[Senate Hearing 115-546]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-546

                          PENDING NOMINATIONS

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS


                             SECOND SESSION

                               __________

         NOMINATION OF DENNIS D. KIRK NOMINATED TO BE CHAIRMAN,
          MERIT SYSTEMS PROTECTION BOARD, HON. JULIA A. CLARK
       NOMINATED TO BE A MEMBER, MERIT SYSTEMS PROTECTION BOARD,
        ANDREW F. MAUNZ NOMINATED TO BE A MEMBER, MERIT SYSTEMS
  PROTECTION BOARD AND CARMEN G. MCLEAN NOMINATED TO BE AN ASSOCIATE 
           JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

                               __________

                             JULY 19, 2018

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        Committee on Homeland Security and Governmental Affairs
        
 
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
         Amanda R. Hill, Deputy Staff Director, Subcommittee on
               Regulatory Affairs and Federal Management
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
                     Laura W. Kilbride, Chief Clerk
                   Bonni E. Dinerstein, Hearing Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lankford.............................................     1
    Senator Peters...............................................     3
    Senator Hassan...............................................    10
    Senator Heitkamp.............................................    12
Prepared statements:
    Senator Lankford.............................................    21
    Senator Peters...............................................    23

                               WITNESSES
                        Thursday, July 19, 2018

Dennis D. Kirk Nominated to be Chairman, Merit Systems Protection 
  Board
    Testimony....................................................     4
    Prepared statement...........................................    25
    Biographical and financial information.......................    27
    Letter from the Office of Government Ethics..................    49
    Responses to pre-hearing questions...........................    52
    Responses to post-hearing questions..........................    81
    Letter of support............................................    94
Hon. Julia A. Clark Nominate to be a Member, Merit Systems 
  Protection Board
    Testimony....................................................     6
    Prepared statement...........................................    96
    Biographical and financial information.......................    98
    Letter from the Office of Government Ethics..................   113
    Responses to pre-hearing questions...........................   116
    Responses to post-hearing questions..........................   135
    Letter of support............................................   150
Andrew F. Maunz Nominated to be a Member, Merit Systems 
  Protection Board
    Testimony....................................................     7
    Prepared statement...........................................   151
    Biographical and financial information.......................   153
    Letter from the Office of Government Ethics..................   169
    Responses to pre-hearing questions...........................   172
    Responses to post-hearing questions..........................   192
    Letters of support...........................................   206
Carmen G. McLean Nominated to be an Associate Judge, Superior 
  Court of the District of Columbia
    Testimony....................................................     8
    Prepared statement...........................................   210
    Biographical and financial information.......................   211
    Responses to pre-hearing questions...........................   235
    Responses to post-hearing questions..........................   255

                                APPENDIX

Opposing Letters.................................................   257

 
                           NOMINATION HEARING

                              ----------                              


                        THURSDAY, JULY 19, 2018

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room 342, Dirksen Senate Office Building, Hon. James Lankford 
presiding.
    Present: Senators Lankford, McCaskill, Heitkamp, Peters, 
Hassan, and Harris.

            OPENING STATEMENT OF SENATOR LANKFORD\1\

    Senator Lankford. Good morning, everyone. Today we will 
consider the nominations of Dennis Kirk, Julia Clark, Andrew 
Maunz to be a Members of the Merit Systems Protection Board 
(MSPB). We will also consider the nomination of Carmen McLean 
to be an Associate Judge of the Superior Court for the District 
of Columbia. The Committee takes these nominations very 
seriously and we are pleased to have all of you appearing 
before us today. For all of you this was a long journey to be 
able to get to this spot, and there is still time to go.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Lankford appears in the 
Appendix on page 21.
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    Dennis D. Kirk, originally of Kansas, earned a Bachelor of 
Science from Northern Arizona University and his J.D. from 
Washburn University's School of Law. Upon graduation, he moved 
to the Washington area and began working for the Interstate 
Commerce Commission. Mr. Kirk left government service to 
practice law in private practice in Northern Virginia for 
almost three decades before rejoining the Federal Government in 
2005.
    From 2005 until 2012, Mr. Kirk worked at the Pentagon for 
the Department of the Army, where he was recognized with 
multiple awards, including the Special Act or Service Award for 
saving the Army millions of dollars.
    The Honorable Julia Akins Clark is originally from the 
Shawnee, Oklahoma, area, down the street from my house. She 
graduated from Oklahoma Baptist University (OBU), which is a 
fine institution, with a B.A. in political science and then 
proceeded on to the American University's Washington College of 
Law where she earned her J.D. in 1980, but I am sure it was not 
as good as her time at OBU.
    After completing law school, Ms. Clark also went on to work 
for the Federal Government, joining the U.S. Department of 
Justice (DOJ). After 5 years of public service, she went into 
private law practice here in the Washington, DC. area, before 
moving on to work briefly for the National Coalition for the 
Homeless. Ms. Clark worked as the Counsel for the International 
Federation of Professional and Technical Engineers for over two 
decades before being nominated and confirmed twice during the 
Obama Administration to serve as the General Counsel of Federal 
Labor Relations Authority (FLRA). Ms. Clark currently serves in 
the congressional Office of Compliance.
    Andrew Maunz of Maryland is also nominated to serve as a 
Member of the MSPB. A native of Cincinnati, Ohio, Mr. Maunz 
received his Bachelor of Science from Miami University in Ohio 
in 2005, and then attended the University of Toledo College of 
Law, earning his J.D. in 2008. Like his fellow MSPB nominees, 
Mr. Maunz joined the Federal Government upon completion of law 
school. Mr. Maunz has worked as an attorney in the Office of 
General Counsel (OGC) at the Social Security Administration 
(SSA) since 2008. He currently serves the agency as a senior 
attorney and has represented the agency in employment 
litigation before administrative agencies, including the MSPB.
    Carmen McLean is appearing before us today as a nominee to 
be the Associate Judge of the Superior Court of the District of 
Columbia. Ms. McLean was originally from Oregon, graduated with 
a Bachelor of Science at George Fox University in 1998. She 
earned her J.D. from Georgetown University Law Center in 2001. 
Ms. McLean is a partner at Jones Day here in D.C. She has 
extensive experience in contracts, torts, anti-trust law. She 
has also developed expertise in civil procedure and 
discoveries, especially discovery practices relating to new 
technologies and social media.
    I would be remiss if I did not mention Ms. McLean's 
tremendous work on behalf of at-risk children in Washington, 
DC. Ms. McLean has been active with the Children's Law Center 
and has provided thousands of hours of pro bono work to help 
individuals and families who want to provide a safe and 
permanent home for at-risk children. In this work, Ms. McLean 
was named, in 2012, Pro Bono Lawyer of the Year by the D.C. Bar 
Association. Thank you for your work for the community and for 
those kids.
    Committee staff has reached out to a variety of these 
nominees' colleagues and affiliates, who spoke highly of them, 
you will be glad to know. You came very highly recommended by 
the people who work with you and know you the best. Committee 
staff has also had the opportunity to interview all the 
nominees on an array of issues. They have thoughtfully and 
competently answered each question, and I look forward to 
speaking with you more today on your experience and 
accomplishments and how you intend to bring them to bear in a 
fair and impartial manner on the Merit System Protection Board 
and for the District of Columbia.
    We also look forward to meeting your families publicly and 
hope that you will take the opportunity to be able to introduce 
them when you are recognized to speak.
    With that I recognize Ranking Member Peters for an opening 
statement.

