, will be rewarded with toys and
treats to be negotiated later.
[Laughter.]
Mr. Srinivasan. With that, thank you very much, and I look
forward to answering your questions.
[The biographical information of Mr. Srinivasan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Coons. Thank you very much.
We are going to move to five-minute questioning rounds, and
I would also like to ask unanimous consent to enter into the
record letters of recommendation that have been received. As I
mentioned previously, as former Solicitors General and
Principal Deputy Solicitors General, 28 Supreme Court co-clerks
from each of the nine Justices, as well as the North American
South Asian Bar Association, the Hispanic National Bar
Association, and the National Asian Pacific American Bar
Association, all of them have submitted for the record letters
of recommendation.
[The letters of recommendation appear as submissions for
the record.]
Senator Coons. You have participated in a substantial
amount of litigation before the Supreme Court. By my count,
your name appears on at least 50 Supreme Court briefs. You have
won and lost your share of cases. Many of the cases in which
you have participated have dealt with issues, or laws at least,
that are likely to be considered or that may come up in your
service on the court, should you be confirmed: terrorism,
detention, the Alien Tort Statute, the Voting Rights Act, First
Amendment.
How will you ensure that positions you have developed as an
advocate will not unduly influence your judgment if confirmed
to this court?
Mr. Srinivasan. Thank you, Mr. Chairman. I think there is a
fundamental point about being a lawyer who takes positions on
behalf of the client, and that is that you are duty bound to
make arguments that are in service of your client's interests
and to zealously advocate on your client's behalf.
But one thing that does not factor into that is one's
personal views. My personal views have not played a role in the
arguments that I have made on behalf of clients across a broad
array of cases, as you mentioned, on a broad array of issues.
And my personal views certainly would not play a role if I were
fortunate enough to be confirmed to the position for which you
are considering me today.
Senator Coons. Could you just briefly for the Committee
describe your judicial philosophy?
Mr. Srinivasan. Sure. I guess I would say this, Senator: I
do not have an overarching, grand, unified judicial philosophy
that I would bring with me to the bench, if I were lucky enough
to be confirmed. I guess I approach it, in some sense, from the
perspective of a litigator. I have had cases that involve
different issues, and what I have tried to do in that capacity
is to bring to bear the legal principles, the specific
precedents, the other sources of law that are relevant to that
particular issue and how you would apply the law to the facts
of that specific case. And so it is a case-by-case approach.
And I think that is the same kind of approach I would use
were I to be confirmed to be a judge. There is no grand,
unifying theory. I think the guiding principle to me, though,
would be an impartial adherence to the rule of law, and I would
try to abide by that principle for every case that would come
before me.
Senator Coons. The Solicitor General's Office has sometimes
been referred to sort of broadly as ``the Tenth Justice''
because the Court relies on that office at times to help it
parse really unusually difficult legal issues and to provide
the Court as well, of course, with the official legal position
of the United States. In many ways, it is a unique role within
the legal profession and requires the office to discern the
unitary legal position of a decidedly non-unitary political
entity.
What are some of the challenges you have faced in the
Solicitor General's Office in discerning the genuine interest
or the needs of your client?
Mr. Srinivasan. Thank you, Senator. I guess I will start
where you started, which is the notion that the Solicitor
General is the Tenth Justice. I think former Solicitor General,
Seth Waxman, has poignantly noted that he does not ever recall
having a tenth vote, so that is one point to be made. But it is
a very high honor to serve in this office. I have served for
five Solicitors General in the past. I have been in the office
four times. I was a summer intern. I was then a one-year
fellow. I came back as an assistant to the Solicitor General
under the prior administration, and I am now back in my
capacity as a Deputy Solicitor General. And it is an incredible
honor and privilege to represent the United States of America
before the Supreme Court, and I think some of the sentiments
that you have outlined in the question you posed to me are
manifested in the role that we have. And we do have a duty of
candor and honesty to this Court because we view ourselves to
have a long-term relationship with the Court. And our advocacy
on behalf of our client is done best when the Court has a
strong degree of trust in the arguments that we are presenting,
and that is what we strive to do.
Senator Coons. What is the role of precedent in making
important or difficult legal decisions? And how would you
balance the importance of respect for precedent versus personal
experience or other sources of information or insight in making
difficult judicial decisions?
Mr. Srinivasan. I think it is a duty of a judge to abide by
precedent. I do not believe that is a negotiable principle. And
for the position to which I have been nominated on the Court of
Appeals for the DC Circuit, that would, of course, include the
precedents of the Supreme Court and also include the precedents
of the DC Circuit. And abiding by precedent is an important
principle because it promotes predictability and stability in
the law, and predictability and stability in the law are things
that I think people who are affected by the legal system come
to rely on, and certainly parties and advocates before the
Court rely on it as well.
Senator Coons. Thank you.
Senator Grassley.
Senator Grassley. I would like to start by asking you a
couple questions that you have discussed and knew that I was
going to ask, and the purpose is just to get an answer for the
record. I will give background for other people that you know
about. These questions involve your involvement with the quid
pro quo deal where the Justice Department dismissed two False
Claims Acts, and these cases were against the city of St. Paul,
Minnesota, in exchange for the city dismissing a case where the
Department was not a party that was pending before the Supreme
Court.
If you wonder about my interest in the False Claims Act, I
got that legislation passed in 1986, so I follow it pretty
closely. My staff has interviewed you related to the issue, so
these are the questions:
As I understand it, you were the lawyer in the Solicitor
General's Office who was primarily responsible for handling the
Magner appeal before the Supreme Court. Is that right?
Mr. Srinivasan. That is correct.
Senator Grassley. Mr. Perez, Assistant Attorney General for
the Civil Rights Division, reached out to you in December 2011
and asked--and I am paraphrasing--as a practical matter, how a
party would go about withdrawing a case from the Supreme Court.
Is that right?
Mr. Srinivasan. That is right, Senator. I would like to
elaborate on that, if I might, but I do not want to interrupt
you.
Senator Grassley. Well, I think you should have your right
to elaborate.
Mr. Srinivasan. I appreciate that. He did put that inquiry
to me. If I am recalling the chain of correspondence to which
you are referring, I think that inquiry came in the context of
a conversation about whether the regulations that were pending
and that might be adopted would have an effect on the pendency
of the case before the Court. And I believe that is reflected
in the correspondence, and it is with that backdrop in mind
that we had that exchange.
Senator Grassley. Okay. Finally, it is my understanding
that you did not know anything about the deal that Mr. Perez
struck with the city of St. Paul where he agreed to decline
intervention in the False Claims Act in exchange for the city
withdrawing Magner from the Supreme Court until after Congress
started looking into the matter in August 2012. Is that right?
Mr. Srinivasan. I had no knowledge of what you have
described. That is correct.
Senator Grassley. Okay. You have been deeply involved in
the cases regarding the Defense of Marriage Act. You
participated in writing briefs as well as oral arguments. Were
you also involved in any internal policy or strategy
discussions regarding the administration's decision to abandon
defense of DOMA?
Mr. Srinivasan. Senator, that decision was made and
communicated to Congress in February, I believe, of 2011, if I
have my year correctly, and I was not in the government at that
point. I came on board with the government several months
later.
Senator Grassley. Okay. Do you agree with the
administration's position that no reasonable argument could be
made in defense of DOMA's constitutionality?
Mr. Srinivasan. Senator, I am hesitant to give any personal
views because--for a couple of reasons, if I might.
First, my personal views have never been relevant to
positions I have taken on behalf of a client, and they would
certainly not be relevant to any of my jobs, my fulfillment of
my responsibilities were I fortunate enough to be confirmed.
But the other thing that is giving me a little bit of pause
here is that, of course, these issues are pending before the
Supreme Court right now, and I am representing a party before
the Court in the capacity as counsel. So I am hesitant to speak
to whether I agree or disagree with anything.
Senator Grassley. Okay. I am interested in your views on
the distinction between enforcing a statute and defending a
statute. This was obviously on the minds of the Justices at the
recent argument. Can you shed some light on how, if confirmed
as a judge, you would at any time in the future approach this
issue of enforcing a statute versus defending a statute?
Mr. Srinivasan. Senator, it would depend on the particular
context in which the issue arose before me. I do not know that
I have any blanket rule that I would apply. I guess I would
want to listen very, very carefully to the arguments that were
presented before me in the context of a particular case.
Senator Grassley. Who has the responsibility to ensure that
laws are faithfully executed like the Constitution requires? Do
the courts have any role to play?
Mr. Srinivasan. In assuring that the laws are faithfully
executed?
Senator Grassley. Yes.
Mr. Srinivasan. They have a responsibility to play in
adjudicating concrete cases or controversies that are brought
before them, and if those concrete cases or controversies
involve the execution of the law by the Executive, for example,
then they have the responsibility to pronounce on the propriety
or impropriety of that under the law.
Senator Grassley. When is it appropriate for an
administration to enforce a law but not defend it?
Mr. Srinivasan. Senator, that issue is before the Supreme
Court now, and what I can do is give an account of the position
that we have taken on behalf of a client before the Supreme
Court. And the arguments that have been made are that the
President has the flexibility under the Take Care Clause to
make the assessment that the President made in this case, which
is that this statute will not be defended, but it will be
continued to be enforced out of respect for the Congress that
enacted the law, the President that signed it, and out of
respect for the role of the judiciary in pronouncing on what
the law is.
Senator Grassley. If the President fails to enforce a law,
what recourse is available to interested parties, the Congress,
or the courts?
Mr. Srinivasan. If the President fails to enforce the law?
Senator Grassley. Yes.
Mr. Srinivasan. It would depend, Senator, because in some
circumstances in which the President decided not to enforce a
law--and, of course, these are going to very rare situations.
In some situations, there will be occasions for a case to come
before the courts in any event because the law that is not
being enforced by the President might become the subject of,
for example, a civil suit between two private parties. It is
hard to talk about concrete particulars without knowing the
precise circumstances, but one could envision that a dispute
would, nonetheless, come before the courts in a way that the
courts would have an opportunity to pronounce on it.
But I think one of the considerations that the President
took into account on this occasion is that non-enforcement
would have the tendency to make judicial review more difficult,
and so he chose to enforce the law out of respect for the
judiciary.
Senator Grassley. On another point, what is your
understanding of the definition of ``quasi-suspect groups'' ?
Mr. Srinivasan. Quasi-suspect groups, as I understand it,
Senator, is a--it speaks to the level of scrutiny that would be
applied under the Equal Protection Clause when assessing a
classification, a law that classifies with respect to that
group.
Senator Grassley. And what scrutiny is afforded those
groups?
Mr. Srinivasan. A heightened level of scrutiny would be
applied to quasi-suspect groups, and if you do not meet quasi-
suspect or suspect status, then ordinarily you would trigger
rational basis review rather than a heightened level of
scrutiny.
Senator Grassley. I have just one more question, and I ask
this of most every judge dealing with international law. You
wrote a brief on behalf of Rio Tinto Limited, arguing that
corporations are not liable for violations of international
norms relating to human rights. What are your current views on
this issue? And how would you approach it if you were confirmed
as circuit judge?
Mr. Srinivasan. Thank you, Senator. The questions about the
scope and applicability of the Alien Tort Statute are currently
pending before the Supreme Court in the Kiobel case, and I
guess what I can say about that is that decision is likely to
come down before the end of this term, and presumably the Court
will announce in principles that would be binding on the Court
itself and on lower courts. And certainly once we see what the
Court held, if I am fortunate enough to be confirmed, I would
faithfully apply that precedent.
Senator Grassley. Thank you.
Mr. Srinivasan. Thank you.
Senator Grassley. Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Grassley.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Welcome. I am delighted that you are here. I intend to
support your candidacy. I think you are immensely talented and
qualified. My concern at this hearing really has to do with the
larger question that we as a Senate face of how we are going to
treat judges.
Your predecessor was, I think, also--your predecessor in a
line-up for the DC Circuit, Caitlin Halligan, I think was also
immensely talented and capable, and was filibustered not once
but twice. My view of that situation is that we had been
operating under an agreement, the Gang of 14 agreement, that
held off the nuclear option, so-called, that allowed for a
parliamentary maneuver that could bring a candidate before the
Senate and produce a simple majority vote.
The agreement was that there would be no filibusters of
nominees unless there was some extraordinary circumstance. Now,
the only thing that was extraordinary about Caitlin Halligan
was the amount of her talent. So my view is that the Gang of 14
agreement has now been broken, and that opens the door to, as
far as I am concerned, the nuclear option.
I regret it because I think that the agreement was a
sensible outcome and served the Senate well. But the question
is: When one side breaks that agreement, what do you do? Do you
ignore it? I do not think we can because they will just
continue to break the agreement, and people like you who bring
no extraordinary circumstances other than the extraordinariness
of your talent to the judiciary end up getting filibustered and
defeated. And I do not think that is acceptable.
So I am not comfortable. What do you do then with the so-
called nuclear option? Does it apply to all matters? Does it
apply to all judges, all seats? Does it apply to all courts?
My feeling at this point is that I am inclined to view
violations of the Gang of 14 agreement and the response to
those violations as something that should be cabined court by
court. So it would not be my intention to support a nuclear
option, parliamentary method to get to a simple majority vote
on the Ninth Circuit or on the Eastern District of Virginia
district court or anything else. I think that the way I think
that we should proceed is that, court by court, as the
agreement is violated, it then becomes fair game to pursue
whatever parliamentary measures are appropriate with respect to
candidates for that court.
So I think it is very unfortunate that we had the
experience we did with Ms. Halligan. Unless the new normal is
orthodox compliance with all right-wing ideology, then there is
no case to be made for an extraordinary circumstance in her
case.
