    [Senate Hearing 114-588]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-588

                              PENDING NOMINATIONS

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

             NOMINATIONS OF HON. PATRICK PIZZELLA, NOMINEE TO BE A
          MEMBER, FEDERAL LABOR RELATIONS AUTHORITY, JULIE H. BECKER,
            NOMINEE TO BE AN ASSOCIATE JUDGE, SUPERIOR COURT OF THE
             DISTRICT OF COLUMBIA, STEVEN N. BERK, NOMINEE TO BE AN
               ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT OF
                COLUMBIA, AND ELIZABETH WINGO, NOMINEE TO BE AN
          ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

                                   __________

                                 MARCH 2, 2016

            Available via the World Wide Web: http://www.fdsys.gov/

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

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                              Washington, DC 20402-0001

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                        RON JOHNSON, Wisconsin Chairman
    JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
    ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
    RAND PAUL, Kentucky                  JON TESTER, Montana
    JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
    MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
    KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
    JONI ERNST, Iowa                     GARY C. PETERS, Michigan
    BEN SASSE, Nebraska

                        Keith B. Ashdown, Staff Director
                      Christopher R. Hixon, Chief Counsel
    Gabrielle D'Adamo Singer, Deputy Chief Counsel for Governmental Affairs
      John D. Cuaderes, Staff Director, Subcommittee on Regulatory Affairs
                             and Federal Management
        Nathan R. Kaczmarer, Counsel, Subcommittee on Regulatory Affairs
                             and Federal Management
                  Gabrielle A. Batkin, Minority Staff Director
               John P. Kilvington, Minority Deputy Staff Director
     Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
                         Laura W. Kilbride, Chief Clerk
                       Benjamin C. Grazda, Hearing Clerk

                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Lankford.............................................     1
        Senator Carper...............................................     2
        Senator Ernst................................................    11
        Senator Heitkamp.............................................    13
        Senator Peters...............................................    16
    Prepared statement:
        Senator Lankford.............................................    25
        Senator Carper...............................................    27

                                   WITNESSES
                            Wednesday, March 2, 2016

    Hon. Patrick Pizzella, Nominee to be a Member, Federal Labor
      Relations Authority
        Testimony....................................................     4
        Prepared statement...........................................    33
        Biographical and financial information.......................    34
        Letter from the Office of Government Ethics..................    57
        Responses to post-hearing questions..........................    59
    Julie H. Becker, Nominee to be an Associate Judge, Superior Court
      of the District of Columbia
        Testimony....................................................     5
        Prepared statement...........................................    61
        Biographical and financial information.......................    62
        Responses to post-hearing questions..........................    98
    Steven N. Berk, Nominee to be an Associate Judge, Superior Court
      of the District of Columbia
        Testimony....................................................     6
        Prepared statement...........................................    99
        Biographical and financial information.......................   100
        Responses to post-hearing questions..........................   119
    Elizabeth C. Wingo, Nominee to be an Associate Judge, Superior
      Court of the District of Columbia
        Testimony....................................................     7
        Prepared statement...........................................   120
        Biographical and financial information.......................   121
        Responses to post-hearing questions..........................   155

                                    APPENDIX

    Statement submitted by the Honorable Paul Strauss, Shadow Senator
      from the District of Columbia..................................    29

                              NOMINATIONS HEARING

                            WEDNESDAY, MARCH 2, 2016

                                         U.S. Senate,
                               Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:01 a.m., in
    room SD-342, Dirksen Senate Office Building, Hon. James
    Lankford, presiding.
        Present: Senators Lankford, Ayotte, Ernst, Carper,
    Heitkamp, and Peters.

                 OPENING STATEMENT OF SENATOR LANKFORD

        Senator Lankford. Good morning. Today we will consider the
    nominations of Ms. Julie Becker, Mr. Steven Berk, and Ms.
    Elizabeth Wingo for the position of Associate Judge on the
    Superior Court of the District of Columbia, as well as the
    nomination of Mr. Patrick Pizzella to be a member of the
    Federal Labor Relations Authority (FLRA). The Committee takes
    these nominations extremely seriously, so we are pleased to
    have strong nominees before us today.
        The Superior Court for the District of Columbia is a busy
    place, with more than 100,000 cases heard each year. I am proud
    to say that these three superior court nominees will mark the
    5th, 6th, and 7th that the Committee has considered in just the
    past year. This is more than triple the number of nominees who
    received hearings during the entire 113th Congress.
        Julie Becker is a native of Detroit, Michigan. She received
    her Bachelor of Arts degree from the University of Michigan and
    her law degree from Yale Law School. After graduation, Ms.
    Becker clerked for then-Judge Sonia Sotomayor on the Second
    Circuit Court of Appeals. Currently, Ms. Becker is a
    supervising attorney at Legal Aid where she has spent the past
    14 years.
        Steven Berk is originally from Chicago, Illinois. He
    received his undergraduate degree from Washington University in
    St. Louis. He has a Master's degree from the London School of
    Economics and a law degree from Boston College Law School. Mr.
    Berk has worked at the Securities and Exchange Commission
    (SEC), as an Assistant U.S. Attorney for the District of
    Columbia, and practiced at several prestigious law firms.
        Elizabeth Wingo is a native of Washington, D.C. She
    received her Bachelor of Arts from Dartmouth College and her
    law degree from Yale Law School. Following law school, she
    clerked for Judge T.S. Ellis in the Eastern District of
    Virginia. Ms. Wingo worked as a prosecutor at the U.S.
    Attorney's Office in the District of Columbia and for the
    District of Columbia's Attorney General's (AG) office before
    being appointed as a magistrate for the superior court in 2006.
        In addition to these impressive resumes, Ms. Becker, Mr.
    Berk, and Ms. Wingo possess the necessary legal skills and
    judgment to serve the District of Columbia.
        Mr. Pizzella is a native of Rochelle, New York. Rochelle?
        Mr. Pizzella. Rochelle.
        Senator Lankford. Rochelle. Thank you. Sorry, an Oklahoman
    trying to pronounce a New York name. I will just take it under
    advisement.
        He received his Bachelor of Arts degree from the University
    of South Carolina. After graduation, he served in a variety of
    government entities, including the General Services
    Administration (GSA), the Small Business Administration (SBA),
    the Department of Education, and the Department of Labor (DOL).
    In 2013, he was appointed to the Federal Labor Relations
    Authority.
        Committee staff has reached out to a variety of these
    nominees' colleagues and affiliates, who all spoke highly of
    them. You would be very impressed at the kind of things many
    people that were interviewed said about each of you.
        Committee staff has also had the opportunity to be able to
    interview Ms. Becker, Mr. Berk, Ms. Wingo, and Mr. Pizzella on
    an array of issues, ranging from notable cases to community
    service and pro bono work. They have thoughtfully and
    competently answered each of the questions to our satisfaction.
        To date, the Committee has found you to be qualified for
    the positions you have been nominated to, and I look forward to
    speaking with you a bit more today on your experience and
    accomplishments and how you intend to bring them to bear in a
    fair and impartial manner for the FLRA and the District of
    Columbia.
        With that, I would recognize the Ranking Member of the
    Committee, Senator Carper, for any opening statement he would
    like to make.

