[Senate Hearing 114-916]
[From the U.S. Government Publishing Office]
S. Hrg. 114-916
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, JULY 22, 2015
__________
Serial No. J-114-1
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
53-738 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont, Ranking
JEFF SESSIONS, Alabama Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 7
Klobuchar, Hon. Amy.............................................. 5
Franken, Hon. Al................................................. 6
VISITING INTRODUCERS
Mikulski, Hon. Barbara, A U.S. Senator from Maryland............. 1
Menendez, Hon. Robert, A U.S. Senator from New Jersey............ 3
Cardin, Hon. Benjamin L., A U.S. Senator from Maryland........... 2
NOMINEES
Namorato, Cono................................................... 10
Questionnaire................................................ 26
Prepared statement........................................... 206
Responses to written questions............................... 208
Additional materials......................................... 252
Vazques, John Michael............................................ 8
Questionnaire................................................ 57
Responses to written questions............................... 219
Wright, Wilhelmina Marie......................................... 8
Questionnaire................................................ 92
Responses to written questions............................... 225
Xinis, Paula..................................................... 9
Questionnaire................................................ 171
Responses to written questions............................... 243
Additional materials......................................... 273
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
----------
WEDNESDAY, JULY 22, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman, presiding.
Present: Senator Grassley [presiding], Senators Sessions,
Tillis, Klobuchar and Franken.
Chairman Grassley. To help our colleagues that want to
introduce their nominees, we will go to the Senior Senator,
Senator Mikulski and then Senator Cardin is here. We will do
Maryland first. So, do you want to go ahead, Senator Mikulski.
Then we will do our opening statements after our colleagues are
done introducing their nominee.
STATEMENT OF HON. BARBARA A. MIKULSKI
A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you so much, Senator Grassley. As
usual, you are the soul of Senator courtesy.
Senator Grassley, Senator Klobuchar, Members of the
Committee thanks so much for organizing this hearing and
including in your consideration for nomination to the District
Court of Maryland, Paula Xinis, who is here today. Senator
Cardin and I nominated her to serve on the United States
District Court for Maryland.
We proudly recommended her to President Obama because we
think she has the right stuff to render impartial justice in
Maryland. She was nominated because of her breadth of legal
knowledge, her desire to serve on the Federal bench, and her
extensive relationships in our community in terms of advocacy
for the public good.
Mr. Chairman, Senator Klobuchar, when I nominate working
with my colleague Senator Cardin, I have four criteria: a
person must have absolute personal integrity; judicial
competence and temperament; a commitment to core constitutional
principles; and a history of civic engagement in Maryland. I
believe that it is crucial to have these characteristics to
serve.
Ms. Xinis brings to the judiciary, or will bring if
confirmed, extensive Federal experience. She has a long history
of public service. She spent 14 years working in the Federal
Public Defender's Office. Those of you who are so familiar with
all of those proceedings know that that is really tough, gritty
law.
She handled cases from simple misdemeanors to complex white
collar crimes. She did not only the representation of the poor
and the disenfranchised, she provided time and time again
that--how dedicated she was, and made sure that everyone
received competent judicial representation.
Ms. Xinis also clerked for Judge Diana Gribbon Motz, an
incredibly well respected Fourth Circuit judge. Judge Motz,
herself, is highly esteemed, and she recommended Ms. Xinis, who
had clerked for her. She said she had such an intelligent quick
mind.
She has an incredible heart. She is an incredible hard
worker and at the same time, she is truly the story of America.
She has also had extensive private practice experience, working
as a trial partner in the Murphy Falcon & Murphy firm in
complex civil litigation.
She is really the star and story of the American dream. Ms.
Xinis' father arrived in the United States from Greece without
a penny to his name. From him, she learned the value of hard
work and helping others. Her whole resume is about how making
use of the opportunity ladder of the United States of America
she could go on to Vassar, went to the University of Virginia.
She is a graduate of Yale Law School.
Nerve, grit, determination, hard work, a belief in America,
a belief in an opportunity ladder, and a belief in a rule of
law that in this country it should be equal and impartial
justice under all.
She won dedication. She has done everything from being a
single parent raising a wonderful son, to working in the
community from extensive mentoring projects and other coaching
of young lawyers through bar association work.
She is dedicated to public service. You are going to see
she is really brilliant, has an incredible work ethic and
really loves the law, loves the constitution and will really, I
think, do justice well and do your vote well.
I urge your adoption of this outstanding--outstanding
nominee.
STATEMENT OF HON. BENJAMIN L. CARDIN
A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Chairman Grassley, Senator Klobuchar,
Members of the Judiciary Committee, it is good to be back. I
really enjoyed my experience of serving on this Committee, and
I thank you very much for the courtesy to Senator Mikulski and
me to introduce Paula Xinis, President Obama's nominee for the
District Court of Maryland.
The oath that a judge takes is to administer justice
without respect to persons and to do equal right to the poor
and to the rich. Mr. Chairman, in my years in the Senate, I
have never had more confidence that the person that President
Obama has selected based upon our recommendations would carry
that out. Paula Xinis understands the challenges of providing
equal justice under the law to all.
As Senator Mikulski pointed out, her family is the American
experience. Her father came to this country as a Greek
immigrant and worked hard without resources and now his
daughter is being nominated to the District Court of Maryland,
Federal judge.
Senator Mikulski has taken the lead as to the process that
we use in Maryland to fill our judicial vacancies. It is
nonpartisan. It seeks to get the very best to serve on our
courts because we understand the importance of our judges.
Senator Mikulski has also gone over Paula Xinis'
outstanding record. She has gotten the highest recommendation
from the ABA as far as ``well-qualified.''
She has experience in the private sector. Billy Murphy, her
law partner, is here today, one of the great lawyers in
Baltimore taking on some of the most difficult challenges
recognizing the responsibilities of a lawyer.
She has had public experience. She has clerked for the
Fourth Circuit. She understands trial work. She understands
criminal work. She understands civil work. She has that
experience, that demeanor that serves well.
What really impressed me about her is the fact that she has
given back so much to our community. Her pro bono experience is
incredible. She has worked for her church. She has helped
people volunteering pro bono to get free legal advice.
She joined a formal mentoring program through the House of
Ruth and was assigned an 11 year-old, as she describes now, as
like being a son. She has made a difference in that person's
life. Lawyers I know are very busy, but she took it upon
herself to change a person's life through the mentoring program
and made a difference as she has.
What really impressed me is the story she told me about
some of her former clients who ended up in prison, that she
represented. She had conversations with them as they came back
in society and found a better path. In many cases, she told of
her former clients praising the judges for getting the sentence
right by helping them to wake up and ultimately to fly
straight.
Paula Xinis understands the responsibilities of our
judicial branch of Government. Yes, it is to administer the
laws with impartiality, but it is also to understand that we
have to do better as a society.
Mr. Chairman, it is with great pride that I recommend her
confirmation to the Members of this Committee. We are very
proud of her willingness to serve. I thank her for being
willing to serve in the public life, and I thank her family.
Chairman Grassley. If you want to go, I do not have any
questions of the Senators from Maryland. Thank you very much.
Senator Menendez.
[Laughter.]
STATEMENT OF HON. ROBERT MENENDEZ,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you Mr. Chairman and distinguished
Members of the Committee. I come before you to introduce John
Michael Vazquez and to express my enthusiastic recommendation
for his nomination and confirmation to the United States
District Court for the District of New Jersey.
