[Senate Hearing 117-414]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 117-414

                    NOMINATIONS OF LOREN L. ALIKHAN,
                      HON. JOHN P. HOWARD III, AND
                      HON. ADRIENNE JENNINGS NOTI

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


         NOMINATION OF LOREN L. ALIKHAN TO BE ASSOCIATE JUDGE,
                 DISTRICT OF COLUMBIA COURT OF APPEALS,
            HON. JOHN P. HOWARD III, TO BE ASSOCIATE JUDGE,
               DISTRICT OF COLUMBIA COURT OF APPEALS, AND
         HON. ADRIENNE JENNINGS NOTI TO BE AN ASSOCIATE JUDGE,
               SUPERIOR COURT OF THE DISTRICT OF COLUMBIA


                             FIRST SESSION
                             
                               __________                             


                            DECEMBER 2, 2021                            

                               __________
                               



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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman

THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
                      Claudine J. Brenner, Counsel
                    Nikta Khani, Research Assistant
                Pamela Thiessen, Minority Staff Director
    Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
Amanda H. Neely, Minority Director of Governmental Affairs and General 
                                Counsel
                    Allen L. Huang, Minority Counsel
     Clyde E. Hicks, Jr., Minority Senior Professional Staff Member
                     Laura W. Kilbride, Chief Clerk
                     Thomas J. Spino, Hearing Clerk









                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Peters...............................................     1
    Senator Lankford.............................................     2
    Senator Portman..............................................    10
    Senator Carper...............................................    11
    Senator Hawley...............................................    16
Prepared statements:
    Senator Peters...............................................    21
    Senator Lankfor..............................................    23

                               WITNESSES
                       Thursday, December 2, 2021

Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia...........................................     3
Loren L. AliKhan to be Associate Judge, District of Columbia 
  Court of Appeals
    Testimony....................................................     4
    Prepared statement...........................................    24
    Biographical and professional information....................    26
    Responses to post-hearing questions..........................    53
Hon. John P. Howard III to be Associate Judge, District of 
  Columbia Court of Appeals
    Testimony....................................................     5
    Prepared statement...........................................    66
    Biographical and professional information....................    67
    Responses to post-hearing questions..........................    94
Hon. Adrienne Jennings Noti to be an Associate Judge, Superior 
  Court of the District of Columbia
    Testimony....................................................     6
    Prepared statement...........................................   102
    Biographical and professional information....................   104
    Responses to post-hearing questions..........................   127


 
                    NOMINATIONS OF LOREN L. ALIKHAN,
                      HON. JOHN P. HOWARD III, AND
                      HON. ADRIENNE JENNINGS NOTI

                              ----------                              


                       THURSDAY, DECEMBER 2, 2021

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:15 a.m., via 
Webex and in room SD-342, Dirksen Senate Office Building, Hon. 
Gary Peters, Chairman of the Committee, presiding.
    Present: Senators Peters, Carper, Hassan, Sinema, Ossoff, 
Portman, Johnson, Lankford, Scott, and Hawley.

            OPENING STATEMENT OF CHAIRMAN PETERS\1\

    Chairman Peters. The Committee will come to order.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Peters appear in the Appendix 
on page 21.
---------------------------------------------------------------------------
    Today, we are considering three nominations: Loren L. 
AliKhan and John Howard III, to be Associate Judges on the 
District of Columbia Court of Appeals, and Adrienne Jennings 
Noti to be the Associate Judge on the Superior Court of the 
District of Columbia.
    Welcome to each of you and to your friends and family 
members for joining you here today, congratulations on your 
nominations. We certainly want to thank you all for your prior 
service and for your willingness to take on these positions. 
They will be challenging positions and we appreciate your 
willingness to serve the community.
    I am pleased that we have three very highly qualified 
nominees before us. Throughout the nomination process, this 
Committee has heard nothing but praise of your legal abilities 
and professionalism.
    The D.C. Superior Court and the D.C. Court of Appeals 
function as the State-level trial and appellate courts within 
the very unique justice system here in the nation's capital. 
Both courts decide matters that impact the freedom, 
livelihoods, and safety of individuals and families across the 
District. Both courts are also suffering from extensive 
judicial vacancies.
    The Superior Court is extremely understaffed with 14 
vacancies among its 62 judgeships, and two additional Superior 
Court judges are retiring in December 2021 and January 2022.
    According to the National Center for State Courts (NCSC), 
the D.C. Superior Court has one of the highest per capita 
numbers of cases filed, 83,000 new cases every year are filed 
across its five divisions, and the vacancies have burdened 
every division, especially during this pandemic.
    For the D.C. Court of Appeals, which has nine judicial 
seats, there are three vacancies and there will be a fourth 
vacancy upon an upcoming retirement.
    These vacancies will result in delays in more than 200 
cases every year, and a 50 percent increase in wait times 
within the last 5 years, leading to greater workloads for 
current judges and delaying the resolution for litigants.
    I am pleased we have three nominees to these Courts here 
today, and I hope we will soon see several of these seats 
filled.
    Again, thank you again for your willingness to serve and 
for being with us today. I look forward to hearing from each of 
you through the course of this hearing.
    With that I would like to turn it over to Senator Lankford 
for his opening comments.