                  OPENING STATEMENT OF SENATOR CARPER

        Senator Carper. Thanks, Senator Lankford. I want to thank
    you and I want to thank your staff for moving these nominations
    forward. We are, I think, fortunate--the people of the District
    of Columbia are fortunate to have men and women with the kind
    of credentials as the three of you bring, and they would
    probably be pleased about the other credentials for the fourth
    person, too.
        So thank you for moving these along. I like to say justice
    delayed is justice denied, and I am happy to see us moving
    these forward. I want to welcome not only the nominees but
    certainly members of their families that are here, including
    some very young ones. And we are happy that you have joined us,
    and we appreciate the parents who have raised at least one of
    these young people, and the children and the spouses that are
    willing to share your loved ones with the folks of this town.
        I want to start by welcome Patrick--is it Pizzella?
        Mr. Pizzella. Correct, sir.
        Senator Carper. Pizzella, OK. Who has been renominated to
    be a member, as we heard, of the Federal Labor Relations
    Authority. That is an Authority that plays an important role,
    as we know, in promoting constructive relationships between
    management and unions and, in turn, helps improve the
    effectiveness and the efficiency of the Federal Government.
        Mr. Pizzella has had a long career in public service,
    including the past few years serving in the position to which
    he has been now renominated, and we are grateful for his
    service and his willingness to continue to serve in this very
    important role.
        I am also pleased today that we are considering three
    nominees for the Superior Court of the District of Columbia.
    Julie Becker, Steven Berk, and Elizabeth Wingo all have very
    impressive backgrounds and legal careers that I believe make
    them extremely well qualified to serve as judges on the
    Superior Court. And we thank you all for joining us and for
    your willingness to serve.
        Before I close so we can hear from our nominees, I just
    want to note again how pleased I am that, in the last months of
    last year, the Senate finally moved to confirm nominees to fill
    four other vacancies on the D.C. Superior Court.
        That said, I thought it was shameful that it took us 2
    years to get two of those judges confirmed. But I am delighted
    that we have started to move nominees more quickly now, and I
    hope we can continue that momentum with these three nominees
    and others to the Superior Court as we go forward.
        Most Americans probably do not know that local judges in
    the District of Columbia must be confirmed by the U.S. Senate.
    I will have to admit I did not know that a number of years ago.
    But while these judgeships are comparable to the State courts
    that each of us is familiar with in our respective States, the
    D.C. Superior Court and Court of Appeals are operated by the
    Federal Government, not by the local government here. Their
    judges are appointed by the President from a slate of
    candidates thoroughly vetted and recommended by a nonpartisan
    nomination commission. They must then be confirmed by the
    Senate in order to serve 15-year terms.
        But these courts do not handle Federal matters. They are
    the local courts for the District of Columbia and hear cases
    related to local crimes and domestic and civil disputes between
    the people who live here in the District.
        I know of no other jurisdiction in our country that must
    have its local judges approved by the Congress. And no other
    State or locality is denied the representation here in the
    Senate that might help it pursue its priorities here, including
    nominations.
        Some have suggested that local D.C. judges should not have
    to go through Senate confirmation. I continue to believe that
    we ought to seriously consider that idea. But at a minimum, we
    should develop an expedited process for the confirmation of
    these local judges, as we have for some other positions that
    also have required Senate confirmation in the past but do not
    anymore.
        In the meantime, I hope that the Senate will move forward
    quickly on the nominees we are considering today. I believe
    that the people of the District of Columbia are fortunate that
    men and women as impressive as you are willing to go through a
    protracted nominating process, a great deal of scrutiny, and a
    full measure of uncertainty--which can stretch out in some
    cases for years--all for the possibility that they may one day
    serve on the bench in the District of Columbia. In this case,
    it has not taken that long. Mr. Chairman, to you and your staff
    and others who worked hard, and my staff, we thank you all.
        Senator Lankford. Thank you.
        It is the custom of this Committee to swear in all
    witnesses that appear before us, so if you do not mind, if you
    would please stand, raise your right hand. Do you swear that
    the testimony you are about to give before this Committee will
    be the truth, the whole truth, and nothing but the truth, so
    help you, God?
        Mr. Pizzella. I do.
        Ms. Becker. I do.
        Mr. Berk. I do.
        Ms. Wingo. I do.
        Senator Lankford. Thank you. You may be seated, and let the
    record reflect all the witnesses answered in the affirmative.
        We will all do opening statements on this. I would ask you
    a favor, that when you do your oral opening statements you all
    introduce your family. I have had the opportunity to be able to
    meet your family, but many people in this room have not. So if
    you could, when you make your opening statements, also
    introduce your family, that would be a great honor for everyone
    here in the room as well.
        Mr. Pizzella, since you are the experienced one on this, if
    you want to be able to make any opening statement--you have
    been through this rigor before--we would receive your oral
    testimony if you have any at this point.

    TESTIMONY OF THE HONORABLE PATRICK PIZZELLA,\1\ NOMINEE TO BE A
               MEMBER, FEDERAL LABOR RELATIONS AUTHORITY

        Mr. Pizzella. Thank you. Unfortunately, I am unable to
    introduce my family because my wife is taking care of a family
    matter--but thank you, Mr. Chairman and Chairman Lankford and
    Senator Carper and Members of the Committee. I want to thank
    you and your staff for all the courtesies shown to me as I have
    prepared for this hearing. Given the seriousness of the issues
    that presently confront you, I am especially appreciative of
    the time you have taken to ensure that the Federal Labor
    Relations Authority operates at full strength.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Hon. Pizzella appears in the Appendix
    on page 33.
    ---------------------------------------------------------------------------
        This is the fourth time I have had the privilege of being
    nominated by a President for a position of public trust. I am
    honored that the President nominated me once again to be a
    member of the Federal Labor Relations Authority, and, if
    confirmed, I will continue to dedicate myself to discharging
    the responsibilities of the FLRA in accordance with laws,
    rules, and regulations.
        I began my tenure in Federal service in the early 1980s,
    and I believe my 23 years of experience in the Executive Branch
    will continue to be an asset to the FLRA.
        I enjoyed the past 2 years as a member of the FLRA and with
    your support hope to continue in that role.
        I am looking forward to answering any questions you may
    have. Thank you.
        Senator Lankford. Thank you. Ms. Becker.

      TESTIMONY OF JULIE H. BECKER,\1\ NOMINEE TO BE AN ASSOCIATE
           JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

        Ms. Becker. Thank you. Mr. Chairman and Members of the
    Committee, thank you for the opportunity to appear before you
    today as a nominee to be an Associate Judge of the District of
    Columbia Superior Court. It is a great honor to be nominated
    and considered for this position. I would like to thank the
    Judicial Nomination Commission and its Chair, the Honorable
    Emmet Sullivan, for recommending me to the White House, and I
    thank the President for nominating me.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Becker appears in the Appendix on
    page 73.
    ---------------------------------------------------------------------------
        I am here today with my parents, sitting behind me, Allan
    and Patricia Becker, and my husband, Alan Silverleib. I am
    immeasurably grateful for their love and support and for the
    joy I receive every day from my 3-year-old daughters, Anna and
    Rebecca, who are at school today. I am also fortunate to be
    joined by a number of friends, mentors, and colleagues who have
    encouraged me not only during this process, but throughout my
    career as an attorney. I would not be here today without them.
        I have spent the past 15 years at the Legal Aid Society of
    the District of Columbia. I have been privileged to work with
    hundreds of individuals and families to secure and maintain
    decent, safe, and affordable housing. I have represented
    clients in every ward of the city, and I have dedicated my
    career to the goal of ensuring that all members of our
    community have meaningful access to the legal system.
        The vast majority of my work as an attorney has taken place
    in D.C. Superior Court. I have tried cases in its courtrooms,
    spent time in the clerks' offices, and negotiated settlements
    in the hallways. I have served on two of the court's Rules
    Committees, helping to write and revise rules of procedure for
    the Landlord and Tenant Branch and the Housing Conditions
    Calendar. These experiences have given me the opportunity to
    think critically about every aspect of court proceedings and to
    help create a better, more efficient process for all parties.
        Over the years, I have learned a great deal from judges on
    the Superior Court bench about the skill, patience, and
    dedication that the job requires. I look forward to the
    challenge of living up to their example. If I am confirmed, I
    will work every day to ensure that the law is applied fairly in
    every case, and that all parties appearing in court are treated
    with the dignity and respect they deserve.
        Thank you again for the honor of considering my nomination.
    I look forward to answering any questions you may have.
        Senator Lankford. Thank you. Mr. Berk.

