    [Senate Hearing 116-743]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 116-743

                             CONFIRMATION HEARING ON FEDERAL
                                      APPOINTMENTS

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               NOVEMBER 18, 2020

                                   __________

                               Serial No. J-116-2

                                   __________

             Printed for the use of the Committee on the Judiciary

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov
                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    63-792                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                  LINDSEY O. GRAHAM, South Carolina, Chairman

    CHARLES E. GRASSLEY, Iowa,           DIANNE FEINSTEIN, California,
    JOHN CORNYN, Texas                       Ranking Member
    MICHAEL S. LEE, Utah                 PATRICK J. LEAHY, Vermont
    TED CRUZ, Texas                      RICHARD J. DURBIN, Illinois
    BEN SASSE, Nebraska                  SHELDON WHITEHOUSE, Rhode Island
    JOSH HAWLEY, Missouri                AMY KLOBUCHAR, Minnesota
    THOM TILLIS, North Carolina          CHRISTOPHER A. COONS, Delaware
    JONI ERNST, Iowa                     RICHARD BLUMENTHAL, Connecticut
    MIKE CRAPO, Idaho                    MAZIE K. HIRONO, Hawaii
    JOHN KENNEDY, Louisiana              CORY A. BOOKER, New Jersey
    MARSHA BLACKBURN, Tennessee          KAMALA D. HARRIS, California

            Lee Holmes, Republican Chief Counsel and Staff Director
      Phillip A. Brest, Democratic Chief Counsel and Acting Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Graham, Hon. Lindsey O...........................................     1
    Durbin, Hon. Richard J...........................................     1
    Blackburn, Hon. Marsha...........................................     5

                              VISITING INTRODUCERS

    Alexander, Hon. Lamar, U.S. Senator from Tennessee...............     3
    Scott, Hon. Tim, U.S. Senator from South Carolina................     2
    Young, Hon. Todd, U.S. Senator from Indiana......................     6
    Braun, Hon. Mike, U.S. Senator from Tennessee....................     7

                                    NOMINEES

    Atchley, Charles Edward Jr.......................................    31
        Questionnaire................................................    34
        Responses to written questions...............................    75
    Crytzer, Katherine A.............................................    30
        Questionnaire................................................   103
        Responses to written questions...............................   141
    Dawson, Joseph III...............................................    30
        Questionnaire................................................   173
        Responses to written questions...............................   206
    Kirsch, Thomas L. II.............................................     8
        Questionnaire................................................   232
        Responses to written questions...............................   322
    Somers, Zachary N................................................    29
        Questionnaire................................................   375
        Responses to written questions...............................   402

                                    APPENDIX

    Items submitted for the record...................................   425

                        CONFIRMATION HEARING ON FEDERAL
                                 APPOINTMENTS

                                  ----------

                          WEDNESDAY, NOVEMBER 18, 2020

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:04 a.m., in
    Room SD-106, Dirksen Senate Office Building, Hon. Lindsey O.
    Graham, Chairman of the Committee, presiding.
        Present: Senators Graham [presiding], Lee, Hawley, Tillis,
    Ernst, Kennedy, Blackburn, Durbin, Whitehouse, Blumenthal, and
    Hirono.
        Also present: Senators Alexander, Scott, Young, and Braun.

             OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
            A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

        Chairman Graham. Good morning. We have, I think--how
    many?--four district judges and one circuit judge? Is that
    right?
        Three claims and one circuit. Five judges to have hearings
    about. I will turn it over to Senator Durbin to say anything he
    would like, and we will move forward.

             OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Durbin. Mr. Chairman, I don't believe you set the
    agenda for the Committee. I believe you do it in consultation
    with leadership?
        Chairman Graham. I think so, yes.
        Senator Durbin. And I am sure you don't set the agenda for
    the floor. But it still is amazing to me that with the
    challenges we are facing in this country with this pandemic,
    and the President refusing to recognize that he lost the
    election, that in response to those two major issues we are
    continuing to hold hearings as if nothing is going on outside
    of this building.
        Last week we held the fourth hearing this year to try to
    determine whether the inspector general's findings about the
    Russia investigation in the 2016 election was appropriate.
    Yesterday we held a hearing on whether social media is unfair
    to Republicans. Today we are holding a hearing on a lame duck
    President's judicial nominations. No reflection at all on the
    nominees, but what a sad State of affairs.
        In the 116th Congress, this Committee has focused on
    judges, President Trump's grievances, and little else. A Senate
    Judiciary Committee is a terrible thing to waste.
        Chairman Graham. Thank you. With that we have Senator
    Alexander, remotely, who will introduce Mr. Chuck Atchley and
    Ms. Katie Crytzer--is that right?--and Senator Blackburn, and I
    know you will too, for the Eastern District of Tennessee. We
    have Mr. Joseph Dawson, who will be introduced by Senator Scott
    from South Carolina, and Senators Young and Braun remotely will
    introduce Tom Kirsch, a nominee for the U.S. Court of Appeals
    for the Seventh Circuit. Senator Blackburn----
        [Audio resumes.]
        Chairman Graham [continuing]. As I indicated, will join
    Senator Alexander for our Tennessee nominees. And I will
    introduce Zach Somers, the nominee for Federal Appeals.
        And why don't we start with Senator Scott.

                     STATEMENT OF HON. TIM SCOTT,
            A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

        Senator Scott. Thank you, Mr. Chairman, and good morning to
    all Members of the Judiciary Committee who are here in person,
    as well as listening virtually.
        It is my privilege to endorse the nomination and support
    the nomination of Mr. Joseph Dawson III, to serve as a United
    States district judge for the District of South Carolina. I'm
    blessed to have known Joe Dawson for at least 17 years. He's
    been married to his wife for 29 years. He has three children
    15, 16, and 27. I start there because as good of an attorney as
    he is, he's a better husband. He's a better father. He's an
    excellent person of high integrity, deep faith, and strong
    character.
        The qualities that I like most about Joe are, having been
    the chairman of County Council on four different occasions, Joe
    is the type of attorney who doesn't tell you what you want to
    hear. He tells you the law. An objective perspective, it's hard
    to find sometimes, especially when you are in charge of the
    organization. We disagreed on a number of occasions and
    unfortunately Joe was right more than I was, and please don't
    tell him I said that, though he is in the room.
        Joe has an outstanding record as a personal attorney
    running his own law practice helping small businesses, working
    with the county as the county attorney, overseeing operations
    of everything that impacts the county from a legal perspective.
    I'm confident that Joe is ready and willing to answer any and
    all of your questions about his experience, his judicial
    philosophy, and his unquestionable qualifications to serve as a
    Federal judge.
        Joe is an outstanding individual who has worked to give
    back to his community and cultivated a successful career in
    law. I would like to share some of his achievements with you
    all today.
        Joe received his bachelor of arts from The Military College
    of South Carolina, The Citadel; his law degree from the
    University of South Carolina School of Law; and if my alma
    mater had a law school I'm sure he would have chosen Charleston
    Southern instead, but we don't, so he didn't.
        Joe is currently working as the county attorney, as I've
    already said. He's also been dedicated to his community by
    serving pro bono as a guardian ad litem in family court cases.
    He's also met with disadvantaged and minority communities. He's
    worked on civic associations and advised them on land use
    strategies to better their communities. He has served his
    country for more than 10 years as a JAG officer. Along with all
    of his responsibilities, he still balances his responsibilities
    to his church and to his family as his primary
    responsibilities. His greatest joy is being a husband and a
    father.
        You will certainly, after hearing from him, know that he is
    objective, that he is clear, he is forthright, and hard to
    misunderstand.
        And I want to be clear that I am here because I actually
    respect and appreciate most his competency, his character, and
    his exceptional dedication to the law. It is what he loves.
        If confirmed, Joe will also be the only African American
    man currently serving on South Carolina's District Court. It's
    nominations like Joe's that illustrate both the talents and
    diversity of South Carolina. Joe will make an outstanding
    addition to the Federal bench, and I am pleased to be able to
    recommend him without hesitation.
        Thank you, Mr. Chairman.
        Chairman Graham. Well, I just want to add my--I agree with
    everything Senator Scott said. Mr. Dawson will be a great
    addition to the Federal bench in South Carolina, and I hope my
    colleagues will look favorably upon him. Mr. Dawson,
    congratulations to you and your family. This is a big day in
    your life, and Senator Scott has been a great advocate for your
    cause, and I think he has a compelling case to make to the
    Committee in the Senate, and I look forward to seeing this
    nomination confirmed.
        Thank you, Senator Scott.
        Senator Scott. Thank you, Mr. Chairman.
        Chairman Graham. Now we'll go to our friends in Tennessee,
    starting with Senator Alexander, then Senator Blackburn.
        Are you with us, Senator Alexander?
        Senator Alexander. I am.

                  STATEMENT OF HON. LAMAR ALEXANDER,
               A U.S. SENATOR FROM THE STATE OF TENNESSEE

        Senator Alexander. Thank you, Mr. Chairman--can you hear
    me?
        Chairman Graham. Yes, sir.
        Senator Alexander [continuing]. And Senator Durbin and
    Members of the Committee, including my colleague, Senator
    Blackburn. Thanks for giving me the opportunity to speak on
    behalf of Chuck Atchley and Katherine Crytzer to serve as
    district judges for the Eastern District of Tennessee.
        First, a short story about the confirmation process. Last
    year I talked to Harry Wellford of Memphis. He is 96 years old
    and he is a retired Federal judge. He told me that right after
    the election in November 1970, Senator Howard Baker called him
    and asked him if he wanted to be a Federal judge, and he said,
    ``Let me think about it.'' He called back in about a week, said
    yes, and here's what happened.
        On November 24, he was nominated by the President. On
    December 10, this Committee considered his nomination and he
    was confirmed by a voice vote the next day, December 11, in the
    full Senate.
        Here's the point of my story. Our power to advise and
    consent is perhaps our best-known responsibility. Every
    President has up to 1,400--1,400--major appointments,
    nominations, that require the Senate's advice and consent.
    These are the people who run our Executive and Judicial
    branches. Harry Wellford's experience 50 years ago is a lot
    different than what happens today. Lately we've been confirming
    about five nominations a week. You don't have to go very far in
    math to figure out that it would take a long time for a new
    President to stand up a Government at that rate. But it wasn't
    so long ago when Federal district judges, and most Presidential
    nominees, were promptly approved by voice vote. Arguments were
    reserved for major nominations or controversial ones.
        In 2011, 2012, and 2013, several of us, including the now
    Democratic leader, Senator Schumer, worked together in a
    bipartisan way to try to fix the Presidential nomination
    process. We made some important changes, but it soon fell
    apart. What we needed, we found, was not just a change in rules
    but a change in behavior.
        And here's my point. Now would be a good time to change the
    behavior and get the confirmation process back on track.
        Chuck Atchley's roots in Tennessee go back to the
    Revolutionary time. In 20 years he's represented East
    Tennesseans in the Federal court system. There is no more
    widely respected or experienced Federal prosecutor in East
    Tennessee than Chuck Atchley. He's tried more than 100 cases.
    He's the First Assistant U.S. Attorney. I've spoken with every
    judge in East Tennessee. They all give him high marks, all the
    Federal judges.
        The late Pam Reeves, President Obama's nominee, who was
    chief judge and who died just 2 months ago, told me before
    that, ``Chuck Atchley,'' she said, ``is ready to be a Federal
    judge.''
        What I found is Mr. Atchley's nomination is supported by
    his colleagues, his superiors, and even his opposing counsel.
    Mr. Chairman, I'd like to submit for the record three letters I
    have received, one from Mr. Atchley's colleagues in the U.S.
    Attorney's Office, one from several defense attorneys, one
    signed by U.S. Attorney Doug Overbey and two former U.S.
    Attorneys for the Eastern District.
        Chairman Graham. Without objection.
        [The information appears as a submission for the record.]
        Senator Alexander. One of these colleagues wrote me a
    letter and said, ``As a Federal prosecutor, I'm apolitical. I
    know Chuck Atchley to be an honorable person of good
    character.''
        Mr. Chairman, I also support Katherine Crytzer who appears
    before the Committee today. She is an East Tennessee native.
    She graduated from Middle Tennessee State University summa cum
    laude. She has served for the last 6 years at the Justice
    Department. She's currently the Acting Deputy Assistant
    Attorney General for the Office of Legal Policy, and before
    that she served as Assistant United States Attorney for the
    Eastern District of Kentucky.
        She was previously nominated to be the Inspector General
    for the TVA. I supported her for that position. Should she be
    confirmed by the Senate, she would be only the second woman to
    be a Federal district judge in East Tennessee.
        Mr. Chairman, there are two vacancies in the Eastern
    District of Tennessee. Caseloads are rising rapidly. According
    to the Federal Court Management Statistics, the Eastern
    District's criminal docket is the 17th largest in the United
    States. I believe the Senate should confirm nominees of good
    character, good temperament, high intelligence, and a high
    respect for the law. I believe that Mr. Atchley and Ms. Crytzer
    have those characteristics.
        I thank you for the Committee's time and I urge you to
    recommend these two ``well qualified'' individuals to the
    Senate promptly. Thank you.
        Chairman Graham. Thank you, Senator Alexander. Senator
    Blackburn.

