[Senate Hearing 116-424]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 116-424
 
                     HEARING ON PENDING NOMINATIONS

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

                                HEARING

                                 OF THE

                     COMMITTEE ON VETERANS' AFFAIRS

                               BEFORE THE

                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 6, 2019

                               __________

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                 SENATE COMMITTEE ON VETERANS' AFFAIRS

                   Johnny Isakson, Georgia, Chairman
Jerry Moran, Kansas                  Jon Tester, Montana, Ranking 
John Boozman, Arkansas                   Member
Bill Cassidy, Louisiana              Patty Murray, Washington
Mike Rounds, South Dakota            Bernard Sanders, Vermont
Thom Tillis, North Carolina          Sherrod Brown, Ohio
Dan Sullivan, Alaska                 Richard Blumenthal, Connecticut
Marsha Blackburn, Tennessee          Mazie K. Hirono, Hawaii
Kevin Cramer, North Dakota           Joe Manchin III, West Virginia
                                     Kyrsten Sinema, Arizona
                       Adam Reece, Staff Director
                Tony McClain, Democratic Staff Director

                            C O N T E N T S

                              ----------                              

                            November 6, 2019
                                SENATORS

                                                                   Page
Moran, Hon. Jerry, U.S. Senator from Kansas......................     1
Tester, Hon. Jon, Ranking Member, U.S. Senator from Montana......     1
Boozman, Hon. John, U.S. Senator from Arkansas...................     6
Sherrod, Hon. Brown, U.S. Senator from Ohio......................    10
Hirono, Hon. Mazie K., U.S. Senator from Hawaii..................    12
Blumenthal, Hon. Richard, U.S. Senator from Connecticut..........    16
Sullivan, Hon. Dan, U.S. Senator from Alaska.....................    18
Manchin III, Hon. Joe, U.S. Senator from West Virginia...........    20

                               WITNESSES

Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for 
  Veterans Claims................................................     3
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for 
  Veterans Claims................................................     5

                                APPENDIX

Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for 
  Veterans Claims, Prepared Statement............................    24
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for 
  Veterans Claims, Prepared Statement............................    26

                         Questions and Reponses

Pre-hearing Questions
Response by Grant Judith to Questions of:
    Senator Tester...............................................    28
Response by Scott Laurer to Questions of:
    Senator Tester...............................................    34

Post-hearing Questions
Response by Grant Judith to Questions of:
    Senator Tester...............................................    37
Response by Scott Laurer to Questions of:
    Senator Tester...............................................    46
    Senator Blumenthal...........................................    48
    Senator Brown................................................    50
    Senator Hirono...............................................    52
    Senator Manchin..............................................    55
    Senator Murray...............................................    56

Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for 
  Veterans Claims
    Supplemental Questionaire....................................    57
    Supplemental Appendix A-B....................................    96
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for 
  Veterans Claims
    Supplemental Questionaire....................................   117
Senator Brown, Washington Post article-VA struggles to fill 
  hospital jobs..................................................   129


                     HEARING ON PENDING NOMINATIONS

                              ----------                              


                      WEDNESDAY, NOVEMBER 6, 2019

                              United States Senate,
                            Committee on Veterans' Affairs,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:35 a.m., in 
Room 418, Russell Senate Office Building, Hon. Jerry Moran 
presiding.
    Present: Senators Moran, Boozman, Cassidy, Rounds, 
Sullivan, Tester, Brown, Blumenthal, Hirono, Manchin, and 
Sinema.

               OPENING STATEMENT OF SENATOR MORAN

    Senator Moran. Good morning. The hearing will come to 
order. In the absence of Senator Isakson today I am pleased to 
chair the Veterans' Committee hearing on these two witnesses. 
Let me begin with a few opening remarks and then followed by 
Senator Tester, and we will swear in our witnesses and hear 
their testimony.
    Welcome to our nominees, Grant Jaquith and Scott Laurer. 
Congratulations on your nominations, and you have been 
nominated to be judges of the Court of Appeals for Veterans 
Claims. Thank you for your willingness to serve our nation's 
veterans on this court and to ensure that all veterans receive 
the benefits they are due according to the law and according to 
congressional intent.
    The court is relatively new, when compared to other courts, 
at just over 30 years old. I look forward to hearing from each 
of you how you will help shape the character and legacy of the 
court for the future, if you are confirmed.
    In 2018, the court received 6,800 appeals. That is 2,000 
more claims than during any other year in the last two decades. 
With the Board of Veterans Appeals increasing its output every 
year, it is critical the court remain at full capacity, with 
nine sitting judges, so that we can assure swift and accurate 
resolution of cases.
    I look forward to hearing more from you about your 
qualities, your experience and what you would bring to the 
court. I also acknowledge and thank your families for being 
here today and for supporting you both in your long and 
continued service to our nation.
    So thank you very much, and I recognize the Ranking Member, 
Senator Tester.

              OPENING STATEMENT OF SENATOR TESTER

    Senator Tester. Well, I want to thank Chairman Moran. I 
want to also thank both of you for being here today. I want to 
thank you both for your military experience--military service 
to this country, and thank you for your willingness to continue 
to serve on behalf of our nation's veterans.
    Although I have met personally with you both, and you have 
responded to written questions, your answers today will help 
many of us make our final decisions about whether you are up 
for the job to which you have been nominated.
    Mr. Laurer, in particular, given your present assignment to 
the White House, working on the National Security Council, as 
an ethics counsel, and in records management, and the 
experience with the European Russian Affairs Directorate, we 
will want to know more about your role in recent events.
    The uniqueness of this court cannot be understated. Formed 
in 1988, the Court of Appeals hears appeals from a system 
unlike any other Federal court. If confirmed, you will be 
charged with the sacred duty, not simply as Federal judges but 
as the only judges in the country solely tasked with making 
determinations for those who have served their country.
    For many veterans, the court is seen as their last hope 
after fighting for months, years, and in some cases, decades, 
to obtain the benefits that they have earned. They look to the 
court for a fair and equitable resolution of their claims.
    Now a few issues to address. Over the last few years, the 
court has seen a 30 percent increase in decisions appealed to 
the Federal circuit. I wonder if these appeals are necessary to 
establish precedent, because so many of the decisions on the 
Veterans Court are made by a single judge rather than a panel.
    Mr. Jaquith, in response to my written questions you 
mentioned that panel decisions might not take as long if there 
were more established precedent from this court. I would like 
both of you to discuss whether you think the court should be 
using single-judge decisions or more panel decisions to 
establish precedent.
    According to last year's annual report, the court had over 
10,000 filings. Now most of these were dismissed, but the court 
still made more than 8,000 dispositions. The average wait time 
between filing and disposition went from 301 days to 233 days 
over the last two years. We are moving in the right direction 
but eight months is still far too long.
    In responses to my pre-hearing question on the length of 
time it should take to make a decision, both of you said it 
could only be determined on a case-by-case basis. If confirmed, 
I want to hear what you would do or suggest to bring down the 
wait time veterans have to get a decision. We, in Congress, and 
especially on this Committee, have dedicated a lot of work to 
modernizing the claims process and improving the quality of 
care and benefits for veterans. I want to hear how you will 
ensure our work to serve veterans is carried out.
    On that note, the court's recent decision in Wolf, righting 
a wrong, working to clear the way for many veterans who sought 
emergency treatment outside the VA to receive the benefits that 
they were promised. By continuing your life of service, this is 
an example of what you can do to help your peers receive 
justice.
    Both of you have dedicated your lives to serving this 
country. I hope you remember your service and appreciate that 
your fellow veterans are counting on you when deciding the 
cases that come before your court.
    I look forward to our discussion today and thank you again 
for your willingness to serve.
    Mr. Chairman.
    Senator Moran. Senator Tester, thank you very much. We will 
swear in the witnesses. If you both will stand. Please stand 
and raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give before the Senate Committee on Veterans' Affairs 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Jaquith. I do.
    Mr. Laurer. I do.
    Senator Moran. Thank you. Please be seated.
    Mr. Jaquith, we will begin with your testimony. You may 
want to introduce family or friends that are here, if you would 
like.