      TESTIMONY OF STEVEN N. BERK,\1\ NOMINEE TO BE AN ASSOCIATE
           JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

        Mr. Berk. Thank you, Mr. Chairman.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Berk appears in the Appendix on
    page 111.
    ---------------------------------------------------------------------------
        Mr. Chairman and Members of the Committee, I am honored and
    truly humbled to appear before you today as a nominee for the
    position of Associate Judge of the Superior Court for the
    District of Columbia. I would like to thank the D.C. Judicial
    Nomination Commission, and in particular its Chairman, Federal
    District Court Judge Emmet Sullivan, who was nice enough to
    come here today.
        Senator Carper. Would you raise your hand, please? Higher?
    Welcome. Good to see you.
        Judge Sullivan. Thank you.
        Mr. Berk. I would like to thank the White House and I would
    like to thank the President for nominating me. And I would like
    to acknowledge my colleagues, friends, and family who are here
    today and have been with me throughout this journey.
        I would like to recognize first my two sons, Corey and
    Jacob, who are actually twins--it may not seem like that, but
    you can try to guess who is older. And I would like to
    recognize my mother, who is here from Chicago, sitting right
    behind me. She raised me to always strive for excellence in
    whatever I did and whatever I chose to pursue.
        And, finally, to my wife, Jenny, who is also behind me, who
    has never wavered in her support of me, picking me up when my
    spirits lagged, and believing in me sometimes more than I
    believed in myself.
        Someone who I wish were here today is my father, who died
    last year after a long and valiant battle with cancer. At the
    close of World War II, American soldiers liberated my dad from
    the Dachau concentration camp in Germany. He was days from
    death, suffering from profound malnutrition and typhus. He
    eventually regained his health and came to the United States as
    an orphan in 1948. Two years later, he was a member of the
    United States Army serving two tours of duty on the front lines
    in Korea before returning to Chicago, marrying my mom, and
    eventually becoming a successful entrepreneur. He loved this
    country, and I miss him very much today.
        I attended law school because I was interested in public
    service. That interest brought me to Washington in 1989 where I
    worked as a prosecutor at the Securities and Exchange
    Commission and the United States Attorney's Office for the
    District of Columbia. After leaving the U.S. Attorney's Office,
    I went on to become a partner at the law firm of Jenner &
    Block. In more recent days, I have been representing
    individuals such as defrauded investors, consumers, small
    business owners, and whistleblowers. I have had a 30-year
    career in the law, and in those 30 years, I have appeared in
    courtrooms throughout the country in administrative
    proceedings, Federal court, State courts, and legislative
    bodies.
        Over the past 5 years, I have continued to demonstrate a
    commitment to public service by volunteering for and being
    elected to leadership positions at the D.C. Bar. I served as a
    member of and later chair of the Judicial Evaluations
    Committee. I have also been elected treasurer and currently sit
    as a member of the Board of Governors.
        If I am fortunate enough to be confirmed, I will commit to
    having everyone in my courtroom treated with dignity and
    respect. I will be decisive and make timely and thoughtful
    decisions. And I will be prepared each day to dispense with
    justice.
        Thank you for your consideration of my nomination, and I
    will be pleased to answer any of your questions.
        Senator Lankford. Thank you. Ms. Wingo.

    TESTIMONY OF ELIZABETH C. WINGO,\1\ NOMINEE TO BE AN ASSOCIATE
           JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