              OPENING STATEMENT OF HON. MARSHA BLACKBURN,
               A U.S. SENATOR FROM THE STATE OF TENNESSEE

        Senator Blackburn. Thank you, Mr. Chairman, and I am so
    pleased to join Senator Alexander in introducing our two
    outstanding nominees today. And Senator Alexander has just laid
    out to you why it is so important that for the Eastern District
    that we get these nominees confirmed and get them to work on
    the bench in Tennessee. And we're just so pleased to bring
    these two nominees forward.
        First is Katie Crytzer, who is President Trump's nominee to
    be a U.S. District Judge for the Eastern Division of Tennessee.
    She will be filling the Knoxville seat, as Senator Alexander
    said, that was held by the late Chief Judge Pam Reeves. Judge
    Reeves was the first woman to serve as a district court judge
    in the Eastern District of our State, and when Katie is
    confirmed she will become the second. Katie will uphold the
    same principles of fairness and integrity that marked Judge
    Reeves' service, and she will likewise serve as an inspiration
    for all female lawyers. Judge Reeves is remembered so very well
    for the way she mentored and charted a path for women in the
    legal professions in our State.
        After growing up in Knoxville and attending Farragut High
    School, Katie graduated summa cum laude from Middle Tennessee
    State University. She received her JD magna cum laude from
    Antonin Scalia Law School at George Mason University. She went
    on to clerk for Judge Raymond Gruender on the U.S. Court of
    Appeals for the Eighth Circuit, and then practiced law in our
    Nation's capital at Kirkland & Ellis.
        Katie then joined the Department of Justice as an Assistant
    U.S. Attorney, where she focused on the prosecution of health
    care fraud and drug crimes. While a Federal prosecutor, she
    litigated criminal and civil cases, representing the United
    States of America in multiple trials. Katie now serves our
    country as the Principal Deputy Assistant Attorney General in
    the Office of Legal Policy. She has led various DOJ policy
    initiatives on violent crime, the opioid epidemic, religious
    liberty, and regulatory reform.
        I am delighted that after all of her hard work on behalf of
    the citizens of this country that she is being elevated to a
    judgeship.
        I next introduced to the Committee another fellow
    Tennessean, Charles Atchley. He does go by Chuck, and he is
    being nominated to the Chattanooga seat on the U.S. District
    Court for the Eastern Division of Tennessee. He has spent
    nearly two decades serving as a Federal prosecutor with a
    remarkable record in that district.
        He is a lifelong Tennessean and a direct descendant of a
    Revolutionary War veteran, Thomas Atchley, who settled in
    Sevier County, Tennessee, in 1785. Yes, his roots in Tennessee
    run deep and long.
        He received his BA from the University of Tennessee and his
    JD from Samford University's Cumberland School of Law. After
    law school, Chuck briefly worked in private practice before
    serving as an Assistant District Attorney General. Chuck joined
    the U.S. Attorney's Office in 2001 as a Federal prosecutor in
    the Criminal Division. He supervised the General Crimes Section
    before he was elevated to oversee the National Security
    Section. In that role, he prosecuted serious crimes of
    corruption, conspiracy, and threats to the Nation. Chuck has
    served as the first Assistant U.S. Attorney since 2018.
        We appreciate and honor his long career of public service.
    His record demonstrates his wealth of experience and his strong
    work ethic. Chuck has prosecuted countless cases and dedicated
    much of his time and energy to seeing justice being served.
        I hope we will move each nominee through the Committee
    expeditiously and get them confirmed promptly. Katie and Chuck,
    I look forward to seeing what you will accomplish.
    Congratulations.
        Chairman Graham. Thank you. Both have been well introduced.
    Thank you very much, Senators Alexander and Blackburn.
        Now to our good friends from Indiana. Senator Young.

                     STATEMENT OF HON. TODD YOUNG,
                A U.S. SENATOR FROM THE STATE OF INDIANA

        Senator Young. Well, thank you, Chairman Graham and Members
    of the Committee. Several weeks ago I had the privilege of
    appearing before this Committee to introduce now Justice Amy
    Coney Barrett. Her elevation to the Supreme Court of the United
    States created a vacancy on the United States Court of Appeals
    for the Seventh Circuit, one of two such vacancies in the
    country. So it's my honor today to introduce someone who has
    the character, the temperament, and the experience required to
    fill such a seat.
        Thomas Kirsch currently serves as the United States
    Attorney for the Northern District of Indiana, a position he's
    held since being confirmed by voice vote just more than 3 years
    ago. He previously served as Assistant U.S. Attorney for the
    Northern District from 2001 through 2008, which included a 1-
    year assignment here in Washington with the Office of Legal
    Policy at the U.S. Department of Justice.
        Mr. Kirsch later became a partner at Winston and Strawn,
    where he argued cases in trial and appellate courts across the
    country. He clerked for Hon. Judge John Tinder in the Southern
    District of Indiana, and he's received numerous recognitions
    and awards for his service, including being named a Fellow of
    the American College of Trial Lawyers.
        Mr. Kirsch graduated from Indiana University, and Mr.
    Chairman, you no doubt know this school is a college football
    powerhouse these days.
        Chairman Graham. Are you here to help this guy or not?
        [Laughter.]
        Senator Young. And in 1996, receiving his education there,
    later attending Harvard Law School in 1999, graduating with a
    Judicial Doctorate.
        He and his wife, Becky, have been married for 20 years.
    They are the proud parents of twins, Jack and Nick, who are
    sophomores, and William, who is in the eighth grade. As a
    father of four, including my own set of twins, I have deep
    respect for how he and Becky have raised their boys while
    serving the people of Indiana.
        When I interviewed Mr. Kirsch for the U.S. Attorney
    position it was pretty clear to me that this is the type of
    individual that the people of Indiana wanted in their corner.
    He's a man of character. He's a man of integrity. He believes
    in the rule of the law, and he understands that the role of
    judges is to apply the law and Constitution as written. It, of
    course, is not to legislate from the bench.
        Notably, when evaluating his qualifications to serve on the
    U.S. Court of Appeals for the Seventh Circuit, the American Bar
    Association rated Mr. Kirsch as ``well qualified,'' the highest
    rating a Federal judicial nominee can receive.
        Based on his qualifications, his experience, and his
    temperament, I believe Tom Kirsch is the type of nominee who
    can and should receive bipartisan support from this Committee
    and the full U.S. Senate.
        Thank you so much, Mr. Chairman.
        Chairman Graham. Thank you, and just remember the word
    ``rematch,'' Okay?
        [Laughter.]
        Senator Braun.

                     STATEMENT OF HON. MIKE BRAUN,
               A U.S. SENATOR FROM THE STATE OF TENNESSEE

        Senator Braun. Thank you, Chairman Graham and Ranking
    Member Feinstein. It's my honor today to introduce a fellow
    Hoosier who's shown throughout his impressive career that he
    has what it takes to excel on the U.S. Court of Appeals for the
    Seventh Circuit. As Todd said, he is a lifelong Hoosier, a
    graduate of Indiana University, and most importantly, he moved
    back home after graduating from Harvard Law School.
        As Assistant U.S. Attorney to Joseph Van Bokkelen, Mr.
    Kirsch worked to take on public corruption in Northwestern
    Indiana, and was instrumental in several ambitious cases. He
    worked out of the Hammond office, just across the State line
    from Chicago, the busiest of the four divisions of Northern
    Indiana. Mr. Van Bokkelen was eventually nominated by President
    George W. Bush and confirmed to serve on the U.S. District
    Court for the Northern District of Indiana.
        After a stretch in private practice, Mr. Kirsch became a
    U.S. Attorney himself. He took up the mantle of Mr. Van
    Bokkelen's work to tackle public corruption and to prosecute
    public officials who betray their constituents' trust. Thomas
    Kirsch has prosecuted gangs, narcotics crimes, and a wide range
    of fraud and abuse cases, but it is his dedication to rooting
    out fraud and corruption I find most impressive. When reviewing
    his prosecution record, it's apparent that Mr. Kirsch has led a
    diverse and exemplary career that more than qualifies him for
    the seat he stands nominated for today.
        In public service, he has proven his mettle in a wide range
    of cases, well respected among his colleagues for his legal
    mind and tireless work ethic, which is so important in
    anything. Throughout his career he has shown he has the
    judicial temperament that will serve him well in the public
    trust. In his most recent position especially he has
    demonstrated a profound respect for the law that I am confident
    will guide him to apply statutes as written, not create his own
    from the bench.
        The breadth of his experience in law is impressive, but it
    is his focus again on public corruption and fraud among elected
    and appointed officials that I believe makes him such a
    compelling nominee. Thomas Kirsch is a nominee who is
    thoroughly dedicated to the proposition that no one is above
    the law, and he has the record to prove it.
        Thank you.
        Chairman Graham. Well thank you both. You have an
    outstanding nominee from Indiana and you should be proud, and
    thank you very much for your very good introductions.
        Now I will introduce Zach Somers and we'll get on with the
    hearing.
        Zach is a nominee to the Court of Federal Claims in
    Washington, DC. He serves as Chief Counsel for Oversight
    Investigations here in the Senate Judiciary Committee. He has
    done an outstanding job from my point of view. I really
    appreciate his work ethic.
        Prior to joining the Committee he served as General Counsel
    and Parliamentarian for the House Judiciary Committee. Before
    government service, Zach practiced law at a private firm in
    Washington, where he specialized in takings and government
    contract litigation in Federal court, including the Court of
    Claims. He started his legal career on the court to which he
    has been nominated as a clerk to Judge Victor Wolski, who was
    himself a Senate staffer before being nominated to the court.
        He earned his undergraduate and law degree from Georgetown,
    and I just think he is an outstanding young man who will do a
    great job.
        With that we'll go now to our circuit nominee. Mr. Kirsch,
    if you'd come forward please.
        Would you raise your right hand, sir? Do you solemnly swear
    that the testimony you are about to give this Committee is the
    truth, the whole truth, and nothing but the truth, so help you
    God?
        Mr. Kirsch. I do.
        [Witness is sworn in.]
        Chairman Graham. Okay. Welcome. Welcome to you and your
    family and loved ones out there. The floor is yours.