                 TESTIMONY OF GRANT C. JAQUITH

    Mr. Jaquith. Chairman Moran, Ranking Member Tester, and 
distinguished members of this Committee, thank you for the 
opportunity to speak with you today. I am honored to have been 
nominated by the President to become a Judge on the United 
States Court of Appeals for Veterans Claims.
    This great privilege is the result of my family's love, 
support, and example. My wife, Rosemarie, and my six children, 
Amanda, Larene, Gordon, Olivia, Isabelle, and Colton, mean 
everything to me.
    My inspiring wife is an accomplished lawyer and community 
leader who spoke only Spanish when she started kindergarten. 
Her parents came to the United States from Cuba as teenagers to 
find a better life. She is here today, along with three of the 
children and some of their family members, including three of 
my grandchildren. All of my children and grandchildren are with 
me always. One is in Federal service. My son, Gordon, is the 
Director of the Naval Forces Division of Cost Assessment and 
Program Evaluation in the Office of the Secretary of Defense. 
That is him in a similar hairstyle to his dad's.
    The rest is my wife, Rosemarie; son-in-law, Chris; 
daughter, Amanda; daughter-in-law, Hannah; her father, Dr. 
Steve Dubansky; my daughter, Larene's husband, Tony Davenport; 
and grandchildren Allison, Pauly, and Jack.
    Senator Moran. Welcome to all of you, to see your relative 
testify today before the Committee.
    Mr. Jaquith. My own roots in service run deep. I am 
descended from a Mayflower passenger, a servant who signed the 
Mayflower Compact 399 years ago. The first Jaquith born in 
America died in 1678, of wounds received three years earlier in 
King Philip's War. Several Jaquiths answered the call to arms 
in Lexington, Massachusetts in April of 1775. A grandfather six 
generations back served in the War of 1812.
    During the Civil War, my great-great-grandfather was a 
private in the 12th Vermont volunteers engaged in the defense 
of Washington. And in the 1950s, my father served in the Navy 
as a machinist's mate, contracting pneumonia, returning to work 
too soon, and developing persistent lung problems that resulted 
in a permanent disability rating.
    My parents taught me to judge people on merit, based upon 
their character and conduct, and to care about them. They found 
fulfillment in dedication to family, church, community, and 
country, and illustrated industry and perseverance. They 
expected nothing and were grateful for everything.
    My mother is watching now on television and cheering my 
efforts to live up to their example. She instilled my interest 
in history. From reading biographies of famous people, I 
concluded that those who shaped our nation most often were 
lawyers or soldiers, and a dream was born--to become both.
    I signed my first contract with the United States of 
America about a month before my 18th birthday, accepting the 
ROTC scholarship which enabled the son of postal worker and a 
homemaker to go to a private liberal arts college. I was 
commissioned upon graduation, but was granted an educational 
delay to go to law school, leading to a summer judicial 
clerkship, work in the public defender's office, and then the 
Army Judge Advocate Generals Corps.
    After six years of active duty, I joined a large law firm 
in Syracuse. In 1989, I came to the U.S. Attorney's Office. I 
remained in the Army Reserves, rising to the rank of Colonel, 
and serving as a trial judge from 2001 to 2010. In the U.S. 
Attorney's Office, I have been a supervisor since 1998, 
including serving as Criminal Chief, First Assistant U.S. 
Attorney, and United States Attorney.
    My 32 years of active military service involved a broad 
range of legal work, including general practice assisting 
soldiers, veterans, and their families; advising commanders 
regarding operational, administrative, and disciplinary 
matters; addressing civil claims; prosecuting criminal cases; 
and presiding over courts martial throughout the United States 
and in Germany and Korea, including cases involving soldiers 
with significant service-connected health issues.
    I have spent over 30 years in the U.S. Attorney's Office 
conducting investigations, trying complex cases of different 
types, handling appeals, and leading the effort by lawyers and 
support staff to secure justice in civil and criminal cases 
throughout a district encompassing 30,000 square miles.
    In striving always to fulfill our responsibility to do the 
right thing in the right way, I have learned from eight 
excellent United States Attorneys; an outstanding leadership 
team, including my First Assistant, and many talented 
colleagues.
    My diverse case work included prosecution of a research 
coordinator at a VA medical center who falsified patient 
records to enroll them in cancer treatment studies, including 
those of a patient who died from the resulting infusion of 
chemotherapeutic drugs, as well as the Chief of Oncology who 
failed to ensure that accurate case histories were maintained 
and that treatment was based on actual laboratory results.
    As Vice-Chair of the Servicemembers and Veterans Rights 
Subcommittee of the Attorney General's Advisory Committee, I 
have initiated greater dialogue with the Department of Veterans 
Affairs about the importance of retrievable patient records to 
the quality of medical care for veterans and later litigation 
about that care, under both the current VA health records 
systems and the modernized comprehensive electronic system 
being designed and fielded.
    My family and professional history have imbued me with 
reverence for the service and sacrifice of veterans and the 
rule of law for the fair, impartial, and orderly resolution of 
disputes. These cornerstones of our country are connected in 
the Court of Appeals for Veterans Claims.
    I have learned from exceptional jurists I have appeared 
before and worked for that excellence depends not only on 
integrity, judgment, knowledge, and common sense, but also on 
humility. They showed that good judging comes from listening 
and learning to understand the facts and the law, and fairly 
apply the latter to the former. If confirmed, I will follow 
their example and work tirelessly to resolve cases justly and 
swiftly.
    Thank you for considering my nomination to this crucial 
court. I would be pleased to answer any questions you have.
    Senator Moran. Mr. Jaquith, thank you.
    Mr. Laurer, you are welcome to present your family and 
friends in the room, and if you would provide your testimony.