             OPENING STATEMENT OF SENATOR PETERS\1\

    Senator Peters. Well, thank you, Mr. Chairman, and thank 
you to each of the nominees for your willingness to serve.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Peters appear in the Appendix 
on page 23.
---------------------------------------------------------------------------
    Ms. McLean, you have a rare distinction of being nominated 
to the bench by both President Obama and President Trump. I 
would certainly love to hear how you managed to do that. It is 
a great relief to see that we have a judicial nomination 
without rancor or without controversy, and I hope you do not 
feel left out if you may not get a whole lot of questions here 
today. I am sure you will be OK with that as well.
    Today we are also considering three candidates for 
appointment to the Merit Systems Protection Board, which, as 
its name suggests, has the core function of safeguarding the 
merit-based system of governance. In a merit-based system, jobs 
to civil servants are not handed out based on political 
backgrounds or financial contributions. Instead, employees must 
be hired and retained based on their skills and effectiveness 
in carrying out the many Federal services that our communities 
rely on. Whether it is securing our borders, assisting our 
veterans, or protecting the environment, we need to ensure the 
Federal Government is pulling from a wide variety and a diverse 
talent pool of Americans who are dedicated to work hard for the 
public.
    This is a long-term strategy, and presidents, their 
cabinets and legislatures will come and go. A stable civil 
service is essential for maintaining a level of consistency, 
reliability, and competence in the American Government, 
regardless of where the political winds may be blowing at the 
time.
    The Merit Systems Protection Board was established in the 
same legislation that codified a framework for merit-based 
workforce. The Merit System Principles and Prohibited Personnel 
Practices laid out in the Civil Service Reform Act (CSRA) 
provides us with the necessary ingredients for protecting and 
preventing our civil service from becoming a system of 
political patronage.
    The principals include common-sense worker protections, 
like equal opportunity, retention based on job performance and 
fair pay. They rightfully prohibit employees from taking 
personal actions based on anything other than an individual's 
qualifications, performance, and suitability for public 
service. Importantly, they also prohibit retaliation against 
whistleblowers who lawfully disclose instances of waste, fraud, 
and abuse.
    With over two million employees, the Federal Government is 
a large and often cumbersome entity, but the Merit System 
Principles set a critical foundation for accountability, and 
while protecting this framework we should also diligently try 
to identify opportunities to make the workforce more efficient.
    The MSPB can play a role in this. The Board is tasked with 
upholding the Merit System Principles through the precedents it 
takes in adjudicating cases and by taking proactive steps 
through civil service studies and review of the Office of 
Personnel Management (OPM) rules.
    As we consider your nominations, the question of how you 
will reinforce the merit system and promote an effective 
Federal workforce is central to this conversation, especially 
given the unfair and, frankly, harmful sensationalized attacks 
of our civil service. We should approach these issues mindful 
that we have been entrusted as stewards of taxpayer dollars and 
that we will work together so the government works for 
everyone.
    I look forward to your testimony. And, Mr. Chairman, prior 
to their testimony, if I could enter into the record with two 
letters, one from the National Treasury Employees Union\1\ and 
the second letter, signed by a variety of labor 
organizations.\2\
---------------------------------------------------------------------------
    \1\ The letter referenced by Senator Peters appear in the Appendix 
on page 150.
    \2\ The letter referenced by Senator Peters appear in the Appendix 
on page 260.
---------------------------------------------------------------------------
    Senator Lankford. Without objection.
    It is the custom of this Committee to swear in all 
witnesses that appear before us, so if you do not mind I would 
ask all four of you to stand and raise your right hand.
    Do you swear the testimony that you will give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Mr. Kirk. I do.
    Ms. Clark. I do.
    Mr. Maunz. I do.
    Ms. McLean. I do.
    Senator Lankford. Thank you. You may be seated. Let the 
record reflect that all witnesses answered in the affirmative.
    I want to recognize all of you one at a time for your 
opening statements, and I would encourage you to be able to 
introduce your family, and we do that as well so we can get to 
know you better. One of the challenges of this process is the 
family that goes through this long, painful process with you. 
So thank you for doing that.
    Mr. Kirk, you are recognized first.

TESTIMONY OF DENNIS D. KIRK,\3\ NOMINATED TO BE CHAIRMAN, MERIT 
                    SYSTEMS PROTECTION BOARD

    Mr. Kirk. Thank you, Chairman Lankford, Ranking Member 
Senator Peters, and Senator Hassan. Thank you for the 
opportunity to appear before you on my hearing for confirmation 
to serve as a Member and the Chairman of the Merit Systems 
Protection Board.
---------------------------------------------------------------------------
    \3\ The prepared statement of Mr. Kirk appears in the Appendix on 
page 25.
---------------------------------------------------------------------------
    I would like to introduce my family: my son, Dean, in his 
final year of law school at Washburn University; My brother, 
Colonel Donald R. Kirk, who spent 32 years in service to our 
country; my intern, Oriet Hemenway, who is here observing how 
our government works.
    My thanks to the Honorable Tom Davis, my friend of over 
three decades, for his supporting statement he submitted to the 
Committee, and I will ask its admission into the record.\4\ Tom 
appointed me to the Fairfax County, Virginia, Consumer 
Protection Commission, where I am now on my 36th year of 
service, and Penny Gross, my Mason District Supervisor, keeps 
putting me on it.
---------------------------------------------------------------------------
    \4\ The letter referenced by Mr. Kirk appears in the Appendix on 
page 94.
---------------------------------------------------------------------------
    The Merit Systems Protection Board protects 2.2 million 
Federal employees by conducting fair and neutral case 
adjudications, regulatory reviews, and independent government 
studies to improve the workforce. In conjunction with the 
Office of Personnel Management and Office of Special Counsel 
(OSC), it protects the Merit System Principles and prevents 
Prohibited Personnel Practices. The Constitution, U.S. Code, 
Code of Federal Regulations, and precedents of the MSPB and the 
U.S. courts all guide our Board, assuming confirmation--not 
presuming confirmation--in reaching decisions on the original, 
the appellate, and the specialized jurisdiction areas.
    The MSPB has a backlog now of about 1,250 cases awaiting 
decision because no voting board quorum exists. It literally is 
the elephant in the room. If the nominees are confirmed, it 
initiates the process toward delivering fair and equitable 
justice to waiting Federal employees. Employees reporting 
violations of law, waste, fraud, abuse, rules and regulations, 
mismanagement, and specific substantial dangers to public 
safety will receive our Board's full help, such as protecting 
whistleblowers against undue retaliation or retribution for 
their coming forward to help our government.
    If confirmed, in collegial collaboration with my fellow 
board members and the excellent staff we have at the MSPB, I 
pledge to ensure the Board will deliver governmentwide studies 
to advise and protect the merit system by analyzing the health 
of the workforce, offer best practices, seek modernization of 
the workforce, and ensure fair treatment and safety for 
whistleblowers, and that will insure a workplace free from 
Prohibited Personnel Practices.
    As a proven strategic initiator of innovation, if confirmed 
I will develop creative, rapidly effective solutions to complex 
problems. For example, I will recruit, hire, train, educate, 
and deploy into the MSPB, and thus into our government service, 
the very best qualified diverse pool of Federal workers. This 
will assure fair pay with excellent treatment for all 
employees, so they can exhibit the highest standards of 
integrity while conducting public service. Literally, a fair 
day's pay for a fair day's work.
    The Secretary of the Army created a position in the Office 
of General Counsel. I was its first Associate General Counsel 
for Strategic Integration and Business Transformation. My 
responsibilities were to create, design, and build out a modern 
business transformation and modernization for the Army, and 
especially for the General Counsel. I developed efficient, 
economical improvements in civilian/military operational and 
personnel systems. This saved millions of dollars for the 
taxpayers. Such incredibly difficult challenges could not have 
been accomplished without the support of our excellent team of 
excellent public servants.
    It is a great honor and privilege to again hear the call to 
serve our United States of America, especially in such a 
challenging and noble function. I am happy to take any 
questions, and answer within my best abilities and present 
knowledge about the MSPB.
    Thank you, Senators, and welcome, Senator McCaskill.
    Senator Lankford. Thank you, Mr. Kirk. Ms. Clark.