     STATEMENT OF THOMAS L. KIRSCH II, NOMINEE TO SERVE AS UNITED
              STATES CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT

        Mr. Kirsch. Thank you, Senator Graham, and thank you,
    Senator Durbin, for conducting this hearing and considering my
    nomination. I would like to thank President Trump for
    nominating me for this seat on the Court of Appeals and also
    for appointing me to serve as the United States Attorney for
    Northern Indiana. I'm very grateful. I'm also very grateful for
    the support and the introductions by Senator Young and Senator
    Braun. Thank you both. And also thank you to their terrific
    staffs who I know are very dedicated and have worked very hard
    on my behalf.
        Although they could not be here today, I would like to
    introduce the Committee to my family. They very much wanted to
    be here, but are also understanding of why they are not.
        My wife, Becky, and I have been married for 20 years. I
    absolutely would not be here today without her love and
    support. She's a terrific wife and a terrific mother. I have
    three sons and I'm so proud of each of them. Nick and Jack are
    twins and are sophomores in high school. Nick plays on the golf
    and tennis teams, and Jack plays on the golf and baseball
    teams. William is in the eighth grade and plays baseball,
    basketball, and tennis. They're all very good students and are
    outstanding sons, brothers, grandsons, and friends, and Becky
    and I are very proud of them, and I'm thinking of them today.
        My father is a lawyer practicing in my hometown of Munster,
    Indiana. I strive to live up to the example he has set for me
    as a lawyer, but more importantly as a father and husband. He
    has shown me the importance of hard work and dedication to our
    profession and to public service. He served as a part-time
    prosecutor in Indiana for 20 years.
        My mother has dedicated her life to raising me and my two
    sisters, Julie and Tracy, and as a parent myself I know that is
    a job that is never done. My sister Tracy is a middle school
    principal and my sister Julie is also a teacher, although she's
    not currently teaching. They are watching at home with my
    brothers-in-law, Chris and Jeff, and my nieces.
        I would like to thank my Department of Justice colleagues,
    including those at the United States Attorney's Office in
    Northern Indiana; my former colleagues at Winston and Strawn,
    where I spent over 9 years of my career; Judge John Tinder, for
    whom I've clerked; and my friends with whom I've worked on
    either the same or opposite sides.
        Thank you for allowing me the time to make this statement,
    and I look forward to answering your and the Committee's
    questions.
        Chairman Graham. Well thank you very much. Were you the
    U.S. Attorney? Did I get that right?
        Mr. Kirsch. Yes, sir. I am the U.S. Attorney right now in
    Northern Indiana.
        Chairman Graham. Okay. So in that capacity, what do you
    think is--you have learned the most that would make you an
    appellate judge, to help you in that endeavor?
        Mr. Kirsch. Senator, there's two things. First of all, I
    think my experience as being a United States Attorney and being
    in the courts, both in the district courts and the court of
    appeals, made me well qualified to serve as a circuit court
    judge. I also think the qualities that I've learned as the
    United States Attorney make me well suited for the circuit
    court, including temperament, including impartiality, including
    deliberate decisionmaking.
        Of course, the United States Attorney, once we indict a
    case, I'm an advocate for the United States, but I have
    discretion in bringing prosecutions, and I keep an open mind in
    deciding which cases to bring. I think those qualities have
    made me well suited for the circuit court.
        Chairman Graham. Well, as a circuit judge, if that happens
    in your case, do you feel bound by precedent of the Supreme
    Court?
        Mr. Kirsch. Absolutely, Senator.
        Chairman Graham. Okay. And tell the Committee why you think
    that's an important concept.
        Mr. Kirsch. Senator, the rule of law is an extremely
    important concept, and, of course, I'm bound by all Supreme
    Court precedent, bound in every case, and I would apply the law
    faithfully and impartially in every case.
        Chairman Graham. When it comes times to interpret a statute
    or a regulatory provision, what kind of analysis do you use as
    a--on the circuit bench, if you get there? What would you be
    looking for?
        Mr. Kirsch. Senator, I would first consider the law. I
    would consider the ordinary meaning of the text at the time the
    text was written. I would apply that. I would then go to the
    canons of statutory interpretation if the law was ambiguous,
    including looking at other language in the statute, the words
    in context at the time they were written.
        Chairman Graham. Thank you. Senator Durbin.
        Senator Durbin. Thanks, Mr. Chairman. Mr. Kirsch, welcome.
    Thank you for coming before the Committee today.
        Mr. Kirsch. Thank you.
        Senator Durbin. Currently as U.S. Attorney for the Northern
    District of Indiana I'd like to ask you a question about your
    current job. Gun violence is an epidemic in this country. On
    average, more than 100 Americans are killed each day by
    gunfire, 40,000 per year. In the city of Chicago there have
    been more than 3,600 people shot just this calendar year.
        According to the city's Gun Trace Report, in 2017, quote,
    ``The majority of illegally used or possessed firearms
    recovered in Chicago are traced back to States with less
    regulation over firearms, such as Indiana and Mississippi.''
    The 2017 report found that Indiana alone was the source of 21
    percent of all of Chicago's recovered crime guns.
        We know that there is a pipeline of gun trafficking from
    the northern reaches of Indiana to Chicago. The reason is that
    the State of Indiana has a gun show loophole, in effect. That
    means private sellers at gun shows in Indiana can sell weapons
    without first conducting an FBI background check of the buyer.
        The problem of gun trafficking between the area that you
    represent as U.S. Attorney in Indiana and Chicago is pervasive.
    Last week, two men were indicted in the Northern District of
    Illinois for allegedly trafficking handguns from Indiana to
    Chicago. On October 6, an Indiana man was charged with
    allegedly selling dozens of guns in Chicago that had been
    purchased at Indiana gun shows. In August, an Indiana man was
    sentenced in the Southern District of Indiana for dealing
    unlicensed firearms after he sold over 320 guns at Indiana gun
    shows without conducting a single background check on any
    purchaser.
        Mr. Kirsch, I'm sure you are well aware, these guns that
    are purchased at gun shows, in volume, end up on the streets of
    Chicago, killing and injuring many innocent people. On
    September 3, you issued a statement in which you said, quote,
    ``My office is committed to focusing investigative and
    prosecutorial efforts on reducing gun violence in Northern
    Indiana. Our coordinated effort with the Northern District of
    Illinois proves that State borders do not save criminals from
    aggressive prosecution.'' You went on to say, ``We are working
    together to focus our resources on reducing violent crime and
    violence due to illegal firearms on both sides of the State
    line.''
        My question is this: During your 4 years as U.S. Attorney
    in the Northern District of Illinois, pardon me, of Indiana,
    what did you actually do to prevent Indiana's gun shows from
    being the source of a pipeline of gun trafficking into the city
    of Chicago?
        Mr. Kirsch. Senator, as United States Attorney I faithfully
    apply the law and I prosecute cases under 18 USC 922 and other
    cases involving other statutes applicable to gun crime. I
    prosecute approximately 200 gun cases a year, which is
    significant for the size of our office. I work closely with the
    Northern District of Illinois and my counterpart there, John
    Lausch, on initiatives and prosecution matters.
        Of course, Senator, it would be inappropriate for me to
    comment on policy matters as a judicial nominee.
        Senator Durbin. No, no, no, no. I'm not asking you about
    policy. I'm asking you about your record. What have you done?
    Have you prosecuted any gun show abuses such as I've described?
        Mr. Kirsch. Senator, we prosecute, and I have prosecuted,
    multiple straw purchase cases, including cases were guns are
    recovered in Chicago. I've prosecuted RICO cases of homicides
    on the South Side of Chicago. We aggressively prosecute these
    cases. Although I'm a believer in the Second Amendment, we
    aggressively prosecute violent crime that occurs in Northern
    Indiana and also that which occurs in Northern Illinois.
        Senator Durbin. Would you be--I went through your record,
    and I tried to review it carefully but I may have missed it--
    would you be willing to provide us with some evidence of those
    prosecutions, just indications of the types of cases that you
    prosecuted against those who have abused this lack of
    background checks at gun shows?
        Mr. Kirsch. Senator, my office has issued numerous press
    releases where we've indicated--where we've prosecuted
    specifically straw purchase cases.
        Senator Durbin. Good. Could you send me a summary of that?
        Mr. Kirsch. Yes, Senator.
        Senator Durbin. Okay. Can I ask one more question? Did you
    watch the George Floyd video?
        Mr. Kirsch. Yes, Senator.
        Senator Durbin. And I asked your predecessor the same
    question a few weeks ago. What did you think about it?
        Mr. Kirsch. Senator, I think any time anybody is killed
    it's extraordinarily tragic. I read the Chicago Tribune every
    day, Senator, and I think it's tragic.
        Senator Durbin. I won't hold that against you.
        Mr. Kirsch. Senator, it would be--in my role, I'm the
    United States Attorney, so in my role it would be inappropriate
    for me to prejudge facts or prejudge the investigation.
    Investigations are being carried out in Minnesota by the U.S.
    Attorney's Office----
        Senator Durbin. No, no.
        Mr. Kirsch [continuing]. Law enforcement.
        Senator Durbin. Please. I'm not asking you to comment on
    that case or prosecution. I'm asking as an American, lawyer,
    prosecutor, defense attorney. When you saw that 8 minutes and
    46 seconds, what did you think?
        Mr. Kirsch. Senator, any killing in the United States is
    tragic. It's tragic.
        Senator Durbin. Let's get into this a little more. This
    involved an African American man who was killed on the streets
    of Minneapolis. Did you draw anything from that fact?
        Mr. Kirsch. Senator, I can't--as a United States Attorney I
    can't comment on an ongoing investigation----
        Senator Durbin. All right, then----
        Mr. Kirsch [continuing]. That is being conducted right now.
        Senator Durbin. I'm going to get to this some way or
    another. Do you think we have an issue when it comes to race
    and law enforcement in America?
        Mr. Kirsch. Senator, I think racism exists in America and I
    think that's abhorrent.
        Senator Durbin. Have you ever--I know you have so I'm going
    to let you put it on the record. Have you ever prosecuted
    police abuse?
        Mr. Kirsch. Yes, Senator, I have, as a United States
    Attorney. Senator, I've indicted doctors, lawyers, I've
    indicted college professors. I've indicted accountants. I've
    indicted police officers, as the United States Attorney. I
    have.
        Senator Durbin. I read about the Elkhart case. Was there
    any other example, police abuse?
        Mr. Kirsch. Senator, I have indicted other police officers.
    Yes, I have. Some of those cases are still ongoing. It would be
    improper for me to comment on the litigation. But the answer is
    yes, I have indicted other police officers in addition to the
    Elkhart police officers.
        Senator Durbin. Thank you.
        Chairman Graham. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman. Thank you, Mr.
    Kirsch, for being here and for being willing to be considered
    for this position.
        In Federalist 78, Alexander Hamilton explains that the
    Judicial branch is the least dangerous of the three branches.
    This has become a somewhat unpopular view in this day and age.
    In fact, you have books that have been written with the title
    The Most Dangerous Branch, referring to the Judiciary. I
    understand the point they're making. There is a point, and that
    it has become more dangerous than many anticipated. But
    Hamilton said it should be the least dangerous branch because
    the Judicial branch possesses neither force nor will. It