Mr. Vazquez's credentials are impressive. He is a New
Jerseyan who is eminently qualified and highly experienced. I
am confident he will be an outstanding jurist whose judicial
temperament, observance of precedent and personal integrity
will be beyond reproach.
There is an inscription on the Tenth Street entrance to the
Justice Department that I am sure many Members of the Committee
has seen. It is says, ``Justice in the life and conduct of the
State is possible only as it first resides in the hearts and
souls of its citizens.'' I believe that justice does, in fact,
reside in the heart and soul of John Vazquez, and he will bring
that judicial heart and soul to the task as well as the
benefits of a long and distinguished legal career in private
and public service.
Mr. Vazquez began his legal career at the law offices of
Michael Critchley and Associates after completing a clerkship
with Hon. Herman Michaels of the New Jersey Appellate Division.
He graduated summa cum laude from Seton Hall University School
of Law and Rutgers College. He is a member of the Hispanic Bar
Association, the New Jersey State Bar Association, and the
Association of the Federal Bar of New Jersey.
He brings a long and distinguished legal career to the New
Jersey District Court if approved. He is currently a partner at
Critchley, Kinum & Vazquez, practicing commercial, securities
and health care civil litigation as well as white collar
criminal defense.
Before his time in private practice, he served the people
of New Jersey in the Office of the Attorney General as the
first assistant attorney general. As the second-highest ranking
official in the office, Mr. Vazquez conducted the day-to-day
operations of a 9,500 person department and various divisions
within the department including criminal justice, consumer
affairs, civil rights, elections and gaming enforcement
divisions.
He previously served within that office as a special
assistant to the attorney general where he prosecuted Medicaid
fraud white collar crimes. Prior to this, he served as an
assistant United States attorney and focused on health care
fraud, securities fraud and terrorism investigations.
When I think about the breadth and scope of what comes
before a Federal district court judge, I think about the
breadth and scope of the experience of John Vazquez. He will
make an extraordinary member of the judiciary. I want to thank
the Chair and the Ranking Member and the distinguished Members
of the Committee. I look forward to an expeditious vote before
the Committee and confirmation before the Senate.
I will just add, Mr. Chairman, Senator Booker would have
liked to been here with me in strong support of Mr. Vazquez. He
is the Ranking Member of another Committee--Subcommittee, and
he is in the midst of a hearing, so he wanted me to add his
strong support of Mr. Vazquez as well.
Mr. Chairman, I have yielded back a lot of my time. So, I
hope for the future you will keep that in mind.
[Laughter.]
Chairman Grassley. Thank you, Senator. Senator Klobuchar
for both her opening statement as well as her introduction of
Justice Wright.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you so much, Senator Grassley and
thank you for holding this hearing with these highly qualified
nominees.
It is my honor along with Senator Franken who will also
speak to welcome all of you, but especially to introduce our
Minnesota nominee, Justice Wilhelmina Wright to become a
Federal District Court Judge for the District of Minnesota. I
know that she is here with her husband and also with her mother
and assorted relatives that I will let you introduce, Justice
Wright.
Justice Wright is a dedicated public servant with a
distinguished career spanning all levels of the State and
Federal legal system. She is an Associate Justice of the
Minnesota Supreme Court, a position she has held since her
appointment in 2012.
She won her reelection swimmingly with a lot of bipartisan
support. I said that for you.
[Laughter.]
Even before her appointment, Justice Wright has earned the
respect of litigants, lawyers and judicial colleagues alike. I
can say unequivocally that Minnesota will be fortunate if she
is to sit on the Federal District Court.
She was born in Norfolk, Virginia where she first learned
about the law by watching her mom fight public school
segregation in order to ensure that her daughter received a
good education. In fact, in a recent--I got this from one of
her recent remarks. She talked about what this was like and she
said, ``massive resistence, as it was called, was recent
history when I embarked on my academic career, first grade. It
seemed to me and my household, aside from the bible, that the
court order was the most important written document in my
family's life. The same way that the bible sustained my parents
faith in daily life and the mortgage sustained our family
shelter and domestic security, the court order sustained the
promise of my brothers' and my future. Thurgood Marshall had
helped us secure that court order and my brother and I were
going to have a better future than my parents as their's was
better than my grandparents' because the law said so.''
She graduated from Yale College cum laude in 1986 and
received her law degree from Harvard Law School in 1989. After
law school, Justice Wright clerked for Judge Damon Keith of the
Sixth Circuit Court of Appeals. She then went into private
practice for 5 years, but she was drawn back into public
service.
She joined the U.S. Attorney's Office for the District of
Minnesota in 1995 as a prosecutor where she received the United
States Department of Justice Director's Award and the United
States Department of Justice Special Achievement Award. After 5
years in the office under two different U.S. attorneys, the
Governor of Minnesota, Governor Jesse Ventura, appointed her as
a Ramsey County District Judge where she presided from 2000 to
2002.
She was then appointed to the Minnesota Court of Appeals
and then the Supreme Court. She is actually the first person in
Minnesota history to sit on all three levels of State court.
She has over 25 years of legal experience, the past 20 in
our State. As I said, she served as a judge in three courts.
She sat on panels deciding over 2,000 cases and presided over
nearly 700. In other words, I think she is ready to fill the
position her first day on the job.
She has obviously received the ABA's highest ranking. I
think you know, Mr. Chairman, that we have received positive
words about Justice Wright from Democrats and Republicans
alike. She has been involved in a variety of civic and bar
activities and though serving as a judge limits the type of pro
bono work that she can perform, she devotes 50 hours per year
to pro bono legal activities.
She served as a member of the Minnesota Judicial Council
and a number of other Minnesota groups. She is the first
African American to serve on our Minnesota Supreme Court.
Last, but not least--I am doing this for your potential
future colleagues--it is very important to our State. I know
you, Chairman Grassley, care a lot about judicial case load and
the differences around the country and our district's caseload
has increased significantly in recent years. In the past year
the district has seen a 57 percent jump in the number of cases
filed with over 6,800 cases currently pending. A judge is
assuming senior status in less than 2 weeks. We really need
Justice Wright to be confirmed as quickly as possible.
I just want to thank you so much, Mr. Chairman, for holding
this hearing so quickly after her nomination given our
situation in Minnesota. She will make a fine Federal district
court judge. I think they would even like her in Iowa. Thank
you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Klobuchar. By the
way, before I forget this, you have had several Republicans
that I know in Minnesota call me in support of your nomination.
She is just reinforcing what I think she knows I all ready
know.
[Laughter.]
Chairman Grassley. Senator Franken.
OPENING STATEMENT OF HON. AL FRANKEN,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Franken. Maybe we should stop there. Mr. Chairman,
thank you. I am delighted to join Senator Klobuchar in
introducing Justice Wilhelmina Wright to my colleagues and
enthusiastically supporting her for her nomination to serve on
the U.S. District Court for the District of Minnesota.
Justice Wright has been nominated to fill a vacancy that
will be created when Chief Judge Michael Davis assumes senior
status next month, so it is my hope that the Committee will
process her nomination with all due speed and that the Senate
will move to confirm Justice Wright so that Minnesotans seeking
justice are able to have their day in court.
I would like to also thank Senator Klobuchar for joining
with me in forming a bipartisan judicial selection Committee to
assist us in recommending a candidate for this forthcoming
vacancy. The Committee selected Justice Wright after
considering a deep bench of incredibly qualified candidates,
and I know I speak for both Senator Klobuchar and myself when I
say that we were thrilled to recommend that she be nominated.