TESTIMONY OF THE HONORABLE JULIA A. CLARK,\1\ NOMINATED TO BE A 
             MEMBER, MERIT SYSTEMS PROTECTION BOARD

    Ms. Clark. Thank you, Chairman Lankford, Ranking Member 
McCaskill, Senator Peters and Senator Hassan. I would like to 
introduce my guest, my baby brother, Tim Akins, and his wife 
and my good friend, Debbie Akins, who have traveled here to 
support me.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Clark appears in the Appendix on 
page 96.
---------------------------------------------------------------------------
    Thank you for the opportunity to appear before you 
regarding my nomination to be a Member of the U.S. Merit 
Systems Protection Board. Thank you, in particular, for 
expediting this hearing in the interest of restoring the 
Board's quorum. I understand well the challenges facing the 
incoming Board, who must adjudicate a backlog that will soon be 
over 1,300. I am confident that if confirmed, with the 
assistance of the MSPB career and non-career staff, and the new 
Board members, we will be able to address the backlog as 
expeditiously as possible.
    I am the daughter of career public servants who taught me, 
through their example, the essential role that career public 
servants play in the delivery of efficient, effective, and 
high-quality government services to the American people. I 
joined the Federal Government myself upon law school 
graduation, by accepting a position as an Honors Program Trial 
Attorney in the U.S. Department of Justice. Subsequently, I 
devoted my legal career to upholding the public's interest in 
maintaining a high-quality career civil service. For over 20 
years, I represented civil servants' workplace interests as a 
private labor organization attorney.
    I was privileged to represent National Aeronautics and 
Space Administration (NASA) scientists, engineers, and 
technicians, Naval Shipyard engineers and technicians, Army 
Corps of Engineers research scientists, Environmental 
Protection Agency scientists, Congressional Research Service 
experts, Government Accountability Office analysts, 
Administrative and Immigration Judges and many others.
    I was privileged to rejoin the Federal Government in August 
2009, as the General Counsel of the Federal Labor Relations 
Authority, where I was entrusted by the President and the 
Senate with enforcement of the labor-management relations 
provisions of the Civil Service Reform Act of 1978. And since 
January 2017, I have served as the Deputy General Counsel of 
the Office of Compliance, the Legislative Branch independent 
agency tasked with protecting Legislative Branch employees' 
workplace rights under the Congressional Accountability Act.
    My experience as both a public servant and as a private 
attorney has prepared me for the important adjudicatory 
responsibilities Congress has conferred upon the MSPB Member, 
and I pledge my unqualified commitment to protect the Merit 
System Principles and to promote a Federal civil service free 
of Prohibited Personnel Practices. I further wholeheartedly 
embrace the MSPB's stated vision, that by fulfilling the 
agency's statutory mission, the MSPB will promote a highly 
qualified, diverse Federal workforce that is fairly and 
effectively managed, and provides the best possible government 
services to the American people.
    In closing, I would like to thank the Committee staff, my 
fellow nominees, and acting MSPB Chairman Robbins for their 
professional and collegial approach to the preparations for 
this hearing. Further, I want to express my appreciation to my 
family, friends, and work colleagues over the years for their 
guidance and support. And most especially, I want to thank the 
thousands of Federal civil servants I have been privileged to 
meet over the course of my career. They are the foundation of 
my faith in the enduring value of the Federal civil service 
system to the American people.
    Thank you for allowing me the opportunity to present these 
remarks, and I look forward to responding to any questions you 
may have.
    Senator Lankford. Thank you, Ms. Clark. Mr. Maunz.

  TESTIMONY OF ANDREW F. MAUNZ,\1\ NOMINATED TO BE A MEMBER, 
                 MERIT SYSTEMS PROTECTION BOARD

    Mr. Maunz. Thank you, Senator. Quickly I will introduce my 
family that is here today. My wife, Kira, our two daughters, 
Emory and Margot. My parents came in from Cincinnati, Ohio, Ed 
and Marie Maunz.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Maunz appears in the Appendix on 
page 151.
---------------------------------------------------------------------------
    Chairman Lankford, Ranking Member McCaskill, Senator 
Peters, Senator Hassan, and the rest of the Members of the 
Committee and its staff, I would like to thank you for having 
me here today. I would also like to thank President Trump for 
nominating me to this position. To my wife Kira, our two 
daughters, my parents, and the rest of my family, I would like 
to thank you for your love and support during this process. I 
would also like to acknowledge the friends, co-workers, and 
former colleagues who have sent well wishes and 
congratulations. Last but not least, I would like to thank 
acting Chairman of the MSPB, Mark Robbins, and his staff for 
their tremendous assistance in preparing for this hearing.
    First, I would like to tell the Committee a little about 
myself. I was born in a place called Clarksburg, West Virginia, 
where my father owned a small men's clothing store that was 
originally opened by my great-grandfather, an Italian 
immigrant. A few years after I was born, my dad closed up the 
store and my family moved out of town. We eventually settled in 
Cincinnati, Ohio, where my dad continued to work in retail and 
my mom worked as a teacher, primarily at a Catholic elementary 
school.
    My father is the hardest working person I know. He would 
regularly work 70-80 hours a week, 6-7 days a week, to provide 
for our family. With his work schedule, my mom had to do the 
bulk of managing our household, which she did wonderfully while 
balancing her own career.
    As an attorney working for the Social Security 
Administration and as a Federal employee, I have always tried 
to keep in mind that my salary is paid by the taxes of people 
like my parents, people who go to work every day, work hard, 
and expect their government to be responsive and efficient. 
These people, the American people, deserve a Federal Government 
with the best workforce possible. I believe that the MSPB plays 
a crucial role in achieving this goal. The MSPB helps ensure 
that all personnel decisions are based on merit, it helps 
protect whistleblowers and our veterans, it keeps the workforce 
free of partisan political activity, and so much more.
    In my opinion, the MSPB fulfills its mission best when it 
applies the relevant legal authorities as they are written and 
does not stray beyond its statutory mandates. The job of the 
MSPB is not to favor one side versus the other. It is to 
protect our civil service system by reviewing the facts and 
applying the law in a neutral and fair way. When it performs 
its functions properly, the MSPB is one of the most important 
entities in achieving a Federal Government that works best for 
the American people.
    I am ready for the important job of serving on the MSPB. 
For nearly 10 years, I have been immersed in the many 
complicated issues Federal agencies face. I have litigated 
employment law cases in many forums, including before the MSPB. 
I have provided legal advice on a wide variety of issues, and 
trained agency managers on some of the many laws they must be 
aware of when managing employees. I believe this experience 
will serve me well, if I am confirmed to the MSPB.
    I am excited about this opportunity, and if the Senate 
confirms me, it would be an honor to serve in such an important 
position in our government. I will now make myself available to 
answer any questions the Committee may have. Thank you.
    Senator Lankford. Thank you, Mr. Maunz. Ms. McLean.