    possesses only judgment.
        Tell me what you think the differences are. Force, of
    course, is something the Executive branch has, the power of the
    sword. Will refers to what the Legislative branch, and judgment
    belongs to the Judiciary. What are the differences between
    those three powers, and why does that make the Judicial branch
    the least dangerous?
        Mr. Kirsch. Senator, the will is what policymakers do. It's
    imposing their policy preferences upon the people and passing
    laws. Judgment is what judges should do, which is apply the
    law, faithfully and impartially.
        Senator Lee. What could change in the equation, established
    by the Constitution, that could make the Judicial branch the
    most dangerous? If you were to change any one feature or any
    one set of norms that was supposed to govern the distribution
    of power, what's the kind of thing that could make the
    Judiciary dangerous?
        Mr. Kirsch. Senator, I think if judges imposed their will
    they take the power of the Legislature, and it's not
    appropriate for judges to exercise their will. It's appropriate
    for judges to exercise their judgment, as Alexander Hamilton
    wrote.
        Senator Lee. Whenever a judge acts, and acts in a case that
    is unpopular, or even that might seem counterintuitive or
    unkind, unjust, unfeeling, sometimes people will complain about
    the result in the outcome of that case. Tell me how you would
    deal with that as a judge, and whether you think that's the
    kind of thinking that ought to go into a judge's determination
    about the meaning of a particular law or provision of the
    Constitution, especially taking into account the fact that
    judges, with good reason, were made lifetime appointees, and
    therefore are beyond the reach of the voters. Tell me what you
    think about that.
        Mr. Kirsch. Senator, that has nothing to do with it. The
    judge should faithfully apply the law to the facts of the case,
    and in the event of a circuit court, to the facts developed in
    the district court, and the result is what it is. It's driven
    by the law. It's not driven by the policy preferences of the
    judge. And, Senator, as United States Attorney, I certainly
    make decisions that are not always popular, that are difficult
    decisions, and I apply the law. I'm driven by the law, as I
    would be--you know, as I would be as a judge. I would apply the
    law.
        Senator Lee. Some push back on that and say that, you know,
    it's undemocratic to allow an unpopular decision to be made or
    a decision that perhaps most voters wouldn't like made under
    the law. And they'll point out that Federal judges, because
    they're not elected, perhaps should be that much more conscious
    of how the public might react to a particular decision. What's
    your response to that?
        Mr. Kirsch. Senator, the legislature can change the law,
    whether it's the U.S. Congress or the State legislatures.
    That's the role of the legislature. It's not the role of the
    judge. The role of the judge is to apply the law, to apply
    Supreme Court precedent, of course, and to apply the law as
    passed by the legislature.
        Senator Lee. Which is worse, in your view, invalidating as
    unconstitutional a law that is not, in fact, unconstitutional,
    or letting stand an unconstitutional law even though it's
    unconstitutional? Is either one worse than the other, and if
    so, why?
        Mr. Kirsch. Senator, my answer would be that they're
    equally bad.
        Senator Lee. What about dispositive motions? You'll be
    called upon, as per se, in the civil litigation side of your
    docket, if you're confirmed to the Seventh Circuit, to review a
    lot of dispositive motions, particularly motions granting a
    dismissal under 12(b)(6), or otherwise in granting summary
    judgment.
        In your view, which is worse, denying a meritorious motion
    for summary judgment or a motion to dismiss?
        Mr. Kirsch. Well, Senator, I would try to avoid mistakes,
    either mistake, and they're both bad for the judicial system.
    Judges should get the right result. If a motion for summary
    judgment, for instance, is denied, the legal process continues
    in the district court, and there's another--the judge will have
    other opportunities to reach the right result down the road. Of
    course, if a judge grants a motion for summary judgment and
    makes a mistake, the parties have the right to appeal, but
    that's often a time-consuming and expensive proposition for
    lawyers and clients.
        Senator Lee. I think that is part of the equation and part
    of why some will be a little bit more gun-shy before granting a
    dispositive motion. I think as with the previous question, I'm
    not sure either one is more defensible than the other, and the
    natural instinct of the judge can sometimes be, even if
    subconsciously this way, a recognition of the fact that if they
    deny the dispositive motion, in many instances that's not going
    to be immediately appealable. In many instances, if they deny
    the dispositive motion in addition to the lack of immediate
    appealability, increases the likelihood that the case will
    settle rather than go to trial.
        And so in my view we don't want trial court judges being
    either too eager or too reluctant to grant or deny a
    dispositive motion. I think each of those mistakes we
    identified was equally bad. Would you agree with that?
        Mr. Kirsch. I would agree with that, Senator, and I think
    that would be the wrong way to approach a legal problem for a
    district judge, the district judge in search for the right
    answer. And if the correct result is to grant a 12(b)(6)
    motion, even if it's without prejudice, or to grant a summary
    judgment motion, the court should do that.
        Senator Lee. Thank you very much. I look forward to meeting
    Becky, Nick, Jack, and William the next time you're in town,
    and when you can bring them.
        Mr. Kirsch. Thank you so much, Senator, and they look
    forward to meeting you.
        Senator Lee. And I'm hoping they might be third-generation
    lawyers in your family. Thank you, Mr. Chairman.
        Mr. Kirsch. Thank you, sir.
        Chairman Graham. We can only hope. Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman. I'm going to be up
    on the screen, Mr. Kirsch, because I'm coming in remotely. Put
    your hand up if you can hear me.
        Mr. Kirsch. I can hear you, sir.
        Senator Whitehouse. Great. Okay. I actually wasn't going to
    ask you any questions, because you seem capable, qualified,
    calm, and without ulterior motive in going on to the circuit
    court. But in your answer to Senator Graham's questions you
    repeatedly emphasized the role of, even in a statutory review,
    what the intention was at the time written.
        Now I'm willing to accept that judges should read the text
    of the statute and follow it as closely as can be, but I'm a
    little bit concerned about restricting yourself to the intent
    of people, or what we believe or reconstruct their intent to
    have been, at the time that it was written. And the obvious
    example of this is Brown v. Board of Education. When the Equal
    Protection Clause in the 14th Amendment was adopted in 1868, I
    don't think anybody who was involved in that expected that it
    would require integrated schools, particularly not integrated
    schools in the South. And indeed, for nearly 100 years, it was
    not seen that way until the Supreme Court decided, in Brown v.
    Board of Education, that that had to go, that segregation in
    schools was an offense to the Constitution as well as to our
    moral and civic fabric.
        So walk me through how you would get around the at-the-time
    written problem. I assume you would not have been a no vote in
    Brown v. Board of Education. You would have gone with the
    decision.
        Mr. Kirsch. Yes, Senator, I would--in a----
        Senator Whitehouse. So walk me through how you would get
    around the at-the-time written problem, because at the time
    written, the Equal Protection Clause clearly did not prevent
    segregated schools.
        Mr. Kirsch [continuing]. Senator, what I would do in a
    matter of statutory interpretation is I would take the text of
    the statute and apply the ordinary meaning of the text at the
    time----
        Senator Whitehouse. Yeah, that's where you start.
        Mr. Kirsch [continuing]. At the time the text was written.
    Senator----
        Senator Whitehouse. Okay. So there you go again, at the
    time the text was written. How does that apply to the Equal
    Protection Clause in Brown v. Board of Education?
        Mr. Kirsch. Well, Senator, the Supreme Court has obviously
    decided the Brown case, and the Supreme Court has addressed the
    Equal Protection Clause in numerous cases. But as a judge, as a
    judge, my responsibility would be to apply Supreme Court
    precedent, which I would do faithfully in every case. My job
    would not be to change the law. I believe that's the job of the
    legislature, and it would not be my job, as a judge. I would
    impose my judgment and not my will, whether I agreed or
    disagreed with the law, Senator.
        Senator Whitehouse. But wait a minute. Cases don't come to
    the Supreme Court until they've come up through the circuit
    courts. You're going to set--on the circuit court, the circuit
    court is going to hear cases of first impression, that then the
    Supreme Court will ultimately review. You don't need to be
    there if every case is already determined under Supreme Court
    precedent. The reason we have circuit court judges is to sort
    through the stuff that doesn't ineluctably follow from a
    Supreme Court precedent, and make a decision. And when you're
    making that decision, I'm concerned that if you go back,
    particularly in statutory interpretation but also in
    constitutional interpretation, to try to divine the intent of
    the people who wrote it, you would have ended up being a vote
    against, a dissenting vote, in Brown v. Board of Education. And
    you have got to tell me that's not so.
        Mr. Kirsch. Senator, I would not look at the intent of the
    people that wrote the language of the statute. I would look at
    the language of the statute and consider the language of the
    statute and what the words meant at the time they were written,
    not the intent of the legislatures that passed the law.
        Senator Whitehouse. So what do you do? You go back to 1868
    dictionaries and look for meaning?
        Mr. Kirsch. Well, you would apply the canons of statutory
    interpretation and you would look at the words in their
    context. You would look at the words in the statute. You would
    look at perhaps contemporaneous statutes. You would look at
    other provisions of the statute. And you would look at
    grammatical sources. You could look at a time period
    dictionary.
        Senator Whitehouse. And if you did all that, where would
    you come down on the Equal Protection Clause in Brown v. Board
    of Education, and why?
        Mr. Kirsch. Sir--Senator, Brown is unique in our history,
    and I would agree that Brown is correctly decided, although as
    you know, it's not the role of the judicial nominee to grade
    Supreme Court opinions. But I can confidently say that Brown
    was correctly decided.
        Senator Whitehouse. Even though it would be very hard to
    justify that decision under analysis that required it to be
    examined with a view to what was meant in 1868.
        Mr. Kirsch. Senator, I don't want to get into grading
    Supreme Court decisions----
        Senator Whitehouse. I'm not asking you to grade it.
        Mr. Kirsch [continuing]. On any particular holdings.
        Senator Whitehouse. I'm not asking you to do that. Did you
    hear the question? Do you want me to ask it again?
        Mr. Kirsch. Sure.
        Senator Whitehouse. So you have said that Brown v. Board of
    Education was correctly decided. You've said that you would
    make decisions about constitutional and statutory matters based
    on what the words meant at the time that they were enacted. In
    1868 it was very hard to argue that those words in the 14th
    Amendment meant an end to segregated schools. So how do you
    reconcile your testimony that Brown was correctly decided with
    your view that the Equal Protection Clause should be read in
    light of what was meant in 1868?
        Mr. Kirsch. Senator, I would--if I were confirmed as a
    judge, I would apply the law. I would apply the text of the
    statute, as I said, and I would apply Supreme Court precedent.
        Senator Whitehouse. Okay. Well, we're clearly getting no
    place here, and I'm sorry this turned this way. I was actually
    inclined to--I was actually inclined to support you.
        Chairman Graham. Senator Whitehouse----
        Senator Whitehouse. No further questions, Mr. Chairman.