                  TESTIMONY OF SCOTT J. LAURER

    Mr. Laurer. Good morning, Mr. Chairman, Ranking Member 
Tester, and distinguished members of the Committee. Thank you 
for the opportunity to testify before you today and for the 
Committee staff's assistance in connection with my nomination.
    I am honored that the President has nominated me to serve 
as a judge on the United States Court of Appeals for Veterans 
Claims. I would not be here without the support of many people, 
and today I would like to particularly acknowledge my family.
    My father's parents and mother's grandparents sailed to the 
United States in search of better lives for themselves and 
future generations. Most did not even have the equivalent of a 
high school degree; however, they valued education, embraced 
hard work, and proudly became American citizens. They labored 
humbly in a Kansas City slaughterhouse, as a domestic helper in 
Topeka, and as a custodian, domestic helper, dressmaker, and 
roofer in Philadelphia.
    My parents made extensive sacrifices raising seven 
children. After two of our grandparents lost their spouses, my 
parents also welcomed the surviving grandparents into our home. 
Anything our large family lacked in material wealth was 
surpassed by mutual affection and happiness. Growing up, our 
parents taught us to treat everyone with respect, the 
importance of personal commitment, and the value of hard work 
and teamwork, lessons that would serve me well throughout my 
military career.
    While a second-year law student, I met my future spouse and 
best friend. During our 28 years of marriage, 11 permanent 
change of station moves, and multiple deployments, her support 
has been unwavering. Our two children have also backed me in 
countless ways, while being towed around the globe attending a 
dozen different primary and secondary schools between them. I 
thank my family members for their love, selflessness, and 
support to our nation. And I would like to introduce my wife, 
Kim, in the red dress; my daughter, Ada, in black; and my son, 
Ethan. I am very proud of all of them and I am very thankful 
for them joining me this morning.
    I wanted to become a lawyer since high school. As the son 
of a Korean War-era veteran and nephew of a Vietnam War 
veteran, I was also drawn towards military service. I did not 
know it was possible to serve as both an officer and an 
attorney until I met Judge Advocate General's Corps officers 
who were recruiting at my law school. The more I learned about 
the JAG Corps, the more eager I became about serving in the 
dual professions of arms and the law. The Navy JAG Corps 
selected me for its Student Program, and I was commissioned in 
January 1989.
    The United States military offered me the privilege of 
service, unparalleled leadership experience, and a wide range 
of legal skills. During nearly 30 years of active-duty service, 
I provided legal services to military service members, veterans 
and their families, and I advised our country's most senior 
civilian and military leaders on complex legal issues in combat 
zones, at sea, overseas, and here in Washington, D.C. Through 
these diverse experiences, I have demonstrated my ability to 
faithfully interpret and apply laws and regulations to factual 
situations and to communicate effectively, in speech and in 
writing, my reasoning behind legal conclusions.
    Veterans and their families deserve judges serving on the 
United States Court of Appeals for Veterans Claims who are 
impartial, diligent, skilled, and devoted to the law. If 
confirmed, I will uphold those solemn obligations and enhance 
the Court's efforts to decide an individual veteran's appeals 
fairly and expeditiously.
    Thank you again for the opportunity to appear before you 
today. I would be glad to answer your questions.
    Senator Moran. Mr. Laurer, thank you very much and thank 
you for your family's presence with you today.
    I will defer and recognize the Senator from Arkansas, 
Senator Boozman.

                      SENATOR JOHN BOOZMAN

    Senator Boozman. Thank you so much, Mr. Chairman, and also 
you, Mr. Tester. We appreciate you guys doing this in an 
expeditious way so we can get these things done. As was just 
said by Mr. Laurer, fair and expeditious, you know, is so, so 
very important. This is such a big job. We appreciate you all 
in the sense of your service to your country in the past and 
your willingness to serve now.
    I had really good meetings with both of you all, and I 
think you were able to answer my questions, you know, as we 
talked at length about what the job entails. And so I guess one 
thing I would like to know is you all have both--were in the 
military, you know, both veterans yourselves, many years of 
service. How will that experience affect you as you do your 
duties regarding the court? What does that bring to the table, 
in the sense of being a veteran and kind of understanding some 
of the issues that are out there?
    Mr. Jaquith. Thank you, Senator. As I indicated, I think my 
over three decades of military service imbued me with great 
reverence for the service and sacrifice of veterans, but also a 
personal understanding of the frustrations sometimes 
experienced when seeking administrative action, particularly 
when not on active duty.
    My military experience is an important reason why I am 
here, both as the foundation of my professional success and the 
impetus for my interest in dedicating the rest of my 
professional life to this court. The breadth of my military 
experience has been a real catalyst for professional 
development.
    In nearly 29 years in the Army Judge Advocate General's 
Corps I performed a wide array of functions, and having to 
learn and adapt to each one. They included providing legal 
assistance to soldiers, veterans, and their family members in 
all areas of civil law, including those involving military and 
veterans' benefits. I advised a depot commander on matter of 
command administration, contracts, environmental law, Federal-
State relations, and personnel law, and did similar work 
advising other commanders at all levels, including, as the 
staff judge advocate advising the New York Army National Guard 
commander and his staff. I investigated and settled civil 
claims against the Army arising in a 29-county area. I provided 
instruction on military justice, operational law, law of war, 
ethics, mobilization preparedness, and veterans' re-employment 
rights, and the protections of what is now known as the 
Servicemembers Civil Relief Act.
    As trial counsel, my prosecutors included a wide variety of 
serious cases. I served as a Special Assistant United States 
Attorney in both the Western District of Missouri and the 
Western District of New York, and some of the cases I worked on 
as a trial counsel and a SAUSA involved significant medical 
evidence.
    As an Army trial judge from 2001 to 2010, I presided over 
courts martial, including trials on charges of heinous crimes 
such as solicitation of murder and rape, and some of those 
cases involved soldiers whose work involved combat injuries 
that was presented as mitigating evidence.
    This broad perspective, I think, if confirmed, will enable 
me to apply the exercise of the good judgment developed in that 
career in trying to achieve fair and equitable results, 
expeditiously, for veterans.
    Senator Boozman. Mr. Laurer, quickly, or he is going to 
gavel me.
    Mr. Laurer. Thank you, Senator. I guess you could say that 
both Mr. Jaquith and myself have walked a mile in veterans' 
shoes, and that is obviously important for understanding, 
particularly with respect to veterans' benefits, the 
frustrations perhaps that they may deal with.
    In my case, as a result of my military experience, I have 
had the privilege of service, first and foremost, some 
unparalleled leadership experience, to include being in command 
of a legal organization, and a wide range of legal skills.
    Why do I think that is important? Well, first of all, my 
main role, if confirmed, would be to faithfully interpret and 
apply laws and regulations to the factual situations. It is not 
enough just to be able to do that, however, as I am sure we 
will discuss later. You have to be able to communicate 
effectively, both in writing as well as orally, in order to 
help with some of the challenges in the system as they 