So there we stand. The rule is broken or the agreement is
broken. We have to decide what to do about it, and my personal
feeling is that what we should do about it is to leave all
parliamentary remedies available as to those courts for whom
the candidates had that Gang of 14 agreement broken. And I
wanted to take my time here, because it is relevant to us, to
say that, and I will close by saying that I actually think that
this Committee has done a very good job of moving judges along.
I think that Ranking Member Grassley, before him Ranking Member
Sessions, and previous Ranking Members have moved candidates
effectively through the Committee. The problem has always been
on the floor. They go into the hostage pool on the floor, and
they wait and they wait and they wait and they wait and they
wait, and they become pawns in other struggles, and in some
cases they never clear at all.
So I do not say this with any ill will toward other Members
of the Committee, but I do think that you cannot allow
agreements to be broken and have there be no consequences. And,
on the other hand, you cannot allow the consequences to a
broken agreement to be unlimited and unmeasured. And I just
want to let my colleagues know where I stand on what I believe
is the breaking of the Gang of 14 agreement with respect to the
DC Circuit.
And I thank you all, and I have no questions for the
wonderful candidate.
Senator Coons. Thank you, Senator Whitehouse.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. Welcome to
the Committee, Sri. We are happy to have you here. You are a
very impressive person as far as I am concerned.
With regard to the Gang of 14, that did apply to the 109th
Congress, not necessarily after that. I do not believe judges
should be filibustered, so I am limited when I disagree to vote
``Present,'' which is what I have had to do, and I get
criticized for that as well. But the fact of the matter is that
I believe that advice and consent means exactly what it says.
We can give advice, and our consent is determined by a vote up
and down. But, unfortunately, both sides have filibustered. It
was started by Democrats, and Republicans have taken it up as
well.
In one of the cases you argued before the Supreme Court
while in private practice was Hosanna-Tabor v. EEOC. You argued
that employment discrimination laws applied to religious
organizations in exactly the same way that they do to secular
ones. At least that is the way I interpreted it. The Supreme
Court voted 9-0 to reject your view, calling it ``untenable.''
In fact, the Chief Justice wrote, ``That result is hard to
square with the text of the First Amendment itself....We cannot
accept the remarkable view that the Religion Clauses have
nothing to say about a religious organization's freedom to
select its own ministers.''
Now, under your view--the Court unanimously said the First
Amendment provides no more protection to a religious
organization than to a labor union or a social club. Now, to be
candid, your position in this case really troubles me. And if
America's founders thought religious liberty so important that
they put multiple protections explicitly in the First
Amendment, why would that not trump a statute?
Mr. Srinivasan. Senator, thank you. Of course, in the
Hosanna-Tabor case, that was a position that we advanced on
behalf of our client.
Senator Hatch. Right.
Mr. Srinivasan. And my personal views do not play a role in
the positions I advance on behalf of my clients, and I will
just start by saying----
Senator Hatch. But can you actually advance something for
which you have no real belief?
Mr. Srinivasan. Well, I think it is a duty of a lawyer,
Senator, to advance the arguments that are best designed to
bring about a favorable result for the client.
Senator Hatch. Well, is it a duty of a lawyer, knowing that
a client murdered somebody, to advance a case that the client
is innocent?
Mr. Srinivasan. I would not want to engage in a
hypothetical about a criminal case that I was not involved in.
I guess what I would say----
Senator Hatch. What would be your personal views, then?
Mr. Srinivasan. What I would say is this, Senator, with
respect to the Hosanna-Tabor case. As the Supreme Court itself
explained in its opinion, the question of whether there is a
ministerial exception, which was the issue in the case, was an
open one before the Supreme Court decided that case. The Court
explained that----
Senator Hatch. You believe it was a case of first
impression?
Mr. Srinivasan. I believe that issue was an issue of first
impression before the Supreme Court. The courts of appeals had
pronounced on it, but the Supreme Court had not had occasion to
pronounce on it. And the Supreme Court explained at the outset
of its opinion that its prior precedents did not establish a
rule one way or the other. And it reached the conclusion that
there was a ministerial exception, and, of course, that was to
the detriment of my client. But we presented the arguments
before the Court that we thought were best designed to bring
about a favorable result on our client's behalf.
Senator Hatch. Well, let us say that your personal views
were that this is bunk. Would you still advance the interests
of that client before the Court?
Mr. Srinivasan. I am sorry. I did not quite hear the
question. If I----
Senator Hatch. Well, that you disagreed with what the
client's position was, but you felt obligated as an attorney to
argue the client's position. Would you have argued that?
Mr. Srinivasan. I argue positions before courts on behalf
of clients without regard to my personal views, and that is the
same philosophy I would take to the bench.
And with respect to the Hosanna-Tabor decision in
particular, of course, now that we know the position of the
Supreme Court on that and we have a holding, that precedent,
like any precedent of the Supreme Court, is one that I would
seek to apply very faithfully if an issue of that variety were
to come before me were I to be confirmed.
Senator Hatch. Okay. Let me ask one other question. Let me
tell you what bothers me about your office refusing to the
support the Defense of Marriage Act, which was passed
overwhelmingly by both Houses of Congress and bipartisan votes.
Now, the reasonable arguments you had a duty to make to
defend this statute include the legal standard that would help
the Court uphold it. Your office, in fact, made that very
argument in other cases defending DOMA, by the way. But then
you instead started arguing for a legal standard that would
help the Court strike down DOMA, the Defense of Marriage Act.
It looked like you had changed clients and were making this
move based more on political considerations than on your
institutional duty. Am I wrong to look at it that way?
Mr. Srinivasan. I believe so, Senator, with respect. I was
not in the government at the time that the prior arguments were
made. I came on board in the government by a time at which the
President had made the determination that heightened scrutiny
applied to the Defense of Marriage Act and that the law did not
withstand scrutiny under that standard. And that is the
argument that we have been presenting.
Senator Hatch. Mr. Chairman, may I ask just one more
question? Listen, I am really impressed with you. I think you
are terrific.
Mr. Srinivasan. Thank you.
Senator Hatch. And as of right now, some of these things
bother me, but I want to support you. Let me just ask one more
question.
You bring a record of advocacy to this confirmation
process. Great lawyers can make great judges. Do not get me
wrong. But I also see judges who never stop being advocates.
You have had that experience, I bet. I have had it. They
continue to find ways of achieving results for their clients.
Now, I really am concerned about this. I remember when a
Senator on this Committee repeatedly asked a Supreme Court
nominee whose side he would be on in different kinds of cases.
By the way, I have been asking similar questions. Lawyers take
sides. But I never thought that judges should.
How would you shift from being an advocate for a particular
answer to a judge responsible for finding the right answer?
Mr. Srinivasan. Senator, thank you. I am deeply
appreciative of the rule of law, fidelity to the rule of law
and the importance of having fidelity to the rule of law. And I
guess what I would say about the differences between the role
of an advocate and the role of a judge is this: that an
advocate is duty bound to be partial. In some ways, partiality
is the name of the game when you are an advocate.
I think things shift radically when you become a judge, if
I am fortunate enough to be confirmed. At that point the duty
is impartiality. And I am deeply appreciative of that, and I
can assure you that, if I were to be confirmed, I would have an
impartial adherence to the rule of law. And I do believe that
my advocacy on behalf of a broad array of clients on a broad
array of issues expressing a broad array of perspectives has
left me very, very open-minded, and to me, open-mindedness and
objectivity are the key principles of judicial action, and I
would seek to abide by that.
Senator Hatch. Does that philosophy justify advocating for
something in which you do not have any belief?
Mr. Srinivasan. I am sorry. As a lawyer?
Senator Hatch. As a lawyer.
Mr. Srinivasan. I believe lawyers are bound to make
arguments that are designed to bring about a favorable result
for the client as long as they are professionally responsible
arguments. And, of course, every argument that a lawyer makes
in court has to be a professionally responsible one, and I hope
that I and believe that I have adhered to that standard.
Senator Hatch. Do you believe a lawyer can take on a case
that literally he does not believe in but give every effort
toward advocacy in that case?
Mr. Srinivasan. Well, I think what would have to happen in
that situation, Senator, is the lawyer would have to ask him-
or herself some really hard questions about whether they are
ideally positioned to take on that case, because if they have a
strength of a belief that calls into question their ability to
be an effective advocate on the client's behalf, I think they
are probably best serving their client--their would-be client
would be best served by having the representation go elsewhere.
So I agree with you, Senator, that a lawyer has to have the
ability to put aside one's personal beliefs to an extent that
enables him or her to be an effective advocate on behalf of his
client.
Senator Hatch. Can I just ask one more, if I could? I am
taking advantage. I apologize.
Mr. Srinivasan. Not at all.
Senator Coons. The Senator from Utah is----
Senator Franken. I have to go now, so----
Senator Hatch. Well, if you have to go, I will be glad to
defer. I just have one last question.
Senator Franken. I will try to come back.
Senator Hatch. Look, I will defer.
Senator Coons. Senator Franken, if you----
Senator Hatch. I am sorry that that occurred, because I
would have easily deferred. But let me just ask you one other
question. Here is a contrast to consider.
Look, I am impressed. I have been impressed. I was
impressed before I came here. I wanted to see you and see what
you are like. I can see your lovely family. You are clearly a
very good advocate, a very good lawyer. I think highly of you,
and I am very likely to support you. But these are legitimate
questions, and they are good questions that really may make
your trip through this process a little bit easier.
Now, here is a contrast to consider. On the one hand, we
had an appeals court nominee before this Committee a few years
ago who had written that the Constitution's meaning can be
found in such things as evolving social norms and practices and
changing cultural understandings. On the other hand, a federal
appeals court recently held this: ``When interpreting a
constitutional provision, we must look to the natural meaning
of the text as it would have been understood at the time of the
ratification of the Constitution.''
Now, one way maximizes a judge's control over the
Constitution, while the other way minimizes it, in my opinion.
In general, which of these two would better identify your own
view?
Mr. Srinivasan. Senator, I think the latter rather than the
former, and I would be guided by Supreme Court precedent on the
method of constitutional interpretation. And as I understand
those Supreme Court precedents, they tend toward the latter
approach, and I am thinking of decisions like Heller, for
example, that I would look to in outlining how one is supposed
to go about applying particular provisions of the Constitution.
But first and foremost, Senator, I would be guided by
precedent.
Senator Hatch. I think that is very good. Mr. Chairman, I
apologize. I got you in a little difficulty there. But I think
somebody who has been on this Committee for 37 years, and when
we are the only ones here, I really should be able to ask some
pertinent questions that might help your confirmation process.
Mr. Srinivasan. Thank you, Senator. I think part of having
a judicial temperament is knowing when not to talk, and this
may be one of those occasions.
[Laughter.]
Senator Hatch. Now, are you referring to me or you?
[Laughter.]
Mr. Srinivasan. No. Me. Me. Just me.
Senator Hatch. Congratulations for this nomination. I think
you are going to make a great circuit court of appeals judge,
and I intend to support you based upon what we are talking
about here. There are differences between being an advocate and
a judge, and I think you understand them.
Mr. Srinivasan. Absolutely.
Senator Hatch. Thanks so much. Good to see you.
Mr. Srinivasan. Thank you.
Senator Hatch. Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Hatch.
And if I might for a moment, before we turn to Senator Lee,
just on this broader point, you have worked for, advocated for
a very broad range of clients in a very broad range of cases.
There are other religion cases--U.S. v. Trunk--where almost
exactly the opposite, if one were to ascribe to some position,
you have got clients on whose behalf you have worked that have
quite different views. There are some on the left who have also
raised concerns about your attempts to establish on behalf of a
client that corporations cannot be held liable under the Alien
Tort Statute or for the Torture Victims Protection Act. I know
of the importance of these. I disagree with the positions
advocated in Rumsfeld v. Padilla that the President has an
inherent right--an inherent authority, excuse me, to detain a
U.S. citizen captured on U.S. soil indefinitely as part of the
war on terror. But in my view, I do not think these positions
are any reason to oppose your nomination because a lawyer's
arguments on behalf of a client should not be arguments which
are then confused with the beliefs of the lawyer. And I hope my
colleagues will take that into account in reflecting on your
nomination.
So if I might, Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman. And with
your leave, Mr. Chairman, I have got a brief written statement
that I would like to submit in regard to the DC Circuit
caseload issue that was being discussed at the beginning of the
hearing.
Senator Coons. Without objection.
Senator Lee. Thank you, Mr. Chairman.
[The prepared statement of Senator Lee appears as a
submission for the record.]
Senator Lee. And thank you very much, Mr. Srinivasan, for
joining us and for your family joining us as well.
Mr. Srinivasan. Thank you.
Senator Lee. In a 2008 op-ed, you wrote that an Indiana law
requiring voter photo identification exists to prevent a type
of fraud that appears to be imaginary. Later in that same op-ed
in 2008, you argued that independent courts should not leave to
legislators the final word on the rules by which legislators
themselves are elected or, alternatively, ousted.
At a time when partisan suspicion about the electoral
process is potentially corrosive, the court needs to exercise
its independent judgment about laws such as Indiana's and guard
against unfair burdening of the right to vote.
Do you still believe that in-person voter ID fraud is
imaginary, as you described it in 2008?
Mr. Srinivasan. Senator Lee, if I could just place that
article in context, if I might. That article, as the
description of the authors indicate, was done on behalf of--in
our capacity as lawyers advocating on behalf of a client. I
believe that article came out on the day of oral argument, if I
am not mistaken, and it was a continuation of the
representation that we had undertaken in connection with that
case. We had written a brief on behalf of a number of groups
challenging the constitutionality of the voter ID law in
particular that was at issue. And the submission of that
article was part and parcel of that representation. So I would
view that article through the lens of a lawyer acting as an
advocate on behalf of a client and would not read into it
anything more than that.