            OPENING STATEMENT OF SENATOR LANKFORD\1\

    Senator Lankford. Thank you, Chairman Peters. To the 
nominees, thank you. It is not simple to be able to get to this 
process. For you and your families, walking through this 
journey and this examination is a decision that you had to make 
early when you accepted the offer to be able to even go through 
this process, so I appreciate you walking through this.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Lankford appears in the 
Appendix on page 23.
---------------------------------------------------------------------------
    The Committee takes these nominations extremely seriously, 
as we should. The nomination process for D.C. judges is 
different from that of Article III judges and other Federal 
judges and demonstrates the unique Constitutional 
responsibility Congress has over the District of Columbia. Part 
of that responsibility, outlined in the Home Rule Act, is to 
ensure the District has well-qualified judges to serve in the 
city.
    It is vital that the District has qualified, unbiased 
judges to serve in both the Superior Court and Court of 
Appeals. The city faces a number of serious issues, from crime 
rates to evictions to broader constitutional questions such as 
how the city treated houses of worship during the pandemic.
    I look forward to discussing these issues with you today 
and to get a better sense of how you will approach the many 
difficult questions that will come before you if you are 
confirmed.
    I thank the Committee for holding this hearing and look 
forward to speaking with each of you.
    Chairman Peters. Thank you, Senator Lankford.
    It is the practice of this Committee to swear in witnesses, 
so if each of our witnesses will please stand and raise your 
right hand.
    Do you swear that the testimony that you will give before 
this Committee will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Ms. AliKhan. I do.
    Judge Howard. I do.
    Judge Noti. I do.
    Chairman Peters. You may be seated.
    Next we will have a video from Congresswoman Eleanor Holmes 
Norton to introduce our nominees.

  OPENING STATEMENT OF THE HONORABLE ELEANOR HOLMES NORTON, A 
    REPRESENTATIVE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Ms. Holmes Norton. Chairman Peters and Ranking Member 
Portman, I appreciate the opportunity to introduce Loren 
AliKhan and Judge John Howard III to be Associate Judges of the 
District of Columbia Court of Appeals, and Judge Adrienne 
Jennings Noti to be an Associate Judge of the Superior Court of 
the District of Columbia. All three have the experience and 
credentials to be excellent judges. I especially appreciate 
that this hearing is being held so soon after the last hearing 
on D.C. judicial nominees.
    Loren AliKhan currently serves as the Solicitor General for 
the District of Columbia. She has served in that role since 
February 2018, and prior to that served as the Deputy Solicitor 
General. Prior to work in the Solicitor General's Office, Ms. 
AliKhan was an attorney at O'Melveny and Myers. Ms. AliKhan 
also served as a Temple Bar scholar with the American Inns of 
Court Foundation and was a Bristow Fellow in the Office of the 
United States Solicitor General (OSG).
    A magna cum laude graduate of the Georgetown University Law 
Center, and a summa cum laude graduate of Bard College at 
Simon's Rock. Ms. AliKhan clerked for Judge Lewis Pollak of the 
U.S. District Court for the Eastern District of Pennsylvania 
and for Judge Thomas Ambro of the U.S. Court of Appeals for the 
Third Circuit.
    Judge John Howard III currently serves as an Administrative 
Law Judge for the District of Columbia Office of Administrative 
Hearings (OAH) . He has served in that position since 2018, and 
prior to that position he was an Administrative Law Judge for 
the D.C. Commission on Human Rights. Prior to those positions, 
Judge Howard worked as an attorney for three law firms. Judge 
Howard is currently an adjunct professor at the Georgetown Law 
Center and he is a graduate of Georgetown Law and of Howard 
University.
    Judge Adrienne Jennings Noti currently serves as a 
Magistrate Judge on the D.C. Superior Court, having served 
there since 2014. Judge Noti has served in four different 
divisions as a Magistrate Judge: the Family Court Division, the 
Civil Division, the Criminal Division, and the Domestic 
Violence Division.
    Before her appointment as a Magistrate Judge, Judge Noti 
served as a special advisor to the Director of the Division of 
Program Innovation at the U.S. Department of Health and Human 
Services (HHS) Office of Child Support Enforcement (OCSE) and a 
senior program advisor there. She also served as the managing 
attorney for the D.C. bar's pro bono program and was a clinic 
practitioner in residence for 4 years at the American 
University Washington College of Law.
    In addition to teaching at American University, Judge Noti 
was also a director and supervising attorney for the Domestic 
Violence Advocacy Project at the Rutgers School of Law and 
worked at the Safe Horizon Domestic Violence Law Project and 
the Center for Reproductive Law and Policy.
    A magna cum laude graduate of Georgetown University Law 
Center and a graduate of the University of North Carolina, 
Judge Noti served as a law clerk for Judge Carol Bagley Amon on 
the Easter District of New York.
    I appreciate the Committee moving these nominees and I look 
forward to continuing to work with you to end the vacancy 
crisis on the D.C. courts.
    Chairman Peters. Ms. AliKhan, you may now proceed with your 
opening comments.