currently exist.
    I would also note that both on the Joint Staff and my most 
recent detail to the National Security Council, I have 
coordinated extensively using the interagency process. And that 
is important because, if confirmed, you join a court that is 
composed of currently nine judges, and you need to be able to 
collaborate, and based on what I know about the current judges 
and their diversity of experiences and their incredible 
knowledge base, that is important to be able to work, whether 
it is on a single judge alone decision or certainly in panels 
or en banc, or all together.
    And then, finally, I mentioned earlier that I have led 
organizations in command and in other situations during my 
career, and one of the important things to remember with 
judges, again, is that even though you are not in command of 
something, you are in a leadership and a supervisory role, not 
only with your chambers, of course, and are responsible for 
developing the personnel under your charge, but also working 
across the court with other members, their chambers, and in 
general. Thank you.
    Senator Boozman. Thank you.
    Senator Moran. Senator Boozman, thank you. Senator Tester.
    Senator Tester. Thank you, Mr. Chairman, and I want to 
thank you both for being here today. I want to also thank your 
families for being here today. I think it speaks well of both 
of you.
    Before I get into my questions I would just say that I am 
impressed with the qualifications that both of you bring to the 
table. I think that it is good to have people with your 
background on the Court of Appeals for Veterans Claims.
    Mr. Laurer, from August of 2017 to August of 2018 you 
served as Ethics Counsel on the National Security Council at 
the White House. I believe that is correct, isn't it?
    Mr. Laurer. Yes, Senator.
    Senator Tester. And from August of 2018 until recently you 
served as Deputy Legal Advisor to the European Russian Affairs 
Directorate. That is correct?
    Mr. Laurer. Yes, Senator.
    Senator Tester. Okay. It has been a rather tumultuous time 
at the NSC, and it would be, I think, helpful for the Committee 
to know a little bit more about any specific role that you may 
have played. So did you have any knowledge or involvement 
regarding the July 2019 call between President Trump and 
President Zelensky?
    Mr. Laurer. Thank you for your question, Mr. Senator. 
First, if I may explain a little bit about the National 
Security Council----
    Senator Tester. Sure.
    Mr. Laurer.----staff, for those that may not be aware. The 
staff is composed primarily of detailees.
    Senator Tester. Yep.
    Mr. Laurer. In my case, I was detailed from the Department 
of Defense, and that is true, of course, for the Legal Affairs 
Directorate as well. So I was one of six detailees. So just to 
provide a little bit of background.
    Senator Tester. Yep.
    Mr. Laurer. As you know, I have been nominated to serve as 
a judge on the Court of Appeals for Veterans Claims, and I am 
here in that capacity today, obviously. Because of concerns 
about protected information, I am unable to discuss the 
specifics of any matter that I may or may not have worked on 
while detailed to the National Security Council.
    Senator Tester. If we were able to, with the Chairman's 
agreement, be able to go into a closed session, could you tell 
us about that?
    Mr. Laurer. Senator, there would be some of the same 
concerns with respect to protected information, and if I may 
briefly explain what those would be----
    Senator Tester. Yes.
    Mr. Laurer.----national security interests, of course, 
first and foremost, to include classified information; client 
confidences that may exist; as well as protections of the 
separation of powers between co-equal branches of the 
government.
    Senator Tester. Okay. So we would not want you to give away 
anything that would make the country less safe. I do not think 
that would be there. But if there was any role that you played 
it would be helpful to know, and that is really where the 
questions would come from. For example, were you aware or did 
you have any role in John Eisenberg's decision to move the 
transcript of the July 25th call to a highly classified server?
    Mr. Laurer. Again, Senator, I would express the same 
concerns.
    Senator Tester. Okay. So it was good. I get it. I just--it 
would be good to know that. And I do not--I think if you did 
not have any role in that there is no problem. If you did have 
a role in it, we would like to know what it was, and I do not 
think that brings forth national security issues.
    I am going to ask him to do it. If you will do it, that 
will be fine. If not--and that, by the way, does not take away 
from your qualifications and the fact that you were a detailee, 
and the fact that you went there because you were assigned that 
job. It is just if there are any roles there I would just like 
to know. I think you are a fine man. I think you have got a 
fine family, and, by the way, your son is a chip off the old 
block.
    The fact of the matter is, is that this is kind of 
important information moving forward. And so if we could--you 
seem to be a straight-up guy, an honest guy, somebody who is a 
no-BS guy. I like that about you. And so if we could get that 
stuff--it is not real heady, and I have got a notion you 
probably did not have a hell of a lot to do with it, but I 
would like to know that. Okay?
    Mr. Laurer. Thank you, Senator. I understand.
    Senator Tester. Okay. Let me go with the single judge 
question that I brought forth in my opening question. With a 
single judge can decide an appeal more quickly than a panel, 
are there any downsides to a single panel decision, just as 
lack of precedence being established? Either one can go first. 
It does not matter.
    Go ahead, Mr. Jaquith.
    Mr. Jaquith. Thank you, Senator. There is not a downside. 
Single-judge decisions certainly have their place.
    Senator Tester. So would it be helpful to have more panel 
decisions?
    Mr. Jaquith. Well, I think it is important to maintain the 
construct of the internal operating procedures that the court 
has in place. The single-judge resolutions are designed, as I 
understand the rules, for relatively simple cases where the 
outcome seems not readily debatable. And so having a single 
judge decide those cases can be done more quickly.
    Panel decisions are very important, and so it may be that 
it is screening judges should be sparing resolving questions of 
doubts about whether a panel is warranted or not in favor of a 
panel deciding the case, because the additional time it takes 
to get three judges together and----
    Senator Tester. Gotcha.
    Mr. Jaquith.----work on a case, has the advantage of 
setting precedent that could speed up cases throughout the 
system.
    Senator Tester. That is correct. What is your view on it, 
Scott?
    Mr. Laurer. Senator, I would echo what Mr. Jaquith said. I 
would add that when considering this question obviously there 
is guidance for the judges, and we would have to follow that. 
But in addition, the annual reports clearly show that--state 
the obvious, which is that whenever you have a panel or 
certainly en banc, it takes longer. And so as I recognize there 
is a need both in terms of first and foremost getting it right 
and being fair to the veterans, but also this need to do so in 
an expeditious manner.
    And so there are certainly advantages and disadvantages. I 
would be comfortable, if confirmed, with following the existing 
guidance, but also looking for other ways to be more 
expeditious in resolving cases. And the advantage, obviously, 
with a panel decision is that it has precedential value. That 
would be helpful not just for the board but also all the way 
down the chain to the regional offices and to the veterans 
themselves.
    And so, again, if you meet as a panel and if you provide a 
decision that is very clear and instructive, it is very 
difficult because it is hard to capture what those metrics 
would look like. But common sense tells those of us in the room 
that if you were to be clear in providing that it could perhaps 
prevent the need to remand cases to the board, and therefore be 
more efficient.
    Senator Tester. Thank you. Thank you, Mr. Chairman.
    Senator Moran. Senator Brown.