With respect to the arguments we made in the brief and then
reiterated in that article, I would just make two points.
One is that our brief made clear that there is a compelling
interest in stamping out voter fraud. There is that compelling
interest. The point we were making on behalf of our client in
that case was that there was a particular species of voter
fraud that was implicated by the Indiana law, what you
accurately described as in-person impersonation fraud. And the
point we were making was that that species of voter fraud had
not been seen as a matter of historical record in the State of
Indiana.
And I would just note that the lead opinion for the Supreme
Court in the Crawford case, which is the opinion, obviously,
that resulted from this, noted that in the history of Indiana
there had been no recorded instances of in-person impersonation
fraud. And then they noted that there had been--I think they
described it as ``scattered instances'' elsewhere, and the
Court, of course, went on to uphold the facial
constitutionality of the statute against the argument we were
making.
Senator Lee. Now four and a half or five years later, where
you are not representing that client at the moment, we are
having a conversation here, do you regard voter fraud as an
imaginary problem?
Mr. Srinivasan. Voter fraud is not, Senator Lee, and I
think even at that point, the point we made in our brief was
that voter fraud is something as to which there is a compelling
governmental interest in stamping out. And I would say this as
an add-on, which is that the Supreme Court, of course, remanded
its decision in the Crawford case, sustaining the facial
constitutionality of that law. And I would abide by that
decision like I would abide by any other precedent of the
Supreme Court.
Senator Lee. Okay. You also commented in that same article
that even a minimal impact on voters is too much to justify a
photo ID law. I question whether this prescribes a judicially
manageable standard. I mean, who and how would you determine or
define what a ``minimal impact'' is?
Mr. Srinivasan. It is a very fair question, Senator Lee,
and, candidly, if you look at the opinion that came from the
Court in the Crawford case, if I am remembering correctly, it
prescribed a balancing approach where you balance the burden
against the interests that are advanced by the law. And so I
think it is just incumbent upon the parties before the Court to
explain how those considerations are balanced in the context of
a specific case. But I do not think that what emerges from that
is a black-and-white rule that is readily applicable to any
context.
Senator Lee. Okay. So I think I am understanding you. I
think what you are saying is you would not disagree with me if
I were to say that is not a shining example of a judicially
manageable standard.
Mr. Srinivasan. I guess given my current role as an
advocate on behalf of the United States before the Supreme
Court, I am hesitant to----
Senator Lee. Understood.
Mr. Srinivasan [continuing]. Characterize the Supreme Court
decision. I just meant that the standard they prescribed was a
balancing approach.
Senator Lee. Understood. Earlier you were asked whether you
have a judicial philosophy, and you sort of indicated that you
do not necessarily have a judicial philosophy. But does this
mean that you would not consider yourself a textualist? Or if
you do not consider yourself a textualist, what do you consider
yourself? An intentionalist or a purposivist? Any of those
``insider tradings''?
[Laughter.]
Mr. Srinivasan. I think some people may have ``ist''
descriptions of me. But I guess I do not know that I have one
description that I would apply as an overarching approach.
Senator Lee. Not even a textualist?
Mr. Srinivasan. Well, textualism certainly, Senator Lee, in
the following sense: that if you are talking about interpreting
a statute, we are engaged in the enterprise of statutory
interpretation, absolutely first and foremost one starts with
the text of the statute, and one may end with the text of the
statute. I think that is set forth in Supreme Court precedent,
and I would apply that precedent faithfully, look to the words
to try to divine what Congress' intent was, and very often the
words are going to be the beginning and the end of the answer.
Senator Lee. Okay. I understand my time has expired, but I
do want to follow up on this one thought to make sure I grasp
your answer there. When you say one starts with the text and
one may end with the text, can you tell me in what
circumstances you would not start and stop with the text?
Mr. Srinivasan. Well, for example, one context might be
where an administrative agency is implementing a law, and so
you would look to the text of the statute to determine whether
what the agency is doing is within the scope of reasonableness.
And if the agency is doing that, then under the Chevron
decision and under its progeny and the applicable decisions of
the DC Court of Appeals, I think you would also look to what
the agency has done by way of, for example, the regulation that
is at issue. That is one example.
Senator Lee. But in circumstances like that, you would
start and stop with the text, assuming there is no ambiguity?
Mr. Srinivasan. Assuming there is no ambiguity.
Senator Lee. Regardless of contrary indications with regard
to the intent.
Mr. Srinivasan. Yes. Assuming no ambiguity, yes,
absolutely.
Senator Lee. Thank you.
Senator Coons. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Thank you, Mr.
Srinivasan, for being here. I want to thank your family and, in
particular, commend the twins for doing a very fine job of
sitting through the hearing.
I would note that you and I have known each other a long
time, that we clerked together in the Fourth Circuit Court of
Appeals, and we have been friends a long time, so I am hopeful
that our friendship will not be seen as a strike against you by
some.
[Laughter.]
Mr. Srinivasan. Thank you.
Senator Cruz. So I appreciate your diligence in answering
the questions here today.
I would like to ask you some questions about how you would
approach the job of being a judge and start by asking how you
would define ``judicial activism.''
Mr. Srinivasan. I think, Senator, that is a term that has
many meanings. To me, what it means is the injection of
personal views into judicial decision making, and it is
something that judges obviously ought not do, and it is
something that certainly I would strive not to do and I believe
would not do.
Senator Cruz. What role do you think originalism should
play in interpreting the Constitution?
Mr. Srinivasan. Senator, I would be guided by Supreme Court
precedent on the application of originalism, and we have
certainly seen originalism of sorts applied in a variety of
contexts by the Court, and the Heller opinion is an example of
that. I think Crawford may be another example of that. And I
would be guided by those precedents and would faithfully adhere
to them if issues of that variety were to come before me if I
were to be confirmed.
Senator Cruz. Do you ascribe to the concept of a living
Constitution?
Mr. Srinivasan. That term probably has a lot of freight
associated with it, and I think in the way that I assume,
Senator, with respect to your asking the question, I would say
no, that the Constitution has an enduring fixed quality to it.
And it is one of the geniuses of the Constitution. And I would
certainly view the task of constitutional interpretation in
that way.
Senator Cruz. In your judgment, what role, if any, should
international law play in constitutional adjudication?
Mr. Srinivasan. The Constitution is a domestic document
with domestic text and domestic structure, and I would look to
the text and structure of the Constitution itself in carrying
out the task of constitutional interpretation.
Senator Cruz. Does that mean that you do not think
international law should be deemed relevant, controlling, vis-
a-vis constitutional interpretation?
Mr. Srinivasan. There are going to be situations, Senator,
I think, in which international law would have a role. For
example, if there was a question concerning the President's
exercise of military authority and you would inform the
exercise of that authority by looking to international law of
war principles, international law may play a role. But as a
general matter, international law would not have certainly
dispositive weight, probative weight. I think sometimes we see
international law in opinions of the Supreme Court as having
kind of a confirming quality for a conclusion that has been
reached based on analysis of the text and the structure of the
Constitution. And I would look carefully at the Supreme Court
decisions that were most applicable and apply them.
Senator Cruz. There has been a longstanding debate both on
the U.S. Supreme Court and on the court to which you have been
nominated about the role of legislative history in assessing
the import of a statute. What do you think is the proper role
of legislative history in judicial decision making?
Mr. Srinivasan. With that as well, Senator, with the role
of legislative history, I would be guided by precedent. I would
look to Supreme Court precedent and applicable precedent of the
DC Circuit to determine in the circumstances in which
legislative history plays a role. And I know that there are
differing views on the part of the Justices on the Supreme
Court, on the relevance of legislative history, and exactly in
what circumstances, what type of legislative history may be
particularly probative. But I would look to those precedents as
a guidepost in going about the task of understanding what
Congress' intent was.
Senator Cruz. What is your view of stare decisis? And, in
particular, in what circumstances would you be prepared to vote
to overrule a precedent of the DC Circuit?
Mr. Srinivasan. Well, certainly there would be no capacity
to overrule a precedent of the DC Circuit if one is sitting as
a panel member. That precedent is binding. And so the question
I think would only arise if there were a panel decision and
then the court were to take that issue en banc. And if the
court were to take the issue en banc, then I think I would
apply the principles of stare decisis as set forth by the
Supreme Court and the DC Circuit, which is that there has to be
a very healthy respect for precedent because of the importance
of predictability and stability in the administration of law.
And there are only narrow circumstances in which precedent
might be overruled: if it has become unworkable, if there are
intervening decisions that have called the prior precedent into
question, if it has become impracticable, if the legal
foundation of the decision has been eroded. But those are very
narrow situations, and I think the Supreme Court has set forth
that stare decisis is highly, highly important and we ought to
abide by precedent in the mine run of situations.
Senator Cruz. A final question. You had an exchange with
Senator Lee about the Crawford case in which you represented an
amicus. I am curious. Was that representation paid
representation or pro bono representation?
Mr. Srinivasan. Oh, there are two Crawford cases. Sorry.
The----
Senator Cruz. The voter ID case.
Mr. Srinivasan. The voter ID case, not the Confrontation
Clause case.
Senator Cruz. Yes.
Mr. Srinivasan. The Crawford voter ID case was a pro bono
representation when I was with my law firm.
Senator Cruz. And what factors went into your decision to
represent that client on a pro bono basis since that is sort of
typically different factors from being hired by a client to
represent them?
Mr. Srinivasan. Senator, I do not remember the particulars.
If I am recalling correctly, though, I believe that
representation was already in place. It was right when I
rejoined the firm. I believe that representation was already in
place when I came to the firm, and I was asked to work on the
case. So it is a little bit different from a situation in which
it came to me initially. But I think taking on pro bono
representations, as with other representations, there is a
process within the firm to assure that it is in the interests
of the firm to take on the representation and there are no
conflicts with existing firm clients and things of that nature.
But one thing that did not factor into it, whether it is a
pro bono representation or a paying representation from my own
perspective, was my personal views.
Senator Cruz. I thank you for a very fine job you are
doing.
Mr. Srinivasan. Thank you, Senator.
Senator Coons. Senator Flake.
Senator Flake. Thank you, and thank you for being here. I
would ask you about some of the Arizona immigration cases, but
I know you are arguing on behalf of a client there, and I will
get the same answer, so I appreciate that.
Mr. Srinivasan. Thank you.
[Laughter.]
Senator Flake. I will be short here.
In Federalist Paper 51, James Madison wrote, ``In framing a
Government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the
Government to control the governed: and in the next place
oblige it to control itself.''
In what ways do you believe our Constitution places limits
on government? Just a general question.
Mr. Srinivasan. The Constitution places limits on
government in a number of ways, Senator. Of course, the
enumeration of powers that are allocated to the government, for
example, with Congress in Article I, itself has a limiting
quality about it, because when Congress enacts a law, it needs
to be consistent with the scope of the authority that is
granted to it by Article I.
The Bill of Rights and constitutional amendments impose
constraints on the lawmaking power, and, of course, the First
Amendment imposes limits on government. The Tenth Amendment has
been brought into play as well. And so the Constitution as a
whole has a variety of mechanisms through which it imposes
constraints on the Federal Government, which is what I assumed
to be the direction of your question.
Senator Flake. And the role of the judicial branch in that
orbit?
Mr. Srinivasan. The role of the judicial branch, I think,
is with a very, very healthy amount of respect for the
democratic process, to police those boundaries. And so when the
issue comes before the courts in a concrete case or
controversy, which itself is a constitutional limitation
imposed by Article III, when an issue presents itself to the
court in a concrete case or controversy and that issue concerns
whether the government has transgressed its power by, for
example, enacting a law, it is the role of the judiciary, with
a healthy amount of respect for the Congress and for the
democratic process, to make sure that Congress acted within its
allocated bounds.
Senator Flake. Thank you. That is all I have, Mr. Chairman.
Senator Coons. Thank you, Senator.
I am looking for some guidance on whether there are other
Members of the Committee who are on their way. I have got
plenty of questions, so we may--if you might indulge me for a
few more minutes.
I was struck in looking through your extensive resume of
Supreme Court litigation, as I referenced before, that you have
represented a very broad range of clients, but you have also,
frankly, lost your fair share of cases in----
Mr. Srinivasan. Thank you for the reminder.
[Laughter.]
Senator Coons. Humility is always a good thing in public
service.
How important is it to you to be right? And if you were
outvoted on a three-judge panel, does that mean to you in any
way that your legal analysis or your position was wrong?
Mr. Srinivasan. Well, Senator, I guess when you do not
prevail in a case, you always ask yourself whether you did the
best job you could have on behalf of your client. And you look
at the opinion, and you are rendered quite humbled by it. But
you look first and foremost to assess whether you did your job
in the best way, and you try to learn from it.
I think there are situations in which the hand you have
been dealt is such that it is a hand with which you cannot win,
and I take some solace in that and hope at least some of the
adverse results that have befallen me and my clients in the
past are attributable to that.
But I would acknowledge that there are undoubtedly
situations in which arguments could have been made that maybe
were not presented in the best possible way, and certainly we
regret the extent to which that has happened. But it is very
informative for the judicial role because I think the judicial
role depends deeply on vigorous, effective advocacy by both
competing sides to a controversy. And it is impossible to do
one's task in a good way unless you get the benefit of that.
And certainly if I were fortunate enough to be confirmed, I
would be hopeful that I would see that.