There is no one better suited for this position.
I am going to repeat some of what Senator Klobuchar said,
but it bears repeating. Not only has Justice Wright served as a
State court judge for 15 years, but she is the only person in
Minnesota history to serve as a judge at all three levels of
our judiciary, on the Second Judicial District, the Minnesota
Court of Appeals and currently, the Minnesota Supreme Court.
Before her appointment to the bench, Justice Wright served
as an Assistant U.S. Attorney for the District of Minnesota
where she earned a stellar reputation as a prosecutor. She
understands the State and she knows its people.
Justice Wright's experience, her impeccable credentials and
her unwavering commitment to equal justice will serve her well.
I look forward to her confirmation. Again, thank you to the
Chairman for the opportunity to join Senator Klobuchar in
introducing Justice Wright this morning. I strongly urge my
colleagues to support her nomination.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. I thank all of my colleagues.
First of all, I congratulate the three nominees for
judgeships that have all ready been introduced, John Vazquez,
Justice Wright, Paula Xinis and I would ask each of the
judicial nominees to come to the table while I introduce
another person that will be at the table, the nominee for
Assistant Attorney General for the Tax Division, Cono Namorato.
You folks come to the table now, please. Also, Mr. Namorato
come too. Yes.
Since you other folks have been introduced, I am going to
introduce him right now. As long as you are standing, let me
take care of something.
[Laughter.]
I would ask that you affirm. 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?
Mr. Vazquez. I do.
Ms. Wright. I do.
Ms. Xinis. I do.
Mr. Namorato. I do.
[Witnesses are sworn in.]
Chairman Grassley. Thank you very much.
Mr. Namorato received his BA from Iona College, 1963; a
juris doctorate Brooklyn Law School, 1968; after graduation,
joined the Tax Division of DOJ. There he served as a trial
attorney and conducted grand jury investigations of Title 26
which are the criminal tax offenses.
In 1974, he became Chief of the Criminal Division in the
Tax Division. In 1976, he was appointed Deputy Assistant
Attorney General in charge of criminal matters in the Tax
Division.
In 1978, he joined the Washington, DC law firm of Caplin
and Drysdale. There his practice is focused still on Federal
criminal tax matters. He also advises clients with ongoing
criminal tax investigations, defends clients on State tax
matters and sometimes represents clients before Congress.
I, once again, congratulate you and say we are honored to
have you. I guess we will go in the order of Mr. Vazquez,
Wright, Xinis and Namorato. You have opportunities to make an
opening statement, but I think each of you--before you make
your opening statement, we have a tradition of anybody that is
with you here today or not with you that you want to mention,
you can introduce them and we encourage you to introduce them.
Mr. Vazquez.
STATEMENT OF JOHN MICHAEL VAZQUES, NOMINEE TO
SERVE AS UNITED STATES DISTRICT JUDGE FOR
THE DISTRICT OF NEW JERSEY
Mr. Vazquez. Thank you, Chairman. Good morning.
I want to start by thanking the Chairman, the Ranking
Member and the entire Committee for this opportunity and for
calling the hearing. I also have to extend my deepest gratitude
to the President for the nomination. I would like to personally
thank Senator Menendez for his kind remarks this morning as
well as the support that both he and Senator Booker have given
me throughout this process.
With me today, I do have family. I have my wife, Meredith
Vazquez. Also with us are our two daughters, Samantha Vazquez
and Kaitlin Vazquez. I am fortunate enough to also have my
parents here, Tom and Mary Ann Vazquez as well as Meredith's
parents, Michael and Dorothea Perkons.
Finally, I thank my law partner, Michael Critchley, who
made the trip down from New Jersey to be here. I would also
like to thank the many family members, including my brothers
and their families, friends and colleagues who have indicated
they are going to watch the webcast and be here in spirit.
I do not have any opening remarks other than to reiterate
my thanks.
Chairman Grassley. All right. Thanks. Congratulations to
family and friends. Justice Wright.
STATEMENT OF WILHELMINA MARIE WRIGHT,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF MINNESOTA
Justice Wright. Thank you, Senator Grassley. Thank you
Ranking Member Senator Klobuchar. Senator Franken, thank you
for being here, and Senator Sessions, thank you for your
presence.
Thank you to this group for having this hearing today and
for the kind words and attention of you and your staff in terms
of the hard work of preparing for an event such as this. I am
grateful to President Obama for the nomination and the
opportunity to be here.
In addition to being here myself, I have my family here. My
husband, Dan Scmechel, is present. He is an executive at Ecolab
and we maintain that it was Minnesota that was the State that
allowed us to end the longest long distance relationship
happily in marriage.
It is a happy marriage that has produced our daughter,
Kathryn Schmechel who is not here. Kathryn is a rising junior
who would love to be here and instead is at Stanford at debate
camp. Maybe she will be here at another time in another
setting. Certainly learning important skills, she is our pride
and joy.
My mother, who Senator Klobuchar mentioned, is here, Dr.
Lillian Wright. As Senator Klobuchar mentioned, my mother and
my father, Dr. William Wright who is here in spirit but has
since passed away, really are the reason, foundationally, that
I have been able to achieve the dreams that I was able to
dream.
First of all, they told us to dream big and then supported
us and gave us the ingredients of being able to have the work
ethic and the integrity to be able to pursue those dreams.
My brother, Bill Wright, William H. Wright, II, is here who
is a wonderful supporter and a former rival. We are now on the
same team, but we certainly urged each other on in competing
for our parents approval, but also certainly in supporting each
other in times of real hard work and dedication.
My cousin, My fawny, is here from North Carolina. I believe
my aunt and uncle, Leory and Marjorie Parker are here. Then
David Simmons, Judge David Simmons is here. He is a former law
clerk of Judge Damon Keith. Judge Keith is the head of our
judicial family. David is here in that capacity as well as a
friend.
Also, a family friend who is here is Joel Motley. About 50
years ago, Joel Motley's mother sat in a hearing just like this
for a district court appointment to the Southern District of
New York. I thank him for being here.
There are lots of well-wishers in Minnesota. I understand,
to my shock and chagrin, that even Minnesota Lawyer has a live
feed for this hearing. I better do well. That really is
significant to me in terms of the kind of support that the
legal community, my colleagues on the Supreme Court, as well as
my judicial family and the members of the bench and bar and
family friends, former law clerks and all and current law
clerks who have supported me and who send wonderful well
wishes.
Thank you. I am grateful to be here and grateful for the
opportunity to answer your questions. Thank you.
Chairman Grassley. All right. Now, Ms. Xinis.
STATEMENT OF PAULA XINIS, NOMINEE TO
SERVE AS UNITED STATES DISTRICT JUDGE
FOR THE DISTRICT OF MARYLAND
Ms. Xinis.Thank you, sir. It is okay. My brother got our
last name wrong for the first 15 years of his life.
[Laughter.]
I am so grateful to be here and I want to first thank you
all for convening this session. I want to extend a personal and
deep thanks to Senators Mikulski and Cardin for their kind,
kind words. They have been tremendously supportive and for that
I will be eternally grateful.
I do want to thank President Barack Obama for giving me
this wonderful opportunity to even conceive of returning to
public service in this important capacity.
I want to congratulate my fellow nominees. It has been a
pleasure to meet them all.