                     SENATOR SHERROD BROWN

    Senator Brown. Thank you, Mr. Chairman. Thank you for that. 
Thank you both for your willingness to serve. And I reiterate 
what Senators Tester and Moran said about your qualifications, 
and good luck through the process, and thank your families for 
being here.
    Following up--Mr. Laurer, following up on Senator Tester's 
question, in your questionnaire you affirmed you would appear 
and testify before a duly constituted committee of Congress. If 
subpoenaed regarding the Ukrainian controversy, are you willing 
to appear and testify regarding your actions and your position 
as legal advisor for European Affairs in the NSC?
    Mr. Laurer. Thank you, Senator. I stand by my response in 
the questionnaire, and so for a committee that would call me, 
my response is yes.
    Senator Brown. Okay. Thank you for your direct answer.
    Also following up on Senator Tester's line of questioning, 
in your role at the NSC, Mr. Laurer, were you aware of, as 
Ambassador Taylor's written testimony details, a, quote, 
``irregular policy channel running contrary to the goals of 
long-stand U.S. policy, vis-a-vis Ukraine''? Were you aware of 
that written testimony?
    Mr. Laurer. Thank you, Senator. Again, I would state that 
based on concerns about protected information, I am unable to 
discuss specifics of any matter that I may or may not have 
advised on while detailed to the National Security Council.
    Senator Brown. But you would be willing, if called back, in 
a classified setting, to at least appear?
    Mr. Laurer. Again, my response to the questionnaire, 
Senator, is yes, that as a----
    Senator Brown. A lot of us were pretty stunned by the 
political reaction, or politicized reaction to Mr. Taylor's 
testimony, and with criticism, sort of an angry criticism of 
him as a public official and public servant. Did you have a 
reaction to the criticisms of Mr. Taylor in the ensuing days of 
his testimony?
    Mr. Laurer. Senator Brown, I do not know Mr. Taylor, and I 
had no reaction to the publicly available information.
    Senator Brown. Okay. As someone with as distinguished a 
record as you did I just wonder if--as you have had, and as a 
patriot, and someone who has served his country as admirably as 
you have, and as admirably as he had, I would just wonder if it 
sort of hit you in the gut when you see those kinds of 
criticisms targeted at a public servant like him. But I 
understand your answer.
    Mr. Jaquith, one question for you. If confirmed, when 
reviewing a case, how would you raise--how would you weigh 
congressional intent against VA regulation, given the recent 
Supreme Court ruling in Kisor v. Wilkie?
    Mr. Jaquith. Thank you, Senator. I mean, analysis starts 
and sometimes ends with the text of the statute. If the words 
are clear and unambiguous they are applied as written, and it 
making that determination I would construe the words in 
accordance with their ordinary usage and context, reflecting 
how they were most likely understood by Congress and the public 
and most compatible with the surrounding law into which they 
were integrated.
    Legislative history may be helpful in ascertaining the 
reasonable construction of the statutory language, and, of 
course, we have the Veteran Canon, that interpretive doubt is 
to be resolved in the veteran's favor.
    This year, as you reference, interplay of the canons of 
statutory construction and the deference to be accorded 
reasonable agency interpretation of that ambiguity in statutes, 
under Chevron, or regulations under Auer, has been the subject 
of two important cases, Procopio v. Wilkie, in which the 
Federal circuit held that the statute unambiguously applied to 
veterans who had served in the Blue Water territorial seas of 
Vietnam, and Kisor v. Wilkie, in which the Supreme Court 
expounded on the proper place for Auer deference. And I would 
carefully study those recent decisions and apply them to the 
standards of statutory construction that I had earlier 
described.
    Senator Brown. Thank you, Mr. Jaquith.
    The last point, Mr. Chairman, I would like to enter into 
the record, and I would ask unanimous consent, an article in 
the Post today with salaries lagging far behind private sector, 
VA has 49,000 positions vacant. I know how much you care about 
this, about the VA, Mr. Chairman, and that Senator Isakson 
does, and Senator Tester, and Senator Hirono. All of us, we are 
all concerned about that. It is partly salaries. It is also 
partly the attacks on Federal employees that we see from the 
White House, and the undermining of civil service.
    Again, I understand it is partly a dollar figure, a dollar 
issue, and I understand it did not begin with President Trump. 
There have been shortages before. But this stepping up 
criticism of Federal employees, and coupled with the threats, 
again, for a government shutdown, makes it even harder to 
recruit.
    So I would like, Mr. Chairman, to enter this into the 
record.
    Senator Moran. Without objection. Senator Hirono?