        Ms. Wingo. Mr. Chairman and Members of the Committee, thank
    you for the opportunity to appear before you today as you
    consider my nomination to be an Associate Judge of the Superior
    Court of the District of Columbia. I would like to thank the
    Judicial Nomination Commission and its chair, the Honorable
    Emmet Sullivan, for recommending me to the White House, and I
    would like to thank President Obama for nominating me. In
    addition, I would like to express my thanks and appreciation to
    the Committee Members and the Committee staff for their hard
    work and for considering my nomination so expeditiously.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Wingo appears in the Appendix on
    page 132.
    ---------------------------------------------------------------------------
        I would also like to acknowledge and thank Chief Judge Lee
    Satterfield for his leadership, his support, and his presence
    here today.
        Senator Carper. Would he raise his hand--Lee Satterfield?
    Thank you, sir. Welcome.
        Judge Satterfield. Thank you.
        Ms. Wingo. I am also very fortunate to have a number of
    members of my family, who have been very supportive, here with
    me to today, and I would like to introduce and thank them: my
    husband, Harry Wingo; my children, Alexandra and Natalie
    Wingo----
        Senator Lankford. Which, by the way, I discussed with them
    possibly them doing testimony later as well. [Laughter.]
        And they declined that.
        Ms. Wingo. I also have here my parents, Tony and Judy
    Carroll; my brother and sister-in-law, Tom and Katherine
    Carroll; my sister and brother-in-law, Michaela and Ted Lizas,
    and their children, my nieces Amy and CC Lizas.
        Senator Carper. Is that all? [Laughter.]
        Ms. Wingo. I would also like to acknowledge and thank my
    stepdaughter, Hailey, who is a junior in high school and was
    unable to be here today.
        Finally, I would also like to thank the many friends and
    current and former colleagues who have supported me over the
    years, some of whom are also present here today.
        I was born and raised in the District of Columbia and have
    spent most of my legal career serving the citizens of the
    District. After clerking for the Honorable T.S. Ellis in the
    Eastern District of Virginia, I spent 4 years at the U.S.
    Attorney's Office for the District of Columbia, prosecuting a
    wide variety of crimes, from misdemeanor simple assaults to
    homicides. Following my time at the U.S. Attorney's Office, I
    continued to work on behalf of the people of the District at
    the Office of the Attorney General for the District of
    Columbia, where I served as the Chief of the Criminal Section
    and then as the Assistant Deputy Attorney General for Public
    Safety.
        Since 2006, I have had the honor of serving as a magistrate
    judge in the Superior Court, where I have had the opportunity
    to preside over calendars in the Criminal and Civil Divisions,
    as well as in the Family Court and Domestic Violence Unit. It
    would be a privilege and an honor for me to continue my public
    service as an associate judge in the Superior Court.
        Thank you for your consideration, and I look forward to
    answering your questions.
        Senator Lankford. I thank all of you.
        There are three questions that I am going to ask for this
    entire group, and I am going to need an oral yes or no on this.
    What I will do is I will ask the question and then we will just
    go down the row. It will be very informal. Sorry about that.
    These are questions that we find extremely important to be able
    to ask every candidate as they come through.
        First--and I will ask all four of you to answer this
    question yes or no--is there anything that you are aware of in
    your background that might present a conflict of interest with
    the duties of the office to which you have been nominated? Mr.
    Pizzella.
        Mr. Pizzella. No, sir.
        Senator Lankford. Ms. Becker.
        Ms. Becker. No.
        Senator Lankford. Mr. Berk.
        Mr. Berk. No.
        Senator Lankford. Ms. Wingo.
        Ms. Wingo. No.
        Senator Lankford. Second question: Do you know of anything,
    personal or otherwise, that would in any way prevent you from
    fully and honorably discharging the responsibilities of the
    office to which you have been nominated? Mr. Pizzella
        Mr. Pizzella. No, sir.
        Senator Lankford. Ms. Becker.
        Ms. Becker. No, sir.
        Senator Lankford. Mr. Berk.
        Mr. Berk. No, sir.
        Senator Lankford. Ms. Wingo.
        Ms. Wingo. No, sir.
        Senator Lankford. Thank you.
        Third, do you agree without reservation to comply with any
    request or summons to appear and to testify before any duly
    constituted committee of Congress if you are confirmed? Mr.
    Pizzella.
        Mr. Pizzella. Yes, sir.
        Senator Lankford. Ms. Becker.
        Ms. Becker. I do.
        Senator Lankford. Mr. Berk.
        Mr. Berk. Yes, sir.
        Senator Lankford. Ms. Wingo.
        Ms. Wingo. Yes.
        Senator Lankford. Thank you. I recognize Ranking Member
    Carper for any questions.
        Senator Carper. Mr. Chairman, thank you. Thank you so much.
        Those were wonderful testimonies. I was especially touched,
    Mr. Berk, by the story you told us about your dad and shared
    that with us. What a guy. What a life he lived. And I
    appreciated the lovely comments that you have made about your
    mom and about your wife. Those are lovely--and all of you for
    introducing your family and friends. It is one of my very
    favorite parts of these hearings, so we are glad that you are
    all here.
        I just want to start with a quick question, if I can, for
    you, Ms. Wingo. The role of a magistrate judge is a bit
    different, as you know better than anybody else, the role of an
    associate judge. Just take 30 seconds and describe some of the
    differences.
        Ms. Wingo. One of the primary differences is that an
    associate judge has a broader range of responsibilities. There
    are calendars that associate judges are assigned to that
    magistrate judges do not handle. There is also a broader range
    of types of things that an associate judge can do, the biggest
    one being jury trials. A magistrate judge does not handle jury
    trials, so we, generally speaking are limited to misdemeanors;
    whereas, an associate judge can handle the jury trials and,
    therefore, can handle anything in the court.
        Senator Carper. Take another 30 seconds and just give these
    two people closest to you, Mr. Berk and Ms. Becker, just give
    them some friendly advice. [Laughter.]
        Ms. Wingo. Well----
        Senator Carper. Unfriendly advice. [Laughter.]
        Ms. Wingo. Truly, the friendly advice that I would give is
    to rely on your colleagues, because I have found at the court
    that there is no greater resource and that there is no greater
    willingness anywhere in any employment for your colleagues to
    help you out. The other judges, the staff, the clerks--everyone
    is very supportive of each other, and everybody is working
    toward the same goal, which is to ensure that there is equal
    justice for all. And so you should feel free to rely on those
    folks if you need them.
        Senator Carper. All right. Thanks. Thanks for that advice.
        I would note that our judicial nominees come from very
    different legal backgrounds and have focused on certain areas
    of the law throughout your career. That is not uncommon.
    However, if confirmed, I understand that you will preside over
    time over cases arising under many different areas of the law.
    And we have a similar situation with the Federal district court
    judges in Delaware. But how has your career prepared each of
    you to handle the wide range of legal issues that you will
    confront as an associate judge? And how will you ensure that
    you are prepared to preside over cases in areas of law which
    you may be not as familiar with? Ms. Becker, do you want to
    lead off on that one? Then Mr. Berk.
        Ms. Becker. Thank you, Senator. I certainly would have a
    lot to learn, particularly in divisions in which I have not
    frequently appeared, and I will say I look forward to the
    challenge of learning new areas of the law.
        I think what I would come in with is that the folks that I
    have been representing during my career are, by and large, the
    litigants who appear in D.C. Superior Court. And I have had
    quite a lot of experience working with individuals of all
    education levels and, by and large, people who are not familiar
    with and not comfortable with the legal system.
        And so what I have gained from those experiences is I think
    primarily communication skills. I can listen to the story that
    a person tells and be able to extract from that story what are
    the legally relevant facts for deciding the case. And I have
    also become good at communicating sometimes complex legal
    concepts in a way that is accessible to people who are not
    lawyers.
        Senator Carper. OK, good.
        Mr. Berk, same question. How will you ensure that you are
    prepared to preside over cases in areas that you are not as
    familiar with?
        Mr. Berk. If I may, Senator, let me just say that Ms. Wingo
    has been terrifically generous with both of us in terms of
    giving us the insights for today's hearing.
        Senator Carper. No kidding.
        Mr. Berk. She has been great.
        Senator Carper. Isn't that against the rules? [Laughter.]
        Senator Lankford. No. But that does mean the harder
    questions will gear toward her then the rest of the day.
        Senator Carper. OK. [Laughter.]
        Mr. Berk. I am sorry if I got you in trouble.
        Senator Carper. You are OK.
        Mr. Berk. I have been practicing law 30 years. It goes
    quickly. And I have been fortunate, very lucky to be able to
    practice in jurisdictions all over the country and to do
    different types of cases. It has been heartening. I will get
    phone calls from people, and they will say, ``Have you done
    something like this?'' And I will be, like, ``No, but I am
    willing to try.'' And I think on the Superior Court there will
    be things that I have not seen before, certain areas of the law
    that I am not as familiar with.
        But I am very familiar with getting up to speed quickly on
    matters, and I am confident that those skills can be used by me
    if I am lucky enough to be confirmed.
        There are areas where there is probate and there is tax and
    there is property and landlord-tenant. I have not done those
    areas. But I have applied facts to law, and at the end of the
    day, that is what lawyers do and judges do, is apply facts to
    the law and respect the rule of law. And so regardless of the
    type of case it is, I think those basic sort of tenets are with
    you, and I am confident I can provide good judging on a wide
    array of cases.
        Senator Carper. The situation you face as a new associate
    judge will be not unlike what we face in coming here as a new
    Senator. We end up with assignments to committees. Some of us
    come as attorney generals. Some of us come as leaders in our
    State. Senator Lankford has an incredible background, a
    military background and other things. But I ended up on this
    Committee, and I could barely spell ``cybersecurity,'' and I
    ended up as the Chairman of the Committee a couple of years
    ago. And there was a profile done of the new Chairman of the
    Committee, and they noted that I was the Senate expert on
    cybersecurity at the time. And I showed this to my staff, and I
    said, ``Look at this. Now I am the expert on cybersecurity.''
    And they said, ``In the land of the blind, the one-eyed man is
    king.'' [Laughter.]
        So do not get too puffed up.
        A question for you, Mr. Pizzella.
        Mr. Pizzella. Yes.
        Senator Carper. Could you just discuss with our colleagues
    here how you and your fellow members of the FLRA achieved the
    goal of significantly reducing the backlog--you had a huge
    backlog, and I think you now have reduced the amount of time
    that it takes to issue a timely decision. Just briefly, how did
    you do it? How did you guys do it?
        Mr. Pizzella. Well, the backlog was acquired because for a
    period of about a year there was a lack of a quorum. That was
    primarily what did it. And the Senate, when we had nominations
    made by the President, moved rather quickly to get a quorum in
    place. Both my colleagues, each had served as Chairman of the
    Federal Labor Relations Authority at one time or another
    before, and so they had much more experience than I did. And it
    took me a little while to get up to speed, but once we got
    going, we got going. And in the first year, for instance, 70
    percent of the cases that we issued decisions on were
    unanimous. And that pattern has continued because the law is
    the law.
        So we worked cooperatively and collegially and shared
    resources when necessary among offices, and we were able to put
    the backlog behind us.
        Senator Carper. Oh, good. My time has expired. I have to go
    to another meeting. I will stay here for a while and hear some
    of the questions, but I have to leave. But I want to thank you
    again for being here and for all who have joined you. Thank
    you.
        Senator Lankford. Senator Ernst.