With me too are very, very important people with whom none
of this would be possible. I want to first start with my fiance
and partner, Ken Roesel. He is my rock and it is his unending
support that brings us here today. His parents are with us as
well, John Tinker Williamson and Patricia Williamson. It is
important to me that they are here because my parents are not
and having gotten to know them over the many years, it is clear
to me where Ken gets all of his virtues.
I have my best friend here of 30 years. She is my sister,
Susan Bowen. She hopped on a plane from Chicago. She said she
would not miss it for the world and she is holding my hand
right now.
With her is my dearest friend from law school, Allison
Peck. My cousin, Dr. Christopher Constance who also jumped on a
plane to be here less than 12 hours, but to bear witness to
today. And for that, I am also grateful. His mother, Mary
Constance, is here from New York as well.
I have been fortunate to come from a long line of
beautiful, smart, tenacious women, many of whom are not with us
any more. My mother, Betty Xinis; my grandmother, Sophia
Constance; my mother's twin sister, Halene Andreas. They are
watching from above, but they know they have a good ambassador
in my Aunt Mary who has been a shining example for me. I thank
her for that.
My law partners, Billy Murphy and Hassan Murphy are also
here, two of the most dedicated and brilliant legal minds I
have ever and will ever have the pleasure of working with. I
thank them for their support.
Those who are not here, at least in body, but in spirit, my
son, Adoma Ross Adams. He is eight and right now it is best
that he is swinging a baseball bat in baseball camp, than
trying to sit still behind me.
[Laughter.]
Ms. Xinis. He thanks you for considering his mother. He was
really heartened to hear that my physical prowess on a
ballfield will have no moment today, or lack their of.
Last but not least, my brother, Neil Xinis and my father,
Dimitri Xinis. They, right now, are in Greece supporting our
family in some very difficult times, but I know that they are
watching. As Senators Mikulski and Cardin pointed out, my
father is truly an American dream. Without him, I would not be
half the parent I am and half the person I am. Today is just as
much his day as it is mine and I thank him.
I look forward to answering all of your questions and thank
you for this opportunity.
Chairman Grassley. Thank you. Mr. Namorato.
STATEMENT OF CONO NAMORATO, NOMINEE TO
SERVE AS ASSISTANT ATTORNEY GENERAL, UNITED
STATES DEPARTMENT OF JUSTICE, TAX DIVISION
Mr. Namorato. Thank you, Chairman Grassley.
Chairman Grassley. Is the button on? Push the button.
Mr. Namorato. Thank you Chairman Grassley, Senator
Klobuchar and distinguished Members of this Committee.
Accompanying me today are my wife, Fran, sitting behind me;
my children, Susan, Regina, and Jim; their spouses and two of
my grandchildren, Mattie and Ryan are here.
Also, I would like to introduce my law partner, Mortimer
Caplin, who is sitting next to my wife. Mr. Caplin was the
Commissioner of Internal Revenue under Presidents John F.
Kennedy and Lyndon Johnson. He turned 99 this year, just a
couple of weeks ago. I am honored that he is here attending
this hearing with me today.
Senator Klobuchar. Where is he? There you are. He looks to
young for 99.
[Laughter.]
Mr. Namorato. Senator, I was born and raised in Brooklyn,
New York in the Greenpoint neighborhood. I grew up in a large
Italian-American family with wonderful parents and
grandparents.
I attended Bishop Loughlin High School and then Iona
College in New Rochelle. After graduation from college, much to
the puzzlement of my father, I turned down a higher paying job
with a national accounting firm to take a job as a special
agent with was then known as the Intelligence Division of the
Internal Revenue Service. It is currently called the Criminal
Investigation Division.
Since then, I have spent my entire career in some aspect of
tax enforcement. For 6 years with the IRS in New York I
investigated all kinds of tax fraud.
While serving as an agent I attended Brooklyn Law School at
night. When I graduated, I moved to Washington to join the Tax
Division of the Department of Justice. There I prosecuted
criminal tax cases as a trial attorney, Chief of the Criminal
Section and then Deputy Assistant Attorney General.
One might imagine given my background, I believe firmly in
the importance of a vigorous and aggressive criminal civil tax
enforcement program in order to foster and promote voluntary
compliance and to deter wrongdoing. For this reason in 2003, I
left my law firm to become the Director of the IRS Office of
Professional Responsibility. This was at a time when there were
growing revelations that a number of tax professionals--some at
very large reputable accounting and law firms--were designing
abusive tax shelters and helping clients break the law.
My priority as OPR Director was to invigorate the
enforcement of the agency's long-standing ethical regime and
educate tax practitioners on their professional obligations.
The Tax Division shaped the formative years of my practice.
I was lucky to have many outstanding mentors there and my work
there gave me many close and lifelong friends.
I have always had enormous respect for the Department of
Justice, especially the career professionals who have given
some or all of their lives to public service. The Department is
rightly considered one of the finest law firms in the world
which operates with the outmost good faith to help protect
Americans from wrongdoing and to enforce the law.
A strong Tax Division is critical to tax enforcement and I
would look forward to serving my country again and helping to
lead this effort. If I am fortunate enough to be confirmed, I
will focus on advancing the mission of the Tax Division and
zealously representing the United States and all of its
activities while adhering to the law, promoting integrity,
listening to all sides of an issue, providing candid advice,
treating everyone I encounter with fairness and respect, and
honoring, supporting and advancing the efforts of the career
professionals who are the core of the Division.
I, again, thank you all very much for this opportunity to
appear before you and I look forward to answering any questions
you may have. Thank you.
Chairman Grassley. I will ask each one of the judicial
nominees one question and Mr. Namorato a couple of questions.
Before I do that, you can see that all of the Members are
not here and you may get questions from other people as well as
us for answer in writing and we usually like--well, I should
not say ``we usually''. We want those back before we would--be
voted out of Committee. So, make sure that you do that.
Let us start with Ms. Xinis. You once said that--you
probably just love to have me quote. It is something you
probably said 25 years ago.
[Laughter.]
You once said that, quote, ``Federal judges can be
reluctant to impose concurrent time,'' unquote, for defendants
at sentencing. Why do you think this? If you are confirmed,
will you impose concurrent sentences and why or why not?
Ms. Xinis. Thank you, Senator. Judges are reluctant, I
believe, in imposing concurrent time because often the second
time a defendant appears before the judge it is because of a
second crime or a second violation, second wrongdoing which
requires warrants under the Federal sentencing guidelines and
under the statutory mandates, additional sentencing. It is only
in the extraordinary circumstance in which concurrent time
would be warranted.
If I were so fortunate as to be confirmed, I too would
follow the law and follow those principles based on the
evidence that is brought before me with regard to what often
happens in that case and that is the second sentence is often
because of new offense conduct.
Chairman Grassley. All right. Then for Justice Wright, once
again you wrote something like this, quote, ``our legal system
is not without its threats and challenges which include the
perception that justice is only for certain people or certain
organizations, not for all,'' unquote. In your view, do judges
have a responsibility to change people's perception?
Justice Wright. I do not think we have a responsibility to
change people's perceptions, but I believe it is my
responsibility--first of all, thank you Senator Grassley,
Chairman Grassley for asking the question. I am a bit nervous
here and want to make sure that----
Chairman Grassley. You do not need to be. We address the
same way all the time.
[Laughter.]