                    SENATOR MAZIE K. HIRONO

    Senator Hirono. Thank you, Mr. Chairman.
    I ask all nominees before any of the committees that I sit 
on the following two questions to start, and I will ask these 
two questions of both of you, starting with Mr. Jaquith.
    Since you became a legal adult, have you ever made unwanted 
requests for sexual favors or committed any verbal or physical 
harassment or assault of a sexual nature?
    Mr. Jaquith. No, I have not.
    Mr. Laurer. No, Senator.
    Senator Hirono. Have you ever faced discipline or entered 
into a settlement related to this kind of conduct?
    Mr. Jaquith. No, Senator, I have not.
    Mr. Laurer. No, Senator.
    Senator Hirono. For Mr. Laurer, you have had a number of 
questions relating to your work at the National Security 
Council. I just want to clarify, was one of your 
responsibilities to assist the National Security Advisor and 
the National Security Council staff on interpretations of U.S. 
and international law relevant to U.S. national security?
    Mr. Laurer. Yes, Senator.
    Senator Hirono. So Tim Morrison, the former Senior Director 
for European Affairs at the White House and NSC testified in 
detail about his recollections relating to the July 25th 
telephone call between President Trump and Ukrainian President 
Zelensky.
    Morrison stated, quote, ``After the call, I promptly asked 
the NSC Legal Advisor and his Deputy to review it. I had three 
concerns about a potential leak of the MemCon. First, how it 
would play out in Washington's polarized environment. Second, 
how it would play out in Washington's--second, how a leak would 
affect the bipartisan support our Ukrainian partners currently 
experience in Congress. And third, how it would affect the 
Ukrainian perception of the U.S.-Ukrainian relationship.''
    Were you the deputy referenced in Mr. Morrison's testimony?
    Mr. Laurer. Senator Hirono, I know who Mr. Morrison is. I 
cannot, in this setting, get into any details about any advice 
that I may or may not have provided.
    Senator Hirono. Oh, so you are saying that you were the 
deputy referred to by Mr. Morrison.
    Mr. Laurer. No, Senator. That is not what I said. What I 
said is that I know who Mr. Morrison is, as a Senior Director 
on the NSC staff, but that in this----
    Senator Hirono. I am not--excuse me, I am not asking you 
tell us what you said. I am just asking whether you are the 
deputy that Mr. Morrison referred to. Yes or no?
    Mr. Laurer. I do to believe that I am the deputy that he 
referred to.
    Senator Hirono. So, I figure--you testified that you would 
be fair and impartial. You would abide by the rule of law. I 
would expect that for both of you. And I am just wondering, the 
concerns relating to the telephone call was first raised to the 
public by basically a valid complaint brought on by a 
whistleblower. We do have statutes that require a Federal 
employee, if they see any misconduct, et cetera, to come 
forward, and we do have statutes that protect a whistleblower.
    Do you think that the whistleblower's identity should be 
disclosed?
    Mr. Laurer. Senator, I have no opinion on that. What I can 
assure you is that throughout my career of public service that 
I have always acted in accordance with the law and integrity, 
and I stand on my reputation in that respect, and having done 
so for almost 30 years on active duty and even longer as a 
commissioned officer, I have a very clear record in that 
respect.
    Senator Hirono. So are you aware that we do have laws that 
protect a whistleblower?
    Mr. Laurer. Yes, I am.
    Senator Hirono. And you would abide by those laws. So some 
of those laws would be that a whistleblower should not be 
subjected to threats, intimidation, or retaliation, and you 
would support those.
    Mr. Laurer. Yes, Senator, I can assure you that in any 
context I am familiar with whistleblower laws and that in any 
context I would respect those laws.
    Senator Hirono. It would be good if others did likewise.
    For both of you, as you know there has been a claims 
backlog at the VA, which ultimately will affect the workload 
for the court, and many veterans have been waiting, as you are 
probably aware, for years for their claims to be adjudicated, 
and we owe them swift justice. What can you do as a judge to 
decide cases on a timely basis? And since I am running out of 
time I just need short responses from you, of whether, you 
know, this would be something that you would pay attention to 
and try to come up with ways to just effectively move things 
along.
    Mr. Jaquith. Hard work and quick action.
    Senator Hirono. Long hours.
    Mr. Jaquith. Long hours. I think, you know, a career in 
litigation and working through the thicket of legal and factual 
issues under deadlines would help me in that regard, getting 
from intake to action. There are some other things that are 
promising--the Appeals Modernization Act, the potential for 
class action litigation, and as we have already discussed a 
little bit, the importance of issuing clear, precedential 
decisions that it is hoped would speed up the entire system.
    Senator Hirono. Mr. Laurer?
    Mr. Laurer. Senator, I would add to that obviously Mr. 
Jaquith and I are not currently sitting on the court, but I 
recognize, and I am humble enough to know that if confirmed, 
based on my willingness to make things better and improve 
things, that I would look around and I would add to that 
diversity of the experience that currently exists on the court, 
by bringing to bear ideas that I may have. But it would be very 
presumptuous at this point to say what those may be, because I 
am not sitting there. But I would certainly, as part of the 
learning curve that anyone undergoes with respect to a new 
position, would be very attuned to that and would be looking 
for ways to bring hard work to it and innovative ideas.
    Senator Hirono. Thank you. Thank you, Mr. Chair.
    Senator Moran. Thank you, Senator.
    Maybe for Mr. Jaquith, but either one of you, you 
mentioned, I think, Mr. Jaquith, about the presumption of 
agencies, the deference to their views. What is the current 
state of that law? What is the court's role in deference to the 
Department of Veterans Affairs positions?
    Mr. Jaquith. Well, thank you, Senator. There is a statutory 
standard--it is Section 7261 of Title 38--for reviewing those, 
and legal questions, de novo, factual findings, clearly 
erroneous.
    In terms of the interpretation of regulations, it has been 
the subject of a lot of litigation, you know, first--
    Senator Moran. So is the answer, at the current state is it 
is uncertain?
    Mr. Jaquith. I think the state of the law still is that 
there is deference to be accorded to agency determinations when 
those determinations are grounded in the specialized expertise 
of the agency. That is, I think, the essence of Justice Kagan's 
opinion in Kisor. But first you have to determine if there 
actually is ambiguity or not. That is not--you do not just 
immediately to deference--and factor in--and I do not think 
this was discussed by the court in Kisor--the Veterans Canon. 
So, you know, interpretive doubt is resolved in favor of the 
veteran.
    Senator Moran. Mr. Laurer, anything I should know beyond 
what I just learned?
    Mr. Laurer. No, Senator. I would concur with Mr. Jaquith.
    Senator Moran. Thank you. Let me ask this. In the 
interpretation of laws, I assume there are circumstances in 
which Congress has created uncertainty, one statute saying one 
thing, one statute saying presumably something different. And I 
know there would be instances in which regulations, at the 
Department of Veterans Affairs, might be in conflict with the 
statutes.
    I would ask you, if and when you know of those instances, 
if you would inform--would this be part of your role, informing 
this Committee, Congress, of those circumstances? One of the 
things in regard to the question of backlog, if we can reduce 
the level of uncertainty as to what the status of the law is, 
and whether a regulation is complying with the statute, we can 
reduce the amount of litigation, I think, the amount of 
uncertainty that veterans face in needing a pending claim.
    Do you have suggestions for me of how we can make certain 
that Congress knows when it might have the opportunity to clear 
the air about a law and work to make certain that the 
Department is operating within the law?
    Mr. Laurer. Senator Moran, my commitment would be to work 
with, if confirmed, other members, of the court and also with 
the other branches of the government. As I have stated with 
Committee members and staff that we have had the great fortune 
to speak to over the course of the last few days, I view this 
as a collaborative effort between the court, the Executive, and 
Legislative co- equal branches of the government. And so you 
have my commitment to work. I do not know the actual mechanics 
of how we would do that yet, but you have my commitment to do 
everything within my power to do so.
    Senator Moran. Thank you. Mr. Jaquith, anything?
    Mr. Jaquith. Mr. Chairman, as I understand the role of the 
court, I think, if confirmed, I would participate in making the 
determination of whether regulations are consonant with 
statutes in the context of cases, and it would be through those 
decisions that that message would get out.
    In terms of the interface with this Committee, I do not 
have an insider's knowledge of that but I presume, perhaps from 
the reporting requirement that is part of the expansion of the 
court, that any of that sort of communication would come 
through the Chief Judge.
    Senator Moran. Thank you. Mr. Tester.
    Senator Tester. Well, I want to thank you for that 
question, Mr. Chairman, because I think it is really important, 
and if there are conflicts we have got to figure out a way to 
resolve them or we have got to make sure that that 
communication chain is there. And so short of doing it the old-
fashioned way of just picking up a phone and saying, ``Hey, 
Jerry Moran, we have got an issue here,'' or ``Jon Tester, we 
have an issue here,'' we have got to figure out how to do it, 
because the truth is it would make your job better and it would 
just be good government.
    Look, you guys have extensive experience. Is there 
anything--and you are not on the court yet, but is there 
anything, any certain area that you think that you are going to 
need to bone up on to be on the court?
    Mr. Jaquith. Thank you, Senator Tester. Thought I believe 
the nature and breadth and extent of my work over 37 years as a 
lawyer has been outstanding preparation for service on the 
court, if I am concerned, there is no question that the focus 
on the specifics of veterans' law is essential, and I have been 
doing that, reading the statutes, rules of practice, the 
internal operating procedures, many precedential cases and the 
reviews of such cases, and analyses and commentaries on the 
development of the court, and significant issues that have 
arisen. I have spoken with some knowledgeable people on the 
subject, watched oral argument, listened to a podcast or two.
    One of the energizing aspects of a career in litigation is 
the variety of subjects encountered, and I am excited by this 
one and the possibility of focusing further on veterans' law, 
if confirmed.
    Senator Tester. Okay. Mr. Laurer?
    Mr. Laurer. Senator, the fundamental skills have been 
demonstrated with respect to interpreting laws and regulations 
and fairly applying those. I would say that, as has been the 
case throughout my career, any time that I have gone to a 
different assignment there has been some learning to do, and I 
would expect that I would approach it humbly, and like Mr. 
Jaquith already started that process without presuming 
anything, of course, because, as you noted, we have not been 
confirmed. But certainly reviewing the seminal cases, articles, 
and doing as much in preparation for today's hearing and this 
process as possible. So I would continue to do that.
    I can tell you that any time I have moved, and I have done 
so every two years, in the United States Navy, I have had some 
homework to do before getting there, and then certainly upon 
arrival, but quickly getting up to speed. Thank you.
    Senator Moran. Senator Blumenthal?