TESTIMONY OF CARMEN G. MCLEAN,\1\ NOMINATED TO BE AN ASSOCIATE 
       JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    Ms. McLean. Thank you, Mr. Chairman, Senator Peters, 
Senator McCaskill, and Senator Hassan. I am deeply grateful for 
the opportunity to appear before you as you consider my 
nomination to be an Associate Judge of the Superior Court of 
the District of Columbia. It is a great honor to be nominated 
and considered for this position.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. McLean appears in the Appendix on 
page 210.
---------------------------------------------------------------------------
    I would like to thank the Judicial Nomination Commission 
and its chair, the Honorable Emmet Sullivan, for recommending 
me, and the President for nominating me. I thank Superior Court 
Chief Judge Robert Morin for attending here today, and 
Congresswoman Norton for her support. Finally, I would like to 
express my sincere thanks and appreciation to the Committee 
Members and the dedicated Committee staff for their hard work 
in considering my nomination, and for the courtesy and 
professionalism to me throughout this process.
    Here with me today is my husband, Carson McLean, to whom I 
am immeasurably grateful for his unwavering encouragement, and 
my children, 8-year-old Coen and 5-year-old Cait, who inspired 
me to reach for my dream to become a judge. I love you all 
dearly.
    I would also like to recognize my mother, Marcia Rush, also 
here today; my sister, Darcy Guerricagoitia, who is on duty as 
a Lieutenant Commander in the United States Navy today; and 
other members of my family who have been endlessly supportive 
and are watching from afar. Finally, I would like to 
acknowledge the many friends and colleagues who have guided and 
encouraged me in a myriad of ways. Thank you all for your kind 
support.
    In 1998, I moved from rural Oregon to the District of 
Columbia to attend Georgetown University Law Center and I have 
been here ever since. In 2001, I began working just a few 
blocks from here, at the Washington office of Jones Day, an 
international law firm. During my nearly 17 years at Jones Day, 
I have been privileged to work with many brilliant, strategic, 
hard-working lawyers, represent influential and innovative 
clients in a variety of industries, including digital music, 
automotive, and pharmacology. I have worked on large-scale 
litigation matters involving complex and novel legal issues. I 
am extremely grateful for the lessons that I have learned 
through these experiences and from my talented colleagues, and 
for the honor of working at Jones Day.
    During the past 17 years, I have also dedicated a great 
deal of time to pro bono and public service matters impacting 
the citizens of the District of Columbia. While I have worked 
on a range of matters, I have spent the vast majority of my 
time in the service of at-risk children who need safe, 
permanent, and loving homes. Through these matters, I saw 
first-hand the impact of our justice system on the citizens of 
the district and was motivated to further my public service.
    Through this work, I also frequently appeared before 
District of Columbia Superior Court judges who demonstrated a 
mastery of the relevant laws, rules, and procedures; who 
treated all litigants fairly, with dignity and respect; 
maintained high standards for counsel; were deliberate in their 
application of the law to the facts; and provided thoughtful 
and timely decisions. If I am fortunate enough to be confirmed, 
that is exactly the type of judge that I will work very hard to 
become.
    Again, thank you for the opportunity to appear here today. 
I am humbled to be considered for this position, and I look 
forward to answering your questions.
    Senator Lankford. Thank you. Thank you to all of you.
    We have three mandatory questions that we ask all of our 
nominees, that I wanted to be able to just ask each of you, and 
I will ask each of you for a verbal response, and then I am 
going to go directly to Senator Hassan for questions from 
there.
    First question. 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. 
Kirk.
    Mr. Kirk. No.
    Senator Lankford. Ms. Clark.
    Ms. Clark. No.
    Senator Lankford. Mr. Maunz.
    Mr. Maunz. No, Senator. There is no fundamental conflicts, 
as I mentioned in the questionnaires. There could be, it is 
unlikely but there could be individual cases that I could have 
to recuse myself.
    Senator Lankford. We will talk about that in a moment then. 
Ms. McLean.
    Ms. McLean. No.
    Senator Lankford. The second one. 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. Kirk.
    Mr. Kirk. No.
    Senator Lankford. Ms. Clark.
    Ms. Clark. No.
    Senator Lankford. Mr. Maunz.
    Mr. Maunz. No.
    Senator Lankford. Ms. McLean.
    Ms. McLean. No.
    Senator Lankford. Third question. Do you agree, without 
reservation, to comply with any request or summons to appear 
and testify before a duly constituted committee of Congress if 
you are confirmed? Mr. Kirk.
    Mr. Kirk. Yes.
    Senator Lankford. Ms. Clark.
    Ms. Clark. Yes.
    Senator Lankford. Mr. Maunz.
    Mr. Maunz. Yes.
    Senator Lankford. Ms. McLean.
    Ms. McLean. Yes.
    Senator Lankford. Thank you. Thank you all. I recognize 
Senator Hassan for her questions.