        Chairman Graham [continuing]. Don't go away. Can you stay
    around for a minute?
        Senator Whitehouse. Yeah, I'm here.
        Chairman Graham. Okay. I've been waiting all year for
    somebody to ask this question. Originalism--I get it. I
    understand it's a judicial constraint. You don't want to just
    start, you know, taking your feelings about what words mean, to
    have to be some construct of a judge. But Senator Whitehouse
    has asked a very good question. In 1868, I don't think anybody
    envisioned the Equal Protection Clause to be used to legalize
    gay marriage, you know, but it eventually was.
        Now let's get back to Brown v. Board of Education. Isn't it
    true that there was litigation at the lower courts that
    separate but equal was not equal? Are you familiar with that?
        Mr. Kirsch. Certainly, Senator. Certainly.
        Chairman Graham. Senator Whitehouse, are you still around?
        Senator Whitehouse. I'm here.
        Chairman Graham. Okay. So I'm familiar with this because
    South Carolina was being sued, and Brown v. Board of Education
    was the Kansas case, I think. Is that right, Ted? So they
    consolidated all these cases, and what the Supreme Court did is
    they looked at the record in terms of where separate but equal
    was the argument of segregated school districts, that under the
    Equal Protection Clause we are good to go. Even though they are
    separate school systems, they are equal.
        And it's my understanding that the Court looked at the
    factual record and it was pretty overwhelming that separate did
    not mean equal, that in all of these States, all of the schools
    for African American children were underfunded, they were not
    clearly equal. And that led the Court to determine that
    separate but equal defense did not lie. Does that make sense to
    you, Mr. Kirsch?
        Mr. Kirsch. Yes, Senator.
        Chairman Graham. Well--and this goes back to Senator
    Whitehouse's question--there was a factual determination about
    a case in controversy where people sued, at the lower court
    level, alleging that a violation of the Equal Protection Clause
    existed because the argument separate but equal was false. And
    it was the information received in 1954 that led the court to
    reject the concept of separate is, in fact, equal. Does that
    make sense to you?
        Mr. Kirsch. Yes, Senator.
        Chairman Graham. Okay. How do you square that with
    originalism?
        Mr. Kirsch. Senator, it's the role of the lower courts to
    determine the facts in a case.
        Chairman Graham. So my point is, you just don't look at the
    statute or the constitutional provisions. You look at the
    record before you. Is that correct?
        Mr. Kirsch. You have to, Senator. You must take the facts--
    --
        Chairman Graham. Senator Whitehouse, does that make sense,
    that the record is part of the decisionmaking process, just not
    the words of the statute?
        Senator Whitehouse. Mr. Chairman, you are an outstanding
    lawyer and I think you have done a terrific job of
    rehabilitating the witness.
        Chairman Graham. Well, I just think this is a hard question
    for anybody to answer, quite frankly, because if you are in the
    originalism camp, which clearly you seem to be, which is fine
    to me, I've always wondered, Senator Whitehouse, originalism
    doesn't mean ignoring the record in front of you. We talk about
    words and their meaning and who wrote them and what they
    intended at a time, certain, but litigation also develops a
    record, and it's okay to look at the record, even for an
    originalist? Is that correct, Mr. Kirsch?
        Mr. Kirsch. Absolutely, Senator. It's not the role of an
    appellate court judge, of course, to create facts or find
    facts.
        Chairman Graham. So I would argue that that same concept
    went on, when it came to same-sex marriage, I would think.
        Senator Whitehouse. I don't think that's the case with
    Obergefell. We would have to take a look at that.
        Chairman Graham. It may not be, but I'm pretty sure about--
    now I'm going to turn it over to the people far smarter than me
    about originalism, and how a judge would--what you would look
    at in rendering a decision. But I hope looking at the record is
    one of the things that we would all agree is appropriate to do.
        Senator Durbin. Mr. Chairman, before the Senator from Texas
    asks, I'd like to explore this same line of questioning,
    perhaps not with this witness but in another venue, on
    Griswold.
        Chairman Graham. Yeah. I mean, I find--you know, I don't
    have anything to do this afternoon so this seems to be a good
    use of my time. I've always been interested in this exchange.
    Thank you, Senator Whitehouse, for making it possible.
        Now we'll turn it over to somebody who knows far more about
    this than I do, Senator Cruz.
        Senator Cruz. Well, thank you, Mr. Chairman, and I'm
    actually somewhat astonished to see, in the U.S. Senate,
    something resembling actual debate breaking out----
        Chairman Graham. It won't last.
        Senator Cruz [continuing]. And discussions of great
    principles of constitutional law. You know, I will note, on
    this topic, that when originalism comes up, critics of
    originalism often misunderstand it or mischaracterize it, and
    use in the phrase ``original intent,'' which is not, in fact,
    what originalism is all about, that the subjective intent of
    the framers of the Constitution, the subjective intent of the
    Congress, that proposed the 14th Amendment, is not ultimately
    what is controlling. Rather it is the text of the Constitution.
    And the original public meaning, what the American people would
    have understood, the text of the 14th Amendment, one of the
    most foundational and transformational amendments passed in the
    wake of the Civil War, provided that no State shall deny any
    person the equal protections of the laws. And right in there
    was a requirement for equal protection.
        The Supreme Court, in 1896, in Plessy v. Ferguson,
    unfortunately disregarded the plain command of the Equal
    Protection Clause, and created instead the doctrine of separate
    but equal to justify segregated schools, to say that even
    though State government laws that said African American
    children cannot attend school alongside white children, even
    though they were plainly being denied equal protection of those
    laws, the Supreme Court was going to justify that by declaring
    it to be separate but equal.
        Plessy was an act of judicial activism. Brown overruled
    Plessy. And I would note that Justice John Marshall Harlan, who
    was the lone dissenter in Plessy, and who is often referred to
    as ``The Great Dissenter,'' Justice Harlan's dissent wrote
    correctly that, quote, ``The Constitution is colorblind and
    neither knows nor tolerates classes among citizens.'' That was
    the view that I believe was faithful to the text of the Equal
    Protection Clause, and it was the activism of Plessy that was
    rightly and unanimously overturned in Brown.
        Chairman Graham. If we can keep this going a bit, and
    you'll have all your time, just for curiosity's sake, the
    record that was formed in the lower court litigation that, in
    effect, separate was not equal, was that appropriate for the
    court to consider the facts on the ground, that the defense by
    each State was, no, we comply because separate is equal, and
    the court found, from litigation, that it was not. So that's
    not inconsistent with originalism, right?
        Senator Cruz. Well, sure, and in litigating Brown they
    built a factual record to demonstrate that it was not remotely
    equal. Thurgood Marshall was integral in that litigation
    effort, and it's one of the reasons why he's remembered by
    history as one of the greatest Supreme Court advocates who have
    ever lived, for building that factual predicate and achieving
    that.
        Chairman Graham. And it was okay to look at the record as
    part of the inquiry.
        Senator Cruz. In every case, the record and the actual
    facts are central to resolution.
        Chairman Graham. Thank you, Senator Cruz. Now you can ask
    questions at him.
        Senator Cruz. So welcome to the discussion club.
        Mr. Kirsch. Thank you, Senator.
        Senator Cruz. Let me ask you just a general question. If
    you are confirmed and find yourself serving as a judge on the
    court of appeals, how would you describe your jurisprudential
    approach?
        Mr. Kirsch. I couldn't understand the last two words that
    you said, sir.
        Senator Cruz. How would you describe your jurisprudential
    approach?
        Mr. Kirsch. Senator, I would apply the law. I would apply
    Supreme Court precedent to the extent that it's controlling,
    it's totally binding on the circuit courts, I would apply the
    law. I would then, to the extent it was a matter of statutory
    or constitutional interpretation, I would, as I said, apply the
    ordinary meaning, the ordinary public meaning, of the text at
    the time the text was written. I would not impose my will, as a
    judge. I would not make law.
        Senator Cruz. And how would you define judicial activism?
        Mr. Kirsch. I would define judicial activism as judges that
    impose their policy preferences in their decisions, or driven
    by an outcome in a decision based upon a particular policy
    preference, imposing their will on the outcome or on the matter
    that they're considering.
        Senator Cruz. Tell this Committee your views on the
    importance of the Constitution's protections of our rights to
    free speech.
        Mr. Kirsch. Senator, I am a strong supporter of the Bill of
    Rights, including the First Amendment, and my experience and my
    career demonstrate that. As both a prosecutor and as a defense
    attorney I'm committed to supporting the Second Amendment. I
    also support the Fifth Amendment. I support the Sixth
    Amendment. I support and enforce the Fourth Amendment. I
    support the Tenth Amendment. They're all important, Senator.
        The First Amendment--freedom of speech, freedom of
    religion--are really the bedrock foundations upon which our
    country was founded.
        Senator Cruz. And why does free speech matter to the
    American people? Why should someone at home, watching this
    hearing, care about judges who will protect our rights to free
    speech?
        Mr. Kirsch. Senator, the worst forms of government, when we
    look back in our history, the right to free speech was denied.
    The right to free speech is fundamental to the foundation of
    our country, to the liberty protected by the Constitution. It's
    central to our form of government.
        Senator Cruz. So same question but this time concerning
    religious liberty. Why does it matter to the American people
    that we have judges who will protect our rights of religious
    liberty?
        Mr. Kirsch. Senator, it's extraordinarily important that
    judges protect all of our rights contained in the Bill of
    Rights, including the First Amendment religious liberty clause,
    for the same reasons I mentioned with the free speech clause.
    It's a bedrock. It's a founding principle of our Constitution.
        Senator Cruz. Thank you very much, and Mr. Chairman--Mr.
    Chairman is gone, but I will note for the record a rather
    astonishing thing, which is we had a debate about originalism
    and somehow Senator Lee did not interject. And I've always
    believed in miracles, but we've now witnessed one in this
    hearing room.
        Senator Lee [presiding]. And yet my time having expired at
    the moment, and the Chairman still being in the room, I
    couldn't interject. It was difficult. But I enjoyed it,
    nonetheless. It was fantastic.
        Next at bat we have Senator Hirono.
        Senator Hirono. Thank you. I would like to note, for the
    record, that we are experiencing record numbers of people
    testing positive, including most recently Senator Grassley, our
    colleague, testing positive for COVID, and more people dying.
    And yet here we are trying to put more judges for lifetime
    appointments to our various courts. So rather than dealing with
    a COVID situation that has impacted so many families and
    workers and businesses, we are spending time doing this, which
    is, by the way, it is unprecedented that we should have a
    hearing like this, in the remaining days of a lame duck
    President.
        So in this case I am particularly concerned that this
    Committee is holding a hearing for the Seventh Circuit nominee
    who is further entrenching the lack of diversity that is
    characteristic of President Trump's judicial nominees. The
    NAACP has observed that the Seventh Circuit is the only all-
    white court of appeals in the country, even though 30 percent