                   SENATOR RICHARD BLUMENTHAL

    Senator Blumenthal. Thanks, Mr. Chairman. I want to join in 
the comments made by Senator Tester about the importance of the 
Wolf case and the need to provide veterans with reimbursement 
for the non-VA emergency care that they have paid for. I know 
you are familiar with the case. I think that the court's 
decision there was really enormously instrumental and important 
in vindicating the rights of veterans, and now alerting 
veterans, making them aware of their rights to that kind of 
reimbursement. There are literally, as you know, millions of 
dollars that veterans are due under that decision, and I know 
that we are going to keep pushing for that kind of fairness in 
reimbursement.
    I hope that you will agree that veterans should not have to 
wait years, generally, to get medical care from the VA, and 
that claims and appeals should be resolved as quickly as 
possible. And I am proud of the fact that we have worked, in 
the Congress, on a bipartisan basis, to pass the Veterans 
Appeals Improvement and Modernization Act of 2017.
    My understanding is that VA has doubled the number of 
appeals it has decided from 52,000 in 2017 to 95,000 in fiscal 
2019, and I think one of our main goals has to be ensuring that 
the Court of Appeals of Veterans Claims continues to operate to 
decide these claims as quickly and fairly as possible, and I 
hope that both of you agree.
    Mr. Jaquith. Yes, Senator. If confirmed we will certainly 
do our best to ensure that that occurs.
    Senator Blumenthal. Mr. Jaquith, in your responses to the 
Committee you mentioned that you had a substantial caseload in 
defending VA malpractice claims, claims against the VA based on 
malpractice. Why do you think there are so many of those 
claims?
    Mr. Jaquith. Senator, I think, in the main, it is a result 
of the volume of care that is provided. I do not mean to 
suggest that the incidence of medical malpractice claims is any 
greater in Veterans Affairs medical centers than in other 
medical facilities, although I have done no study of that so I 
do not know whether that is true.
    In our work with the VA, it has been my observation that 
there are outstanding professionals there, as there are in 
civilian hospitals, so I would not draw any negative inference 
from that experience. And that was my experience in a criminal 
case that I handled that involved VA medical care. And I am 
working in my capacity as Vice Chair of the Servicemembers and 
Veterans Rights Subcommittee in a very positive way with VA 
representatives on the issue of complete retrievable electronic 
patient records.
    Senator Blumenthal. In the Northern District of New York, 
those claims came from which facilities?
    Mr. Jaquith. We have two big VA medical centers in Syracuse 
and in Albany.
    Senator Blumenthal. And so you would defend the VA----
    Mr. Jaquith. Yes.
    Senator Blumenthal.----in those claims----
    Mr. Jaquith. Yes, Senator.
    Senator Blumenthal.----in Federal court.
    Mr. Jaquith. When lawsuits are filed against the VA or its 
doctors and caregivers, then it falls on the United States 
Attorney's offices to provide representation, and it is in that 
context that we often experience the issues with retrieving and 
providing discovery of patient records.
    Senator Blumenthal. You mentioned that there was a criminal 
case. Did you--you prosecuted it, I assume?
    Mr. Jaquith. I did, Senator. It involved a research 
coordinator that was falsifying patient records to enroll and 
maintain patients in cancer treatment studies, and a patient 
died because his compromised liver and kidney function, as 
would have been revealed by accurate laboratory results, made 
him susceptible--made the infusion of chemotherapeutic drugs 
fatal.
    Senator Blumenthal. Because of your experience in those 
cases, both civil and criminal, do you think you have any 
predilection either for or against the VA?
    Mr. Jaquith. No, Senator, I do not. I am certain that I 
could be, if confirmed, fair and impartial in deciding all the 
cases that come before the court.
    Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
    Senator Moran. Senator Tester.
    Senator Tester. Yeah, thank you, Mr. Chairman. I just 
wanted a quick statement to put into the record. I want to 
ensure that I give Chairman Isakson the opportunity to review 
the discussion. I know Adam is here and he will make sure he 
gets the discussion. As such, I will confer with Chairman 
Isakson on whether these matters should be discussed in closed 
session, and then we will bring the Committee back at a later 
date to have a broader discussion with all Committee members on 
whether these issues require the meeting to be closed.
    Look, I want to ensure that we are in accordance with the 
rules of Senate. I also want to give Chairman Isakson the 
opportunity to review the proceedings today.
    I know we are waiting for another member to come. Chairman 
Moran and I were just sitting here talking. You guys are really 
incredibly qualified for this job, and I hope I am--I hope that 
everything works out with the NSC stuff so that both of you can 
get confirmed, because I think you are going to do a marvelous 
job. And if you do not, I am going to be really disappointed, 
because you certainly have the pedigree to do some really good 
work and the experience to really meet the needs on the appeals 
court, so thank you both for being here.
    Mr. Laurer. Thank you, Senator.
    Mr. Jaquith. Thank you, Senator, for your kind words.
    Senator Moran. Senator Tester, thank you. I too confirmed 
with Committee staff and here is my suggestion with the issues 
that have been raised in regard, particularly, to Mr. Laurer 
and his role at the NSC. What I would suggest is that Committee 
members submit written questions to the witnesses, and those 
questions then be answered by the witnesses in writing, to be 
submitted to the Committee. And if the answer involves an 
inability to answer the question, if the response involves the 
inability to answer a question, then explain the legal 
justification for that inability.
    Then Senator Tester, the Ranking Member, and Senator 
Isakson, the Chairman of the Committee, can then have the 
conversation about what should be the next step, if any, in 
regard to a different setting for this Committee. That would 
put into the record the question, and it would put into the 
record the legal basis for which the question was not answered. 
And then you and Chairman Isakson can reach a conclusion to how 
best to handle that circumstance.
    I think this concludes our hearing. I always in hearings 
that I chair if there is anything that either witness, either 
of you would like to say, that has not been asked, that you 
wish to correct something, you wish something was on the 
record. And I have already taken too much time because Senator 
Sullivan has now arrived.
    But I will give you that opportunity when we conclude the 
questioning by Senator Sullivan.

                      SENATOR DAN SULLIVAN

    Senator Sullivan. Thank you, Mr. Chairman, and I apologize. 
Thank you for keeping the hearing going here. This is an 
important position. Congratulations to both of you.
    You know, my state, the great state of Alaska, we have more 
vets per capita than any state in the country. And one of the 
biggest challenges that I have seen is the delay and the 
backlog with regard to appeals. And so I would just like to get 
your sense of how you would envision, both of you, addressing 
doing the appellate work in a fair way, of course, but also in 
an expeditious way. And are there ways in which you think we, 
or the VA itself, or even under the current law, can help with 
regard to addressing what is, I am sure you know, in certain 
cases, years and years and years of delays with regard to 
appeals that have built up? And I will just ask that of both of 
you.
    Go ahead, Mr. Laurer.
    Mr. Laurer. Thank you, Senator. As you noted in your 
question, the most important part is getting it right.
    Senator Sullivan. Yes.
    Mr. Laurer. That is the fairness. But I recognize clearly 
that there is also a need to do so expeditiously.
    Senator Sullivan. You know the saying, justice delayed is 
justice denied.
    Mr. Laurer. Yes, Senator.
    Senator Sullivan. So it is a combination.
    Mr. Laurer. Yes, Senator. So there have been a number of 
steps already taken to address that, for example, the temporary 
expansion of the number of judges that are on the court, that, 
for four years, increases the size from seven to nine judges. 
That, of course, will help, but at the same time, as was noted 
earlier in the hearing, we have seen a significant increase in 
the number of appeals coming before the court, up from 
approximately 4,000 in 2017 to almost 7,000 in 2017.
    So in addition there have been some other significant 
developments, for example, with respect to the court's ability 
to consider class actions and to aggregate similarly situated 
claimants and appellants, and that is, of course, the Monk 
case.
    And so there are a number of things that are already 
available. The legislature, of course, has the ability to 
consider further ways to do this, everything from expanding the 
court to any other number of measures that are available.
    And then also, frankly, if confirmed, my commitment would 
be to doing everything within my power to, for example, provide 
clear decisions that are helpful throughout this process, and, 
of course, if you do so as part of a panel or a banc, that has 
precedent. And so those opinions and decisions have 
precedential value. But also even with the single-judge 
decisions, it is always best to have clarity, and that helps 
not only the board but all the way down to the regional office 
and to the individual veterans, because the clearer you can be 
about the applicable law and regulations, the more efficient 
the entire process becomes.
    Senator Sullivan. I do not want to interrupt, Mr. Laurer. 
Thank you.
    Do you have a view on my question and the response?
    Mr. Jaquith. I echo Mr. Laurer's hope that the systemic 
changes, the Appeals Modernization Act and the potential for 
aggregate case resolutions help. If confirmed, I would strive 
to embody my common exhortation to lawyers in the United States 
Attorney's Office more, better, faster. I will work tirelessly 
to screen cases quickly, and if they are properly resolved by a 
single judge, do so expeditiously with a decision that is 
correct in law and fact. And on cases referred to panels, I 
will promote celerity and clear articulation of the dispositive 
rule of law to achieve justice in the case and maximize the 
likelihood that the precedent will hasten the resolution of 
other cases.
    Senator Sullivan. Let me ask, just real quick, I think it 
is appropriate, and I do not know how the work between the 
Committee and the court of appeals actually--appeals court 
works. But I do think that it is appropriate if, if confirmed, 
and during the course of your time, you are seeing ways in 
which things that are statutorily based and mandated are either 
helpful or unhelpful, or ideas to make it more helpful. I think 
it is certainly appropriate to make sure we get an update--this 
Committee in particular, gets an update from you when you see 
this in practice, if you have ideas and thoughts for 
legislative reform.
    So could I get a commitment from both of you to be willing 
to do that and continue to work with this
    Committee on these issues? Mr. Laurer.
    Mr. Laurer. Senator Sullivan, you have my personal 
commitment. As you are aware, there is also the annual reports 
that are required under statute. That is one mechanism, but 
that is not all that can be done.
    Senator Sullivan. Yeah, sometimes a report can be kind of, 
you know, bureaucratized to such a degree it doesn't say much. 
So if you have views, we certainly would love to hear them.
    Mr. Jaquith, can I get your commitment on that?
    Mr. Jaquith. Yes, Senator, although I expect--I do not know 
how the--what the inner working of the court is like in this 
regard, and it may be that the proper way for those--any input 
I might have, if confirmed, would be to come through the Chief 
Judge.
    Senator Sullivan. Yeah. No, we do not want any ex parte 
communication or anything like that, but I think a continued--
you are going to be the experts. You are going to be on the 
ground. You are going to see what works and does not work, and 
I guarantee you it will be things that are good, things that 
are not so good, and some of which we will need to address, 
statutorily. I think this Committee has very common approach, 
bipartisan approach, to see these cases done in an expeditious 
but fair manner. If you have ideas on that, we would welcome 
it.
    Thank you, Mr. Chairman.
    Senator Moran. Senator from West Virginia, Senator Manchin.

