[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
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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
[all]