              OPENING STATEMENT OF SENATOR HASSAN

    Senator Hassan. Well, thank you, Mr. Chairman, and Ranking 
Member, and thank you to all of our nominees, and 
congratulations on your nominations and to your families as 
well. Nobody does public service on their own. They do it with 
the support of their families, and we are very grateful to 
yours, as well as to all of you.
    Ms. McLean, I wanted to just start with you. It is always 
important to me, also a lawyer, to find out why people who 
aspire to a judicial position became lawyers in the first 
place. So what inspired you to want to go into law and what 
guiding principles will you take to the Superior Court, should 
you be confirmed?
    Ms. McLean. Thank you, Senator, for that question. When I 
was a child, my mother was a legal secretary and a judicial 
assistant, and I went to work with her on many occasions and I 
saw what the men that she worked for did for a living, how they 
helped their clients, how they helped the litigants before 
them. I decided when I was 5 that I was going to be a lawyer, 
and I never wavered.
    I did not voice my desire to be a judge until I started 
this process, but it was always there. I always wanted to serve 
my community in some capacity, and that is why, for the past 17 
years, I have been so dedicated, while in private practice, to 
pro bono service, and why I now want to make the move to full-
time public service.
    And the quality that I would take to the bench is just an 
inherent sense of justice, principles, and a desire to be 
organized and prepared, and treat each litigant with dignity 
and respect, and move cases forward in a timely manner so that 
all can have access to justice.
    Senator Hassan. Well, thank you. What I am always looking 
for in a nominee, and in a judge, is somebody who turns their 
courtroom into a place where everybody truly not only is 
treated procedurally equally but feels equal in the moment and 
understands that their case will be heard, based on the law and 
based on the general principles that we respect each and every 
individual. So thank you very much for your answer and for your 
willingness to serve.
    To the MSPB nominees, I am going to ask each of you to 
answer just the same question. The MSPB has the authority to 
issue stays of agency action in whistleblower cases. However, 
they cannot do so when the MSPB lacks a quorum, which, as you 
have all noted, is currently the case.
    The Committee Chair and Ranking Member have co-sponsored 
legislation to allow for the MSPB to issue additional stays in 
the absence of a quorum, which would be a good step, but in an 
ideal world we would always have a quorum.
    I worry that this lack of urgency to have a quorum has 
already had negative impacts on whistleblowers and sends a 
message to potential whistleblowers that their protection is 
not a priority.
    So should each of you be confirmed, how will you work to 
ensure that whistleblowers are given adequate protections, and 
will you advocate for changes that will ensure that they always 
have protections, even in the absence of a quorum?
    And I will start with you, Mr. Kirk.
    Mr. Kirk. Thank you for the question, Senator Hassan. 
Whistleblowers constitute one of the lights in our government 
where, when it turns on, you know there is something to be done 
now, kind of like the lights when the British were coming, and 
they deserve our full attention, protection. Those things they 
are bringing to us are urgent matters. We need to take full 
cognizance of them. We need to do something about them. I find 
that one of the best things that MSPB does is adjudicate those 
issues that typically are brought up from the Office of Special 
Counsel to us, and the fact that they cannot get justice right 
now, it is, like I said, the elephant in the room.
    Senator Hassan. Thank you. Ms. Clark.
    Ms. Clark. The principle step that we will be taking, that 
I will be taking, if confirmed, is to adjudicate those cases 
fairly, impartially, and expeditiously. I am sure that if we 
are confirmed one of the first things we will do is be meeting 
with staff to come up with an action plan for clearing the 
backlog and prioritizing cases. It would not surprise me at all 
if a big subject of discussion is whether to make whistleblower 
cases one of those priorities, and how to do that. But, 
principally, what we can do for whistleblowers is adjudicate 
those cases fairly and expeditiously.
    With regard to change, I believe that I really need to be 
there and understand the landscape, but consideration of policy 
recommendations or procedural changes to the MSPB that would 
even more protect whistleblowers is something that I will 
dedicate myself to.
    Senator Hassan. Thank you. And Mr. Maunz.
    Mr. Maunz. Thank you, Senator. To echo my fellow nominees, 
I believe whistleblowers play a very important function in our 
Federal Government in identifying malfeasance. And to the 
extent someone has made a disclosure that is protected under 
the whistleblower statutes, they should be protected from 
retaliation to the fullest extent of the law, and I believe the 
best way for the MSPB to make sure whistleblowers are protected 
is to apply that law and to take those cases very seriously 
that come before us.
    As far as your question about changes, I think that is 
something that once I get into the job, hopefully, if 
confirmed, that I would be able to talk to career staff and 
other people that may have identified issues that have popped 
up now, when there was not a quorum, that could be fixed, and 
things that could be changed in the legislation to help prevent 
those problems from happening again, should a lack of a quorum 
occur.
    Senator Hassan. Well, thank you very much, and thank you, 
Mr. Chair. I yield the rest of my time.
    Senator Lankford. Thank you. Senator Heitkamp.