                      SENATOR JOE MANCHIN

    Senator Manchin. Thank you, Mr. Chairman. First of all, I 
want to thank our nominees for the service, both of you for 
your service to our country and for stepping up to continue to 
serve our veterans as judges of the U.S. Court of Appeals for 
Veterans Claims. I know both of you are going to do an 
excellent job, and I plan on voting and supporting you 
wholeheartedly.
    I take these nomination hearings very seriously. I enjoyed 
meeting with both of you all yesterday in my office. However, I 
am going to apologize right now for using my time here to 
address the horrible deaths--the horrible deaths of veterans at 
the Clarksburg VA, where last year up to 11 veterans were 
murdered by a VA employee who used unauthorized insulin 
injections to kill them.
    For example, we know from reporting that the person of 
interest was likely not certified to be treating veterans, that 
the Clarksburg VA had a history of failing to report sentinel 
events, that the number of deaths at the hospital during the 
period in question was higher than normal, and that insulin at 
the Clarksburg VA was not secured. These are all examples of 
topics that we could dive into on a policy level that would not 
harm the investigation and would begin to hold the VA 
accountable and prevent this from happening at any other VA 
facility.
    The reason I am saying this is because Dr. Richard Stone, 
the Executive Director, the executive in charge of the Veterans 
Health Administration, recently wrote an op-ed. Now I had not 
said a word, because they asked me not to, not to get this an 
investigation as for veterans, an investigation which I think 
we need, because they said it would impede their own 
investigation, from a criminal investigation.
    But Dr. Richard Stone, the executive in charge of the 
Veterans Health Administration, at the VA in Clarksburg, wrote 
an op-ed in the Clarksburg-area Exponent Telegram, and appeared 
on a West Virginia television declaring--mind you, declaring 
that the VA has already done--has already done what we should 
do for accountability. I have been quiet, not wanting to impede 
it. He is ahead of it when all of this happened, and now he is 
saying everything is hunky-dory and fine, and blamed negative 
press and headlines for bad perceptions of Clarksburg VA.
    Well, I am sorry, Dr. Stone. That is not the case, and it 
is definitely not the facts in West Virginia. The VA Inspector 
General and Department of Justice have been leading an 
investigation into a person of interest for nearly a year and a 
half, without making any arrest. I have spoken many times to 
Inspector General Missal and the U.S. Attorney for the Northern 
District of West Virginia, Bill Powell, and understand that we 
have to be careful not to interfere with an ongoing criminal 
investigation.
    But I want to know when our family members of victims are 
going to get answers, and when are we going to have some 
accountability, other than just an op-ed by the person in 
charge saying everything is fine.
    Something is wrong. My office receives more than 20 calls 
per week from victims of family members of people who do not 
even know if their family member's death at Clarksburg was part 
of this string of homicides. Can you imagine losing a loved one 
during this period of time, that now that it has been reported 
that we had homicides and no one has any answers at all?
    So we cannot figure out, at the VA, and investigators who 
refuse to answer for the sake of protecting investigations. 
Veterans all across West Virginia can contact our office, ask 
me how is the VA going to be held accountable for many obvious 
systematic VA issues that caused these murders to continue for 
at least six months in 2018.
    First of all, the insulin was not even secured. The 
medicine was not even secured, how it was dispensed. Just so 
many violations.
    I have repeatedly called on my colleagues to immediately 
hold a hearing. If it was in your state, if this happened to 
any of your constituents, you would feel the same way as I do. 
On the policies and procedures in place at the VA, it led to 11 
veterans being murdered--11 veterans being murdered at the 
hands of a VA employee. What type of background check did they 
go through? How do we basically vet these people where they 
should even be in any hospital setting, let alone a veterans' 
hospital? But we have been cautioned that we cannot hold the VA 
accountable until the investigations are completed.
    Well, I respectfully disagree, and I will tell you why. I 
ask my colleagues and the VA--if we cannot hold a hearing until 
the investigation is completed, how can the VA write op-eds, 
the head of the VA in Clarksburg write an op-ed declaring that 
all is well and everyone and everything has been held 
accountable at the VA?
    If you were me, representing the people of West Virginia, 
we have more veterans per capita than most any state. We rank 
right at the top with Alaska and everybody else. And our people 
are willing to go and fight and die for our country, and all we 
are asking for is a simple answer to families, ``Did my dad get 
killed or murdered, or was it natural causes? What happened?'' 
I have got all this going on now, a year and a half.
    So I respectfully--I have been very respectful of this 
Committee. I think it is a wonderful committee under the 
leadership of both the Chairman, who is sitting in for our 
Chairman Isakson right now, and the Ranking Member and my dear 
friend, Jon. And I just--I feel so strong about this that we 
can be seeing, have they made any corrections? Are we handling 
the medication differently? Are we vetting basically people 
working there? Have we gone back and looked at their 
background, their experience level, if they had any type of 
psychotic problems or psychiatry or mental illness that could 
have caused something like this?
    Something has happened. I am reading in the paper, which I 
am not supposed to say anything or ask questions, but I have to 
read in the paper every day in West Virginia, the person of 
interest was a person that was monitoring the insulin levels to 
make sure that it was working. That means it was making sure 
that the hypoglycemia was going to work and kill them. Can you 
believe?
    This is what we are dealing with. And I hate to use this 
time, because I think you two are going to be wonderful. I 
support both of you. We had a great conversation. I think you 
understand where I am coming from and my passion for this. But 
I have compassion for the families and I cannot give them 
answers. Enough is enough.
    Senator Moran. Senator Manchin, thank you. I do not think 
there is a question in there for either of the witnesses but I 
appreciate you highlighting this issue, and I look forward to 
working with you on a desired outcome. I know that you are 
dealing with Chairman Isakson and the Ranking Member, Mr. 
Tester.
    If I talk any longer another Senator will arrive, so I 
think I am going to conclude my remarks.
    Again, I would suggest that there is a way to get this 
issue of whether or not there is a closed or classified hearing 
through written questions with appropriate response as to why 
the answers cannot be--the responses cannot be given.
    And anything that either one of you want to say before I 
conclude the hearing?
    Mr. Jaquith. No. Thank you, Senator.
    Mr. Laurer. Senator, I would just like to again thank this 
Committee, as well as the staff, for all of the tremendous 
work. I know it is a huge effort and I really appreciate, with 
respect to my nomination, all of the work. Thank you, sir.
    Senator Moran. Surprisingly, Senator Tester did accurately 
reflect the conversation that he and I had, which was that you 
are both very impressive individuals and it is a pleasure to 
hear what you have to say and to know that people of your 
caliber are interested in serving in these capacities.
    The hearing record will remain open for five business days 
and any question for the record should be submitted to the 
Chief Clerk no later than the close of business on Friday. That 
is a little bit different time frame, but we need to see if we 
are going to do confirmations, that this move expeditiously. We 
are trying to follow your suggestions about how to get timely 
results and have our business concluded in an appropriate time 
frame. So close of business this Friday.
    With that the hearing is adjourned.
    [Whereupon, at 10:47 a.m., the Committee was adjourned.]

                                APPENDIX

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               Material Submitted for the Hearing 
                              Record
                        
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