    TESTIMONY OF LOREN L. ALIKHAN\1\ TO BE ASSOCIATE JUDGE, 
             DISTRICT OF COLUMBIA COURT OF APPEALS

    Ms. AliKhan. Good morning, Chairman Peters, Ranking Member 
Portman, and Members of the Committee. I am honored and humbled 
to appear before you today as you consider my nomination to be 
an Associate Judge of the District of Columbia Court of 
Appeals. I thank you and your staff for holding this hearing, 
and I thank Congresswoman Eleanor Holmes Norton for her kind 
introduction. I also like to thank the District of Columbia 
Judicial Nomination Commission and its chair, Judge Emmet 
Sullivan, for recommending me to the White House, and, of 
course, I thank President Joseph Biden for nominating me.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Alikhan appears in the Appendix 
on page 24.
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    I would like to take a moment to acknowledge a few 
important people in my life. First, I owe an enormous debt of 
gratitude to my husband, Justin Noble, for his patience, 
encouragement, and support of all my personal and professional 
endeavors. Next I thank my parents, Mahmood and Linda AliKhan, 
who instilled in me the values of hard work and public service; 
my sister, Leah AliKhan, who inspires me every day by living a 
rich and independent life as a woman with Down syndrome; and my 
extended family in St. Louis, Missouri; Daytona, Florida; and 
across the globe. Finally, I am grateful to my friends and 
colleagues for their steadfast support.
    My father was born in British India and after independence 
and partition, he and his family made the arduous journey to 
what is now Pakistan. Just over 50 years ago, he made another 
journey, this time to the United States, where he settled in 
Baltimore. My father is a cardiologist who spent time in the 
United States Public Health Service (USPHS), and my mother was 
a nurse, so I learned from an early age that there is no higher 
calling than serving one's community. While it is the South 
Asian stereotype that one's children should grow up to be 
doctors, my family has supported, or at least tolerated, my 
decision to serve my community as a lawyer.
    I currently serve as the Solicitor General for the District 
of Columbia, representing the district and over 50 
administrative agencies before the local and Federal appellate 
courts. In my 8 years in the office I have worked on over 2,500 
cases in the D.C. Court of Appeals involving issues including 
administrative law, contract disputes, criminal law, employment 
discrimination, family law, the Home Rule Act, torts, tax, 
workers' compensation, and zoning. If I am fortunate enough to 
be confirmed, I would join the bench with a deep understanding 
of the Court's docket and could quickly contribute to the 
Court's pressing work.
    Before joining the district government I had a broad-based 
appellate practice with both O'Melveny and Myers and the Office 
of the Solicitor General at the United States Department of 
Justice (DOJ). In both positions, I had extraordinary 
opportunities to work on civil, administrative, and criminal 
appeals in the United States Supreme Court and appellate courts 
around the country, and I also had the great fortune to begin 
my career as a law clerk to Judge Louis Pollak on the U.S. 
District Court for the Eastern District of Pennsylvania and 
Judge Thomas Ambro on the U.S. Court of Appeals for the Third 
Circuit. From watching their exemplary work as judicial 
officers I came to truly understand and appreciate what it 
means to have a judicial temperament. Win or lose, parties left 
both judges' courtrooms knowing that they had been heard, and 
the resulting opinions were written in a way that could be 
understood by counsel and pro se litigants alike.
    It has been a privilege to serve the residents of the 
District of Columbia as its Solicitor General. With your advice 
and consent, I look forward to serving the district in a new 
role as an Associate Judge of the District of Columbia Court of 
Appeals.
    Thank you again for the opportunity to appear before you 
today, and I look forward to your questions.
    Chairman Peters. Judge Howard, you may now proceed with 
your opening comments.

    TESTIMONY OF THE HONORABLE JOHN P. HOWARD III\1\ TO BE 
     ASSOCIATE JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS

    Judge Howard. Thank you. Good morning Mr. Chair, Ranking 
Member, and Members of the Committee. I am honored and deeply 
grateful for the opportunity to appear before you as you 
consider my nomination and I am thankful to you and your hard-
working staff for holding this hearing. Thank you to 
Congresswoman Holmes Norton for her wonderful introduction.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Howard appears in the Appendix 
on page 66.
---------------------------------------------------------------------------
    I am thankful as well to the Judicial Nomination Commission 
(JNC) and its Chair, Judge Sullivan, for recommending me to the 
White House. I was extremely grateful to have been originally 
nominated last year and remain honored once again to be 
nominated for the second time this year. I am grateful to Chief 
Judge Anna Blackburne-Rigsby and the judges of the D.C. Court 
of Appeals for their time, encouragement, and guidance. It is 
humbling to be considered to be a potential colleague of the 
group of jurists that this Committee has assembled over the 
years.
    I am cognizant that I have never made it anywhere on my 
own, and for nearly 16 years little would have been possible 
without my wife, Brandi Howard, who is present with us today, 
especially our greatest blessing, our 2-year-old son, Jack, 
whose infectious joy permeates our lives, and who is 
represented today by his uncles, Waymon Peer and Mark Miller, 
who is also his godfather, present with us here.
    Thank you to the judges I began my career under, Alexander 
Williams, Jr. and David C. Simmons. Thank you to my clerk 
family and my colleagues. I would also like to express 
gratitude for the love and support of my Georgetown Hoya family 
and my Howard family, both from Howard University and the 
colorful family that I was blessed to be born into.
    Watching eagerly from his farm in Greer, South Carolina, I 
would like to thank and recognize my grandfather, Reverend 
Mickey Fisher. I would like to acknowledge my late 
grandmothers, Marilyn Fisher and Tala Howard, who loved me 
without limit. Finally, I would like to acknowledge my late 
father, Pete Howard. I was blessed to be raised by him. Dad 
taught in action and word, and a lesson he lived was to seek to 
command respect, not demand it, and that started with 
respecting everyone in front of you as equals in God's eyes and 
practicing kindness. I hope that my back will be half as broad 
as his in the eyes of my own son.
    For over 7 years it has been my privilege to serve my 
fellow citizens as an administrative law judge on two local 
administrative courts, where I have presided over nearly 2,000 
cases. I have worked to ensure that every party appearing 
before me can meaningfully participate in the adjudicative 
process and is heard, that the law is applied impartially, that 
my written decisions are clear, and that justice is provided in 
a timely fashion. At my current court this is no small task as 
our cases require written decisions and each judge is 
responsible for hundreds of decisions yearly, all appealable to 
the D.C. Court of Appeals.
    Prior to becoming an administrative law judge, I was in 
private practice. I began my career as a judicial clerk and 
then joined the law firm of Akin, Gump, Strauss, Hauer & Feld 
LLP in its first class of Pro Bono Scholars. Following my 
wife's graduation from law school, we moved to Texas where I 
engaged in solo practice, before returning to the district.
    If I am so blessed to receive your support and to be 
confirmed, I will remain committed to serving the residents of 
the District of Columbia. Thank you again for considering my 
nomination.
    Chairman Peters. Thank you. Judge Noti, you may now proceed 
with your opening remarks.

