[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

                               ----------                              

                                 PART 2

                               ----------                              

         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

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                    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

                              ----------                              


                       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.]
    
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 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:]

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    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:]
    
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    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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