Justice Wright. Thank you. To answer your question, I think
it is part of my personal mission because I think that the
justice system does respect everyone and we have certain
obligations to make sure that we provide equal justice under
law. While we cannot control a person's perception, it is my
view that when I have the opportunity to speak to individuals
who may doubt that there is, in fact, equal justice under law,
I help them understand that that is what we live by as a
country and that is what judges are obligated to provide.
Speaking for myself and the colleagues with whom I have
served at the trial court, at the Minnesota Court of Appeals
and also at the Supreme Court that is not only a value, that is
in fact what we provide. Thank you.
Chairman Grassley. Mr. Vazquez, a lot of nominees who come
before this Committee say that it is important for judges to
show humility. Whether or not you agree with this--do you agree
with this and if so, what does that look like for a judge to
show humility and I would like to have you elaborate.
Mr. Vazquez. Thank you, Chairman. I do agree with the
statement that it is important for judges to show humility. I
was watching other hearings in preparation for today and I
heard another Senator refer to it as robitis, kind of the robes
go to your head and how that concerned him. I could not agree
more.
In my personal view I think the way you show humility is
how you treat the attorneys, the litigants, the jury members,
and all court personnel who come before you with respect and
dignity. Always in the back of your mind as a sitting judge, I
think it is incredibly important to remember how
extraordinarily fortunate you are to be in that position and
that it is a privilege to be able to serve as a United States
District Court Judge.
If I was lucky enough to be confirmed, the way I would try
to demonstrate humility would be through the way I treated
other folks who appeared and also always to remember that I am
lucky to be where I am and never to forget that.
Chairman Grassley. Thank you.
Mr. Namorato, in your view what is the appropriate criteria
to consider when determining whether a tax fraud case should be
pursued civilly or criminally?
Mr. Namorato. Thank you for the question, Mr. Chairman. As
you know, given our complicated tax code it is very easy to
make a mistake. Anyone who makes a mistake should have no
problem at all with a criminal prosecution. However, if there
is an intentional disregard of a known legal obligation, that
would be a red flag that would justify criminal prosecution.
There is a very, very thin line between civil fraud and
criminal fraud. A very shallow difference in the burden of
proof. However said all of that, I guess the best way to answer
that question is I know it when I see it.
Chairman Grassley. The next question may be a little more
difficult for you to answer, but it is something that I have
had an interest in. You have previously applauded the IRS
decision to focus on the enforcement of abusive tax shelters
and target offshore accounts.
As I have said, I have long expressed concern about
corporate uses of foreign tax shelters, particularly where
there is no economic substance. Do you believe that there is
more that the Department of Justice could be doing to combat
the use of abusive foreign tax shelters?
Mr. Namorato. Yes. Yes. I do believe that there is more
that we could be doing. I do think we are getting information
from the offshore voluntary disclosure program about various
offshore entities that have been used to funnel money away from
the national--through this offshore entities through a series
of these convoluted transactions.
This is something that I would be interested in if I were
fortunate enough to be confirmed, to look into it further,
Senator.
Chairman Grassley. I had 5 questions I was going to ask
you. I may submit some of those for answers in writing to you.
I do not want to abuse my colleagues time.
I will turn to Senator Klobuchar.
I was wondering. I have got to meet with the British
Parliamentarians. Is there a chance you could finish this?
Senator Sessions. If you promise not to cause an
international incident.
[Laughter.]
No. I would be glad to. I had the honor of meeting with
them yesterday and they are a delightful group. Thank you.
Chairman Grassley. Thank you.
Senator Klobuchar. All right. Very good. Thank you very
much, Mr. Chairman and thank you to all the nominees for your
openings.
Also, Senator Franken mentioned something that made me
think in the case of Justice Wright, to also thank the
bipartisan committee that we had set up led by Ann Huntrods, a
lawyer in Minnesota and then former U.S. Attorney Tom
Heffelfinger, who was the U.S. Attorney under both the first
President Bush and the second President Bush. They did a great
job.
I thought I would start, Justice Wright, I know you have
been on the Minnesota Supreme Court. How would you see that
experience helping you on the Federal District Court? What do
you see as the differences?
Justice Wright. Thank you, Senator Klobuchar. First, I will
begin with how it would help me. It is wonderful as a trial
judge to have some incite into how appellate decisions are
made. The record, the record, the record is so important at the
trial court level and I know that certainly because of my
experience as a trial judge having been reviewed by the Court
of Appeals or the Supreme Court, but I know it firsthand as
well as an appellant judge when I am digging into the record
and I want to make sure that a certain right has been explained
or certain findings have been made. So, it is very important in
that regard.
That is how I would respond to your question in terms of
the importance of having served at each level of the courts in
the State of Minnesota.
My experience I think as a Federal prosecutor and in
private practice in basically Federal courts not in Minnesota
has--that experience has given me the opportunity to appear in
trial court. I know what it means to be a lawyer representing a
party in their most important affairs and what it means to have
a judge who listens carefully, who applies the law fairly, who
ensures that a party's interests are heard and weighed
carefully and then who writes a decision that is carefully
analyzed and that it is clearly written.
One of my goals as a judge is to author an opinion or an
order that the party themselves, the person who is bringing
their case to the court can understand, that is not in
legalese, that does not have to be translated by their lawyers.
Certainly lawyers provide important assistance, but it really
is the case that belongs to the client, the party in it.
Senator Klobuchar. Right. Think that shows only 2 percent
of the cases you either authored or joined have been reversed.
It seems like a pretty good percentage. I do not know what the
averages are. Very good.
Just last, on your pro bono work, why do you think this is
important for lawyers to continue to be involved in pro bono
work and have that be our standard?
Justice Wright. You know I think it is so important because
everyone should have the benefit of access to justice. That is
what our constitution guarantees, equal justice under law.
The legal system is a complicated one. Certainly a person
can choose to represent him or herself, but it is a daunting
proposition. When lawyers step forward and provide pro bono
legal services, which in Minnesota we have a robust
contribution from Minnesota lawyers throughout the State, to
step forward and help those who cannot afford a lawyer navigate
our legal system and come forward and receive a fair hearing of
their legal matters, I think that is important.
From my perspective as a judge, I am not off the hook. I
cannot represent clients, but I can represent the judiciary and
I can help Minnesotans and people beyond Minnesota understand
the importance of the role of the judiciary, what to expect
when they come to court and to understand the important
constitutional values that our Minnesota judiciary represents.
Senator Klobuchar. Thank you very much.
Quickly, Mr. Vazquez, just like in Minnesota, I think New
Jersey has a high number of patent cases just because of the
companies that are located there and the work that goes on. How
do you feel about taking on the patent cases? And talk about
your background and how that will help you.
Mr. Vazquez. Thank you, Senator. You are absolutely
correct. Because of the pharmaceutical industry, we have a
tremendous number of patent cases, primarily under what is
commonly called abbreviated new drug application.
My background as a Federal prosecutor and then State
prosecutor really did not prepare me for that area. However, I
have been fortunate enough through an unusual series of events
in the last 2 years to be actively involved as a local counsel
to a number of patent issues.
It is a real issue for the courts of New Jersey because we
have a high docket load. Those cases do not tend to settle.
They tend to go through at least what we call the Markman
hearing.
I think the challenge for the judiciary more so than any
other type of experts is that the scientific background that is
required to understand those cases takes a tremendous amount of
time. At least it does for me. I have gotten to the point where
I can understand the science, but I do not feel confident cross
examining a scientist at this point.
I think what it requires is a lot of diligence and I never
thought I would say this, but I have actually grown to like
chemistry since taking on those cases and at least get a better
appreciation for what it is. I hope I answered your question
with that response.