 TESTIMONY OF THE HONORABLE ADRIENNE JENNINGS NOTI\1\ TO BE AN 
  ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    Judge Noti. Good morning, Chairman Peters, Ranking Member 
Portman, and Members of the Committee. I thank you for the 
opportunity to appear before you today and for considering my 
nomination to be an Associate Judge of the Superior Court of 
the District of Columbia.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Noti appears in the Appendix on 
page 102.
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    I would like to thank all the members of the Judicial 
Nomination Commission and specifically its chair, the Honorable 
Emmet Sullivan, for recommending me to the White House, 
President Joseph Biden for nominating me, and to Congressman 
Eleanor Holmes Norton for her kind introduction.
    I also wish to recognize and thank D.C. Superior Court 
Chief Judge Anita Josey-Herring, former Chief Judge Robert 
Morin, and former Chief Judge Lee Satterfield, who appointed me 
as a Magistrate Judge in 2014. I would also like to thank my 
current Magistrate Judge and Associate Judge colleagues for all 
of their support, and I thank the committee staff for their 
work in preparing for this hearing.
    Today I am pleased to be joined by my members of my family. 
My husband, Adav Noti, is here supporting me today, as he has 
done for every day of our marriage. We are joined by our 
children: our daughter Lila, who is 11, and our son Emmett, who 
is 9. Even though it entails wearing dress clothes, they are 
excited to be here, and not just because they get to miss 
school. I am also joined virtually by my mother, Carolyn 
Lockie, and I owe her for all that is good in me.
    I am a proud native Washingtonian, and my children attend 
the same public elementary school and public middle school that 
I attended. My mother raised me all alone, while working full 
time, without any support, and making it look easy. She 
instilled in me the value of education, of hard work, of 
respecting others, and the strength of willpower.
    As an adult, I now see that although she made being a 
single parent look easy, it most certainly was not. Her 
constant and ongoing sacrifices are a direct cause of my 
success. My whole family is a constant source of inspiration, 
support, and positivity, and I am grateful to them for all they 
do to allow me to grow and to serve the citizens of the 
district.
    I am currently a Magistrate Judge in D.C. Superior Court 
where I have served since 2014. I have been honored to serve in 
every division of the court: Family, Criminal, Civil, Probate, 
and the Domestic Violence Divisions. I have presided over 
thousands of cases in our most high-volume courtrooms, rendered 
verdicts on over 100 bench trials, and explained my decisions 
to numerous pro se litigants. Throughout my time as a judicial 
officer I have cherished serving my city and playing a role in 
the fair and efficient administration of justice for district 
residents.
    Prior to my appointment as a judicial officer, I served the 
Federal Office of Child Support Enforcement, where I worked to 
develop and implement Federal child support policy and led 
national child support initiatives to improve access to 
justice. Before that, as a Managing Attorney for the D.C. Bar 
Pro Bono Program, I arranged pro bono representation of family 
law matters in D.C. Superior Court.
    And as a clinical law professor and director of legal 
clinics, first at Rutgers School of Law-Newark and then at 
American University's Washington College of Law, I taught 
students how to zealously represent people in crisis and 
supervised the representation of low-income clients in local 
courts. I also previously represented survivors of domestic 
violence and served as a Federal law clerk for the Honorable 
Carol Bagley Amon of the Eastern District of New York.
    My first case ever was as a law student in a clinic at 
Georgetown University Law Center. There I had the opportunity 
to appear before the D.C. Superior Court. Since that first 
case, the D.C. Superior Court has become my second home. I am 
humbled by the opportunity, if confirmed, to be an Associate 
Judge in D.C. Superior Court and to continue to serve the 
district.
    I look forward to answering any questions you have today. 
Thank you.
    Chairman Peters. Thank you. There are three questions that 
the Committee asks of every nominee, and I am going to ask each 
of you to respond with a simple yes or no. We will start with 
Judge Noti when I ask the question and then we will work down 
the dais there.
    First, is there anything you are aware of in your 
background that might present a conflict of interest with the 
duties of the office to which you have been nominated?
    Judge Noti. No, Senator.
    Judge Howard. No, Senator.
    Ms. AliKhan. No, Senator.
    Chairman Peters. Second, do you know of anything personal 
or otherwise that would in any way prevent you from faithfully 