                   OPENING STATEMENT OF SENATOR ERNST

        Senator Ernst. Thank you, Mr. Chairman, and thanks to all
    of you for your great service. You all have many years of
    valuable experience that you will take into these positions, so
    thank you for that. And thanks for the lovely introduction of
    all of your family and friends. And, Mr. Berk, to you, that was
    a great introduction of your family and many blessings to your
    family in the absence of your father. He sounds like an
    extraordinary man, so thank you for that. I appreciate that
    very much.
        To Ms. Wingo, Ms. Becker, and Mr. Berk, a very easy
    question, actually. Please describe your current thoughts on
    what it means to be an independent judge as well as the
    importance of judicial independence. Ms. Wingo, if we could
    start with you, please.
        Ms. Wingo. Judicial independence means that a judge is able
    to make decisions based on the evidence in the case before it
    and the law as applied to that evidence free from outside
    pressures, free from outside considerations. I think that it is
    essential to achieving the goal of equal access to justice for
    all, and that is one of the fundamental goals of the judicial
    system, and in the Superior Court in particular.
        Senator Ernst. Very good. Thank you. Mr. Berk.
        Mr. Berk. Yes, I think about the time that I spent being
    the chair of the Judicial Evaluations Committee here at the
    D.C. Bar and looking at what lawyers would say about judges.
    And, by and large, judges are rated quite highly, but there are
    some that are not. And it is because of some--not so much a
    flaw but a perception that they are not being independent, that
    they are flawed by preconceived ideas or notions or where they
    came from. And I hope to think that because my perspective is
    broad, because I have been on all sides of the table--I have
    been on the government side of the table, the defense side of
    the table, the plaintiff side of the table--that I can be
    independent because I understand everyone's perspective.
        Senator Ernst. Very good.
        Mr. Berk. And I think that will be helpful.
        Senator Ernst. Thank you very much. Ms. Becker.
        Ms. Becker. Thank you. I think that independence is really
    inherent, possibly central to the role of the judge. A judge
    has to be able to make decisions based on the facts that are
    presented in that individual case and applying the law that is
    governing to those facts, free from any outside pressures of
    any kind. And if a judge cannot do that, then we have a
    problem.
        Senator Ernst. Exactly. Thank you. Very good.
        And, Mr. Pizzella, a little tougher one for you. You
    dissented in a July 2014 opinion regarding a union grievance
    about U.S. Immigration and Customs Enforcement's (ICE) decision
    to block access to personal email on government computers
    without first offering an opportunity for collective
    bargaining. And to paraphrase your dissent, you suggested that
    Federal agencies should not be required to bargain with the
    union before they can act to secure the integrity of the
    Federal information technology (IT) systems. This became an
    issue again last year when, following the devastating breach at
    the Office of Personnel Management (OPM), the agency attempted
    to block access from government computers to certain websites
    that they deemed security risks. But the union threatened a
    lawsuit, and, ironically, then the union also sued OPM for
    failing to protect Federal Government employees' information.
    And just a note. My husband and I were also included in those
    that had information that was leaked.
        I have great concerns about how the 2014 FLRA decision
    could be used to inhibit Federal agencies' efforts to enhance
    their cyber defenses. As OPM Acting Director Beth Cobert
    acknowledged during her recent confirmation hearing before this
    Committee, personal email accounts are the way a lot of threats
    come in.
        So, accordingly, for the Committee's benefit, could you
    elaborate on your dissent from that 2014 case? And if you can
    provide us with any update on that situation as well.
        Mr. Pizzella. Yes, thank you, Senator. I did feel strongly
    about that at the time. The dissent pre-dated the now well
    acknowledged security breach at OPM. In my capacity as
    Assistant Secretary of Labor for almost 8 years, from 2001 to
    2009, I also had the role of the Chief Information Officer
    (CIO), so I had some knowledge--far from an expert, not a
    technology guru, but I had some knowledge about the sensitivity
    of protecting data, particularly from outside sources getting
    in. And I felt that the head of an agency, if determining after
    consultation with the technology experts at his or her
    department, felt the need to shut down access to personal
    websites and email, then that should be a decision that the
    head of that agency should be able to make without wasting time
    on anything, but to get to the core of the matter, which was
    obviously preventing and protecting us from cybersecurity
    attacks.
        I still believe strongly about that. As a matter of fact--
    you mentioned the OPM instance--I, too, was notified of my
    exposure in that.
        Senator Ernst. Many of us were.
        Mr. Pizzella. About a month after the OPM incident, Acting
    Director Cobert unilaterally shut down access to web email and
    Gmail without even informing the employees. And I know of no
    action that the union took in response to that, because I think
    common sense has caught up with perhaps this deference to
    needing to consult when there is something that could be called
    sort of an emergency or sensitive situation.
        So I do think it is important for agency heads to have that
    authority to act quickly and to do so without having to consult
    with unions or other third parties.
        Senator Ernst. Well, thank you. I appreciate that. Whenever
    there is an active threat out there, I think it is very
    important that those department heads are able to respond to
    those threats. But I appreciate it. Thank you all very much for
    being here today. I truly do appreciate it.
        Thank you, Mr. Chairman.
        Senator Lankford. I recognize Senator Carper.
        Senator Carper. I am not going to ask any more questions. I
    would like to note--and thanks for giving me this chance--that
    Congresswoman Norton wanted to be here, expected to be here to
    introduce you, Ms. Becker, Mr. Berk, and Ms. Wingo. She is in a
    markup over in the House of Representatives offering an
    amendment or amendments at the markup, so that is her day job.
    That is her job. And she wishes she could be here, be in two
    places at once, but she sends her best.
        Senator Lankford. Senator Heitkamp.

                 OPENING STATEMENT OF SENATOR HEITKAMP

        Senator Heitkamp. Thank you, Mr. Chairman.
        I am always struck by how remarkably well qualified folks
    are who come in front of us and by the fact that all of you
    really in the prime of your careers could be making, six,
    probably seven figures doing something else, and you are
    willing to step up and serve the public and serve this
    community, which has unique challenges, being in the District,
    and use your enormous talents and your remarkable academic
    credentials for the betterment of the community. And so I think
    I start out by just saying thank you, thank you, thank you,
    thank you for everything that you do and for being willing to
    go through this process, which not a lot of what I would say
    State courts judges are required to do, but still willing to
    serve.
        And so I do not have a lot of questions, but I was struck,
    Ms. Becker, by your comments about the skills that you have
    learned serving the public the way you do right now. I recently
    had an encounter with somebody who was looking for the court,
    the D.C. court, and they were mistaken and ended up here
    looking at the Supreme Court and looking quite confused. I