Senator Coons. Let me ask one other question, if I might. I
see my colleague Senator Hirono is just arriving.
In two different cases, the issue of whether a State law
implicating immigration policy has been preempted was at issue.
In the first, I believe you represented a group of businesses
in Chamber of Commerce v. Whiting in which you--unsuccessfully,
forgive me--argued against an Arizona State law that rescinded
State licensure for businesses employing undocumented workers.
And then two years later, in Arizona v. U.S., the Supreme Court
invalidated another Arizona State law that, among other things,
made it a crime for an undocumented worker to apply for a job.
Different cases, different standards. Can you just help me
square those two rulings, if possible?
Mr. Srinivasan. Sure, Senator. I was not a meaningful
contributor, I would say, on the second case, and that is out
of due respect to the attorneys in the Solicitor General's
Office who largely won that victory. I do not want to take
credit for something in which I was not really involved. I was
recused from a major portion of those proceedings, so I am not
as familiar with that as I might. But----
Senator Coons. In Arizona v. U.S.?
Mr. Srinivasan. In Arizona v. U.S., yes, that is correct.
But they involve different statutes, as I recall, because the
first case, the Chamber of Commerce v. Whiting case, dealt
exclusively with the question of employment, and that involved
both an express preemption question and an implied preemption
question under IRCA, the Immigration Reform and Control Act, I
believe, and the Arizona v. United States case that came along
did not involve, as I recall, that statute in particular but
involved a different set of considerations. And the Court
concluded that at least as to three of the four Arizona
provisions at issue in that case that they were preempted by
federal law.
Senator Coons. Thank you.
Senator Schumer.
Senator Schumer. Well, thank you, Mr. Chairman. It is good
to see you as Mr. Chairman. I know you are Chairman in a few
places. And so you will be Madam Chair if you are not already,
the Senator from Hawaii.
Anyway, it is great to be here, and I want to thank our
witness for being here.
First I want to say a few words. I want to first say to our
witness, after watching the shameful treatment of the last DC
Circuit nominee we had before the Senate, a New Yorker, Caitlin
Halligan, it is fair to say you are brave to put yourself
through this process, and we are all grateful for your bravery.
Now, I thought what happened to Caitlin Halligan was a
tragedy. She was exceptionally well qualified, moderate.
Opponents of her nomination cherrypicked her long and
distinguished record looking for reasons to oppose her, not
because of her personally, in my judgment, but because they
wanted to see the DC Circuit empty until they could get
nominees more to their liking.
This circuit has only seven of 11 people on it. It is a
vital circuit. And, in my view--and I will speak frankly--I
think the hard right wants to use the DC Circuit to undo all
kinds of government decisions. We have seen the DC Circuit
strike at environmental laws as they have knocked out EPA laws.
We have seen them strike at financial laws as they put great
limits untold from before on the SEC. We have seen them strike
at the NLRB with their recent ruling on recess appointments.
And to have four vacancies on the DC Circuit, to have
President Obama, who is in his fifth year in office, not have a
single nominee confirmed, not even an up-or-down vote on a
single nominee to the second highest court in the land, is
wrong.
And I would simply say to my colleagues on the other side
of the aisle, we came to an agreement about not filibustering,
not using the filibuster, except in unusual and extreme
circumstances. We came to that agreement explicitly with the
Gang of 14 several years back. That actually filled the DC
Circuit with two very conservative nominees who are still
sitting there today. And then we came de facto when we agreed
to rules changes. And I cannot imagine what the extraordinary
circumstance was against Caitlin Halligan.
And so I just hope they do not put you through this, but it
will be a real test, because if they put someone of your
qualifications and your moderation and the fact that you have
been exemplary, if they do not approve you, let you come to a
vote, it will mean they are just totally, totally dedicated to
keeping the circuit empty. But it will importune many of us on
this side to reconsider rules changes. That is the sad but
actual fact of the matter.
So I want to say to you that in many ways you satisfy my
three qualities of nominations:
Excellence. You have an excellent background, excellent
qualifications, and you have been--you know, throughout your
career you have just been superior.
You are moderate. I do not like judges too far right. I
also do not like them too far left, because I think judges at
the extremes tend to make law as opposed to interpreting the
law.
And then diversity. You are the first Asian American in
history to serve on the DC Circuit, the first South Asian to
serve as a federal circuit judge anywhere. It means--I do not
know if he is still here, my friend Preet Bharara, well, if you
ever get on the bench, you are not going to be the first.
[Laughter.]
Senator Schumer. Provided Mr. Srinivasan makes it and all
these horrible things we are worried about do not happen.
So if I looked at your record, Mr. Srinivasan, I would
wonder which President nominated you. Could it have been
President Bush? Because you were an assistant to the Solicitor
General in the Bush administration. You were the Principal
Deputy Solicitor General in the Obama administration. Guess who
you clerked for? One of the leading conservatives in the
American judiciary, Judge Wilkinson on the Fourth Circuit; and
then, of course, for Justice O'Connor.
So my questions to you are very simple. I do not have much
time left. First, what possible reason could someone have for
objecting to your nomination?
[Laughter.]
Senator Schumer. And more seriously, what can you say to
give comfort to those on the right or on the left who may have
questions about your judicial philosophy?
Mr. Srinivasan. Thank you. I think I will take a pass on
the first question.
[Laughter.]
Mr. Srinivasan. It seems like it would be a statement
against self-interest.
As to the second, I guess what I can say is this: To me,
there may be a tendency on the part of some quarters to view
fidelity and appreciation for the rule of law as not an end in
itself and as bespeaking a lack of passion about the law. And
with all due respect to people who would think that, I think
the exact opposite. I think fidelity to the rule of law is
essential, and I think much of the progress we have made as a
country is due in large part to that, because the rule of law
means something here, and the rule of law is always there as a
protection for all parties. And I would hope that what I have
been able to do in my career and the jobs that I have had and
the way that I have conducted my responsibilities so far
bespeaks a fidelity to the rule of law that would give comfort
to anybody who would come before me, were I fortunate enough to
be confirmed. And I think, Senator, that is all I could ask
for.
Senator Schumer. Well, thank you. And I just saw three more
reasons for your nomination. I was not here when you were
introduced, but if those are your three children, those are
excellent reasons.
Mr. Srinivasan. Thank you. I will take credit for the one
who is a nephew, but thank you very much.
[Laughter.]
Senator Schumer. That is good enough.
Mr. Srinivasan. Yes, absolutely.
Senator Schumer. Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator.
As Mr. Srinivasan and I were discussing before, anyone who
is the father of twins deserves public recognition and the
opportunity for service.
[Laughter.]
Senator Coons. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. And, Mr.
Srinivasan, it is good to see you again, and your family and
friends are here to support you, so we are very appreciative of
your desire to continue your service to our country.
I have a question about one of the cases in which you
argued. In Rumsfeld v. Padilla, you represented the United
States in opposition to a habeas corpus filed by Jose Padilla,
and the brief argued, among other things, that the district
court did not have jurisdiction over the proper response and
that the President had authority as commander-in-chief and
under the 2001 Authorization for Use of Military Force to order
Mr. Padilla's detention as an enemy combatant. And while the
Supreme Court did not get to the merits of the case, I was
wondering, you know, this case did cause a great concern for a
lot of Americans who value civil liberties, and it stands as an
example to a number of people as government overreach.
So when you argued the case on behalf of the Bush
administration, what was your thinking about the impact of your
argument as they related to executive power and the detention
power? Specifically, why did you argue that the AUMF included a
detention power?
Mr. Srinivasan. Senator, thank you. I will say at the
outset that I need to be a little careful in this area because
these are the sorts of issues, some of which are likely to come
before the DC Circuit in particular because it tends to be a
venue in which some of these sorts of issues come.
Senator Hirono. Yes. I appreciate that.
Mr. Srinivasan. But I will attempt to address your question
in the following way: Of course, I was making arguments, we
were making arguments as a legal team on behalf of a client,
and with respect to your question about whether the
Authorization for Use of Military Force encompasses detention,
I think the Supreme Court answered that in the affirmative in
the Hamdi decision. And so I think it is now settled law that I
would apply, were I lucky enough to be confirmed, that the
Authorization for Use of Military Force does encompass
detention as part and parcel of the military authority that is
assigned to the President.
Senator Hirono. And, of course, we are now talking about
whether or not that authority extends to basically targeted
killings, so that is another area that you may be confronted
with.
Now, I know that you have argued a lot of cases before the
Supreme Court, and, in fact, I heard you argue the DOMA case
not too long ago. And you are known for never taking up any
notes, so how do you prepare to go before these formidable
Justices without any notes?
Mr. Srinivasan. Well, I guess I would say this: You do not
have much of another opportunity to look at anything because it
is a very active Court and they are highly, highly engaged at
argument. And it is a tremendous privilege to get to argue
before them. And I think many of us who have had the privilege
of arguing before the Court have had no occasion to look down,
and so if there is no occasion to look down, it really does not
matter what you have down there.
[Laughter.]
Senator Hirono. That is true, but at the same time, you
really have to prepare. I am sure you prepare hours for your
arguments because you are very good at it, I have to say.
Mr. Srinivasan. Thank you.
Senator Hirono. I was listening to Senator Schumer, and,
you know, why would anyone have----
[Laughter.]
Senator Hirono. I am not going to say anything bad about
you. And why would anyone have any objections to you? And I
note that you have the support of Ken Starr, Paul Clement, Ted
Olson, and this maybe somewhat akin--you may want to not say
anything, but I am very curious as to what is the basis for
your strong support from people in such a wide spectrum of
positions?
Mr. Srinivasan. I do not know, Senator, candidly, but I
hope----
[Laughter.]
Senator Hirono. I think you are being too modest.
Mr. Srinivasan. I guess I would say this: I would hope what
it suggests is the following: one thing is it suggests good
fortune on my part because I have been very, very lucky to get
to work alongside many of the individuals you named. I have
worked for five Solicitors General, and they are all amazing
lawyers, and it has been a real privilege to get to work with
them. And I hope what their support bespeaks is an appreciation
and a respect for the way I try to carry out my job. And,
candidly, I am very proud of that. And I hope that that
reflects well on me and on my ability to do my responsibilities
in the current job that I have and in any future job I may
have.
Senator Hirono. Well, as I sit here--and I am sorry that I
was not here for your opening, but I have had a chance to read
up on you, and we have talked. So I certainly wish you the
best.
Thank you, Mr. Chairman.
Mr. Srinivasan. Thank you.
Senator Coons. Thank you, Senator Hirono.
My understanding is there are no other Members of the
Committee likely to come, and so there being no other Members
of the Committee who have further questions for the nominee, we
will hold the record open for a week in the event that
Committee Members wish to submit in writing additional
questions.
I want to thank the nominee, your family, and, in
particular, Vikram and Maya, for having done particularly well.
There will be a quiz afterwards on all the cases that were
discussed today.
[Laughter.]
Senator Coons. I will, if I might just in closing, say that
I share very strongly the views expressed by some of my
colleagues that it was shameful that Caitlin Halligan, the
nominee to the DC Circuit, was filibustered and denied a vote
on the floor. It is my hope that after today's hearing and
after a number of meetings, exchanges, conversations we have
had with my colleagues, that we will be able to proceed swiftly
to a confirmation vote in your case. I very much look forward
to supporting you and very much look forward to benefiting as a
citizen from your service on the D.C. Circuit.
So, with that, this nomination hearing is adjourned. Thank
you.
[Whereupon, at 4:04 p.m., the Committee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF RAYMOND T. CHEN, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR
THE FEDERAL CIRCUIT; AND JENNIFER A. DORSEY, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF NEVADA
----------
WEDNESDAY, APRIL 24, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono,
presiding.
Present: Senators Hirono, Grassley and Lee.
OPENING STATEMENT OF HON. MAZIE HIRONO, A U.S. SENATOR FROM THE
STATE OF HAWAII
Senator Hirono. I am pleased to call this nomination
hearing of the Senate Committee on the Judiciary to order, and
I would 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 also welcome, of course, Majority Leader
Reid, who is here to introduce Jennifer Dorsey. I know that,
Mr. Reid, you have pressing business, so of course feel free to
leave after you have given your introductions.
PRESENTATION OF JENNIFER A. DORSEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S.
SENATOR FROM THE STATE OF NEVADA
Senator Reid. Madam Chair, thank you very much. You are
going to really care a great deal about Jennifer Dorsey because
she is a real lawyer like you are.
Senator Hirono. Thank you for that.
Senator Reid. She is a distinguished public servant. She is
someone who I am very proud to have sent the name to the
President. She is a Las Vegas native. Her father was stationed
at Nellis Air Force Base after he retired and after having
returned from Vietnam, actually. He chose to start his family
in Nevada, and he did that.
She graduated from one of our very large high schools,
Chaparral High School, a school of about 3,500 students. She
graduated from the University of Nevada Las Vegas cum laude.
She was the first member of her family to graduate from
college.
She served as an intern back here for my former colleague,
Governor Senator Richard Bryan. She attended Pepperdine
University School of Law.
Madam Chairman, have you ever seen that facility? It is so
beautiful. It is right on the ocean. It is just very, very
beautiful.
She was a member of their law review, Pepperdine School Law
Review. After graduation, she returned to Las Vegas, entered
private practice. She excelled, first associate and now partner
at one of the finest law firms in the country, Kemp, Jones and
Coulthard. They do remarkably good work. She is the first and
only female partner in that law firm.
She specializes in civil litigation, and she has a niche in
complex commercial disputes. She does appeals for that large
law firm, and she also participates in their class action work.