and honorably discharging the responsibilities of the office to 
which you have been nominated?
    Judge Noti. No, Senator.
    Judge Howard. No, Senator.
    Ms. AliKhan. No, Senator.
    Chairman Peters. Last, do you agree, without reservation, 
to comply with any request or summons to appear and testify 
before any duly constituted committee of Congress if you are 
confirmed?
    Judge Noti. Yes, Senator.
    Judge Howard. Yes, Senator.
    Ms. AliKhan. Yes, Senator.
    Chairman Peters. Thank you.
    The first question will be to all three of you, and we will 
start with Ms. AliKhan this time and work the other way to mix 
it up a little bit. But the first question I have for all three 
of you, is the D.C. courts handle an extremely high volume of 
cases and vacancies on both the Superior Court and the Court of 
Appeals have contributed to significant backlogs of cases.
    If confirmed, how will you manage your caseload efficiently 
while also ensuring that each person who comes before you has a 
meaningful opportunity to be heard?
    Ms. AliKhan.
    Ms. AliKhan. Thank you, Senator. If I were fortunate enough 
to be confirmed, I would run my chambers quite similarly to the 
way I run the current Office of the Solicitor General for the 
District of Columbia, where we have over 500 cases a year, many 
of them in the D.C. Court of Appeals. I would make sure that I 
would always be well-prepared by the time of argument, that I 
would have read the briefing, that I would have done 
independent research, and that I would have a framework for how 
I felt questioning should go. I would then, after argument, 
promptly circulate draft opinions and promptly provide feedback 
to my colleagues who were writing opinions on the panel.
    I think by virtue of having a deep experience with district 
law and a number of years practicing before the D.C. Court of 
Appeals I would be able to get up to speed very quickly and 
dive into the court's pressing work and contribute to cutting 
down on the backlog. Thank you.
    Chairman Peters. Thank you. Judge Howard.
    Judge Howard. Thank you, Senator. In addition to what my 
colleague has stated and what I agree with, I would practice as 
I do now in my courtroom, and particularly when requests for 
continuance come in review those carefully and only grant them 
for truly important reasons when there is good cause for it, to 
keep the cases moving and to do that consistently so that 
attorneys know they must be prepared and they must move cases. 
Then use my experience at the Office of Administrative Hearings 
in a similarly high-volume docket, where I must write written 
decisions to conclude cases, to timely prepare my decisions 
much in the way that my co-nominee described, and to circulate 
drafts and to be responsive to my colleagues. Thank you.
    Chairman Peters. Thank you, Judge. Judge Noti.
    Judge Noti. Thank you. In the last 7 years as a Magistrate 
Judge I have heard over 50,000 cases, and the way I have been 
able to get through that high volume of cases is by being 
efficient, by asking key questions to get to the heart of the 
matter from the litigants, by calendaring cases efficiently, 
and setting and following scheduling orders, and by being a 
team player and working with the other colleagues on the court.
    Chairman Peters. Ms. AliKhan, you have served as an 
advocate for most of your career. If you could let the 
Committee know what challenges you may anticipate facing as you 
shift from your role as an advocate to the role of an impartial 
adjudicator, and how are you preparing for this transition, if 
you are confirmed?
    Ms. AliKhan. Thank you, Senator. Yes, I have spent the bulk 
of my career as an advocate, and I recognize that the role of 
an advocate is quite different from the role of a neutral 
arbiter. As an advocate you zealously represent your client and 
you make the best arguments you can, consistent with the law 
and the state of the record.
    As an adjudicator you need to have an open mind. You need 
to research the law thoroughly, you need to hear the parties' 
arguments, and then you need to consult with your colleagues to 
determine what the answer is and how it is dictated by the law.
    I think I have had the opportunity to practice some of 
those skills in my role as Solicitor General, because as an 
institutional litigant we often have to take a fresh look on 
cases when they come up on appeal and weigh the consequences. 
Do we take this appeal? Do we wait for another one? Where does 
the law really fall on this?
    I think I have had some experiences as Solicitor General 
that have prepared me. I also would draw upon the 2 years I 
spent clerking, where I learned from two Federal judges how to 
decide cases without regard to any personal preferences and 
just follow the law and see where it takes you. Thank you.
    Chairman Peters. Thank you. Ranking Member Portman has 
joined us via video. Ranking Member Portman, you are recognized 
for your questions.