Senator Klobuchar. Thank you very much. We are working on
patent reform here and have a bill that got through the
Committee that I want to get to the floor. It is kind of a
selfish question.
[Laughter.]
Just one last--I will save, if we have remaining time to
ask Ms. Xinis something later. I know we are going to hand it
over to Senator Franken which I appreciate, Mr. Chairman.
Mr. Namorato, we have received numerous letters of
bipartisan support for your nomination, 2 formal Attorney
Generals, 6 former IRS Commissioners, 46 prominent tax
attorneys which I think is important. As we know, tax law can
always be a little controversial.
When I was the Chief Prosecutor in Hennepin County, I once
went after seven people who had pretended to be living in
Minnesota--pretended to be living elsewhere in post office
boxes. Unfortunately, they were not the size of Stuart Little,
so it did not work very well for them.
[Laughter.]
Senator Klobuchar. They were basically ripping off hundreds
of thousands of dollars from our taxpayers. It was a pretty
open and shut case. I was just so surprised at, one, the
reaction. The public was glad we were going after them. Two,
just the push back. They actually went to the legislature,
tried to get amnesty. They were all pilots, airline pilots and
it was quite an amazing situation to try to actually bring the
case to fruition.
Could you just talk about, very briefly, what lessons you
have learned so far from enforcing the tax laws from your time
in the Department of Justice, how you will apply them to this
job?
Mr. Namorato. Sure and thank you for the question, Senator.
I have had a long and varied career on both sides of the table,
as a prosecutor and as a defense lawyer. I think I will bring a
balance to my job, a balance to make sure that I always act
fairly, objectively and with integrity, will treat everyone
with dignity and respect and only take actions consistent with
the law.
I think these are the most important things to take when
you are going to be taking over this type of prosecutorial
role, Senator.
Senator Franken. First of all I would like to thank now
Chairman Sessions for his courtesey.
Senator Sessions [presiding]. One brief moment.
[Laughter.]
Senator Franken. That is true, but well deserved.
[Laughter.]
Senator Franken. All right. I will just go.
Justice Wright, you have spoken on several occasions about
the importance of ensuring the criminal defendants that they
are represented by counsel. It has been more than 50 years
since the Supreme Court unanimously ruled in Gideon v.
Waingright that defendants facing criminal charges have a right
to counsel regardless of their ability to pay for legal
representations.
Right now in jurisdictions across the country and including
some in Minnesota, misdemeanor defendants are appearing before
judges without an attorney because they cannot afford one.
States and localities facing record backlogs and shrinking
budgets are not consistently providing these defendants with
access to counsel despite their constitutional obligation to do
so.
You voiced concern about this problem and I share your
concern. I think it is important that we acknowledge this
problem and make it part of the conversation that many of us
are having about mass incarceration and the state of our
criminal justice system.
From your perspective as a State court judge with 15 years
on the bench there, how can we as a Nation act to correct this
failure and make real the promise of Gideon?
Justice Wright. Thank you very much for the question,
Senator Franken. You are correct that there are places in which
misdemeanor defendants are not receiving counsel. I believe any
person who is coming before the court is facing a very daunting
challenge. While one may choose to not have counsel, when one
does not make that choice that is an unfortunate circumstance
when they proceed without counsel.
I think it is very important for, frankly, leaders like
yourself and leaders within the legal community to impress upon
those who can make the decision to ensure that the Sixth
Amendment right to counsel is being, in fact, seen in all of
our criminal cases and effectuated. I also think that there are
opportunities for pro bono services that can be provided by
competent criminal defense lawyers. I know that that is, in
fact, what happens in Minnesota at times when someone falls
between that position where they would qualify for a public
defender and where they can in fact afford an attorney.
Senator Franken. These sometimes are misdemeanor offenses
for which there is jail time that they do not get
representation.
Justice Wright. I must say in my practice as a lawyer and
then also as a Supreme Court Justice, in the jurisdictions that
I have served in I have not seen that as the case that one does
not have access to an attorney when that person is----
Senator Franken. Minnesota is better than some other States
in this regard.
Justice Wright. I think that is right and we have places
like Legal Right Center which may serve as, in Minnesota, which
may either serve as the public defender and not have any cost
or provide a, as I understand it, a sliding cost scale to make
legal services more affordable.
When one stands before a court facing a loss of--well first
of all, being accused of a crime and facing a penalty that
attaches to that, I certainly believe that it is incumbent upon
our justice system to provide the opportunities for counsel.
When that person chooses to proceed without an attorney, it is
just the hard work of judges, frankly, remaining neutral, but
ensuring that they understand the case that a pro se defendant
is putting forward and making sure that while remaining
neutral, they clarify the arguments and clarify the legal basis
for those arguments so that both sides, the prosecution and the
defense, are receiving a fair trial.
Senator Franken. All right. I am out of time. Ms. Xinis, I
notice you have not been asked a question yet. Mr. Chairman,
are you planning to ask Ms. Xinis a question?
Senator Sessions. Yes.
Senator Franken. In that case, goodbye.
[Laughter.]
Senator Franken. It is nice. Congratulations to you all.
Senator Sessions. Thank you for enlivening a normally
boring Judiciary Committee.
Senator Franken. It is never boring, sir, when you are
here.
[Laughter.]
Senator Sessions. Mr. Namorato, it is an honor to see you
again. You are clearly one of the more experienced and skilled
practitioners of Internal Revenue Service law in the country. I
think it reflects well on the President that he has chosen you
for this office. I want to say that.
Mr. Namorato. Thank you.
Senator Sessions. I remember well your representation of a
rather important case of an individual in the Southern District
of Alabama and you handled yourself with great skill, great
integrity and delivered a fine service for your client in the
process. That is the kind of professionalism I think we need to
look for. We had a nomination previously for the IRS Chief who
had almost no experience in this area a few years ago.
Eventually I think that nominee took another position in the
administration.
Would you share with us your thoughts about why
particularly you need someone in the position you would attain
that understands and has the judgment to decide between issues
like civil and criminal and mistake and fraud and is aware of
the traditions of the Tax Division that seeks certainty and
predictability in cases?
Mr. Namorato. Sure, Senator. Thank you very much for the
question. I do remember being in your office in Alabama when
you were U.S. attorney in the case you were referring to.
With respect to your question, Senator, we have a very,
very, very complex tax code. It is easy to make a mistake. It
is easy to not understand everything. If you did not have a tax
administrator who knew the difference between civil and tax
fraud, you could have the Department of Justice in effect
taking out cases that should not be brought. More importantly,
you could have the tax laws being abused for non-tax purposes.
For all of these reasons, you should only use the tax laws
when there is a clear violation of a known legal obligation and
when it will foster and promote voluntary compliance.
Senator Sessions. I agree with that completely. Voluntary
compliance is absolutely essential to the American system of
taxation and actually funding this Government.
Mr. Namorato. Completely agree, Senator.
Senator Sessions. People need to have respect for the
system. The scandal at the IRS with Lois Lerner and other
incidents are really problematic. I talked to some of the Tea
Party people in Alabama who felt their request for tax
exemption was held up for political reasons.
I am sure you remember the Nixon situation in which the tax
code was used to punish political enemies. Would you share with
us your view about the essential requirement that the Tax
Division be seen as not being involved in politics, but being
apolitical?