             OPENING STATEMENT OF SENATOR HEITKAMP

    Senator Heitkamp. Thank you, Mr. Chairman, and thank all of 
you for your willingness to serve and the willingness to put 
your name forward. This is kind of a grueling process. I know a 
number of you have been waiting a long period of time, maybe 
through two Administrations, in terms of nominating. But it is 
time that we get the Board up and running and that we make sure 
that we have enough judicial support in D.C. to support the 
important work that that branch of government does. So 
congratulations to all of you.
    I am struck by kind of this sense that the merit system is 
antiquated, and I am curious about the role that each one of 
you will play, going forward, in protecting that system, or at 
least hopefully modernizing that system. And so maybe talking 
about merit-based employment, start with you, Mr. Kirk, can you 
give me the elevator speech that you would give anyone who told 
you that Federal employees do not do a good job and that their 
job is unreasonably protected, and that we really do not need a 
merit-based system anymore?
    Mr. Kirk. I come from a military background in the Army and 
I can tell you that we value our fire protectors, our police, 
our military. But the people do not understand. What gets 
delivered to them every day is from a Federal employee. That 
Federal employee goes to work, work his or her heart out, goes 
home to the family. Every day they have a tough job. They go 
and do what we have to have done, and we cannot just say there 
is no merit to their business. They are our business.
    So the merit system, in my viewpoint, would be to celebrate 
their service, to give them the due they are due, and as I said 
earlier, to pay them fairly for the fair day's work they put 
in.
    Senator Heitkamp. Thank you. Ms. Clark?
    Ms. Clark. Sure. It always strikes me as inconsistent to 
question why we should have a merit-based system when merit is 
such a positive word. But the essential point of our merit-
based system is, in the first instance, to protect against 
arbitrary action, decisions based on partisan or other 
prohibited discrimination and reasons, to create a stable 
workforce, an educated workforce, and to ensure that decisions 
made about their employment is always based on merit. And at 
the end of the day, that means that you are going to have the 
most highly qualified, highly trained, career staff who can 
weather the changes in government that are the foundation of 
our democracy. And what makes those changes allow for 
continuity of those outstanding government services is a merit-
based civil service.
    Senator Heitkamp. Thank you. Mr. Maunz.
    Mr. Maunz. Thank you, Senator. Senator, I would tell this 
individual that the Federal Government and the Federal 
workforce work for all of us, and we do not want it to work for 
a particular political party, regardless of what party you 
belong to, or no party at all. You want the jobs to be--who 
gets the job to be determined on who is the best person for the 
job. You do not want it to be handed out through political 
patronage or anything like that, and I believe our civil 
service laws, our Merit Systems Principles, play an important 
role in ensuring that the best people are hired for the jobs 
and that those people are not fired for the wrong reasons.
    Senator Heitkamp. Do you think if we did not have a merit-
based system and the protections of a merit-based system we 
would be able to recruit the same quality Federal employees 
that we have today? And we will start with you, Mr. Maunz.
    Mr. Maunz. Well, I think as far as who would be attracted 
to the jobs, I am not sure, but, without certain civil service 
laws the same people would not apply. But I certainly think it 
helps ensure that the actual people who are hired are the best 
people for the jobs, and that, as I just mentioned, any time, 
in a government agency, depending, there could be the 
motivation to hire people that are politically connected or 
people that maybe volunteered on the campaign, or something 
like that. And I do not think we want that, and I know we do 
not want that.
    So I think the civil service law certainly helps us hire 
the best people.
    Senator Heitkamp. Ms. Clark.
    Ms. Clark. I agree. I think the system does ensure that 
those people who are hired are highly qualified and properly 
vetted, and that the checks that are in place in terms of 
performance management allow for that decision to be evaluated 
and corrected if made incorrectly in the first instance.
    Senator Heitkamp. Mr. Kirk.
    Mr. Kirk. Senator, history informs us. We learn from the 
past. Chaos happens without a merit systems protection service. 
We are looking for the brightest, the best, the stars to come 
into the government. They serve because they want to serve. 
They do not come here for the salary. There is not much of 
that. They come here because they want to be somebody, doing 
something for the American public. Those are the people we 
want. I would never want to see the merit system go away. Those 
nine principles are sacrosanct.
    Senator Heitkamp. Yes. I mean, I think quality, continuity, 
and making sure that partisanship is OK, at top levels, as they 
fulfill an agenda, but the daily, day-to-day work, want to draw 
from the most expansive pool that you can, and that means that 
it cannot be partisan-based.
    And, Ms. McLean, congratulations on getting your hearing 
and good luck to you. I know you will be a great judge. Thank 
you.
    Senator Lankford. Senator Peters.
    Senator Peters. Thank you, Mr. Chairman. Mr. Kirk, the 
first question is for you. After more than a year without a 
Board quorum, what is your plan to adjudicate the more than 
1,250 cases currently awaiting a decision from the Merit 
Systems Protection Board?
    Mr. Kirk. Thank you, Senator Peters. Right now we have a 
staff that is working on those cases and they have brought them 
forward in certain versions. Those cases have to be looked at 
by us in a circular manner right now. Under our authority, I, 
as the lead of the agency, have the authority to reach out to 
other agencies and pull in Administrative Law Judges (ALJs), 
administrative judges and attorneys and staff, and bulk up our 
processing. They will still come before the three of us, if 
confirmed. To do that, I will consult with my colleagues, in a 
collegial manner, but in management I will also start talking 
with the staff of the Board and find out what ideas they have.
    I have been Iincluded in processing of prior problems. At 
the Army Science Board, they were years behind. I came with a 
Lean Six Sigma team, three people, and in 45 days we converted 
that process, reformatted it, and rolled it out, deployed a 
system that now, maximum is 90 days. We bring in people to come 
serve because of that. But you have to think outside the box. 
The old ways of doing things will not cut it, and we have a 
huge problem coming up.
    As you are probably aware, there may be some changes coming 
in the Federal Government. If that happens, there may be 
Reduction in Force (RIFs), furloughs, firings. We have to deal 
with that, and the way to deal with that is to fairly and 
quickly get a system into place to deal with it. I believe I 
can do that. Thank you, Senator.
    Senator Peters. Well, if confirmed, would you institute 
specific changes in policies? You mentioned one from your 
previous experience. Would we expect something similar to that, 
or do you have something else in mind?
    Mr. Kirk. Well, I have not really studied it yet and I 
would have to deal with my colleagues and the Board staff, so 
specifics, no, I am not going to prejudge anything because I do 
not know what I am going to find when I find the lay of the 
land. The acting Chairman and present staff have given me a 
light briefing at the top about things. I think they have some 
good handles on some things, but they have not been able to 
make that move because they do not have a quorum and they 
cannot vote those things through.
    As administrator and chief executive officer (CEO), I will 
have certain powers, but I will not execute them without the 
collegial support of my Board and staff. Thank you.
    Senator Peters. So what is your understanding of how this 
backlog occurred in the first place?
    Mr. Kirk. Well, they can handle about 75 cases, I believe, 
a month. When they had a few cases kind of bulk up on them, on 
the calendar, all of a sudden the Vice Chairman left, and then 
the Chairman left, and then there was no action. And you have 
to give the man credit. Mark Robbins did yeoman service but he 
cannot vote. And so without that it just piles up.
    Senator Peters. Thank you.
    I am going to want to ask the three of you some of your 
thoughts on proposed legislation, the Modern Employment Reform 
Improvement and Transformation (MERIT) Act which would 
significantly reduce the time it takes to fire a Federal worker 
accused of poor performance or misconduct. The bill reduces the 
time for an employee to appeal firing decisions or for the MSPB 
to intervene on their behalf, and extends new employee 
probationary periods to 2 years. It would also allow agencies 
to avoid negotiated grievance procedures, reduce benefits of 
workers who are convicted of a felony and fired, and rescind 
bonuses or other cash awards deemed to be wrongly paid.
    On Tuesday of this week, the Nation's largest Federal 
union, the American Federation of Government Employees, 