    think this man was probably homeless. He had a roller board
    with him. And I thought--I did not ask him why--I was trying to
    help him find the court he was going to, and I did not ask him
    why he was seeking out the court, but I thought when he left--
    and I offered to get him a ride on Uber, and he said, no, he
    would walk, he still had an hour. And I was struck with I hope
    when he gets there--and I do not care what his crime is--that
    he is treated with respect and that he is given an opportunity
    to really understand why he is there, because he seemed quite
    confused to me.
        And I want to really applaud your answer and say how
    difficult it is. You are not dealing at the Supreme Court level
    with very sophisticated jurists and lawyers who, are at the
    peak, the pinnacle. You are dealing with people who are
    homeless, who may have done something that, as a result of
    mental illness or extreme poverty, seemed like the only choice
    at the time.
        So I guess when you look at that--and my question is to
    you, Ms. Wingo. You look at the kind of folks who come into the
    court--because you have seen them--and you realize that if we
    are going to have a judicial system, it has to be accessible to
    people at all levels, as you have said.
        So what changes would you make or recommend once you get
    into this next step on making the court more accessible, making
    the court function better to better serve all the people of the
    district? I know there are some real judges out there, so do
    not worry about them. They will never know what you said.
    [Laughter.]
        Ms. Wingo. Well, I do not know that I can count on that,
    but I think that I would answer on two levels.
        One, I think--and this is not precisely a change, but on an
    individual level, I think individual judges have an obligation
    to make sure that they are treating every individual with
    respect, making sure that they do understand the process, that
    they are taking the time to explain it, and that they are
    explaining it in language that anybody can understand.
        Senator Heitkamp. What percentage of people who appear in
    the court appear pro bono--without counsel?
        Ms. Wingo. That depends on what courtroom you are in. So,
    for example, when I was in a small claims courtroom, it was
    everybody.
        Senator Heitkamp. Sure.
        Ms. Wingo. Pretty much everybody. In the criminal
    courtrooms, they have a right to counsel, and so the court
    appoints counsel for almost everybody. In the traffic
    courtroom, there are some cases that are immediately diverted
    where they are trying to seek a resolution that is not heading
    toward trial and conviction but, for example, doing community
    service and getting your case dismissed. Those folks are not
    necessarily assigned counsel. There are counsel for the
    courtroom who can assist everybody in that kind of category. So
    it really depends on what kind of courtroom you are in, I
    think, what the percentage would be.
        Senator Heitkamp. So I did not mean to interrupt, but how
    can we make the court more accessible, more understandable to
    everybody who comes there, whether you are in small claims or
    whether you are in, some kind of diversion program?
        Ms. Wingo. So for the second part, once you are out of the
    individual level, when you look at it from an institutional
    level, this is something that the Superior Court has focused on
    a lot. And so continuing some of the things that they are
    already doing and expanding them, for example, we have resource
    centers or self-help centers in many divisions--the family
    court self-help center, there is a consumer law resource
    center, there is a small claims resource center. All of those
    programs could always be expanded because there is more that
    you could do for folks. But they are places where people can go
    when what folks need is more than what a judge can do without
    stepping outside their role as a neutral arbiter.
        Senator Heitkamp. I think that is an excellent answer, and
    as we look at criminal justice reform, whether we are able to
    do it or not, that is going to involves courts at all levels
    kind of reexamining the kinds of people who are entering the
    criminal justice system who also--if you ask many people in my
    State do we do a pretty good job giving people access to the
    courts on the criminal side, yes, because we have Gideon v.
    Wainwright. But, if they come in and they have a spouse who is
    able to afford a lawyer in a family matter, they are really
    disadvantaged.
        And so I am curious about all of your opinions about
    mediation, whether you think that is a diversion that we should
    use more, about restitution and other kinds of new judicial
    tools that could, in fact, make the court more accessible,
    reform the court in ways that it is not, a judge sitting on a
    dais and looking down at the citizens who are seeking justice.
    Ms. Becker.
        Ms. Becker. I am a supporter of mediation. Over the years
    that I have been practicing--my area is primarily landlord-
    tenant law, and the court has shifted to requiring mediation at
    some point in all landlord-tenant cases. And I have found that
    to be a very useful process because most cases do settle.
    Probably most cases should settle. And mediation is a chance
    for the parties to reach a settlement that is in their own
    control. That is sort of the mantra of the mediation center,
    that ``The power is in your hands'' in a way that it is not if
    the case goes to trial.
        I think that mediation can pose problems if one side is
    represented and the other is not, because obviously there is an
    imbalance in information, there is an imbalance in bargaining
    power. And so I think one of the ways that the court can
    address that is to make the mediators aware of that and
    sensitive to it, and also make it easier, as they have done in
    recent years, for unrepresented individuals going into
    mediation to connect with counsel on some level to advise them
    about their rights.
        Senator Heitkamp. Thank you. Mr. Berk.
        Mr. Berk. It is a difficult question, because I think that
    the judge has to be--it is a balancing act, if you will. On the
    one hand, you do not want the judge being too active in the
    litigants' dispute. The judge has to be a referee. The judge
    has to be calling balls and strikes, so to speak.
        On the other hand, for efficiency purposes, you cannot give
    everyone--there is just not enough time in the day nor is there
    the need for everyone to have a trial. A lot of things can be
    resolved through people of good faith coming together and
    realizing what the issues are and making a decision based on
    that.
        So I think in my practice I would say 75 percent of the
    cases start with mediation, and it is a good vehicle, but it is
    not a perfect vehicle. I can only tell you that on an
    individual basis in a courtroom, if I was confirmed, that I
    would want to set the tone for respect for everybody, not just
    the litigants but the court clerk and the police officers that
    come in and every individual so that there is a tone of
    respect. And I think once people have that, they are more
    willing to consider options and consider settlements and
    consider resolutions, whereas if they feel they are in an
    adversarial proceeding or an adversarial room or an adversarial
    forum.
        I am not yet familiar with the larger policy issues. I have
    not been in the court to that extent. But I know on an
    individual issue or in individual cases you can set the tone in
    your courtroom for a place that is welcoming, if you will, to
    resolution of cases and not the adversarial system. And what I
    have seen too much in my career--and I am sorry to go--is,
    lawyers that get angry at each other and there is a lot of
    vitriol that does not accomplish anything.
        Senator Heitkamp. My apologies. My time is up, so thank you
    so much.
        Senator Lankford. Senator Peters.