    of its residents are people of color. And moreover, this seat
    is only available because Senate Republicans blocked President
    Obama's nominee, Myra Selby, who would have been the first
    African American to serve on the Seventh Circuit from Indiana.
        I find the discussion on originalism pretty interesting,
    because when we refer to Supreme Court decisions, such as
    Plessy and Brown v. Board of Education, it is very clear that
    judges do not come to their positions like blank slates, tabula
    rasa. Justice Rehnquist made that observation. Clearly those
    courts and the Supreme Court have changed its mind and if Mr.--
    sorry, if our nominee views himself more as an originalist then
    we can look forward, I suppose, to this current Supreme Court
    revisiting Obergefell, which Justice Scalia said there was no
    basis in the Constitution for same-sex marriage, echoed by
    Justices Alito and Thomas, who have signaled that they would
    like to revisit Obergefell.
        I ask all nominees for any of the Committees on which I sit
    the following two questions, and I'm going to ask you this
    question. 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. Kirsch. No, Senator.
        Senator Hirono. Have you ever faced discipline or entered
    into a settlement related to this type of conduct?
        Mr. Kirsch. No, Senator.
        Senator Hirono. Let me turn to an introduction you gave to
    then Attorney General Sessions in June 2018, when you gave a
    speech on immigration in Fort Wayne, Indiana. During the
    speech, the Attorney General defended the Trump
    administration's zero-tolerance policy, which resulted in
    thousands of migrant children being forcibly separated from
    their parents.
        Did your office prosecute any migrants under DOJ's zero-
    tolerance policy?
        Mr. Kirsch. Senator, we--my office indicts hundreds of
    cases a year, but off the top of my head I don't recall any.
        Senator Hirono. Well, maybe you could check and think back
    to if your office did prosecute any migrants under the zero-
    tolerance policy. And then also if you could tell me if such
    prosecutions occurred, how many children were separated from
    their parents because of those prosecutions.
        The next question. Did your office keep track of the
    parents and the children so they could be later reunited,
    because of the separation under the zero-tolerance policy? Was
    your office involved at all in keeping track of the parents of
    these children who were separated?
        Mr. Kirsch. Senator, as I sit here today as the United
    States Attorney, I'm not aware of any such cases in Northern
    Indiana.
        Senator Hirono. Okay. You are aware, of course, that the
    zero-tolerance policy resulted in children being separated,
    and, in fact, some 545 of these children still, their parents
    cannot be found at all. It is a major tragedy.
        During the 2020 elections, as U.S. Attorney you were
    appointed on a journey to serve as the election officer to
    handle election fraud complaints in the Northern District of
    Indiana. Do you have any evidence of widespread voter fraud or
    votes being stolen----
        Mr. Kirsch. Senator----
        Senator Hirono [continuing]. In Indiana?
        Mr. Kirsch [continuing]. Senator, as the United States
    Attorney, as have previous United States Attorneys, we always
    appoint an official to oversee those matters, and as an
    Assistant U.S. Attorney, Senator, I did prosecute and was
    involved in voter fraud investigations. As far as current or
    active investigations that are going on in the Northern
    District of Indiana it would be improper for me to comment on
    any of those, one way or the other, Senator, as the United
    States Attorney.
        Senator Hirono. Well, as far as you know, has your--has the
    election officer uncovered any instances of voter fraud or
    votes being stolen in the Northern District of Indiana?
        Mr. Kirsch. Senator, as the sitting United States Attorney
    I could not comment on that. It would be improper for me to
    comment on that, one way or the other.
        Senator Hirono. Excuse me. I'm not asking you to comment on
    whether or not--just the numbers, because you appointed someone
    to make that--to keep records of whether voter fraud actually--
    complaints were filed. And I'm just asking you what the numbers
    were.
        Mr. Kirsch. Senator, there are processes by which we take
    complaints from citizens and by which we handle sensitive law
    enforcement matters that are--where we work with our Federal,
    State, and local law enforcement to conduct investigations. And
    it would be improper for me to comment on matters that may or
    may not be ongoing in the office, with respect to potential
    voter fraud or any other area.
        Senator Hirono. Mr. Chairman, is my time up? I can't see
    the clock.
        Senator Lee. Yes, it is, but you can finish this question
    if you would like.
        Senator Hirono. Thank you. I am not asking for any
    determination as to whether or not these claims are valid. I'm
    simply asking whether claims of voter fraud have been filed.
    That's all I am asking, and I am not getting an answer to that
    question.
        Okay. Well, I will submit further questions for the record.
    Thank you.
        Senator Lee. Thank you, Senator Hirono. Senator Kennedy,
    you're next.
        Senator Hawley is next. Good timing. Senator Hawley being
    from Missouri, the Show Me State, I've never really understood
    what that means. But I assume that must mean that they're
    experts in showmanship, which Senator Hawley certainly is,
    given the timing that you just saw on live display here. And
    plus just look at him. He is a born showman. Hopefully I have
    filibustered enough now to give Senator Hawley a chance. Are
    you ready to go?
        Senator Hawley. I'm ready.
        Senator Lee. Thank you.
        Senator Hawley. Okay. Thank you very much, Senator Lee, for
    those kind kind words.
        Let's see here. Mr. Kirsch, I can't see you at the moment.
    Oh, you are here. Fantastic. I was looking--I was so
    conditioned to looking at the televisions. It's nice to see
    someone here in person. Congratulations on your nomination.
        Mr. Kirsch. Thank you very much.
        Senator Hawley. Yeah, thank you for being here. And
    congratulations. I understand that we have talked already a
    good bit about your role in the U.S. Attorney's Office, but
    thank you for your service in that aspect.
        Let me just ask you a question about statutory
    interpretation. This is something that will undoubtedly come up
    frequently, and this will be your--this is about to be your day
    job, should you be confirmed. Talk to me a little bit about how
    you would approach statutory interpretation in a case of first
    impression, where you're not controlled by precedent. What are
    the tools that you would use, and in what order would you use
    them? Just walk me through that, if you would.
        Mr. Kirsch. Sure. I'm happy to, Senator. Senator, I would
    take the text of the statute. If it was a statute that I was
    interpreting, I would take the text of the statute. I would
    read the words. I would apply the ordinary meaning of the words
    at the time that they were written. That's what I would do
    first. To the extent----
        Senator Hawley. And in the case of statutory ambiguity, if
    you have a text where there is some ambiguity, what do you do
    next? So you start with the text, you find some ambiguity, you
    do not have controlling precedent, then what?
        Mr. Kirsch. Well, Senator, I continue--I would consider the
    words in context. So I would consider the words that precede
    and that come after the clause at issue. I would look at the
    statute in a whole. I would look at the--I would look at
    contemporaneously past statutes. I would look at grammatical
    text. I could look at a time period dictionary. Those are the
    things that I would do. I would consider the text, the text of
    the law.
        Senator Hawley. What about the canons of statutory
    interpretation? Talk to me about those. Would you use those?
    What's your understanding of how those might factor in a
    textual analysis, in an interpretive analysis?
        Mr. Kirsch. Yes, Senator. I would apply the canons in the
    manner in which I described, what I would consider the words of
    the statute. I would consider--you know, I would consider the
    words of the clause. I would consider the words of the clause,
    I would consider the statute.
        Senator Hawley. What about legislative history?
        Mr. Kirsch. Senator, I would--in the matter of a
    scrivener's error or something like that, I could look at
    legislative history. But as a general matter I would not look
    to legislative history. It doesn't represent what the law was
    passed. It doesn't represent the collective intent of the
    legislative body. And also, Senator, people have a right to
    know what the law is, and I would not look behind the curtain,
    so to say to tell Americans this is what the law is. I would
    look at the text and confine myself to the text of the statute.
        Senator Hawley. You've mentioned context now, historical
    context, several times, dictionaries of the period, you said,
    looking at the words in their historical context. Tell me about
    when it comes to public meaning, public meaning at the time the
    text was adopted, the statute in question was adopted. What
    about this idea of a latent, if you like, public meaning? So a
    public meaning that maybe is there but no one at the time
    thought that the words meant this. No one at the time would
    have thought that the statute actually was interpreted that
    way. But judges, let's say, 50 years later or 60 years later
    say, ``Well, actually, no, a fair reading of the text, we could
    reach that result,'' even though no one anticipated that at the
    time. What do you make if an argument like that?
        Mr. Kirsch. Senator, I would apply the ordinary public
    meaning of the words at the time that they were written. I do
    not believe that it's the job of a judge to change the law. It
    is uniquely within the provenance of the legislature to change
    the law. It's not a judge's role to do that.
        Senator Hawley. And do you understand the ordinary public
    meaning, therefore, to be grounded in some evidence of what the
    drafters, ratifiers, and general public at the time understood
    the words to mean? In other words, what I'm trying to get a
    read on here is, there is a growing school of thought,
    embraced, I have to say, by some judges who consider themselves
    conservative, that say that, well, public meaning can mean a
    lot of different things. Public meaning can mean something that
    is fairly present in the text. You could read the text in this
    way, even though nobody at the time actually thought it meant
    that. But, you know, we could find that actually if you just
    take the meaning, the plain meaning of the words, it could mean
    this thing, that nobody thought of 50 years ago.
        Is that a theory that you would subscribe to? Again, in my
    words, I have called that latent public meaning. So supposedly
    it's there, but it is just that nobody but a judge, until 50
    years later, discovered it. I mean, how would you tackle that?
        Mr. Kirsch. Senator, I think what you are describing as
    latent public meaning is a little different than what I've
    described as the ordinary public meaning, and I would
    subscribe--in my philosophy, I would subscribe to the ordinary
    public meaning of what the words meant at the time they were
    written, similar to what I said regarding legislative history
    and the use of legislative history.
        Senator Hawley. Very good. Well, I am heartened to hear you
    say that. I think that that is exactly the right and common-
    sense approach. And I have to say this trend from conservative
    judges and justices of discovering so-called public meanings in
    statutes that no one at the time, nobody--not the drafters, not
    the general public--nobody thought that the statute could mean
    interpretation. And yet the judge suddenly discovers it later.
    I think it is very injurious to the rule of law and to basic
    expectations about the law, and I'm glad to hear you say that.
        Thank you very much. Congratulations again, and thank you,
    Mr. Chairman.
        Senator Lee. Thank you, Senator Hawley. Senator Blumenthal,
    he's up next.
        Senator Blumenthal. Thanks, Mr. Chairman, and I am
    participating remotely. Mr. Kirsch, thanks for joining us
    today. I want to begin by expanding a little bit on the
    questions that you received from Senator Hirono.
        First, let me say I join her in my concern about the
    composition of the Seventh Circuit bench. I think it fails to
    look like America. It fails to represent the diversity of