Mr. Namorato. Absolutely. I could not agree more with you,
Senator. The Tax Division should be viewed as a pinnacle of
integrity, there to protect as well as to prosecute, to make
sure that the wrong cases are not brought, but only the
appropriate cases are brought. I could not agree more with you.
Rest assured, if I am fortunate enough to be confirmed,
there will never be any political consideration in any case
that crosses the threshold of the Tax Division.
Senator Sessions. I thank you for saying that because right
now there is a lot of angst out among the American people. I do
think your appointment can help restore public confidence in
the Tax Division and people who cheat need to be prosecuted. I
try to pay my taxes. Most people try to pay theirs. It is not
right for people to cheat and avoid their taxes, so you need to
be firm when you need to be firm. You need to understand the
complexities of modern commercial life. I think you understand
that and are a good nominee for the office.
Mr. Namorato. Thank you very much, Senator.
Senator Sessions. I look forward to supporting your
nomination.
Senator Klobuchar, my time is up. I would have some other
questions for other Members. Do you want me to go next?
Senator Klobuchar. You are in charge. Go ahead.
Senator Sessions. All right. Ms. Xinis, I have a fabulous
daughter-in-law of Greek ancestery.
Ms. Xinis. Hopefully an easier name to pronounce.
Senator Sessions. Yes. It is a little.
You have extraordinary talents and skills and I am
impressed with that, and good background for the choice this
position. We have a situation that is occurring I think
throughout the country, in Maryland, Baltimore in particular,
that involves the ability of police officers to create safety
in the city at the same time to be able to defend themselves
from violence and attack and to try to bring order out of
disorder.
You agree that a disorderly neighborhood is bad for people?
If that is a poor neighborhood, is particularly bad for the
people there and that the police have a responsibility to try
to maintain an orderly and safe environment for the people who
live in a city, for example?
Ms. Xinis. Senator, I would say this. Thank you for that
question. I think it is first and foremost to note that police
officers have among the hardest jobs in our society. They risk
their lives everyday to serve and protect.
It is a complicated and delicate balance that were I to be
confirmed and be so fortunate, I would imagine at points would,
with different factual predicates, be before me.
Senator Sessions. That is correct. As a Federal judge, you
will be hearing police civil rights complaints and trying,
perhaps, a number of cases involving civil rights complaints
against police officers.
Ms. Xinis. For each and everyone of them, each and every
officer will have the same presumption as any other witness
with any other case before me. It is so paramount that a judge
remain objective, open-minded, at no point prejudge facts or
circumstances, listen to all of the evidence fully and
completely and give each and every litigant and each and every
witness their due dignity. I believe that that is fundamental
to the oath of being a judge.
Senator Sessions. That applies to the police officer.
Ms. Xinis. Correct.
Senator Sessions. He is the same protections also.
Ms. Xinis. That is right.
Senator Sessions. He has to make decisions on the streets
that often have to be made instantaneously. Perhaps they have
not gone to Harvard or Yale and they have to make a decision
right then in what they think is in the public interest.
Do you think a judge in recognizing the challenges they
place should show empathy for the difficulties police officers
face as well as the complainants?
Ms. Xinis. I think with regard to empathy, empathy is in my
view the ability to for one, place oneself in the shoes of
another. There is a particular place for that in our judicial
system and it is paramount for every witness, law enforcement
as well as lay. There are many times that the system, and I
mean the law enforcement system, works well. For that, law
enforcement should be applauded.
When it breaks down on occasion, the way our system deals
with it is to bring it to the courts. It would be my job to
fully and faithfully fulfil that oath to make sure that all of
the facts come to light and they are laid bare before me so
that I can decide if there is a question of law before me fully
and fairly or it is presented to the jury in the most fair and
comprehensive way possible. And that is most fair, I believe,
to the police officers as well.
Senator Sessions. That is certainly the way you conduct a
trial. I am concerned that you listed six cases in which you
served as District of Columbia's Review Officer for Police
Activities. All six of those you submitted to the Committee
involved a finding against a police officer and I believe on
every single charge against the police officers. So, that gives
me a little concern.
You will be taking on a situation in Baltimore, perhaps,
come before your court. Morale of police officers is low there.
You have a situation, and I know it is one of those close calls
in how you decide, but one of those cases you submitted to the
Committee involved a police officer who apparently received a
call. He goes up to a store. About 8 to 10 individuals were
congregated in the same area. He asked them to move on and one
witness launched into a very, apparently, profane attack on the
police officer. The officer arrested him for disorderly conduct
and you found that the officer was in error.
I do not know. First, what did that finding mean for the
officer? What kind of consequences resulted from your decision
in that case?
Ms. Xinis. That is a very good question. It allows me, if I
may, to explain the process more generally.
The process in the District of Columbia for the Office of
Police Complaints was that there was a team of investigators
and staff who would weed out the frivolous and the baseless
complaints because there were many of those. The Committee
determined, the Agency determined it would be a waste of
important resources to bring those to a office--hearing
officer.
By and large, these cases were ones in which there was no
genuine issue, often, of disputed material fact even from the
perspective of the police officer. It was not my job to mete
out punishment. That was left to the department itself. There
were times that no punishment was meted out is my
understanding.
Rather I was deciding a very narrow question after often
being given no genuine issue of dispute in material fact which
is did the officers----
Senator Sessions. Could your findings have been used in a
civil lawsuit in any way?
Ms. Xinis. I would have to look at that, Senator. I do not
know the answer immediately and I would not want to speculate
for you. It has been--I think I handled--over 6 years, I
handled six cases.
Senator Sessions. Are you familiar with the broken windows
policy in New York? The law enforcement policy known as broken
windows?
Ms. Xinis. I am not, Senator.
Senator Sessions. You are not familiar with that? It is a
well-known process by which Mayor Giuliani and the Chief of
Police concluded that small crimes lead to big crimes and that
being clear in enforcing smaller crimes would make the public
safer and, in fact, it was dramatically effective, leading to a
dramatic decline in murders in New York. Really many say, saved
the city of New York. You are not familiar with that and being
a police review officer?
Ms. Xinis. Senator, my job in that regard was to review the
fact--the case that appeared before me in the District of
Columbia and it was----
Senator Sessions. Well----
Ms. Xinis. I am sorry.
Senator Sessions. You have answered it, I guess. What I
would say to you is, this caused the officers to come in more
direct contact every day with situations in an early stage on
the streets of New York and other cities have adopted this all
over the country. It has become a predominate theory of law
enforcement and they confront people.
You have the frisk situations, or the stops in New York
that now have been reversed resulting in a decline in morale of
police officers and increase, it appears, in crime rates and
innocent people may be dying as a result of the failure of
police officers to actually get out and confront people who
appear to be problematic, like the man here on the store that
launches into a tirade against the police officer. All I am
saying to you is in a real world of law enforcement, I want to
know you as a Federal judge understand that.
Ms. Xinis. Absolutely.
Senator Sessions. When a police officer is out trying to do
his duty to make this community safer, he is not going to have
a Federal judge second guessing everything that he does. Do you
understand the danger of that happening?
Ms. Xinis. Senator, what I would say is this, I do. For 15
years, almost 15 years, I acted as a assistant Federal
defender. One of the most important lessons I learned because I
formed very important professional relationships with the
assistant United States attorneys that prosecuted these crimes
and with the agencies that helped those assistant United States
attorneys prosecute those crimes and I can say to you, they do
good work. It is important work.