                  OPENING STATEMENT OF SENATOR PETERS

        Senator Peters. Thank you, Mr. Chairman, and thank you to
    the nominees for your statements and for appearing here today
    this morning.
        I certainly know that your families and friends are all
    very proud of you, as they should be with your distinguished
    career and accomplishments. And, Ms. Becker, I am particularly
    pleased to see you as a native Michigander. I know that you
    will definitely represent the State of Michigan with great
    distinction should you be confirmed. You do already, but should
    you be confirmed, that track record will continue.
        There are certainly a number of qualities that I believe
    and I think most of the folks on this panel believe every
    judicial nominee should have, and that would include a strong
    legal background, experience handling a variety of cases, as
    well as a fair approach to legal issues.
        So maybe if I could ask each of the judicial candidates to
    give me a little sense of what is your view of the appropriate
    temperament of a judge, what elements of temperament do you
    believe are essential to fairly considering cases? And take a
    moment to describe how your experience working with diverse
    roles has helped you develop what you consider to be this
    appropriate judicial temperament. We will start down here. Ms.
    Becker.
        Ms. Becker. Thank you, Senator. I think that in order to be
    a good judge, a judge has to possess the qualities of patience,
    of integrity, and a true interest in what I would characterize
    as the intellectual and human challenges of the law. Sitting as
    a trial court judge, you really see the gamut of human
    experience coming in through the courthouse doors every day.
    And some of the cases present challenging, difficult factual
    issues. Some of the cases present challenging legal issues. And
    I think a judge really has to want to delve into those issues
    and be excited about trying to figure out what the answers are.
    And I believe that I would be suited to that role.
        Senator Peters. Mr. Berk.
        Mr. Berk. Thank you, Senator. I think the first quality of
    a good judicial temperament is somebody who listens. And that
    may seem really basic, but I always will tell folks that you
    learn more from listening, and so you really need to listen to
    your witnesses, you need to listen to the litigants. If a
    defense attorney or an attorney comes in and wants their third
    extension and comes up with some excuse, you want to listen to
    that and really determine whether they are telling you the
    truth or not. So listening is key.
        I think that you have to be decisive. The worst thing that
    can happen to you as a litigant is that the judge does not
    decide, that you are asked to come back in 6 weeks, 8 weeks, or
    9 weeks. You have to have the courage to be decisive, and I
    think that that is part of the temperament.
        And I guess the last one--and I do not mean to sound trite
    at all, but you need to be fair. And when I talk about
    fairness, I talk about fairness in a procedural way so that I
    know when I have argued an appeal or argued a motion or argued
    something, you want to know why the judge is going to rule
    against you. ``Mr. Berk, you have not made the fourth
    element,'' or something to that effect, so that the judge is
    fair to you and you respect that decision more afterwards
    because you have gotten that opportunity to know what you were
    missing.
        So it is decisiveness, it is fairness, and it is listening,
    I think, for me that would be the three.
        Senator Peters. Thank you.
        Ms. Wingo. I think that I would echo the comments of Ms.
    Becker and Mr. Berk to some degree. I definitely agree that
    fairness is the first and foremost quality, and by that, you
    have to be calm, you have to be able to treat everyone in front
    of you with a dignity and respect so that you can hear what
    they are saying, so that you actually get the information from
    all sides, so that you can make an appropriate decision.
        I think you need to add to that a substantive knowledge of
    the law that you are deciding and a willingness to do the work
    to get the answer if you do not already know it.
        I think also, as Mr. Berk said, you need to be decisive
    because as the saying goes, justice delayed in justice denied.
    And it is not enough to come to the correct decision. You need
    to do it efficiently so that you can handle the high volume of
    cases that our court has.
        And then, finally, I think you really need to be someone
    who is articulate in a way that you can talk to everyone who
    comes before you, whether they have a law school background or
    no background at all, so that everyone who walks in the door
    walks out feeling like they have had an opportunity to be
    heard, they understand what happened, and they know why it
    happened.
        Senator Peters. Great. Well, thank you.
        A followup question to Ms. Becker. First off, I want to say
    I have had an opportunity to talk with you prior to this
    hearing, and I appreciated that opportunity. And I am certainly
    impressed by your background, first and foremost, of course,
    from the University of Michigan, which is a great educational
    background, but then going off to Yale University. You were an
    individual who was on a fast track that could have gone any way
    with your legal career but chose to help those who often do not
    have a voice, which I commend you for your career. And given
    that, and given your previous work focusing on helping and
    representing low-income District of Columbia residents at Legal
    Aid Society, you helped clients challenge the termination of
    housing subsidies, assisted tenant associations in preserving
    affordable housing, and a variety of other areas that you
    worked on.
        Could you describe the importance of your work and your
    experience working with low-income populations and how that
    makes you particularly well qualified to serve on the D.C.
    Superior Court?
        Ms. Becker. Thank you, Senator. Let me answer that in two
    ways.
        First, I want to talk a little bit about housing because
    that has been my primary focus. I think that although I have
    been focusing on that area, I think the reality is that housing
    is really critical to every aspect of an individual's life, and
    particularly a low-income individual's life. Housing is
    critical to maintaining family stability, which is critical to
    retaining custody. Housing is critical to allowing children to
    get a good education. Housing is critical to giving citizens
    returning from incarceration the stability that they need to
    avoid recidivism and become productive members of society. And
    so through my housing work, I have really come to understand
    all of the other factors that impact the litigants who are
    appearing in Superior Court.
        And then more generally, I think that because I have spent
    such a long time in Superior Court, because I have appeared in
    so many of the courtrooms and had a chance to observe so many
    of the things that happen there, I think that I would be well
    prepared to join the bench there. I am excited by the prospect
    of doing that, and I think that my experience has prepared me
    to communicate with individuals at all levels, with attorneys,
    with individuals who are not represented by counsel, with
    individuals who know something about the law and individuals
    who do not, because I have had practice in doing all of those
    things throughout my career.
        Senator Peters. All right. Thank you. My time has expired,
    Mr. Chairman.
        Senator Lankford. Thank you.
        We blocked off about an hour an a half for this, which
    means the last round of questions I get 35 minutes, and we will
    go from there. [Laughter.]
        I will quick run through a series of questions, but I do
    have quite a few questions, and we will go through several of
    these.
        Mr. Pizzella, you previously indicated you would bring the
    taxpayer viewpoint to your responsibility as well. Can you help
    me understand a little bit about that, what you have done
    already as you think about the taxpayer in your decisions? How
    does that affect you? And how do you use that as a filter?
        Mr. Pizzella. Two items come to mind. One deals with the
    subject of union official time and the need, at least I
    believe, to have a lot of transparency in that, current data
    about its usage, because union official time is paid for by the
    taxpayer. So I have pointed that out in a variety of decisions,
    and I think it will be a recurring issue.
        Senator Lankford. In your view, how should official time be
    used in the transparency you describe?
        Mr. Pizzella. Well, No. 1, I think it should be limited to
    collective bargaining activities. But, No. 2, I think that
    there should be timely information provided to Members of
    Congress and to the public as to how much is being utilized.
    The most recent information available is from, I believe,
    fiscal year (FY) 2012, and my recollection as a former
    Assistant Secretary at the Department of Labor is that we
    collected information on official time in the payroll system.
    So it was done every other week. A person who was in official
    time status, that would be recognized in the payroll system. So
    I do not think it is a rather cumbersome thing to accumulate.
    But since there is no requirement on OPM or any other agency to
    provide that information to Members of Congress or the public
    in general, it is only obtained through a persistent Member of
    Congress or a congressional hearing sometimes. So I think that
    would be much more helpful in the area of transparency so we
    really know what is being spent. The last time they released
    information on this, I think it was $159 million, but that is
    now at least 3-year-old information.
        Senator Lankford. OK. So tell me about an example when an
    agency action or instruction is non-negotiable, so when some
    agency or some action that they have taken you would say that
    is non-negotiable, that is going to be outside of the
    relationship and bargaining.
        Mr. Pizzella. Well, there are certain things that are
    statutorily non-negotiable: wages and benefits of Federal
    employees, any type of agency shop type of recognition. Then
    there are other things that the collective bargaining agreement
    itself may not specify as negotiable, which then can be subject
    to debate between the parties, which often ends up in
    arbitration and sometimes comes to the FLRA.
        Some things could be rather serious; some things could be
    rather trivial. We have had cases where employees felt
    aggrieved because the temperature in their worksite was 3
    degrees below what the contract required and it did not get
    fixed until later in the day. But a case like that reached all
    the way to the Federal Labor Relations Authority. So that is an
    example, I guess.
        Senator Lankford. Yes, kind of a tough example on that.
        Let me ask a question that is a process question for us. It
    is very difficult for Members of the Senate or Members of the
    House to get information from agencies about recommendations
    for statutory changes that are needed. You and the folks that
    are around you understand more than anyone else the needed
    changes in things like the Federal Service Labor-Management
    Relations Statute. You get it because you experience it and you
    see the problems.
        The problem is you see the problems but are often not
    permitted to tell us what the problems are. We cannot fix a
    problem that we cannot see when you are dealing with it day to
    day. How do we get information and clarity on those issues so
    we do not have problems persist because we did not know about
    it and you are not allowed to tell us?
        Mr. Pizzella. Well, I guess I would use two examples. One
    would be this very issue that we discussed earlier regarding
    cybersecurity. Certainly through any dissent or opinion of the
    Federal Labor Relations Authority, you can glean from that what
    might be wrong and needs corrective action. And I believe I
    read just the other day, I think it might have been the House
    has moved some legislation that deals with this issue of
    cybersecurity and the responsibility in the head of the agency
    to make the final decision rather than have it subject to
    collective bargaining. So that is one.
        And the other thing that, again, is recently in the news
    was on the issue of recording official time, and once again I
    thought I just read just the other day that your counterparts
    in the House, at least at the committee level, have adopted a
    proposal to require more transparency in that.
        So I guess the best answer is our decisions speak for
    themselves.
        Senator Lankford. OK. That is good to note. There is a lot
    more mediation that is happening now, which is a good thing.
    But that also reduces the caseload obviously since you are
    caught up at that point. There are other entities that also
    deal with relationship issues. Are there any recommendations or