American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO), signaled its strong opposition to the 
MERIT Act, arguing that the legislation would make it easier to 
fire Federal employees and would give agencies alternative 
mechanisms for punishment of Federal workers.
    So to each of the nominees, my question is, in your view, 
does this legislation support or undermine the due process 
system that provides Federal workers with a meaningful 
opportunity to defend themselves when treated unfairly? And I 
guess we heard from you first, Mr. Kirk, so we will start at 
the other end of the table and work that way. Mr. Maunz.
    Mr. Maunz. Thank you, Senator. I would need to study the 
legislation more. I know I saw news reports about it passing a 
House committee, I think, earlier this week. I would need to 
take a closer look at all the ins and outs of the particular 
legislation. I think, generally, the MSPB should stay out of 
the legislation that Congress is proposing in this area. Our 
job is to take whatever laws Congress gives us and apply those 
to the facts of individual cases. I leave the making of laws to 
lawmakers. So, Senator, I would certainly need to study this 
legislation more before I could give any type of informed 
opinion on it.
    Senator Peters. OK. And we will give you that opportunity 
and we will be following up with some written questions after 
you have had a chance to review the legislation. We look 
forward to having your response.
    Ms. Clark.
    Ms. Clark. Yes, Senator Peters. Similarly, I have seen the 
press reports. I have not studied the legislation carefully 
enough to have a professional opinion. I would also note that 
the statutory role of the MSPB is not to make policy but to 
adjudicate cases based on policies set by Congress, and then to 
offer evidence-based studies and review of OPM personnel 
actions. I really look forward to that part of the job. I know 
that, as a practicing attorney, I frequently consulted MSPB's 
evidence-based studies and found them to be very useful in this 
area.
    I also would note just that I had a significant period of 
time as a Federal manager and found the existing merit system 
to be one that I found to be very practical and workable in 
terms of holding employees, who were my subordinates, 
accountable, and without undue use of resources or undue time. 
And I also found, in my experience, that the due process 
protections not only benefited me as a manager, to make sure 
that we were really doing the right thing, we had our facts 
straight, but also supported the collegial atmosphere of the 
other workers who were not involved in the performance or 
misconduct type issues, because not only did they see us as 
holding their coworker accountable but they also saw us acting 
in a way that was fair and transparent, giving them the 
assurance that if they were ever in those shoes they would be 
treated according to the Merit Systems Principles as they 
exist.
    Senator Peters. Thank you. Mr. Kirk.
    Mr. Kirk. Senator, I do not want to prejudge this because I 
have not read the legislation. I have been here 40 years in 
this town, though, and sometimes what gets introduced and 
passed does not get enacted. So I would be very curious to see 
what is enacted. But we follow the laws you give us, and we 
follow the Constitution, and the court, once in a while, takes 
some of the laws you pass and sends it back.
    So I do not know which it will be. I will try to do my very 
best, under the laws you give me, and I guarantee you, and I 
pledge to you we will be up here, dealing and answering with 
your questions any time you want us here.
    Senator Peters. So, and I understand, either one of you or 
all three of you, have mentioned you have not seen the 
legislation so I could indulge the Chairman, that is kind of 
just a general question and does not require you looking at the 
legislation specifically and knowing the details.
    Just in your view, generally, and just your thoughts, 
quickly, would eliminating or shortening processes for Federal 
workers to challenge firing decisions of agencies and 
empowering agencies to take back bonuses or garnish benefits, 
do you think that improves Federal employment practices?
    We can start with you, Ms. Clark, and then we will go to 
Mr. Maunz and then to Mr. Kirk.
    Ms. Clark. Again, I just have to say that the array of 
tools available to managers to hold employees accountable is a 
policy decision. It is not the function of the MSPB to make 
those policy choices. It is the role of Congress. And to the 
extent----
    Senator Peters. I am asking you, just your thoughts, 
generally. I am not asking you to make policy. I just want to 
know where you are coming from on this issue. How do you think 
about it?
    Ms. Clark. Well, I can say that from my experience as a 
Federal manager for 7 years with a staff of about 70, that I 
found the tools at my disposal in the civil service to be 
adequate and practical, and I was able to hold employees 
accountable for a range of performance and conduct issues 
without an issue, and continue to motivate the staff that was 
under me.
    Senator Peters. Mr. Kirk.
    Mr. Kirk. The rights and privileges of individuals, when 
they begin to serve in our government, are the same rights and 
privileges as anybody in life, but when they assume certain 
duties they assume certain obligations. With rights and 
privileges comes duties and obligations. I would expect people 
to perform their job. If there is some tweaking needed to be 
done to the system, I trust you and the other Senators and the 
House to tell me what you want done, because you will have 
judged those issues, and I will enforce your laws. But we do 
not make policy at the MSPB.
    Mr. Maunz. Thank you, Senator. Senator, I think as far as 
due process and things like that I think the Supreme Court has 
stated that public employees have the due process that the 
legislature gives them. So, once again, it is up to you all and 
your colleagues to determine the steps that need to be taken to 
remove Federal employees.
    As far as the specific proposals you have given, once again 
I am not trying to dodge it, but you asked my opinion. I think 
it would depend on the circumstances. I do not know of any 
specific examples off the top of my head where a shorter 
timeframe would had allowed an agency to hold an employee 
accountable where they could not otherwise, but I do not know 
of all the situations that the legislators that put together 
that particular piece of legislation have examined or studied. 
So I do not know the full range of the issues.
    Senator Peters. Thank you. Thank you, Mr. Chairman, for the 
additional time.
    Senator Lankford. Ms. McLean, you decided to be a lawyer at 
5 years old, so I feel like I should swap out and put Cait in 
that chair and then go ahead and begin now, questioning her and 
preparing her for her future nomination, is what I feel like we 
should do, to go ahead and get that started. Because is not 
Cait five?
    Ms. McLean. Yes, Senator.
    Senator Lankford. So maybe the next hearing, Cait, we will 
bring you up and get you started in this process.
    Let me ask you a couple of other questions on this. The 
role of a judge is a very important role, obviously, in our 
democracy, but it is to focus on the facts and the law. So my 
simple question for you, do you pledge to be able to judge 
based on facts and law, not based on preference?
    Ms. McLean. Absolutely, Senator. That is the essential role 
of a judge and I take that responsibility very seriously.
    Senator Lankford. Thank you for that.
    Let me ask you about your pro bono experience, which you 
have done extensive work on that. How do you think that affects 
you as you approach this, coming at it not from preferences or 
background but coming at it with facts and law? The pro bono 
experience obviously affects your own family, your own 
background, what you have seen, how you practiced law in the 
past. What do you bring to this that is an asset?
    Ms. McLean. My pro bono experience rounds out my overall 
experience in the diversity of my background, from not only 
just representing large corporations but representing the 
individuals that I will see in Superior Court if I am fortunate 
enough to be confirmed, because all of my clients would have 
been pro se had I not been their pro bono lawyer, and as we 
know, Superior Court has a tremendous number of pro se 
litigants. And I have understood, over the years, what their 
background is.
    I have learned how to communicate effectively about 
complicated legal issues and processes, and it has taught me, 
through representing combat veterans, a mother who wants to 
adopt a child who is in the neglect system and has acquired 
immune deficiency syndrome (AIDS), a father of four who is 
dealing with housing code violations, I have gained respect to 
all of the litigants that would come before me, and it will 
help me to ensure that I continue to treat everybody with 
respect so that everybody gets to have their fair day in court. 
And then I can communicate with them about the results of my 
decision in a means that they can understand.
    Senator Lankford. OK. Fair enough. As we go back through a 
lot of things you have written, that is the benefit of where 
you have been in the past. You have a lot of writing and a lot 
of things there. There is one that stood out to me. You had 
written a journal entry called ``Innovation Does Not Cure 