As a judge, however, it would be my position that my oath
is to fully and fairly decide the case before me on the facts.
I think my record would speak to--and the individuals whom I
know are supporting my nomination would speak to my record of
fairness, of open mindedness and of integrity. I would bring
that to every case----
Senator Sessions. Can you assure the police officers in
Baltimore and all over Maryland that might be brought before
your court that you will give them a fair day in court?
Ms. Xinis. Absolutely.
Senator Sessions. That your history would not impact your
decisionmaking? I raise that particularly because I see your
firm is representing Mr. Freddie Gray in that case that has
gathered so much attention in Maryland and there are lots of
law enforcement officers throughout the State that want to know
that they do not have someone who has an agenda to bring to the
bench. Can you assure them that you will not bring that to the
bench?
Ms. Xinis. Absolutely. Senator, I have never had an agenda,
even in my private practice, even in my practice as an
assistant Federal defender. I took the oath of being a zealous
advocate, taking positions that would best serve my clients.
The carry through if I were to become a judge, if I were so
fortunate, is to take that same dispassion that one has to
bring to advocacy, that same recognition that important policy
decisions need to be made by policymakers, but that is not a
court's role and that there is no agenda for a well-trained
judge. There is no agenda for me, sir, and there would not be
if I were nominated and I can absolutely confirm----
Senator Sessions. I hope you understand and I would just
say that theory is one thing, but human interactions with
police officers--it's awfully difficult sometime to second-
guess a decision they have to make on the spot.
Ms. Wright, I was curious about a law review article you
wrote in UCLA Law Review which not many people are honored to
be able to write a law review article there. You said some
things that I think we ought to ask you about and understand
more fully what you mean.
The title of the article was in 1990, ``Defining the
Property Right in Whiteness.'' You had this, I believe
concluded your article--well first you led off, the first
sentence was, ``the practice of American racism is based on two
principles, the sanctity of property and the belief in the
hierarchy of a races.''
The belief in the hierarchy of races, as you note, is
totally unacceptable and contrary to American law. I am curious
about your equating the sanctity of property rights with that.
You go on to say, ``the liberal conception we face today is,
however, equally damaging and little discussed that property is
worth more than life or liberty, the fact that whites own the
vast majority of what Americans define as property does not
usually enter this argument and, therefore, appears
nonracist.'' Then you conclude saying, ``the failure of today's
racial discourse is its reliance on the notion that property is
neutral, that the deed to a suburban home is property while the
opportunity to move out of a slum is not. The fungibility of
property can be no better exemplified than it is by slavery,
the fact that our constitution once recognized one person's
very life and liberty as another's property should teach us the
danger of letting property determine liberty, rather than
looking to liberty to define property.''
Can you give me an incite into what you mean and as a
Federal judge how you consider property?
Justice Wright. Senator Sessions, thank you so much for the
question. I think it is an important one and I am very happy to
have the opportunity to address it because it goes to the
fundamental qualifications of any person with experience as a
judge or without experience as a judge to be a judge, and that
is it goes to the fundamental question of can I fairly render
decisions in every case.
Addressing that writing that occurred more than 25 years
ago, before I was a lawyer as I was studying law, I think is
important to place first of all the statements of a law student
and a----
Senator Sessions. You were a member of the Law Review at
that time?
Justice Wright. At that point, those were reflections from
a class that--so I was not a member--I was a member of the
Harvard Civil Rights Civil Liberties Law Review, but that
writing did not appear in the Harvard Civil Rights Civil
Liberties Law Review.
What I think I inartfully said or tried to say was a
critique on racially restrictive covenants. That was my
concern. The assignment does not--my writings do not reflect
the nature of the assignment that I was commenting on. In my
articulation--and inartfully, many years ago without a JD
degree and all of the training and experience that I have now,
but owning that I did write those words.
I think it is important that I explain the context. It was
in the instance where despite fair housing laws, there were
racially restrictive covenants that existed. Those covenants
were ones in which a person who was of an ethnic background or
a racial background who did not fit the criteria for the
neighborhood could, even though they had the same amount of
money, were prepared to pay the house that the seller wanted to
have paid, they were in fact excluded because of their race.
That is what I was addressing. I will tell you I did so
inartfully. I will tell you that----
Senator Sessions. I did not write so well in college either
and still do not.
[Laughter.]
Justice Wright. As someone who has strived to improve over
the course of my time after law school and in my career,
throughout my career, I am not saying that that is what I would
write now and how I would communicate now.
Senator Sessions. You would recognize as a Federal judge
that property rights provided for under the constitution and
the laws of our States and that deeds to property represent
ownership----
Justice Wright. Yes.
Senator Sessions [continuing]. That should be respected by
the court?
Justice Wright. Absolutely. I would, Senator Sessions. I
absolutely would. I think my writing as a judge, as a Justice
on a Minnesota Supreme Court reflects that understanding and
frankly, that respect for the rule of law and property rights
that are provided for under the rule of law.
Senator Sessions. All right. Thank you. I think those are
important issues to raise and give you an opportunity to
explain. I will review your writings, both of you that I have
asked about these two aspects of your practice.
I think you all should be honored to receive the nomination
of the President. It is significant positions that you are
seeking to hold and you owe the taxpayers honest adjudication
of your best judgment on how to handle these matters.
I do feel like we have gotten into a mode where courts have
exceeded their jurisdictional powers. Congress is really put in
a position of being an inferior branch and I do not believe
that courts are the superior branch and entitled to have the
final word on every social issue facing the country. This is a
big issue and the American people are not happy about it. It
represents an erosion of democracy. As Justice Scalia recently
noted, if a committee of nine, five of which decide something
can set policy for America.
Anyway, we have a situation that requires a national
thoughtful approach.
It is good to be with you Senator Klobuchar. Yield any time
you may.
Senator Klobuchar. Senator Sessions and I share a
background as a prosecutor. When I came into my job, we worked
really hard on those property crimes. I did not do
misdemeanors, but some of the lower level crimes with this idea
that it helped this neighborhoods that saw--crimes, but as I
was listening to your questions of Ms. Xinis, from a policy
standpoint, I came in as a elected official. I think her role
of deciding individual cases, which is different and that is
probably why you were not as familiar with some of those
policies that were going on.
I just had one question of you and that was, have you also
represented police officers in your practice at all?
Ms. Xinis. Absolutely. I have on a number of occasions
proudly.
I would also too, if I may, because there is one important
aspect of the Office of Police Complaints process that I left
out and that is the review process. At any point the officer
and the agency could review my decisions and could reverse them
and I was never told anything of the sort had happened in the
case, in those cases and was kept on and proudly served in that
capacity.
Senator Klobuchar. All right. Well that was just--I thought
it was important to get on the record.
Ms. Xinis. Thank you.
Senator Klobuchar. I want to thank all of the nominees. I
thank Chairman Grassley who we hope has not caused some kind of
new war with Great Britain as we are sitting here.
[Laughter.]
I want to just thank you for your tremendous job, your
service today and hope that these nominations will be
considered as soon as possible and we thank your family and
friends for being here, thanking your son for not being here,
Ms. Xinis.
[Laughter.]
Ms. Xinis. Thank you.
Senator Klobuchar. We will keep the record open for a week
and with that, the hearing is adjourned. Thank you very much.
Mr. Namorato. Thank you.
Mr. Vazquez. Thank you.
Ms. Wright. Thank you.
[Whereupon, at 11:33 a.m., the hearing was adjourned.]
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