    ideas that you would have to be able to combine any functions
    of what currently happens with any other agency?
        Mr. Pizzella. Well, I have often commented to my colleagues
    in jest that, if labor peace breaks out, we are no longer
    necessary.
        Senator Lankford. And so Lord come.
        Mr. Pizzella. Yes. But I do not know if there is anything
    in particular----
        Senator Lankford. Not fishing for a particular answer, by
    the way, so----
        Mr. Pizzella. Right. I would say from a generic standpoint
    that the statute that governs the Federal workforce and labor-
    management disputes and all is about 38 years old now. It has
    had very little in the way of changes or tweaking in that time
    period, and like many pieces of legislation that old, it is
    probably useful for a thorough review. The world has changed.
    Just in the example of cybersecurity, the legislation was
    passed before we had cell phones and the Internet and all that.
    So it probably could be updated into the 21st Century, and I
    would encourage Congress to maybe consider that.
        Senator Lankford. All right. Good word.
        Ms. Becker, let me ask you, you and I have had this
    conversation before about civil versus criminal, that the
    preponderance of your background is civil in nature, and that
    the criminal side of it is a learning curve for you that you
    can jump into. I have no doubt based on your own mental
    aptitude that you can get up to speed on that quickly.
        How does that happen for you as you are facing your
    earliest days of criminal cases that you do not get so
    overwhelmed with the number of cases coming at you, you do not
    have time to be able to study and be well prepared for the
    issues at hand?
        Ms. Becker. Thank you, Senator. I think the best way that I
    can answer that is that I would work as hard as I possibly
    could on my own to understand the governing law and the rules
    of procedure in the courtroom, and I would seek out guidance
    and mentorship from more senior judges on the Superior Court. I
    think that any person not coming from a criminal background has
    had the same challenge, has had to get up to speed on the law
    and the procedure without sort of taking that learning curve
    out on the litigants, so to speak.
        And so I would look forward to getting their advice and
    making sure that I was as prepared as I possibly could be
    walking into the courtroom to know the law and to apply it to
    what is before me.
        Senator Lankford. OK. I am going to ask this of all three
    of the judicial nominees as well, and we will just kind of walk
    through this. And since, Ms. Wingo, you have given advice to
    the other two, we will start with you and go from there since
    they will base their comments off yours, anyway, so we will go
    from there.
        The challenge every judge has, regardless of their role, is
    setting aside your own biases, which all of us have our own
    biases from our own background and everything else, and
    applying the law equally and fairly. In Washington, D.C., that
    gets ramped up to a different volume because in front of your
    bench at any given point, you may have any ethnicity, you may
    have elected officials and unelected officials, you may have
    powerful folks downtown, and you may have folks that cannot
    find downtown. At any given time, you have this wide variety of
    individuals that are in front of you from multiple classes and
    backgrounds. To equally apply the law to all individuals is a
    tremendous challenge for you on a day-to-day basis.
        So my question is not, yes or no, will you do it, because I
    assume you are going to say yes, you will. It is how do you
    manage that personally and how do you manage that from your own
    background of making sure that the person in front of you now
    versus the person in front of you at 3 o'clock this afternoon,
    regardless of background, gets an equal application of the law.
    How do you manage that?
        Ms. Wingo. I think the place you start is by treating each
    case individually. You really have to look at each case, listen
    to the person who is before you, and then respond to that case.
    You really cannot be looking out over your courtroom and seeing
    who else is there. And when you are dealing with people as
    individuals, I think it is a much easier prospect to treat them
    without bringing any of your own experiences.
        And I do think as a judge, and particularly as a trial
    judge, you get used to doing that. There are things that you
    have to do as a trial judge when, for example, you are
    excluding evidence. You know that the evidence is out there.
    You ignore it because you have excluded it. So you really get
    used to looking and limiting yourself very carefully to what is
    on the record, what is the evidence before you, and what is the
    law.
        Senator Lankford. Mr. Berk.
        Mr. Berk. I have talked about my father, but I think I
    would like to bring him up again because he has informed so
    much of who I am. We used to go to lunch together a lot, and
    when we would go to lunch, he knew the guy who parked the car,
    and he knew the busboy, and he knew the server, and he knew the
    owner of the restaurant, always loved to know the owner of the
    restaurant. And he treated them all the same way. He asked them
    how they were doing. In some ways he treated the guy who parked
    the car better than the restaurant owner. And I guess I just
    learned at an early age that, folks are the same and you treat
    everybody the same way.
        I am the son of immigrants. I am not very far away from the
    experience of some of the people that will appear before me in
    court. And so those are sort of core values that I think I
    would bring to the bench and will always sort of be at my
    heart.
        Senator Lankford. How do you fight your own biases on that,
    not to defer to that immigrant--because you have walked that
    experience--or defer to that individual that you so closely
    relate to? Because, again, that is our natural bias. If a
    redhead comes in front of me, they are always treated----
    [Laughter.]
        But how do you process that?
        Mr. Berk. I think, Senator, you acknowledge it. I think you
    acknowledge it to yourself, and then, to come back to it, I
    mean, we are governed by the rule of law, and we can always
    fall back on that. And in my mind, yes, sure, an immigrant,
    their story has to make sense. It has to have the ring of truth
    to it.
        So while in some instances it could be difficult, I do
    think that when you are governed by the rule of law and you are
    governed by your good judgment, you can get over those kinds of
    things?
        Senator Lankford. Ms. Becker.
        Ms. Becker. Thank you, Senator. I think the way to ensure
    that people are treated equally primarily is to apply the law
    to the facts presented in each individual case, because
    although the facts are different in each case, the law is not.
    And so the best way to ensure that people with similar facts
    are given similar treatment is to apply the law to those facts.
        I think as attorneys one of the things we are best at is
    making analogies and making distinctions. Every time we argue
    in court, we are trying to persuade the judge that our case is
    like this other case in relevant ways or is not like this other
    case in relevant ways. And I think that is just as important a
    skill for a judge, if I am making a decision that is different
    from one I made in another case with similar facts, I have to
    be able to justify, first to myself and then to the litigants
    in front of me, the reasoning for that different judgment and
    why I am ruling differently in this case than the one that came
    before. And I think that that has to be sort of a constant
    thread running through the work that you do as a judge.
        Senator Lankford. Mr. Berk, let me ask a question of you as
    well on this. What do you see are the largest or most
    significant criminal issues currently in D.C.? And as a judge,
    what can you do to be able to help in that area? I know there
    are lots of civil issues and everything else, but just focusing
    on the criminal issues, some of the most significant criminal
    issues we face in D.C., and as a judge, what is your best use
    of being able to help in that area?
        Mr. Berk. Well, I think the best thing you can do is move
    cases and not delay. There unfortunately are too many crimes
    committed, and if all these cases go to trial, they back up the
    system.
        I know Judge Sullivan is here, and I remember back in the
    day when Judge Sullivan was on the Superior Court--that was
    before he was on the Federal bench--and I know he moved his
    cases. And I think that is the best you can do as an individual
    judge.
        Senator Lankford. Ms. Becker, same question for that. Crime
    within the D.C. area, what you can do as a judge, the best
    thing to be able to help?
        Ms. Becker. So I will echo some of what Mr. Berk said. I
    think that one of the greatest challenges facing the Criminal
    Division is just that there is a high volume of cases moving
    through the system because, unfortunately, there is a lot of
    crime of various kinds here in the District of Columbia. And so
    I think the greatest challenge for a judge in that situation is
    not only moving the cases through, but while doing so making
    sure that he or she is trying to strike the right balance
    between a system that is fair to defendants but also accounts
    for the experiences of victims and, of course, the predominant
    need for community safety, because that is overall what is
    going to benefit all the residents of the District.
        Senator Lankford. Ms. Wingo, you have a unique perspective
    on this, already serving as a magistrate judge. What do you see
    as one of the most significant crime issues we are currently
    facing in D.C.? And as a judge, what is the best thing you can
    do to be able to help in that role?
        Ms. Wingo. Well, I do think that, as a judge, your role is
    to handle the cases that come before you, and so that is really
    what you do in order to address the criminal issues.
        I also think that as a judge, we have a fair number of
    resources, and one of the things that I think is quite clear
    leads to criminal activity is drug use. And utilizing those
    resources in order to help people address their problems so
    that they are not going to recidivate is one of the things that
    you can do as a judge.
        Senator Lankford. Any other tools for recidivism that you
    can use or express as a judge or ideas of things that you would
    like to bring at some point to say that this is an issue for
    this individual, this is the third time I have seen him, things
    that you can do from the bench?
        Ms. Wingo. Well, that is one of the things that you do.
    When you are trying to sentence someone, you are trying to come
    up with a sentence that will make it the least likely that they
    will appear before you again. And so it depends a little bit on
    what the kind of crime is. For example, in a traffic court, you
    are going to order traffic alcohol programs and victim impact
    panels so people understand the impact of what they did, even
    if they did not cause any harm this time, that they really
    could have killed somebody.
        When you structure your probations, that is what you try to
    do.
        Senator Lankford. I appreciate all of your answers and the
    conversation today. The only comment that I would make for
    anyone's responses is for you, Mr. Berk, on a previous question
    that was spoken to you when you mentioned when that attorney
    comes to you with the third extension and to treat him fairly,
    I would say do not. If it is a third extension---- [Laughter.]
        They just need to get their work done and bring it to you.
        Other than that, I appreciate very much what you all have
    said today and what you bring to it and the experience. I know
    this is a difficult process to go through. I am fully aware.
    You all are much more aware of the length of the process. Mr.
    Pizzella, you have been through this several times now, so I
    appreciate what this means to you and your families and such.
    So, with that, I would like to be able to move things along.
    Give me just a moment.
        [Pause.]
        Ms. Becker, Mr. Berk, Ms. Wingo, and Mr. Pizzella have
    filed responses to a biographical and financial questionnaires,
    answered prehearing questions submitted by the Committee, and
    have had financial statements reviewed by the Office of
    Government Ethics. Without objection, this information will be
    made a part of the hearing record, with the exception of the
    financial data, which is on file and available for public
    inspection in the Committee offices.
        The hearing record will remain open until 12 p.m. tomorrow,
    March 3, 2016, for the submission of statements and questions
    for the record.
        With that, unless there are any other comments, this
    hearing is adjourned. Thank you very much.
        [Whereupon, at 11:12 a.m., the Committee was adjourned.]

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