              OPENING STATEMENT OF SENATOR PORTMAN

    Senator Portman. Thank you, Mr. Chairman. I appreciate it. 
I was thinking that the Ranking Member today, who is James 
Lankford, would go first, so I will be very brief, to allow 
Senator Lankford to have an opportunity to speak.
    I have appreciated the testimony this morning, and I have 
looked at the background of all three of our candidates. They 
have good experience, both in law, in the nonprofit sector in 
one case, and all of you contribute to your community in 
various ways, and I appreciate that.
    One of the things that was raised in our previous hearings 
with other judges is the issue of safety and violence in the 
District of Columbia, the increase in crime, and the role that 
these courts play. Mayor Bowser, as you know perhaps, made a 
comment that she thought that the backlog was creating a safety 
issue for the District of Columbia, and expressed some concerns 
about, again, the amount of criminal activity and the increase, 
really at an alarming rate.
    I would like all three of you to address that if you would, 
understanding that every part of our government plays a role 
and that the courts are not going to play the singular role, 
the only role here, but an important role in ensuring that 
justice is done and that criminals are prosecuted properly to 
try to act as a deterrent to crime.
    So could you speak to the issue of crime in the District of 
Columbia and what your intent would be, should you be 
confirmed?
    Ms. AliKhan. Thank you, Senator. I agree that crime is a 
problem in the district. As a long-time district resident any 
crime is unacceptable. As a judge, I think the role is to take 
the cases that come before you, but one way in which I think, 
if I was fortunate enough to be confirmed, that I could assist 
is by quickly resolving criminal cases.
    While there are Speedy Trial Act concerns that come into 
play when things are in trial court, there is no set timeframe 
for deciding criminal appeals. I would make it a priority to 
swiftly handle those cases, because that brings closure and 
finality to the victim, it provides certainty to the public 
that public safety is being protected, and so I think it would 
be very important to prioritize those cases.
    Senator Portman. I appreciate that response, and that also 
goes to the issue of the backlog, over 10,000 cases as I 
understand. So the expedited reviews are really important.
    Other thoughts from the other two candidates?
    Judge Howard. Thank you, Senator. I agree completely, and 
as a father, resident, homeowner in the district with my 
family, no amount of crime is acceptable.
    In addressing the crime I would work diligently, as I do at 
my current court, to move those cases and attack the backlog. I 
think that is the biggest thing we can do.
    The D.C. Court of Appeals has been without a full 
complement of judges for at least 8 years now, and at this time 
has less than half of the senior judges assisting the active 
judges that they had at the time of the oldest vacancy. I 
think, if I am so blessed to be confirmed, I can take my skills 
managing a high-pressure and high-volume docket and ability to 
come up to speed quickly on the law and contribute in clearing 
that backlog and speedily processing criminal cases. Thank you.
    Senator Portman. Thank you.
    Judge Noti. Thank you, Senator Portman, for your question. 
I agree with my fellow nominees and I want to address more of 
your backlog question. When I was assigned to the Family 
Division in January 2020, the pandemic hit in March and we shut 
down our courtrooms. By May 2020, I had my first virtual trial, 
and by August had a full virtual courtroom, and by October 
2020, had cleared entirely the backlog in my caseload, through 
collaborating with the other judges and by being efficient and 
scheduling tightly.
    I think that I can bring those skills to the position of an 
Associate Judge, if fortunate enough to be confirmed.
    Senator Portman. Thank you, Ms. Noti. Those skills will be 
needed, and I appreciate again all of you being here. I am 
going to ask that any additional questions I have are entered 
for the record, to be able to get to the other members, 
including Senator Lankford. Senator Lankford, thank you for 
being the Ranking Member today. In your Subcommittee role it is 
appropriate, in my view, and I hope we can move expeditiously 
ourselves.
    Thank you, Mr. Chairman.
    Chairman Peters. Thank you, Senator Portman, and Ranking 
Member Lankford is continuing to defer to other Members who 
wish to ask questions.
    Senator Carper, you are now recognized for your questions.
    [Pause.]
    We see you, Senator Carper.
    Senator Carper. Yes.
    Chairman Peters. We hear you as well.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. Great. Thank you.
    When I was privileged to serve as the Governor of Delaware 
for 8 years it was my responsibility to nominate individuals to 
serve on Delaware's very highly regarded Supreme Court and our 
Court of Chancery. In considering potential candidates I looked 
for a number of attributes, and my guess is our colleagues do 
as well. One of them was sound moral character, complete 
willingness to listen to both sides of an argument, judicial 
temperament, and the ability to make difficult decisions with 
sound reasoning.
    Ms.--I want to make sure I am pronouncing your name right--
AliKhan. Is that right?
    Ms. AliKhan. Yes, Senator. AliKhan.
    Senator Carper. Very good. Thank you. Judge Howard and 
Judge Noti--is it Noti?
    Judge Noti. Noti. Yes, Senator.
    Senator Carper. OK. Thank you all for being with us today. 
Thank you for your interest in serving in these roles.
    Could you each take a minute apiece to simply discuss the 
importance of having these attributes as a judge, the ones that 
I have just mentioned, and how would you bring them to bear in 
the District of Columbia Superior Court and the Court of 
Appeals, if you are confirmed?
    One at a time, please. Ms. AliKhan?
    Ms. AliKhan. Thank you, Senator. I believe those attributes 
are essential to being a successful judge. I think it is 
important to recognize that while for a judge the courtroom is 
a home away from home, for many litigants it is their only 
interaction with the judicial system. It is very important to 
make sure litigants know that they are heard and that they are 
respected and that regardless of the outcome of the case they 
have had the ability to present their views.
    Now, of course, judging involves making difficult 
decisions. The law will take you in directions that are going 
to hurt one party or another. I think the judge's duty in that 
circumstance is to clearly and concisely explain the rationale 
for why the law dictates a particular result. Thank you.
    Senator Carper. Yes, thank you for that response. Judge 
Howard, please, same question.
    Judge Howard. Thank you, Senator. Judges have an ethical 
duty to model those traits that you described. The canons of 
judicial ethics require judges to behave in a manner that 