She has really a sterling reputation among her peers in
Nevada. She has been recognized by judges in the State and
federal level for her legal writing, her advocacy, her ethics,
and just simply being a professional.
She serves on the Nevada Supreme Court's Committee on
Professionalism. She is committed to her community in many
different ways. She was honored as recipient of the Legal Aid
of Southern Nevada's Pro Bono Project. It is named after one of
our fine lawyers, Vince Consul, which is the highest award they
can give, and it was given for her countless hours of work. It
was given to her in 2011 for her countless hours of pro bono
service.
She currently serves on UNLV Foundation Advisory Board,
Pepperdine Law School Board of Visitors. I am extremely
comfortable with this fine woman. It will be a great addition
to the bench in Nevada.
And just in passing I would mention, Madam Chair, I have
had that good fortune of being able to change the makeup of the
Nevada Federal Judiciary. We now have--let us see. I put four--
a woefully small federal bench--I put four women on there with
the help of President Clinton and President Obama.
Senator Hirono. Good job.
[Laughter.]
Senator Hirono. I would like to, of course, thank the
leader for coming here and offering his testimony. I would like
to now offer an introduction of Raymond Chen.
Mr. Chen was named Deputy General Counsel for Intellectual
Property Law and Solicitor at the U.S. Patent and Trademark
Office, USPTO, in December 2008. In this role, he defends the
Under Secretary of Commerce and Director of the USPTO and the
Agency in court-related procedures relating to intellectual
property issues.
He previously served as an Associate Solicitor where he
spent 10 years defending the USPTO's decisions in federal
court, briefing and arguing numerous cases before the U.S.
Court of Appeals for the Federal Circuit. Mr. Chen has also
provided legal advice to the USPTO on new regulations and
examination guidelines.
Before joining USPTO, Mr. Chen served for two years as a
Technical Assistant at the U.S. Court of Appeals of the Federal
Circuit. Prior to that, he was an associate at Knobbe Martens
Olson and Bear in Newport Beach, California, where his practice
focused on patent, prosecution, and litigation.
Before entering law school, Mr. Chen was a scientist for
Hecker and Harriman in Los Angeles, California, specializing in
patent prosecutions for electronics and computer-related
technologies. He received his J.D. from the New York University
School of Law and his B.S. in electrical engineering from the
University of California at Los Angeles.
I had the opportunity to meet with Mr. Chen recently where
he shared with me his path to the law after beginning a career
as an engineer. He talked about his parents emigrating from
Taiwan to the United States, and as he is their only child, I
can imagine how proud they must be today.
Mr. Chen also talked about his family, his wife, whom he
met in law school, and their two children. I was thoroughly
impressed with Mr. Chen, and I am sure that his qualifications,
along with his skill and specialized knowledge, will make him
an ideal nominee for the federal circuit.
I would note that Mr. Chen's nomination is also an
important milestone for the Asia and Pacific American
community, or the APA community. If confirmed, Mr. Chen will be
the first APA on the federal circuit in over 25 years. He will
be the first Taiwanese American on a federal appellate court,
and depending, he could be only the third--depending on his
approval--be only the third APA Article III appellate judge in
the country, joining Denny Chin on the Second Circuit and
Jacqueline Nguyen on the Ninth Circuit.
At this point, I would like to submit for the record four
letters of support for Mr. Chen from the Federal Circuit Bar
Association, Former Solicitors of the USPTO, the General
Counsel of the U.S. Department of Commerce, the managing
partner of Knobbe Martens Olson and Bear, and from the former
Director of the USPTO.
[The letters appear as submissions for the record.]
Senator Hirono. In addition, I would also like to submit
written testimony from the National Asia Pacific American Bar
Association in support of Mr. Chen's nomination. Since I am
chairing this, there is no objection to the submittals.
[Laughter.]
[The written testimony appears as a submission for the
record.]
Senator Hirono. At this point I would ask the nominees to
stand and raise your right hands as I administer the oath. Do
you solemnly swear that the testimony you are about to give to
the Committee will be the truth, the whole truth, nothing but
the truth, so help you God?
Ms. Dorsey. I do.
Mr. Chen. I do.
Senator Hirono. Thank you. Let the record show that the
nominees have answered in the affirmative. Please be seated.
I would now invite each of the nominees to recognize your
loved ones and supporters. We can start with Ms. Dorsey.
STATEMENT OF JENNIFER A. DORSEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA
Ms. Dorsey. Thank you so much, Madam Chair. First of all, I
want to say a few words of recognition. I would like to thank
you for chairing this hearing today. I would also like to thank
Senators Leahy and Grassley for scheduling this hearing and
placing me on the witness list.
I certainly want to thank Majority Leader Reid for his
introduction and his kind words, which were very much
appreciated. I also want to thank Senator Heller for allowing
me the opportunity to move forward in this process today. And
last, I want to thank President Obama for his nomination and
for giving me the honor of participating in this process.
Finally, I want to introduce the people that are here with
me today and who are watching from home in Las Vegas. First and
foremost, I have with me here today my husband, Daron Dorsey,
who has been a wonderful partner through this entire process.
I am also extremely fortunate to have with me today my
support team since the fourth grade, my best friends, Kathleen
Lenihan, who is here from Boston today, and Maureen Rust----
Senator Hirono. Please wave your hand so we know who you
are. Welcome.
Ms. Dorsey. That is Kathleen. And then Maureen Rust who has
made it out here on a redeye from California last night. I
really appreciate them being here.
Also watching from home are my daughter, Kate, who is a
high school freshman and was unable to take the time away from
school to be here today. My parents, Ned and Sherry Cole, and
also everyone back at my law firm, Kemp, Jones and Coulthard in
Las Vegas who are watching from the large conference room
today.
So it is my distinct pleasure, Madam Chair, to be with you
here today. Thank you so much.
Senator Hirono. Welcome to you and your family.
Ms. Dorsey. Thank you.
[The biographical information of Ms. Dorsey follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Hirono. Mr. Chen.
STATEMENT OF RAYMOND T. CHEN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FEDERAL CIRCUIT
Mr. Chen. Thank you Chairwoman Hirono. First I want to
thank the President for this honor of the nomination. I want to
thank the Committee for scheduling this hearing. Thank you for
chairing this hearing today.
I also want to thank those that submitted letters of
support. I do not have a personal statement, but I would like
to introduce the family that is here with me today.
First my wife, Lisa Hsiao, who is a Trial Attorney in the
Department of Justice Consumer Protection Branch. Also with us
are our kids, Maya, who is 13 and in eighth grade, and Justin,
who is 10 and in fifth grade. My parents Paul Chen and Pejing
Chen, who unfortunately could not be here from our hometown in
Huntington Beach, California, because of health issues, but I
do know that they are watching the Webcast right now.
So I know they are watching with pride and some amazement
over what is happening here in Washington, DC today. I wanted
to say hello to them and also thank them for all of their love
and support.
Although my extended family is out in California, I do have
a team of in-laws here with me today, so I better introduce
them now. I will try to go fast. First, my father-in-law, Henry
Hsiao; mother-in-law, Linda Hsiao; uncle, Doug Lee; aunt, Sandy
Lee Kiwano; uncle, Arn Kiwano; grandmother-in-law, Marie Lee;
sister-in-law, Beverly Hsiao Blume; her son, James. I think
back there is also cousin-in-law, James Hsiao, who works with
me at the Patent and Trademark Office.
Aside from that, there are several friends and colleagues
from the Patent and Trademark Office who came over here from
the other side of the river, including General Counsel Bernie
Knight, and I thank them for coming and supporting me here
today. And then I have several other friends that have come,
and I particularly want to thank my old high school friend,
LeAnn Shimabukuro, for coming today.
Thank you and I look forward to answering the Committee's
questions.
[The biographical information of Mr. Chen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Hirono. Thank you to both of you.
There are currently 81 district and circuit vacancies in
the federal judiciary. More than 10 percent of lower 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 looking for their day in court need
staffed the most.
This hearing is an important step in the process of filling
some of those vacancies and assuring that the courts are able
to quickly resolve cases and do the work 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
have increased 70 percent in the past decade, judges are forced
to delay civil cases, often for years. This means long delays
for American individuals and businesses seeking justice.
I look forward to the Senate's swift actions on the
President's nominations. Once again, I welcome both of our
nominees and your families and friends.
I would now like to yield to Ranking Member Senator
Grassley for his comments.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. I will put a statement in the record--
emphasize one point. Before I do that, I would welcome all of
you and congratulate all of you, and I know your family and
friends are proud of you.
On the point of the extent to which Congress is moving
along with the judicial nominees. We have approved 186 today,
disapproved two. That is a .989 batting average.
I do not know whether very many Presidents have done better
than that. The really shortcoming of whether or not these
vacancies are going to be approved--I think there are about 85
vacancies. Maybe your two would be subtracted from that, but
let us say 80 to 85 vacancies. I believe that there are 65 that
have no nominee up here.
Now I do not know whether there is an understanding of how
the Constitution works or not, but the Senate cannot approve
any nominees that have not been submitted to us by the
President of the United States. So if there is any concern
about vacancies on the court, it would really help if the
President would get those nominees up here.
I will put the rest of my statement in the record,
including compliments of our two nominees for their
nominations.
My staff corrects me. We have 82 vacancies and 61 nominees
to come up here to fill those vacancies.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Hirono. Thank you very much, Senator Grassley. You
can tell by both of our comments that there is an incentive on
all our parts to move these nominations along.
The Committee will now proceed with five-minute rounds of
questioning. It should go well since there are two of us here.
[Laughter.]
Senator Hirono. So I will start the questioning.
For Ms. Dorsey, what are the challenges you see of serving
as a federal district court judge after being in private
practice for your entire, very illustrious career?
Ms. Dorsey. Thank you, Senator Hirono, for the question.
First of all, I recognize that the world of an advocate is
different than the world of a judge. An advocate's job as an
attorney is to advocate for her client, whereas the role of a
judge is as a neutral whose job is to faithfully apply the law
to the facts of every case.
The main challenge that I think I can foresee if I am
fortunate enough to be confirmed as a United States district
court judge is that my experience in the criminal law realm,
particularly the federal criminal law realm, is limited. My
career, as Senator Reid has certainly explained, has been
focused on complex civil litigation and appeals. My criminal
experience is limited to a summer at the Ventura County
District Attorney's office in California and two years of
drafting criminal appeals under the supervision of an attorney
working for the California Pro Bono Project, Appellate Project.
Both of those experiences were entirely State-based law.
So if I were to be confirmed, I would need to certainly
refamiliarize myself with the federal rules of criminal
procedure. Thank you.
Senator Hirono. I would say that with your background in
complex civil litigation, you probably are a very quick
learner. I am sure that will not be a challenge that is
insurmountable.
Would you like to just discuss, very briefly, what you
consider the most important qualities in a judge?
Ms. Dorsey. Certainly. I believe that good judges have
respect for and fidelity to the law and to precedent and
recognize their limited role in our constitutional system to
apply judicial restraint. I also think that good judges are
respectful to the parties before them in court and have an
extraordinary commitment to work ethic and to hard work.
Senator Hirono. Thank you. For Mr. Chen: When I had a
chance to meet with you we talked about some of the issues that
are arising in the patent area. So I note that multiple
academic studies have shown a dramatic increase in the amount
of patent litigation brought by patent assertion entities, more
commonly known as patent trolls. So start-ups, small companies,
and non-tech companies are often the targets of these cases,
and 82 percent of these lawsuits involve software and Internet
patents.
How much of this problem is driven by low-quality software
patents, and what role can the federal circuit play in
addressing this problem of basically people bringing lawsuits
just so that they can settle and come up with money? These are
the people we refer to as patent trolls. Would you talk a
little bit about your concerns along these lines?
Mr. Chen. Thank you, Senator. It is a very complex issue.
The question of is there an abusive patent litigation going on
right now in our country--I have heard these sorts of concerns.
What I am hearing and what I understand is there are
companies that are benefiting from what I would call an
asymmetry in litigation in the sense that it does not cost very
much to bring a patent lawsuit, but it can be very expensive
from the defendant's perspective to extricate yourself from a
lawsuit. What I am hearing is that there are times where the
patent owner--whether it is a non-practicing entity, or a
patent assertion entity, or somebody else--is able to rely on
that cost differentiation to extract a royalty and perhaps be
overreaching with the assertion of what is the true scope of
the patent.
It is hard for me to know what is the scale of the problem
and how severe it is. I do take your point, though, that
anything that the patent office can do to improve quality is
going to at least improve the situation to a certain level. I
think there are questions where people are overreaching. They
have a valid patent, but they are overreaching in what they
believe is a reasonable scope of the patent. Then there is just
the assertion of invalid patents.
So I think the patent office can do more, and in fact, they
are doing more thanks to the Leahy-Smith America Invents Act
because now there is an opportunity for people that are
defendants to bring patents of dubious validity back to the
agency for an administrative review. It can be much cheaper and
faster than ordinary patent litigation. Then there are things
that the Patent Office is constantly doing to try to improve
the quality of examination.
Senator Hirono. Thank you for pointing out that this is a
complex area and we do need to be able to correctly identify
the extent of the problem and the depth of it before we seek to
address it, particularly, at the Congressional level. Thank
you.
Senator Grassley, would you like to ask questions?
Senator Grassley. Yes. Thank you very much. I am going to
start with you, Mr. Chen. In preface to my questions is the
fact that I have been a strong encourager of whistleblowing in
government and involved with Senator Levin almost 20 years ago
on the Whistleblower Protection Act. So you know where I am
coming from.