Constitutional Violation: Charitable Choice and the 
Establishment Clause,'' where you kind of laid out some 
perspective on that. Walk me through a little bit of that 
particular journal, if you remember it, from there, because it 
has been a while since you have written that, obviously, but 
just on your perspective that came from that, where that came 
from, what your perspective is on the establishment clause and 
charitable choice.
    Ms. McLean. Yes, Senator Lankford. Thanks for that 
question. I wrote that note about 20 years ago----
    Senator Lankford. OK. So it is recent.
    Ms. McLean [continuing]. When I was in law school. I had 
just graduated from a conservative Christian university and was 
attending Georgetown, and I was taking religion and law courses 
and trying to sort of see the intersection of my faith in the 
extent of time that I had spent there with the religion 
clauses. And I have not reviewed that note in the past 20 
years, but if I recall correctly it was just noting that the 
free exercise of religion, as guaranteed by the Constitution, 
is one of our core values.
    Senator Lankford. That is great. Thank you. Sorry to pull 
up a two-decade-old law journal.
    So let me ask a couple of other questions of some of the 
folks here for MSPB. The issue that Senator Peters brought up I 
think is the dominant issue, and, Mr. Kirk, you brought this up 
already. The backlog is untenable for the Federal worker at 
this point, and it has to be resolved, but it has to be 
resolved fairly.
    So you talked a little bit about the process with Senator 
Peters. What I need to hear from you is this group is not going 
to feel the obligation to hurry and to not give a full hearing 
to the cases that are coming before them, that you are going to 
feel the pressure of needing to get caught up on the backlog, 
but that individual that has been waiting a long time is 
feeling the pressure of waiting that long to get a good 
decision on it, that is fair one way or the other.
    Help me understand how you are going to get the backlog but 
also maintain the fairness of the process.
    Mr. Kirk. Thank you, Senator Lankford. When you adjudicate 
a case, you have to give every case full, unbiased, 
nondiscriminatory analysis. You do your research, you check out 
what is important in that case, you check out the precedents, 
the constitutional law. Some cases will have neither law nor 
facts on their side. Those are easy to dispose of. On the other 
hand you have cases that are magnificently complicated, 
covering years of problems. Those have to take a longer time, 
and a more thorough time. I would anticipate some of those 
cases I will be sending back to research again, to get those 
people the fairness and the justice they deserve.
    These are not easy matters but every single person who 
comes before us, that is his life. That is her history. That is 
the worth of the individual, and they are going to get full, 
complete justice under the laws of the Constitution and our 
precedents in court and the MSPB. And if you change the laws, 
we will enforce those laws, but they are still going to get a 
fair judicial outcome.
    Senator Lankford. That is what we are looking for.
    Ms. Clark, you have been around this quite a bit, to be 
able to see the functioning, to work with a lot of different 
clients and such. MSPB was established in 1978, as a part of 
the Civil Service Reform Act. There is a lot that has changed 
since 1978, thankfully, that has changed in that time period. 
Do you see things that need to change in MSPB that are just 
structural changes that need to be there, to be able to best 
protect workers?
    Ms. Clark. Thank you for the question. I really do believe 
that I need to be there and get an in-depth understanding of 
the work processes and the structural organization in order to 
accurately answer your question. I am sorry. I am really not 
trying to dodge, but that----
    Senator Lankford. I understand that. That is fine.
    Ms. Clark [continuing]. Is also based on the experience I 
had at the FLRA that it was until I got there that I really 
could form a good judgment. But everything that we have been 
talking about, in terms of the continuity of the career civil 
service, I know first-hand how important that is, and we have 
that at the MSPB too. And I believe that we are going to be 
able to get up to speed and answer the kind of questions you 
have very quickly, if and when we are confirmed.
    Senator Lankford. OK. Fair enough. Mr. Maunz, you had an 
interesting response to me when I was talking about conflicts 
of interest, that demands some more clarification. Is there an 
area that you know of right now that you are going to need 
recusal, or that there may be a pending conflict of interest?
    Mr. Maunz. No, Senator. I think I was being extra cautious.
    Senator Lankford. Your legal training.
    Mr. Maunz. Like anyone who has practiced in an area of law 
that they would then be overseeing cases in the same area I 
have consulted with MSPB ethics staff. Potentially if there 
were cases I worked on personally or situations I worked on 
personally at Social Security Administration, I would not want 
to be in a role of judging that. Obviously, if they are someone 
that I knew personally or an individual that I knew on a 
personal level, I would not want to be involved in deciding 
their case either.
    So that is something I would discuss on a case-by-case 
basis with the Ethics Council. I do not know of any specific 
cases before the MSPB that are like that. I do not know of any 
huge swaths of cases that I will have to recuse myself from. I 
think I was just, trying to----
    Senator Lankford. Being lawyerly.
    Mr. Maunz [continuing]. Prevent myself from saying no here 
and then maybe 2 years down the road I have to recuse myself 
from a case and then someone points to this testimony.
    Senator Lankford. You are right. Thank you. Thank you for 
that.
    Ms. Clark, you also mentioned, in your background 
materials, you have done extensive work as a counsel at 
International Federation of Professional and Technical 
Engineers. Do you anticipate having to recuse yourself from any 
of those cases?
    Ms. Clark. It is highly unlikely because it has been nearly 
10 years since I worked there. However, I will work the General 
Counsel's Office and the Ethics Officer at the MSPB to ensure 
that if there are any cases that I need to recuse myself from, 
that I will do so.
    Senator Lankford. Other issues that you would want to make 
sure you get into this testimony? We have obviously pummeled 
you with questions on the staff level. We have a tremendous 
amount of written materials from you. Are there things that you 
want to make sure that you get into the public testimony today, 
from any of the four of you? Mr. Kirk.
    Mr. Kirk. I would just like to thank Acting Chairman Mark 
Robbins, Jim Eisenmann, Roz Coates, and all of the people at 
MSPB that briefed us and did a good job of being our Sherpas. I 
would like to thank those people who have been supportive of my 
candidacy, and particularly the President, who nominated me, 
and I am just grateful to be here, Senator.
    Senator Lankford. OK. Thank you. Ms. Clark.
    Ms. Clark. I just appreciate you all, your support in 
expediting this hearing so that we can get a quorum at the 
Board and get back in business. Thank you.
    Senator Lankford. Thank you. Mr. Maunz.
    Mr. Maunz. Senator, I do not have anything specific other 
than to say if confirmed to this position it would be truly an 
honor to serve, and I think this is important work that needs 
to be done well.
    Senator Lankford. I agree. Ms. McLean.
    Ms. McLean. Chairman, I have nothing to add other than that 
it is truly an honor, and if I am confirmed I will work very 
hard to neutrally apply the law to the facts.
    Senator Lankford. Thank you.
    The nominees have made financial disclosures and provided 
responses to biographical and prehearing questions submitted by 
the Committee.\1\ Without objection, which I will assume there 
is no objection on the dais,\2\ this information will be made 
part of the hearing record,\3\ with the exception of the 
financial data, which is on file and available for public 
inspection in the Committee offices.\4\
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    \1\ The information submitted by Mr. Kirk appears in the Appendix 
on page 27.
    \2\ The information submitted by Ms. Clark appears in the Appendix 
on page 98.
    \3\ The information submitted by Mr. Maunz appears in the Appendix 
on page 153.
    \4\ The information submitted by Ms. McLean appears in the Appendix 
on page 211.
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    The hearing record will remain open until noon tomorrow, 
Friday the 20th, for submission of statements and questions for 
the record. I would assume that the Committee will be in 
contact with Cait McLean to be able to discuss the next hearing 
for her as well. But thank you for bringing your families and 
thank you for already your commitment to be able to fill out so 
many pieces of paper. There is so much background work to be 
able to get to this spot. We look forward to getting a chance 
to be able to move this on to the next level in the days ahead.
    With that, the hearing is adjourned.
    [Whereupon, at 11:07 a.m., the Committee was adjourned.]

                            A P P E N D I X

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