brings respect and dignity to the court and enhances the faith 
that people have in the court and in our decisions.
    As a judge, the appearance of impropriety on its own, not 
actual impropriety, is enough to have a violation of our 
ethics. In my practice as a judge for over 7 years, and as an 
administrative law judge, where we have the additional duty to 
complete the record and where we often hear from people who do 
not have the representation of attorneys, it has been our duty 
to model those traits and to make sure that individuals cannot 
only meaningfully participate but that they know they are 
heard. Part of that is in addressing their arguments and 
getting timely justice out to them.
    Senator Carper. Thank you.
    Judge Noti. Thank you for your question, Senator. Being 
neutral and fair really is the heart of what judges do, and 
having an appropriate demeanor is also crucial to public 
confidence in the administration of justice. I would, if I were 
fortunate enough to be confirmed, continue to use the judicial 
skills I have gained so far as a Magistrate Judge. Thank you.
    Senator Carper. Good. Thank you for those responses.
    My next question is in each of your opening statements, all 
three of you mentioned that you worked on, thousands of cases 
throughout your career working in the District of Columbia's 
courts. Meanwhile, the average time between vacancy and 
confirmation for the last five judicial nominees to the D.C. 
Superior Court, I think it is nearly 3 years, and for the Court 
of Appeals I think the average vacancy lasts over a year.
    Could each of you take a moment to explain how these 
longstanding judicial vacancies affect the ability of D.C. 
courts to function and process cases in a timely manner? I 
would also ask if you could maybe provide an example of how 
these vacancies have affected your work in your current jobs. 
Go ahead.
    Ms. Noti, would you go first?
    Judge Noti. Thank you, Senator. One of the ways in which 
the vacancies have affected daily life of the court is that 
Magistrate Judges have taken on even more responsibilities. And 
so I have been fortunate, over the last 7 years, to take on 
more complicated issues, and that has been a key part of the 
way that the courts have tried to overcome some of the 
challenges of the vacancies.
    Senator Carper. Thank you. Judge Howard, same question.
    Judge Howard. Thank you, Senator. The Court of Appeals 
vacancies have affected the court in its speed of processing 
and its backlog, not only with the vacancies with active judges 
but unlike many other courts of final appeal, the D.C. Court of 
Appeals has senior judges as well who are former active judges 
who take on an active role and utilize their expertise to help 
the court.
    The oldest vacancy that is outstanding for the D.C. Court 
of Appeals, as I stated earlier, is 8 years old, and at that 
time, when that vacancy came open there were a little over 
twice as many senior judges as there are today.
    In terms of how it has affected my work at the D.C. Office 
of Administrative Hearings, we are an incredibly high-volume 
court and many appeals come from our court, and the guidance 
from those appeals that we weight on is what would be helpful 
in processing many more cases that are coming up all the time 
and with new law developing out of the court.
    Senator Carper. Thank you. Ms. AliKhan.
    Ms. AliKhan. My practice has been primarily before the D.C. 
Court of Appeals for the past 8 years, and in those 8 years 
there has never been a full complement of active judges on the 
D.C. Court of Appeals.
    Senator Carper. Never? Did you say never, in 8 years?
    Ms. AliKhan. Never. In the 8 years that I have been 
practicing in the Office of the Solicitor General there has 
been at least one vacancy, because the vacancy from Judge 
Oberly was created in 2013, and since then we now have two more 
vacancies and we have a fourth on the way.
    Where this affects me and my practice, and district 
residents, frankly, is it delays decisionmaking, because the 
D.C. Court of Appeals is one of the highest-volume appellate 
courts in the country, and it has essentially been functioning 
with one hand tied behind its back. And so I have had cases, 
expedited cases even, cases that are required to be decided in 
an expeditious manner by statute, that sometimes take 2 or even 
3 years between argument and decision, and that is simply 
because there is just not enough time for the judges to address 
the thousands of cases that come before them when they have 
vacancies and they do not have as many senior judges, as my co-
nominee mentioned, as they used to. Thank you.
    Senator Carper. Let me say to my colleagues--thank you all 
for your responses--I think it is atrocious that we have 
vacancies 2, 3, or 4 years, and longer in these courts. We are 
not the solution here. We are part of the problem. The other 
part of the problem is that the District of Columbia, they do 
not have the ability to select and confirm their own judges. We 
need to change that, and we can change that, and I hope you 
will change that. Thank you.
    Chairman Peters. Thank you, Senator Carper. Ranking Member 
Lankford, you are recognized for your questions.
    Senator Lankford. Good. Thank you very much. Thanks to all 
of you again for going through this process. I want to ask a 
question similar to what you have been asked before, dealing 
with the backlog, but this one is particular to how you handle 
attorneys that are coming in front of you that perpetually ask 
for a delay, an extension, they need more time to be able to 
gather more facts and information.
    How do you handle making sure that the people in front of 
you actually get justice and not just have an attorney that is 
just delaying and did not spend the prep time? All of you 
described your prep time. What I want to know is how are you 
holding attorneys to account to make sure they are prepared to 
actually bring justice to the clients they work with?
    Judge Noti, let me start with you first.
    Judge Noti. Thank you for your question, Senator. It really 
starts with setting the expectations in the courtroom of what 
is to be expected by those that appear before you. I cannot 
remember the last time I granted a request for continuance, and 
so people stop asking for them. As you mentioned, coming to 
court prepared and ready to hear the cases before you is the 
key way that we can avoid delayed justice.
    Senator Lankford. Terrific.
    Judge Howard. Thank you, Senator. I agree with my co-
nominee, and it has been my practice, and I alluded to it 
earlier, to only grant continuances in cases of true necessity. 
I have found, in over 7 years as a judge, that while attorneys 
are incredibly busy, they rise to meet the standard if it is 
set consistently and they know what to expect.
    Senator Lankford. OK. Ms. AliKhan.
    Ms. AliKhan. Thank you, Senator. Under the District of 
Columbia Court of Appeals rules extensions should only be 
granted for good cause. If I were on a motions panel I would 
make sure that extensions were only granted when good cause had 