I guess before I ask any questions, it is like preaching to
you that I will not have any control over once you are
approved. It is kind of along this line. I do not know whether
there is much appreciation of the value of whistleblowing in
our government. We have a constitutional responsibility of
oversight. We have passed the law. You do not forget about it.
You make sure that it is faithfully executed well.
Congress cannot ever hire enough people to know where all
of the skeletons are buried, what closets they are in. So we
rely a great deal on information coming to us. I have come to
the conclusion that whistleblowers are about as respected as
skunks at a picnic by their peers and by the organizations that
they are in, because in government there is a great deal of
peer pressure to go along to get along. It seems like almost
every day my staff is telling me about somebody we've got to do
extra work to protect. Even a Senator protecting them does not
do the good it does.
Well, the reason I am asking you this is because these
cases eventually come to you. I am sure you know that. So I
just hope that you go on the court with some sympathy toward
whistleblowers. I believe this court has an abysmal record of
supporting whistleblowers. Anything I can do to encourage you
to look at it a little bit deeper and see if they are getting
justice, I would appreciate it.
So my first question to you is can you describe what
experience, if any, you have had with the Whistleblower
Protection Act? If you tell me you have none, that is Okay. I
still would like to know if you have had.
Mr. Chen. Thank you, Senator. No, I have not.
Senator Grassley. Okay. So then I guess I would say would
you take a little special effort to become acquainted with
these problems and see that justice is done.
Let me ask you this. I think you can answer this. How would
you approach these types of cases? What is your understanding
of the standard of proof of such cases?
Mr. Chen. Senator, I will be approaching this category of
cases, if I am lucky enough to be confirmed, as I will be
approaching any case, where I will be looking at the text and
structure of the statute. If the language is plain and clear,
then simply following that.
In terms of the standard of proof, I have recently become
familiar with a few old federal circuit cases, and I also
understand that there was a recent amendment to the
Whistleblower Protection Act called the Whistleblower
Protection Enhancement Act. That was enacted last year. I
understand, among other things, it divested the federal circuit
of exclusive jurisdiction over hearing this subcategory of
appeals from the MSPB. There were other details and provisions
in that act as amended. I would follow the plain language of
those amendments regardless of any statements or case law that
came before it.
Senator Grassley. All right. I will move on to another
subject. Our Chair asked a little bit along the lines of
patents, but I come from this point, during a panel discussion
in 2011 about the role of government, intellectual property,
and stimulating innovation, you commented on the Supreme
Court's generalist view of patent law and that the court has
repeatedly rejected the federal circuit's attempts to establish
a bright-line rules in litigation.
You also insisted it was crucial for patent examiners to
have clear rules from the courts. I am going to ask you a few
questions along this line, and I will ask them separately. I
guess I have three.
In your view has the Supreme Court failed in clarifying
patent law?
Mr. Chen. I think what they have done is adjusted the
standards and help provide, I understand, in their view, to
ensure that there are more accurate results in applying patent
law to certain fact patterns.
Senator Grassley. What role should the Supreme Court play
in making patent law?
Mr. Chen. Well they should be, of course, construing the
statute rather than engaging in policy making.
Senator Grassley. How would you approach a vacuum in the
law? Do you invent something? Draw from other jurisdictions?
Fill in with similar cases? What would be your source and
process?
Mr. Chen. If you are asking about a case of first
impression and the statute was somehow ambiguous or unclear, I
would have to go through the methodology the Supreme Court sets
forth in trying to ascertain what was the legislative intent in
those circumstances. Certainly I would be looking for any
Supreme Court or federal circuit precedent on an issue that is
somehow closely related to the one at hand in order to see if
there is some kind of logical guidance that could apply in this
particular circumstance. I would certainly look to the briefs
and arguments made by both sides.
At the same time, if it is a statute that Congress has
conferred the authority to an agency to administer, then under
those circumstances, under Chevron deference, I believe a court
ought to give deference to any reasonable construction by an
agency.
Senator Grassley. My last question to you would be that you
have had significant experience arguing patent cases in front
of federal circuit and writing briefs for Supreme Court cases.
How has this experience prepared you to sit on the federal
circuit?
Mr. Chen. Thank you, Senator. I think it has helped me to
prepare should I become a member of the bench, because in some
ways it is a similar practice for a judge. You have to be
meticulous about being a master of the record. You have to have
a full understanding of the law and all of its nuances, and you
have to write a brief that clearly communicates the reasoning
for why, based on how the law should be applied to the facts,
the outcome should come out a certain way while at the same
time addressing all counterarguments.
In some ways, I see a judge's role as having to do
something similar to that. It is a different perspective, but
of course a judge has to, likewise, master the record, know the
law well, and apply that law to the facts, while at the same
time not only explaining the reasoning for why one side should
prevail but also to give reasoning for why the counterarguments
ultimately were not persuasive.
Senator Grassley. Thank you. Now to Ms. Dorsey.
I will start with a very general question about experience
as you transition to being a judge. I would like to ask about
this experience. Your questionnaire did not include a large
amount of trial experience outside of State courts. Could you
tell me briefly a little more about your experience that helps
us understand your qualifications to supervise a trial court?
Ms. Dorsey. Certainly. Thank you, Ranking Member Grassley,
for the question. My experience has been primarily with complex
civil litigation matters. The reality of that type of a
practice is that very few cases actually make it to trial,
particularly federal trials.
However, being a member of a trial team in numerous
instances and having tried several cases on my own has given me
the experience that I believe qualifies me if I were fortunate
enough to be confirmed as a federal district court judge,
because it has shown me all of the different phases of
litigation, which I am extremely familiar with. The other thing
that it has done also, Senator, it has introduced me to how
important our legal system is to all of the litigants that have
to appear before courts and how important the rule of law and
precedent is and the need to have judges faithfully apply
precedent to the facts of each case in order to provide
certainty to the litigants before it.
Senator Grassley. Okay. I will ask you some questions about
some things you have written before, understanding on my part
that views can change, but I want to ask you in that context.
This was something you wrote while in law school. The article
you wrote where you were supporting the legalization of
physician-assisted suicide--what is your current view on the
topic of physician-assisted suicide?
Ms. Dorsey. Thank you for the question and the opportunity
to clarify that article. As you mentioned, that was something
that I wrote while I was in law school nearly two decades ago.
At the time, the U.S. Supreme Court had just granted certiorari
to the Ninth Circuit's decision in the Compassion in Dying
case. So it was a topical issue and not one in which I had any
expertise whatsoever.
A lot has changed since I wrote that article. First of all,
the U.S. Supreme Court reversed the Ninth Circuit in the
Washington v. Glucksberg case and held that there is no
fundamental right to die. Second, and I think most importantly
to your question, Senator, is that my experience as a litigator
has given me a completely different perspective than many of
those that I think I have articulated in that piece. I now
recognize the value in judges faithfully applying the law to
the facts.
Senator Grassley. Okay. Moving on to another issue along
the same line: In the same article you praised decisions Roe,
Casey, Cruzan, and Romer--``In these cases, the court was
willing to forge ahead to create a just outcome with regard to
the usual decisional restraints.'' From my point of view, how I
see what judges should do, that is a little troubling because
it suggests that judges should seek just outcomes regardless of
decisional restraints. Again, I recognize you wrote that in law
school, but my question is do you still subscribe to that view?
Ms. Dorsey. No. I do not, Senator.
Senator Grassley. If you are confirmed and if the precedent
of the circuit or Supreme Court dictates that you come to a
result that you believe is fundamentally wrong or unjust, how
would you proceed with the case?
Ms. Dorsey. If I were fortunate enough to be confirmed as a
district court judge, I would recognize that my job was to
apply the existing precedent to the facts of the case
regardless of my personal viewpoints. I would apply the law.
Senator Grassley. All right. I think I am done questioning
you. There is another series of questions I am considering
asking you, but I would do that in writing.
Ms. Dorsey. Thank you, Senator.
Senator Grassley. If I submit them, I would appreciate an
answer.
Ms. Dorsey. Absolutely.
Senator Grassley. Thank you.
Senator Hirono. Thank you, Senator Grassley.
Senator Lee, would you like to proceed with your
questioning?
Senator Lee. Thank you very much, Madam Chair, and thanks
to both of you for being with us today. I apologize for my
tardiness. I had two different committee hearings at the same
time as this one. They do not coordinate those all the time.
Why don't we start with Ms. Dorsey. Do you have any
judicial role models? Anyone? They can be at any level of the
federal judiciary, except John Marshall because everybody loves
John Marshall. That is too easy.
Ms. Dorsey. Unfortunately, I cannot count myself as a
scholar of judicial precedent and judicial role models. So for
me, my judicial role models are the judges that I have had the
opportunity to practice in front of and who have treated the
litigants before them with respect and worked extremely hard
and been very prepared for their hearings.
Senator Lee. Anything about the judicial philosophy of any
of those judges, or is there anything in particular that you
would describe about what would be your judicial philosophy on
the bench?
Ms. Dorsey. I believe that a good judge has respect for,
and faithfully applies, legal precedent and recognizes the
limited role that judges play in our constitutional system and
in providing judicial restraint. I also think that judges
should be impartial and respectful and have a deep and abiding
work ethic.
Senator Lee. With regard to statutory construction, would
you call yourself a textualist, and intentionalist, a
purposivist, or any other kind of ``ist'' ?
Ms. Dorsey. I would not call myself any kind of an ``ist.''
Senator Lee. Not even a textualist?
Ms. Dorsey. Not even a textualist. However,----
Senator Lee [continuing]. People call themselves
textualists these days.
[Laughter.]
Ms. Dorsey. I could not ascribe a label to my views on
statutory interpretation, but I can tell you that I certainly--
if I were interpreting a statute, I would look, first and
foremost, to the text and the plain language of statute, which
is the primary method of determining its legislative intent.
Senator Lee. All right. Tell me what you mean by its
``primary method.'' When does it become secondary, or does it
at any time?
Ms. Dorsey. It never becomes secondary. It is always the
first step. Then other cannons of statutory interpretation may
be employed only in the event that it is impossible to come to
a single conclusion about the statute's meaning.
Senator Lee. Even if they are legislative history
statements suggesting that something opposite of what the text
says was intended?
Ms. Dorsey. Not if the statute is not ambiguous.
Senator Lee. All right. Do you believe that the
Constitution provides for a substantive due process, meaning
that it prohibits the government from infringing on certain
fundamental rights regardless of what procedural guarantees are
provided to the individual?
Ms. Dorsey. The U.S. Supreme Court has recognized various
substantive due process rights, and if I were fortunate enough
to be confirmed as a district court judge, I would apply that
precedent.
Senator Lee. Do you think Lochner v. New York was correctly
decided and should still be the state of the law today? It is
the 1905 case involving New York state statute imposing some
labor rules on bakeries in New York.
Ms. Dorsey. Senator, to the extent that I were called upon
to interpret a case or decide a case in which a Lochner
question were presented, I would apply the then existing,
binding precedent to the case before me.
Senator Lee. Mr. Chen, do you have any judicial role models
you will tell us about?
Mr. Chen. I can say one judge that I do admire. It is Judge
Learned Hand.
Senator Lee. Tell me why.
Mr. Chen. Well for a few different reasons. Number one, I
think he is regarded as one of the very best judges, of course,
that never came onto the Supreme Court. Beyond that, I think he
is regarded as a model of judicial restraint. He was impartial,
independent. He contributed to a lot of different areas of the
law.
For me, I found it interesting that he seemed to be
particularly interested and devoted to patent law and wrote a
lot of patent law decisions. So I found that interesting.
Senator Lee. Particularly, in light of the court on which
you have been nominated to serve. It is also fantastic that his
first name was an adjective----
[Laughter.]
Senator Lee. Sort of an adjective one would want associated
with one's name if one were a judge. The name Mike does not
have a similar ring to it. Neither does Raymond, but that is
okay. We are not going to hold that against you.
[Laughter.]
Mr. Chen. Right.
Senator Lee. I see that my time has expired, and I
appreciate Madam----
Senator Hirono. Senator, if you have further questions,
please continue for a few moments.
Senator Lee. Excellent. Thank you.
Tell me about your judicial philosophy, Mr. Chen.
Mr. Chen. Yes, Senator. I think it is to follow the rule of
law and to be bound by precedent. I think the doctrine of stare
decisis is essential to any orderly, coherent administration of
justice in order to create a predictable system so people can
rely on it. Particularly in a property right system like patent
law where people that own patents need to be able to rely on
what the law is and so that they can organize their affairs
accordingly.
At the same time any judge, in my conception, needs to be
impartial and have great integrity in just deciding the case
that is before them and writing narrowly and not sweepingly to
give ill-advised decisions on broader topics than are really
necessary to resolve the facts at hand.
Senator Lee. Does the law provide a right answer in cases?
Would it be your expectation if you were confirmed to this
position that in the overwhelming majority of cases, perhaps
all or nearly all of them, that there would be a right answer?
People might disagree. The losing party might disagree as to
whether or not you, in fact, reached that. Do you start from
the presupposition that there is a right answer?
Mr. Chen. That is what I would be searching for, a correct
interpretation of law based on the statutes and the precedent
that came all ready that interpreted the statute.
Senator Lee. Now, Ms. Dorsey, you have been nominated to
serve on a district court. District court judges have a special
set of obligations because, of course, most cases get filed in
and are finished while they are still pending in district
court. So you are likely to be the most justice that people
get, whether we are talking about civil litigants or people
involved in criminal cases.
Within the realm of civil litigation, I have long been
troubled by a natural tendency that I think a lot of district
judges have. It does not necessarily follow along any
ideological line. I think you have people of all ideological
predispositions that fall into this trap, but there is a
natural tendency that I think some district judges have to want
to deny dispositive motions.