    America, and I think that your nomination, in no way expands
    that diversity, obviously, and I think that's a grave
    shortcoming, not attributable to you personally, but to the
    President and to this administration.
        Talking for the moment about the administration, as you
    know the Attorney General issued a memo to you and other U.S.
    Attorneys on November 9, saying that you should be looking at
    post-voting election irregularity. And promptly, the same day,
    in fact, the Director of the ECB, the Elections Crimes Branch
    of the Public Integrity Section, Richard Pilger resigned from
    his position, specifically noting that the November 9 memo
    abrogated past ECG practice.
        Days later, 16 Federal prosecutors assigned to monitor the
    election wrote to the Attorney General that they found no
    evidence of, quote, ``substantial allegations of voting and
    vote tabulation irregularities,'' end quote, and asked him to
    withdraw that memo. Did you join that letter?
        Mr. Kirsch. Senator, I'm honored to serve as the United
    States Attorney, to serve the administration in this role in
    the Northern District of Indiana. I received the memo from the
    United States Attorney General, as did all the other United
    States Attorneys in the country.
        Senator Blumenthal. I'm asking you whether you joined the
    letter, written by Attorneys General, United States Attorneys,
    saying they found no evidence of substantial allegations of
    voting and vote tabulation irregularities? That is a yes or no.
    You did not, right?
        Mr. Kirsch. Senator, I'm not sure what letter you are
    referring to, sir.
        Senator Blumenthal. Well, we'll provide you with the letter
    at some point. But let me ask you, if they were able to say, as
    they did in their letter, that they found no irregularities,
    can you tell the Committee whether you found any
    irregularities?
        Mr. Kirsch. Senator, as the United States Attorney we
    investigate numerous things, and it's not proper for me to
    comment on ongoing investigations as to what we may be looking
    at or what we may not be looking at.
        Senator Blumenthal. Are you saying, Mr. Kirsch--I apologize
    for interrupting but my time is short. Are you saying that they
    improperly told the Attorney General of the United States that
    they found no irregularities? Was that improper of them to do?
        Mr. Kirsch. Senator, with all due respect, I don't know who
    ``they'' is. I don't know the ``they'' that you are referring
    to, sir.
        Senator Blumenthal. Well, there were 16 of your colleagues,
    United States Attorneys, who wrote that letter, and we'll
    provide it to you.
        Let me move on. In Kanter v. Barr, as you know, Amy Coney
    Barrett wrote a dissent in which she contended that the Second
    Amendment prevented Congress from reaching a legislative
    judgment that felons, as a group, were too dangerous to possess
    firearms. I know you've written and stated the importance of
    gun violence prevention. Would you have joined her dissent?
        Mr. Kirsch. Senator, it would not be appropriate for me to
    say, as a judicial nominee, how I would rule on a particular
    case or how I would decide a particular case. That would be
    improper, sir.
        Senator Blumenthal. Right. I'm asking you not about a
    future case. I'm asking whether you would have joined her
    dissent in Kanter v. Barr, which, in effect, might well have
    led to courts like yours, the Seventh Circuit, the seat that
    you're going to fill, striking down a very responsible measure
    that says, in effect, felons cannot possess firearms.
        Mr. Kirsch. Sir, it would be inappropriate for me to grade
    Seventh Circuit precedent and to indicate, in a case like that,
    whether I would agree with the majority opinion or whether I
    would agree with the dissent.
        Senator Blumenthal. Well, I must say I don't understand
    that position.
        Let me ask you this. You told Senator Whitehouse that you
    believe Brown v. Board of Education was correctly decided.
    Correct?
        Mr. Kirsch. Correct. Correct, Senator, and--correct. I told
    him that----
        Senator Blumenthal. Let me ask you about another case, Roe
    v. Wade. Was it correctly decided?
        Mr. Kirsch. Senator, what I told Senator Whitehouse was
    that as a general matter judicial nominees should not grade or
    give a thumbs up or thumbs down to precedent of the Supreme
    Court, as now Justice Kagan has said. Brown is unique in our
    history, and I'm comfortable saying that case was correctly
    decided. I'm also confident to tell you, and very confident,
    Senator, I would apply all Supreme Court precedent as a lower
    court judge, including Roe and its progeny.
        Senator Blumenthal. I'm asking you for your view as to
    whether it was correctly decided. Is there no other case that
    you can say was correctly decided by the U.S. Supreme Court,
    besides Brown? You say it is unique.
        Mr. Kirsch. Brown is unique. I would cite Loving, which
    follows from Brown. I would cite Marbury v. Madison. But, sir,
    as a lower court judge----
        Senator Blumenthal. Obergefell?
        Mr. Kirsch. Sir, as a lower court judge and as a judicial
    nominee it's inappropriate for me to grade decisions such as
    Obergefell or Roe. But I can tell you that I would faithfully
    apply them, as I would be required to do with all Supreme Court
    precedent.
        Senator Blumenthal. I think my time has expired. Thanks for
    answering my questions, Mr. Kirsch.
        Senator Lee. Thanks, Senator Blumenthal. And unless Senator
    Kennedy is joining us electronically, Senator Blackburn.
        Senator Kennedy. I'm here.
        Senator Lee. Oh, you are there. Go ahead. Senator Kennedy,
    you're up.
        Senator Kennedy. Thank you, Mr. Chairman. Counselor, I'm
    not going to try to trick you. I don't want to know how you're
    going to vote in specific cases, and I'm not going to ask you
    about your opinion on Supreme Court precedent. I just want to
    know how you think.
        Let's go back to this concept of original public meaning.
    The Constitution should be construed according to its original
    public meaning at the time. Am I correct in that proposition?
        Mr. Kirsch. Yes, Senator. I think that's an accurate
    summary of what I said.
        Senator Kennedy. Okay. Do you think that the average
    American, at the time the Constitution was adopted, after
    reading the Constitution, would say the Constitution requires
    integrated public schools?
        Mr. Kirsch. Senator, at the--well, I'd have to look into
    that issue. I mean, I think the answer may be--I'd have to look
    into that a little bit more. I mean, as I sit here and I think
    about that, I don't know that the answer would be yes. I
    certainly don't--I don't know what was going on. Well, I don't
    think the answer would be yes, sir.
        Senator Kennedy. Okay. Then how did we get Brown v. Board
    of Education?
        Mr. Kirsch. Well, sir, we----
        Senator Kennedy. Which, by the way, we both agree was
    properly decided and we support. But how do you go from most
    people wouldn't read the Constitution at the time as requiring
    integrated public schools to Brown v. Board of Education?
        Mr. Kirsch. Well, sir, the Fourteenth Amendment guarantees
    equal protection, and----
        Senator Kennedy. Right.
        Mr. Kirsch [continuing]. As Senator Graham indicated, as
    with all litigation, there was a detailed, factual record that
    was developed in the lower courts that demonstrated that the
    schools were separate but they weren't equal, and therefore,
    that it doesn't----
        Senator Kennedy. Excuse me. Sorry for interrupting,
    Counselor, but my time is limited. I understand all that. But
    what I'm trying to understand is if the average person at the
    time the Constitution was adopted read it, and when they came
    across the words ``equal protection,'' if integrated public
    schools didn't come to mind and it's not part of the original
    public meaning, then how did we get Brown v. Board of
    Education?
        Mr. Kirsch. Senator, it's the principles of--it's the
    principles of the Equal Protection Clause. I mean, it's the
    same with----
        Senator Kennedy. Do you think the principles should be
    interpreted according to the original public meaning?
        Mr. Kirsch. Senator, I think the principles that applied at
    the time the Constitution was written are the same principles
    that court should impose now. I think that we see this in other
    areas of the law, including the Fourth Amendment context.
        Senator Kennedy. Well, and I'm agreeing with you,
    Counselor, and I'm not trying to trick you, and I'm certainly
    not suggesting I don't agree with Brown v. Board of Education.
    I'm just trying to get a feeling for your analytical skills.
    And I'm not saying you're not skillful. But if you were living
    at the time the Constitution was drafted--once again, we're
    going to concentrate on original public meaning--and you read
    the Constitution, I think that any fair-minded person would
    conclude that the drafters of the Constitution wanted what's
    best for children and prosperity. Okay? Two principles.
        But that doesn't tell us anything, if we're going to adhere
    to the original public meaning. Do you understand where I'm
    coming from? Equal protection is fine as a concept, but does or
    does not the original public meaning mean what it says?
        Mr. Kirsch. Senator, yes, but the principles of equal
    protection, you must take the principles and apply them to the
    facts.
        Senator Kennedy. So you're telling me that the principles
    change over time?
        Mr. Kirsch. No, sir. I'm telling you the factual record
    that was developed in Brown demonstrated that separate schools
    were not equal and were not, therefore, consistent or compliant
    with the Fourteenth Amendment Equal Protection Clause.
        Senator Kennedy. But at the time of the adoption of the
    Constitution there were not integrated public schools, were
    there? So we already had the facts.
        Mr. Kirsch. Senator, I don't know. I don't know that there
    were integrated public schools or not. I don't know what was
    happening in some of the States or in some of the various
    States across the country. Certainly there weren't everywhere.
    I don't know, though, that there wasn't anywhere. I just don't
    know.
        Senator Kennedy. Okay. Well, my time is up. I want to make
    it clear that I agree with Brown v. Board of Education, and I
    understand that you agree with it as well. I'm not suggesting
    it's not rightly decided. I just was trying to get your
    thoughts on what original public meaning means in the real
    world.
        Counselor, thank you for your time today.
        Mr. Kirsch. Thank you, Senator.
        Chairman Graham [presiding]. Thank you. Do we have anyone
    else?
        Thank you very much. Welcome to the Judiciary Committee.
    But in all honesty, you know, originalism, I understand it to
    be, you know, a very valid concept in terms of judicial
    decisionmaking, and it does offer comfort and restraint to
    conservatives, but it's not inconsistent, in my view, looking
    at facts that are in a case. And I've been waiting for somebody
    to ask Senator Whitehouse this question for a while. It's
    probably true that there were more segregated schools in 1868
    than there were integrated schools. For sure there was no State
    that allowed same-sex marriage. So how, over time, does this
    change?
        Well, the argument that separate schools were, in fact,
    equal under the Constitution failed because of a factual
    analysis, and the term is supposed to be ``colorblind'' is the
    dissenter in Plessy v. Ferguson said. So I think Senator Cruz's
    argument that Plessy was judicial activism is probably true.
        But my point, and the reason I weighed in, is that every
    case and controversy has a record, and whether you are an
    originalist or whatever you want to be, you need to also look
    at the record. Do you agree with that?
        Mr. Kirsch. Yes, Senator, I do. The record is----
        Chairman Graham. Thank you. You did a great job, and our
    next panel will come forward please. Thank you.
        [Pause.]
        Chairman Graham. Hello. Welcome to the Committee. Could you
    all raise your right hand please.
        Do you solemnly swear that the testimony you are about to
    give this Committee is the truth, the whole truth, and nothing
    but the truth, so help you God?
        [Chorus of ayes.]
        [Witnesses are sworn in.]
        Chairman Graham. Okay. Congratulations to each of you and
    to your families. I know this is a big day in your lives.
    Welcome to the Committee. And Zach, we'll start with you and go
    from my right to the left. The floor is yours.

      STATEMENT OF ZACHARY N. SOMERS, NOMINEE TO SERVE AS UNITED
                STATES JUDGE OF COURT OF FEDERAL CLAIMS

        Mr. Somers. Thank you, Chairman Graham. Chairman Graham,
    Senator Durbin, thank you for holding today's hearing. I must
    say, as someone who has spent over a decade sitting behind the
    dais, in both this Committee and the House Judiciary Committee,
    today's hearing is a bit of a change of perspective for me. I'm
    honored and humbled to have been nominated to the Court of
    Federal Claims by President Trump, and I want to begin by
    thanking him for nominating me.
        If confirmed, I guess I will be going full circle in my
    legal career, that began about 16 years ago as a law clerk on
    the claims court. I can't believe it has been 16 years since I
    clerked on the court. It seems like it was not that long ago.
    But I've done a lot in the years since, from litigating cases
    before the court to working on countless hearings, markups, and
    investigations in both the House and the Senate, to having
    bills I worked on signed into law, to being nominated and
    sitting before you today.
        All of that would not have been possible without the help
    and support of my family, friends, and colleagues, who I would
    like to take a moment to acknowledge. First, my parents, Susan
    and Jay Somers, who have stood by me, sacrificed greatly so
    that I could receive a top-notch education, and encouraged me
    to do my absolute best throughout my life and career. And my
    grandparents, who although they have passed, I know would be
    proud of me today. I'm sure my grandfather is looking down from
    above saying, ``You done good.''
        My godparents, Bob and Dee Dee Branand, who have always
    believed in me, pushed me to achieve my dreams, and to never
    give up. My sister, Kai, and my best friends, Brandt, Brian,
    and Brittany, who were always by my side, with encouragement
    and support, and, of course, humor and humility.
        I also want to acknowledge those who have mentored me and
    given me great opportunities throughout my professional career.
    Judge Wolski, who's been a mentor and friend, and encouraged me
    in my pursuit of this judgeship. Roger and Nancy Marzulla, who
    gave a young lawyer an opportunity to get in-depth and hands-on
    legal experience in the claims court. Former House Judiciary
    Committee Chairman Lamar Smith, Bob Goodlatte, and, of course,
    my current boss, Lindsey Graham, who were all instrumental in
    providing me opportunities to further my legal career on
    Capitol Hill.
        Finally, I would like to acknowledge the many staff
    directors I have served under, but especially Richard Hertling,
    Shelley Husband, and Lee Holmes, and the many colleagues I've
    worked beside throughout my years on Capitol Hill, especially
    Paul Taylor, Daniel Flores, Andrea Loving, Allison Halatei, Ted
    Lehman, Kyle McCollum, Katherine Nikas, and last but certainly
    not least, my partner in countless staff depositions, Art
    Baker, and the rest of my investigative team, Chris, Gabi, and
    Elliott.
        Thank you for considering my nomination and I look forward
    to any questions you may have.
        Chairman Graham. Mr. Dawson.

      STATEMENT OF JOSEPH DAWSON III, NOMINEE TO SERVE AS UNITED
        STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA

        Mr. Dawson. Thank you, Senator, Chairman Graham. First I
    want to express my sincere thanks to President Trump for
    nominating me.
        Chairman Graham. Pull the mic a little bit closer, if you
    don't mind. There we go. Make sure it is on.
        Mr. Dawson. Thank you. Can you hear me better?
        Chairman Graham. That is better. Yeah.
        Mr. Dawson. Thank you. First I want to express my sincere
    thanks to President Trump for nominating me to serve as a
    district judge for the District of South Carolina. I am humbled
    by the trust and confidence the President has placed in me. It
    is truly an honor to serve in the Federal judiciary.
        I want to thank Chairman Graham for holding this hearing
    today. I also want to thank Senator Scott for his kind words
    and introduction before this Committee. I want to thank my home
    Senators, Chairman Graham and Senator Scott, for their support
    of my nomination. I do not take your support lightly.
        I would like to thank my beautiful wife of almost 29 years
    for her steadfast love and friendship. She has faithfully stood
    by my side as I attended law school, served in the South
    Carolina Army National Guard, and as the county attorney. She
    has offered unwavering loyalty, a listening ear, and many
    prayers and words of encouragement.
        I want to acknowledge our three wonderful children: Joseph
    IV, who is a graduate of Oral Roberts University and a manager
    at FedEx; Hannah, a high school junior; and Rebecca, a high
    school sophomore. The fact that my teenage daughters still
    enjoy my company gives me hope that I am still relevant in
    their lives.
        I want to thank also the past and present members of
    Charleston County Council for giving me the privilege of
    serving the citizens of Charleston County as the county
    attorney for almost 20 years. I would also like to thank my
    staff in the Charleston County Attorney's Office for their
    professionalism, integrity, and dedication.
        Thank you, Chairman Graham, and other Members of the
    Committee for considering my nomination.
        Chairman Graham. Thank you. How do you say your last name,
    ma'am?
        Ms. Crytzer. Crytzer, sir.
        Chairman Graham. Okay. The floor is yours.

     STATEMENT OF KATHERINE A. CRYTZER, NOMINEE TO SERVE AS UNITED
      STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE

        Ms. Crytzer. Chairman Graham, Ranking Member Durbin, and
    distinguished Members of this Committee, thank you for the
    opportunity to appear before you today. I would also like to
    thank the President for nominating me. I am honored and
    humbled. I am grateful to my home State Senators, Senator
    Alexander and Senator Blackburn, for their support of my
    nomination.
        I thank my family, friends, and colleagues for their
    support. First and foremost, I thank my husband, Joe Oliveri.
    Joe is a brilliant lawyer and my rock. I want to thank my
    mother, Karen Crytzer, as well. She's a strong woman and the
    most big-hearted person I know. I also want to recognize my
    father, Jim Crytzer, who passed away unexpectedly in 2014.
        My family moved to Tennessee nearly 25 years ago, and no
    matter how far I have traveled away since then, I've always
    come home to East Tennessee. Growing up, my parents instill in
    me and my siblings a respect for service, the importance of
    integrity, and a steadfast commitment to justice. These are
    important values that continue to guide my life and work today
    at the Department of Justice.
        I come before this Committee as a nominee to fill the seat
    of the late Chief Judge Pam Reeves, the first woman to serve as
    a district judge for the Eastern District of Tennessee. I am
    grateful for her service and the trail she blazed. If
    confirmed, it would be the honor of a lifetime to follow Judge
    Reeves as the second woman to serve as a district judge for the
    Eastern District of Tennessee.
        Thank you again for the opportunity to appear before you
    today. I appreciate your considering of my nomination, and I
    look forward to answering your questions.
        Chairman Graham. Thank you. The floor is yours, sir.

     STATEMENT OF CHARLES EDWARD ATCHLEY JR., NOMINEE TO SERVE AS
       UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
                               TENNESSEE

        Mr. Atchley. Thank you, sir. Thank you, Chairman Graham and
    Senator Durbin, for giving me this opportunity to appear before
    your Committee today. I'd especially like to thank President
    Trump for nominating me to this prestigious position. I'd also
    like to express my heartfelt gratitude to Tennessee Senators
    Alexander and Blackburn for supporting my nomination and
    allowing me this potential opportunity to continue to serve the
    good people of the Eastern District of Tennessee.
        It would be very difficult to thank everyone who has played
    a role in helping me get to where I am today, and any attempt
    to do so would be a fool's errand. But I must recognize my wife
    of over 23 years, Catherine, for her unwavering support. She is
    the glue that keeps our family together, and without her I
    would be absolutely lost. She is watching today with her
    colleagues at a local church where she works as a preschool
    teacher.
        I also want to recognize my 9-year-old daughter, Kate, who
    is watching today with her classmates in the fourth grade. Kate
    loves tennis, basketball, dance, new shoes, and spending time
    with her friends. She truly represents only the best of both
    her parents, and we're both so very proud of her.
        Last, I also must mention and thank my parents, Charles and
    Linda, for their support of me and my sister, Krista,
    throughout our lives. I am certain they are watching now from
    their home, but as soon as this hearing concludes they will
    return to work, just as they have done for well over 50 years.
    It is this example of work ethic demonstrated by them that has
    benefited me more than anything else during my 25-plus years
    practicing law.
        Thank you again for this humbling opportunity, and I am
    more than happy to answer any of your questions.
        Chairman Graham. Well, to help the economy we'll keep the
    questions short, so they can get back to work.
        One congratulations to all of you and your families. I know
    this is a big day in your life.
        The bottom line for me, having been a lawyer and been in
    court a few times, I always wanted to go before a judge that I
    thought would be fair but also kind. Most of the people
    appearing before you, whether you're in the court of claims or
    in the district court, it's a pretty traumatic day in their
    life, and lawyers can be handfuls. How do you maintain control
    over your court, and at the same time, show a sense of kindness
    and compassion to put people at ease? How do you keep control
    of the litigation, make sure that it moves forward, but also,
    at the same time, making sure that you have the patience to
    hear out both sides of the case?
        Let's start with you, Zach.
        Mr. Somers. Sure. I think, you know, the issue you raise is
    very important. You know, for a lot of people you might get
    involved in one case throughout your entire lifespan, and a lot
    of people never even go to court. But for those that do, to
    have a judge that's fair, that hears what you have to say, even
    if, at the end of the day, the judge decides against you, I
    think is very important.
        So I think you have to be stern. You have to, you know,
    keep the lawyers in check, if necessary, but you also have to
    be fair, you have to be even, and you do have to be kind, to
    both sides, whether you're going to ultimately find in their
    favor or not.
        Chairman Graham. Mr. Dawson.
        Mr. Dawson. Senator, first of all, I would agree with my
    co-nominee's comments, but I would also add that it starts with
    respect. I think if you respect people you can manage a
    courtroom, because you can manage emotions, because you will be
    sensitive to them. And if you're long-suffering you recognize
    the ebbs and flows that go on in a day. And so I think the
    foundation should start with just respecting people for who
    they are, and you'll have the patience to deal with them.
        Chairman Graham. Good.
        Ms. Crytzer. Senator Graham, I agree with my co-nominees. I
    think it's important to have integrity, to be objective, to be
    kind, to be fair, but to be orderly, so that everyone that
    comes before you has their day in court, they feel that that
    day was fair, that they were heard, and that justice was done.
        Mr. Atchley. Senator Graham, all good points from my co-
    nominees, and I agree with them all. I would add that in
    addition to that, the integrity, and also the work ethic, and
    to making sure things move at an appropriate pace while still
    respecting everyone that appears before you. And allowing the
    justice system to move efficiently is also an important part of
    that.
        Chairman Graham. Well, the lives you've led in the law and
    outside the law have allowed you to reach this day, to be seen
    by people in power, to feel like you would be an appropriate
    person to serve in a position of responsibility in our
    independent judiciary. And I'm very proud for you. I think you
    are all highly qualified and I think you would do a good job.
    What I like most about America is the idea that no matter where
    you come from, in theory you're supposed to get a fair shake in
    court. You're not too big to be subject to the law, and the
    rich pay only because they should, not because they can, and
    the most unpopular will be heard too.
        So let's keep that spirit of the law alive during
    challenging times. As we wind down 2020, I hope we understand
    that this has been a traumatic year, but to count our
    blessings. In spite of all of our contention there are
    blessings out there, and one of the great blessings of America
    is an independent judiciary. Let's all keep it that way.
        Anyone else? Senator Whitehouse, are you there?
        [No response.]
        Chairman Graham. Okay. Anyone else from the Committee?
        Thank you all. Have a safe and happy holiday.
        Hello? Anybody? Senator Kennedy? Anybody? Okay. Last call.
    Okay.
        Anyway, have a great holiday season and I hope you enjoy
    the new career, and I'm sure it is going to work out for
    everybody. Thank you very much.
        [Whereupon, at 11:50 a.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                A P P E N D I X

    The following submissions are available at:

      https://www.govinfo.gov/content/pkg/CHRG-116shrg63792/pdf/CHRG-116shrg
        63792-add1.pdf

    Submitted by Senator Alexander:

     United States Attorneys for the Eastern District of Tennessee, Charles E.
      (``Chuck'') Atchley Jr., support letter............     2

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