So for example, 12(b)(6) motions or Rule 56 motions based
on the line of reasoning that says, I want the plaintiff to
have her day in court. I think sometimes this can cause
problems. There is a double or a triple incentive to do that.
There is the ``I want the plaintiff to have her day in
court'' thinking. There is also the thinking that ``if I grant
this motion for summary judgment, or if I grant this motion to
dismiss, I have to write an opinion. That is going to take some
time. That opinion may become immediately appealable, and I
might get overruled. Whereas, if I just allow this case to
proceed and I deny the dispositive motion, then it is a lot
easier.''
I might be able to do that in a one-page order just saying
it is denied. I find a genuine issue of material fact
precluding summary judgment, or whatever the corresponding
analogy might be under Rule 12(b)(6). I would find for these
reasons that a valid claim upon which relief could be granted
has been stated.
So as a result, sometimes what we see in the judiciary is
what I call trial by attrition where people will have what is
probably a meritorious dispositive motion filed, but it is
denied largely because of these circumstances. Then the parties
end up settling on terms different than what they should.
So I guess I have really loaded the question now.
[Laughter.]
Senator Lee. The question I would ask is, which one is
worse or is one discernibly worse, not granting a meritorious
dispositive motion or granting a non-meritorious dispositive
motion?
Ms. Dorsey. Thank you for the questions, Senator, and for
your concerns about this issue. I can tell you decidedly that
it has not been my experience in the United States district
court for the district of Nevada that judges are doing what you
have explained.
Senator Lee. That is awesome that you are saying that by
the way, because you would be serving with these people. So
good----
Ms. Dorsey. I can tell you that is not occurring. However,
I do not think that a district court judge gets to answer the
question of which one is worse because it does not matter. The
answer is that the judge applies the law to the facts of each
individual case.
This gets back to the same question, essentially, that you
just asked Mr. Chen, whether there is a right answer in the
law. I think the law provides the answer and in each case that
is what must control. Not some predisposition to want to see a
certain outcome or a certain process occur.
Senator Lee. All right. Thank you very much.
Ms. Dorsey. Thank you.
Senator Lee. I appreciate both of you. Thank you, Chair.
Senator Hirono. Thank you very much, Senator Lee. This
discussion is interesting for me, too, because I fully expect
both of you to do a great job should you be confirmed, and that
is why we have the appeal process, to make sure we get to the
right conclusions. So I thank you both very much and your
families.
We are adjourned. The record will remain open for one week.
[Whereupon, at 3:21 p.m., the Committee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF PATRICIA E. CAMPBELL-SMITH, NOMINEE TO BE A JUDGE OF THE
U.S. COURT OF FEDERAL CLAIMS; ELAINE D. KAPLAN, NOMINEE TO BE A JUDGE
OF THE U.S. COURT OF FEDERAL CLAIMS; WILLIAM H. PRYOR, JR., NOMINEE TO
BE A MEMBER OF THE U.S. SENTENCING COMMISSION; AND RACHEL ELISE BARKOW,
NOMINEE TO BE A MEMBER OF THE U.S. SENTENCING COMMISSION
----------
WEDNESDAY, MAY 8, 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. Al Franken,
presiding.
Present: Senators Franken, Grassley, and Sessions.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. This hearing will come to order. Welcome,
everyone, to this Judiciary Committee hearing.
We will hear from four nominees today--two nominees to the
United States Sentencing Commission and two to the United
States Court of Federal Claims.
Judge William Pryor is nominated to serve on the U.S.
Sentencing Commission. He currently sits on the Eleventh
Circuit Court of Appeals, and before that he was Alabama's
Attorney General. And my understanding is that Senator Sessions
will be along shortly, no doubt to say wonderful, glowing
things about Judge Pryor. And in his capacity as Alabama's
Attorney General, he was instrumental in creating Alabama's
Sentencing Commission.
Professor Rachel Barkow also is nominated to serve on the
Sentencing Commission. She teaches at New York University's
School of Law, where she is the faculty director of the Center
on the Administration of Criminal Law. She has written
extensively about sentencing issues, both in academic papers
and in amicus briefs.
Patricia Campbell-Smith is nominated to the U.S. Court of
Federal Claims. She has been working on that court for 15
years, first as a law clerk, then as a special master.
Finally, Elaine Kaplan is nominated to the U.S. Court of
Federal Claims. She has a distinguished legal career during
which she has led the U.S. Office of Special Counsel, has
represented the National Treasury Employees Union, and has been
the General Counsel for the Office of Personnel Management.
These are all qualified nominees, and I hope that we can
act quickly and in a bipartisan manner to give all of you an
up-or-down vote.
The Ranking Member will be here very shortly, so why don't
we get right to the oath. Let us do that. I guess I would ask--
I am sorry I asked you to sit, but now I am going to ask you to
stand again. Raise your right hand, I guess. 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. Campbell-Smith. I do.
Ms. Kaplan. I do.
Judge Pryor. I do.
Ms. Barkow. I do.
Senator Franken. Thank you.
I actually did not say to sit, but it is okay.
[Laughter.]
Senator Franken. Welcome to each of you and congratulations
on your nominations. I would like to give each of you the
opportunity to make an opening statement and to acknowledge any
friends or family that may be here with you today or watching
at home. So why don't we first start with Ms. Campbell-Smith.
STATEMENT OF PATRICIA E. CAMPBELL-SMITH, NOMINEE TO BE A JUDGE
OF THE U.S. COURT OF FEDERAL CLAIMS
Ms. Campbell-Smith. Thank you kindly. Good afternoon, Mr.
Chair.
I would like to thank President Obama for the privilege of
this nomination. I would like to thank the Senate Judiciary
Committee for convening this nominations hearing. I extend my
particular thanks to you, Mr. Chair, for your conduct of this
hearing.
Present with me today are my mother, Jewel Campbell; my
daughter, Micah Campbell-Smith; the Chief Judge of the Court of
Federal Claims, Emily Hewitt.
Senator Franken. Would you stand, those who Ms. Campbell-
Smith is naming? Okay. I am sorry. Please proceed.
Ms. Campbell-Smith. The clerk of the Court of Federal
Claims, Hazel Keahey; my current law clerks, Camille Collett
and Rachel Leahey; a former law clerk who is currently an
associate with the law firm of Reed Smith, Vicki Lung.
I am also sincerely thankful for those--I am sincerely
thankful for those who are with me today. I am also sincerely
thankful for those who were unable to be present with me but
who are watching, including my father, Robert Campbell; my
brothers, Marvin Campbell and Michael Campbell, and their
families; my aunt, Ava Sedgwick; my grandmother, Thelma Carter;
and a host of extended family members and friends for whom I am
very grateful.
I would like to particularly acknowledge a bevy of friends
and colleagues from the Office of Special Masters who are here
with me today with whom I have had the privilege of working for
the past seven years.
I look forward to answering the Committee's questions.
[The biographical information of Ms. Campbell-Smith
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Franken. Thank you all for standing. You may sit. I
hope you are very proud of Ms. Campbell-Smith.
Why don't you proceed with your opening statement.
Ms. Campbell-Smith. I have none. Thank you. I waive.
Senator Franken. Okay. Well, then, Ms. Kaplan, could you
introduce your friends and family?
STATEMENT OF ELAINE D. KAPLAN, NOMINEE TO BE A JUDGE OF THE
U.S. COURT OF FEDERAL CLAIMS
Ms. Kaplan. Yes, thank you, Mr. Chairman, and I appreciate
the Committee holding this hearing today.
I also want to thank the President for honoring me with
this nomination. And I would also like to acknowledge and thank
my friends and family, some of whom are here and others of whom
are watching the Webcast, for their love and support.
In particular, I wanted to thank and acknowledge my partner
of 27 years, Kay Haller, and our two beautiful daughters, Rosie
and Chloe, both of whom are off at college, I hope studying for
final exams, and so could not be here in person.
Thank you.
Senator Franken. Well, watching the Webcast and then
studying for final exams.
[Laughter.]
Ms. Kaplan. Priorities are important.
Senator Franken. Yes. Well, congratulations to them.
Ms. Kaplan. I have no opening statement.
[The biographical information of Ms. Kaplan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Franken. I am sorry if I asked for--maybe I got my
signals crossed here. So we will go to Judge Pryor.
STATEMENT OF WILLIAM H. PRYOR, JR., NOMINEE TO BE A MEMBER OF
THE U.S. SENTENCING COMMISSION
Judge Pryor. Thank you, Senator.
Senator Franken. Please introduce----
Judge Pryor. I only have a couple of guests. Two of my
former law clerks, Marisa Maleck and Tiffany Barrans; and one
of my----
Senator Franken. Would you please stand?
Judge Pryor. And one of my current law clerks, Jennifer
Bandy, who had the task of assisting me in compiling all the
answers to the Senate Judiciary Committee's questionnaire. I
appreciate them being here today.
I, too, want to thank the President for this nomination,
and I appreciate the opportunity of the Committee affording us
this hearing and look forward to answering your questions.
[The biographical information of Judge Pryor follows:]
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Senator Franken. Thank you, Judge.
Professor Barkow, do you have friends or family or both
here?
STATEMENT OF RACHEL ELISE BARKOW, NOMINEE TO BE A MEMBER OF THE
U.S. SENTENCING COMMISSION
Ms. Barkow. I do. Thank you very much. I would like to
introduce two friends who are with me here today: Jennifer
Plitsch and Mary Beth Schultz. Thank you both for coming.
I would like to thank you, Mr. Chair, for convening this
hearing and the whole Judiciary Committee. I owe great thanks
to the President for the extraordinary honor of this
nomination.
My family could not be here today, but I bring their love
and support with me, and I am very grateful to them and most of
all for my son, Nate, who is very excited to watch this Webcast
and I think might be the only six-and-a-half-year-old to see a
Judiciary Committee hearing. So I am very proud of that, too,
as a legislation professor.
Senator Franken. Hi, Nate.
[Laughter.]
Ms. Barkow. I would also like to thank my colleagues and my
friends and my students at NYU for their support and enthusiasm
about this, and for my other friends who were not able to come,
I thank them as well. That concludes my opening statement, but
I am happy to answer any questions.
[The biographical information of Ms. Barkow follows:]
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Senator Franken. Well, great. I guess I am it, so,
Professor Barkow, how is Nate doing?
Ms. Kaplan. He is wonderful.
Senator Franken. Oh, good. Okay. Anyway, Judge Pryor and
Professor Barkow, the United States has five percent of the
world's population and approximately 25 percent of its inmates.
At the federal level, since 1980, the prison population has
grown from 25,000 to 218,000. That is a real problem not only
for the people who may be serving unnecessarily long sentences
for nonviolent offenses but also for taxpayers and for the
criminal justice system.
Incarceration is expensive, as you know, and this puts a
real burden on corrections officers and prison officials. Each
of you has written about this.
Professor Barkow, you wrote that, ``The prison population
is rising, and unless some sentencing laws are reconsidered,
overcrowding is not going away.''
And, Judge Pryor, you wrote that there is ``a regime of
explosive growth in the prison population.''
Judge Pryor and Professor Barkow, could each of you
elaborate on this problem and discuss your views about federal
sentencing reform?
Judge Pryor. I would be happy to start. It is certainly one
of the responsibility of the Commission to report back to
Congress on the cost-effectiveness of the sentencing regime
that we have.
I do not have any particular perspective right now of what
the answer to the problem is. I do know, though, that the
Commission is afforded the opportunity of collecting a lot of
data and assisting any legislative branch when you have a
sentencing guideline system of ensuring that we can make the
system as cost-effective as possible. It is one of the virtues,
particularly at the State level. State sentencing commissions
have been instrumental in many States who have faced challenges
with explosive prison population growth, in containing those
costs and having better fiscal planning. But ultimately the
Commission can only do a lot of what Congress wants to be done,
and we can report back and give you the right kind of data. But
the balancing of the costs and benefits of the sentencing
regime we have really is, at the end of the day, something that
has to be done by Congress.
Ms. Barkow. So I agree with Judge Pryor, and I would just
echo the fact that States are really focused on these fiscal
concerns, and I have written about the fact that I think they
have a lot to offer in terms of models and ideas about reining
in costs while making sure that we still have an effective
crime-fighting strategy. And I think, you know, we can learn a
lot from them. I think the Commission's role is to provide
Congress with that information so that Congress can assess how
it would like to proceed on that basis.
But I do see the Commission's role, and if I were fortunate
to be on it, as being a provider of the best possible
information, and I think sentencing, you have to focus on
fiscal costs, even if it were not the kind of fiscal
environment that we are in, but particularly now, I think it is
really important to pay attention to.
Senator Franken. Let me dig a little deeper on this, and,
Judge Pryor, there are probably lots of areas on which you and
I do not agree, but one view I think we do share is that
incarceration is not always the right answer in every criminal
case.
Judge Pryor. Right.
Senator Franken. I have long supported drug courts and
mental health courts, for example. Those courts provide
treatment and intensive supervision in appropriate cases.
When you were Alabama's Attorney General, you pushed for
the creation of a State sentencing commission, and you wrote
that this commission was needed to fix ``a system of
corrections that offered a few''--I am sorry--``a system of
corrections that offered few alternatives to incarceration as a
form of punishment.'' Can you talk a bit about what you meant
by that?
Judge Pryor. Sure.
Senator Franken. And also discuss your view about the role
of mental health courts and drug courts.
Judge Pryor. Yes, Senator. Alabama has been plagued for
decades with overcrowding litigation and other kinds of civil
rights litigation, institutional litigation, challenging the
conditions of confinement that exist in the Alabama prisons.
The State has typically been among the top 10 in the country in
terms of incarceration rates, and it was long my view as
Attorney General from the beginning, really, that it was a
system, an indeterminate sentencing system, importantly, that
Alabama really could not afford to maintain and that too often
we were incarcerating lower-risk offenders who would be more
effectively punished with alternatives to incarceration. Drug
courts were one of the answers in the array of sentencing
alternatives that I was hoping that the commission and our
legislature could help us create, mental health courts as well,
community corrections programs.
We had some jurisdictions in our State--Mobile was
particularly known for its really a model community corrections
program. One of our best drug courts was in Jefferson County in
the Birmingham area. But we did not have those kinds of
programs throughout the State, and as a result, sentencing
judges really were left with few alternatives to incarceration.
And our data, once the commission started its work, showed that
time and again we were sending to prison the lower-risk
offenders, and that that is where the prison growth problem
really existed.
If we could provide those alternatives to incarceration
that, frankly, are more effective forms of punishment from any
of those offenders, then I thought we could resolve a lot of
the problems that we have historically had and help the
Department of Corrections and others plan better for the
future.
Senator Franken. And these are cases where the arresting
officer and the judge and the prosecutor and the defense
attorney and the corrections system say this person really does
not belong in prison or should go to either mental health court
or drug court and maybe should be diverted into a treatment
program rather than us crowding our prisons with someone who is
actually going to be harmed by going and it is not going to
help anyone for them to go to prison.
Judge Pryor. No, in fact, in many cases they would go to
prison, which I often described as a ``graduate school for
criminal activity.'' They would, in many cases, go into that
revolving door and come out far more dangerous than when they
went in.
Senator Franken. In some cases, it is an undergraduate
program because they really----
Judge Pryor. Right. That is right.
Senator Franken. Okay. I am over my time already, but I do
want to ask a question of Ms. Campbell-Smith and Ms. Kaplan. It
is somewhat customary for this Committee to ask nominees to
describe their judicial philosophies. I take this to mean the
approach you will take when deciding close cases, cases where
the law is not quite clear or the evidentiary record is
disputed. So I would like to give each of you just a chance to
answer that question and tell the Committee a bit about your
approach to judging.
Ms. Campbell-Smith. Thank you kindly. I believe that I
would be fair-minded, even-tempered, decisive. Among the
personal qualities that would assist me in examining cases and
deciding: a careful reader, a good listener, mindful and
familiar of the governing law pertinent to a case, acquainting
myself closely with the particular facts of a case, and
prepared to follow the governing precedent in any case.
Senator Franken. Ms. Kaplan.
Ms. Kaplan. Yes, I would agree with what Ms. Campbell-Smith
said in terms of the qualities of a good judge and with respect
to close cases, in any case, you always have to look to the
precedent that governs and apply that faithfully and do the
best job that you can with impartiality and fairness to both
parties, and transparency.
Senator Franken. Okay. Thank you. Thanks again to all of
you.
I see that Senator Sessions is here, but I do turn to the
Ranking Member. I know that Senator Sessions, Senator Grassley,
probably has something nice to say--I am assuming it is nice--
about Judge Pryor. Am I right?
Senator Sessions. I would be glad to.
Senator Franken. Well, Senator Sessions.
Senator Sessions. Judge Pryor at one time was my lawyer,
and I did not go to jail. And we won every lawsuit I think he
handled. I should have given him some more.
Senator Franken. Now, what were you accused of?
[Laughter.]
Senator Sessions. Judge Pryor is dedicated to public
service. After graduating magna cum laude from Tulane where he
was editor in chief of the Law Review, he began his career as a
clerk to Judge John Minor Wisdom on the old Fifth Circuit.
Those who know that John Minor Wisdom was a great, great
justice who played a leading role in civil rights changes that
occurred in the South over a long period of time.
After his clerkship, he entered private practice in
Birmingham and then took a position as my lawyer in the
Attorney General's office. I was proud to say that I could see
immediately his extraordinary intellect, his incomparable legal
skills, and dedication to the rule of law and doing the right
thing.
I was proud to see the Governor appoint him to succeed me
as Attorney General. That was perhaps the best thing the
Governor ever did. And he was one of the most respected
Attorney Generals in the country.
I was pleased when President Bush nominated him to the
Eleventh Circuit and to see him confirmed, and I am grateful to
President Obama for nominating him to serve on the Sentencing
Commission.
As Attorney General, he led the charge for sentencing
reform in Alabama, and advocates on all sides applauded his
efforts in truth in sentencing and other changes. His
background and experience in this area make him uniquely well
suited to serve on the Sentencing Commission and will help
ensure that the system works properly. He is a man of
integrity, decency, and good will who understands the rule of
law.
Bill Baxley, a mutual friend, a former Democratic Attorney
General of Alabama, and who prosecuted a number of early
important civil rights criminal cases, said this about Bill
Pryor: ``In every difficult decision he has made, Judge Pryor's
actions were supported by his interpretation of the law without
race, gender, age, political power, wealth, community standard,
or any other competing interest affecting his judgment.'' I
think those are the character traits that have guided Judge
Pryor throughout his life and career, the same qualities that
will allow him to provide good leadership to the Sentencing
Commission and valuable insight into what is just, fair, and
lawful in America.
So I am pleased the President has seen fit to nominate
Judge Pryor, and I know he will be committed to trying to
improve our criminal justice system.
And I would say one thing, Mr. Chairman. As I understand
it, Judge Pryor would probably know the numbers, but about 98
percent now of people who are indicted in federal court end up
being convicted. So the question is: What is your sentence
going to be? That is the real question in most of these cases.
What is the appropriate punishment? Because the conviction rate
is extraordinarily high and the guilt plea rate is
extraordinarily high.
So I think it is important, since Congress, through the
Sentencing Guidelines, has basically interjected itself into
the sentencing process to a degree that had never happened
before 1980, and so the Sentencing Commission makes
recommendations to us. And we should look at those
recommendations, and we should consider changes, because the
world changes. And we learn more about why people commit crimes
and how they commit crimes and who recidivates and who does not
recidivate. And having this Commission engaged in that is
important, and we, Mr. Chairman, should stay in closer touch
with them, really. And when they make suggestions, we may not
agree, but we should consider them on some sort of more regular
basis.
I am proud of the Commission. I think over the years they
have served a good purpose. I think they have reduced disparity
in sentencing, have consistency in sentencing, but there is
always room for improvement.
Thank you for giving me this time.
Senator Franken. Thank you, Senator Sessions.
Senator Grassley.
Senator Grassley. I am going to put a statement in the
record and some letters.
Senator Franken. Without objection.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Grassley. I am going to start with Ms. Campbell-
Smith and ask two questions at one time, because the first one
is a very general question about your making the transition
from being Special Master to being judge. And then, second,
because it is my understanding you deal almost exclusively with
claims for damages resulting from government-compelled
childhood vaccinations, the Court of Claims adjudicates a heck
of a lot of other things. Five of them I have got listed here.
There are probably a lot more. They extend from going from
master to being a judge, the experience you have in these other
areas within the jurisdiction of the Court of Claims and
explain your preparation to assume the adjudicative functions
of the diverse area that the Claims Court handles.
Ms. Campbell-Smith. Thank you kindly for your question.
Good afternoon to you, Senator Grassley.
I am currently sitting as a judicial officer with the
Office of Special Masters to put the office's--you have
identified the jurisdiction, but to put it into scope, into the
context of the Court of Federal Claims, it is now a 25-year-old
statutory creation that is part of the Court of Federal Claims
and does, in fact, consider an aspect of the court's
jurisdiction. I have been sitting as a judicial officer and
have presided over and issued more than 1,600 decisions in my
tenure, seven-year tenure as a Special Master.
Prior to that time, I served as a career law clerk to the
now-chief judge of the court, Emily Hewitt, and in that
capacity I became very familiar with the areas of jurisdiction,
from takings to bid protest, Indian claims, confidential
informant types of cases, some of the pay cases that came
before the Court of Federal Claims. So I have had an
opportunity to become familiar with the areas of jurisdiction.
And prior to that I have served as a judicial law clerk,
federal judicial law clerk, to three other federal judges and
have had an opportunity to become familiar with federal court
practice from within the judiciary.
Have I adequately answered your question?
Senator Grassley. Yes, that is adequate. And for all of
you, I am not going to ask all my questions orally, so some of
them will be in writing. And I am sure you will answer them.
In the case of Ms. Kaplan, I would like to have you explain
the role that you took in the case of Berry v. Conyers. I
believe you were General Counsel at OPM, and while the
Department of Justice represents the agencies in court, what
was your input on developing the legal strategy, writing
briefs, and otherwise overseeing that effort? And you were
listed as Of Counsel on the brief for the Department of Justice
officials. Would you describe your input on that document?
Ms. Kaplan. Thank you, Senator Grassley. I appreciate the
question. I understand the question, because I know it is an
important case. Unfortunately, because the case is a live case
and it is actually about to be heard by the Federal Circuit at
the end of the month, I really am not free to talk about the
case in this setting. So I apologize for that, but I do
understand your inquiry.
Senator Grassley. I am not asking you--I do not think my
question was asking you to comment--your input into it. You
cannot comment on your input into it?
Ms. Kaplan. Well, I guess what I could tell you generally
is the way that it works. I represent or I advise the Director
of the Office of Personnel Management, and when a decision is
made whether to take a case to the Court of Appeals for the
Federal Circuit, I will advise the Director. The Director will
then on occasion, especially in a case that involves sort of
governmentwide equities, may take into consideration the views
of other agencies and then will bring in the Justice Department
to talk about what the appropriate position is to take and then
may make a decision to file an appeal. My role in that is as
the Director's attorney.
Senator Grassley. Mr. Pryor, what agenda will you bring to
the Commission, and what do you hope to accomplish as a result
of your service on the Commission?
Judge Pryor. Thank you, Senator, for that question. I do
not think that I bring an agenda to the Commission. I hope that
I bring relevant experience to the work of the Commission,
which is a collegial body and has traditionally worked in a
consensus fashion. And it is my--I am committed to the goals of
the Sentencing Reform Act that created the Commission in the
first place. I think that that has been an improvement for the
federal judiciary and for the federal sentencing system. I
agree with the perspective that Judge Marvin Frankel had
expressed more than 40 years ago in criticizing the
arbitrariness that had previously existed and the indeterminate
sentencing system that we had in the federal judiciary. The
title of his book about that subject was ``Law Without Order,''
and I think that that was a fair description of how sentencing
worked at one time.
I am committed to what the Sentencing Reform Act has made
the charge of the Sentencing Commission and its responsibility
in developing guidelines that provide more fairness and
rationality in sentencing and that assists Congress in the role
that it has to play in overseeing that process.
Senator Grassley. Ms. Barkow, what, in your opinion, is the
proper relationship between Congress and the Sentencing
Commission in the development and implementation of national
criminal policy?
Ms. Barkow. So, Senator, I think that the policy belongs
with Congress, and the Sentencing Commission's role is to help
Congress to perform that task. So Congress sets what the
sentences are and broad parameters and all of the policy
decisions are with Congress. And the Sentencing Commission is
an agency that is there to assist Congress in implementing the
vision that Congress sets.
So I believe the Commission's role is to provide data, to
provide information. If Congress wants reports or any other
additional information that would help it set sentencing
policy, that is the Commission's role. It is there as an
administrative agency to administer the laws that Congress
passes.
Senator Grassley. Thank you, Mr. Chairman.
Senator Franken. Thank you, Senator.
That concludes--no, I am sorry. Senator Sessions, would you
like to ask some questions in addition?
Senator Sessions. Ms. Barkow, I see you clerked for Justice
Scalia. Congratulations.
Ms. Barkow. Thank you.
Senator Sessions. I am not sure he would agree with that
statement about Congress' role in sentencing. There is a
tension there. I remember when the Sentencing Guidelines were
first passed, Judge Tjoflat at the Eleventh Circuit told the
fellow judges, ``Gentlemen, the Congress does not trust you to
sentence.'' So Congress did--and literally you would have in a
courthouse a bank robber, and he would get probation if he went
before one judge and get 20 years in jail if he went before
another judge. Literally. I have seen that. So it did improve.
I guess a question following up on Senator Grassley's
comment. You do recognize that it is legitimate for Congress to
grant this power, and if you sit on the Commission, that you
would try to use that power wisely and consistent with the
previous history of how the Commission functions? Or do you
have any doubts about that?
Ms. Barkow. No, absolutely, I believe it is the role of the
Commission to be there to assist Congress in its central task
as the body that sets statutory sentences for people.
Senator Sessions. You know, literally, in the past you
would go to sentencing, and the idea is you have to prove
everything beyond a reasonable doubt, a judge, I think is
unrealistic. People would come before a judge, and the preacher
would pray for the defendant, and the Mama would cry, and the
victim would say something, and the judge would impose a
sentence without any reference to any consistency, just how he
felt that day, what he felt about it. And sometimes those were
good sentences that got rendered, but I think Congress made a
better decision. And if your Commission functions well, I think
we can have more uniformity, more consistency, and be less
likely to have unjust sentences.
I thank you for your willingness to serve, and I thank all
of you.
Senator Franken. Thank you, Senator Sessions.
I would like once again to congratulate all the nominees
and your families and your friends who are here and/or
watching.
We will hold the record open for one week for submissions
of questions for the witnesses and other materials. This
hearing is now adjourned.
[Whereupon, at 3:04 p.m., the Committee was adjourned.]
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