been shown. I also would want to make sure that appointed 
counsel--because there are counsel that are appointed in a lot 
of civil cases, sometimes go through a process where they get 
appointed, they withdraw, and new counsel gets appointed--they 
need time, that we do what we can on the administrative side of 
the court to make sure that those appointments, that they 
stick, first of all, and that those counsel who are appointed 
are going to follow through with the cases and not seek lengthy 
extensions.
    Senator Lankford. OK. Ms. AliKhan, you have been solicitor 
already for quite a while there and you have seen a lot of 
things come and go and dealt with a lot of things in the 
Mayor's Office and all that is happening in the courts. What do 
you see as the most significant issue that D.C. is facing right 
now in the courts? I am fully aware of the backlog and trying 
to get fully staffed. Beyond that, what are the significant 
issues that judges can address in this role, to be able to help 
D.C.?
    Ms. AliKhan. Thank you, Senator. I do think the backlog is 
the biggest problem. When you are seeing a 5-year delay from 
when an appeal is filed until when an opinion comes down, that 
causes the public to lose confidence and it also harms 
litigants. Especially when we are dealing with cases involving 
child custody, abuse or neglect, criminal cases, there needs to 
be swift justice. I think that is the first, second, third, and 
fourth biggest problem facing the district, and as a nominee, 
if I were confirmed, I would hope to be able to swiftly dive 
into the court's work.
    Senator Lankford. OK. Mr. Howard, how would you answer 
that?
    Judge Howard. I agree with my co-nominee and if I can be 
selfish and lean into my background a little bit, as an 
administrative law judge I have come across 2,000 cases, where 
it has been a case of first impression and I wished that I had 
had some guidance. There are obviously cases that are priority 
over these, such as the criminal cases in the backlog that we 
need to clear, but having a full complement of judges and 
clearing the backlog will give us the court time to address 
issues that may be further on the back burner.
    Senator Lankford. OK. Judge Noti, I am not going to give 
you that simple question. I want to ask you a different one. 
How do you handle being the presiding judge of the Family 
Treatment Court (FTC)? I cannot imagine a more emotional court 
than what you have handled in the caseload, in 50,000 cases 
that you handled as a Magistrate, looking at your own two 
beautiful children. I am not supposed to call Emmett 
beautiful--hey, good-looking guy. Sorry.
    So as I look at your two kids sitting behind you I cannot 
imagine what it was like in the caseload that you have handled. 
How do you manage that kind of caseload, and if you were to 
transition to a full-on judge where would you put that in the 
days ahead?
    Judge Noti. Thank you for your question and your kind 
words. I love being a Magistrate Judge, and it is intense and 
hard work, and presiding over the Family Treatment Court is a 
great joy. I get to see families working really hard to 
reunify. My role there, although it is intense, is really to 
continue to apply the facts to the law. In the abuse and 
neglect context I am looking at serious issues regarding 
families, whether it is termination of parental rights or 
contested adoptions, and it brings me great joy. I think 
working with that population will serve me well as an Associate 
Judge, because it is really the same people and the same 
litigants, with different types of legal issues.
    Senator Lankford. Yes. Very difficult caseload on that, and 
very emotional caseload to be able to deal with all the 
different family issues.
    Ms. AliKhan, as a solicitor obviously D.C. deals with a lot 
of hard issues. There was a hard issue that came up last year 
that myself and several others were surprised at the way D.C. 
handled the issue of religious liberty, and specifically the 
accommodation for houses of worship during the pandemic time 
period, where houses of worship were limited to 100, but if you 
were at the farmer's market outside there was not a limitation 
for you. But if you are church meeting outside there was a 
limitation. There was a lot of push and pull in the 
conversation.
    I am not going to ask you private conversations for what 
you had with leadership during that time period, but this issue 
of religious liberty is really big one. As you know, Religious 
Freedom Restoration Act (RFRA) has a balancing test that the 
government is only involved if it absolutely has to, and it has 
to be able to honor that.
    My question for you really circles around how you are going 
to deal with this compelling governmental interest and to be 
able to balance this out, because you are going to deal with a 
lot of issues, and one of them may come up pretty quickly, on a 
vaccine mandate to an individual, and someone says they have a 
religious accommodation request. How do you evaluate religious 
accommodation requests and a balance of that for those 
individuals on this type of issue and religious liberty?
    Ms. AliKhan. Thank you, Senator. I take religious liberty 
very seriously, and as a covered entity under RFRA the District 
of Columbia does have to show a compelling government interest 
and show that it is narrowly tailored if even a neutral law is 
going to substantially burden another's religion. That is a 
standard that I would faithfully apply if I were to be 
confirmed.
    You mentioned the Mayor's orders. I want to note that the 
Mayor and the Attorney General are independently elected, and 
so the Mayor's orders come from the Mayor's Office of Legal 
Counsel (MOLC). Obviously, in my position as Solicitor General, 
I represent the Mayor as a client, but I myself was not 
involved in the creation of any of those orders. Thank you.
    Senator Lankford. OK. Thank you.
    Mr. Howard, I cannot imagine how much fun it is to have the 
last name of Howard and attending Howard University. I hope you 
used that time period well, to be able to have some extra swing 
on campus. You also have the unique position of being one of 
the few people on the planet that both Joe Biden and Donald 
Trump agree on, that you have been nominated by both to be able 
to come to this position, which also means you have been in the 
queue a very long time.
    You have had a lot of time to be able to think about this. 
I appreciate your longevity to be able to walk through a very 
difficult, long process in this. I do not have a particular 
question with that, but I want to be able to say to you 
specifically, thanks for a very long wait in that process.
    Judge Howard. Thank you, sir.
    Senator Lankford. Thank you. Mr. Chairman, I yield.
    Chairman Peters. Thank you, Ranking Member Lankford. 
Senator Hawley, you are recognized for your questions.

              OPENING STATEMENT OF SENATOR HAWLEY

    Senator Hawley. Thank you very much, Mr. Chairman, and 
thanks to the nominees for being here. Congratulations on your 
respective nominations.
    Ms. AliKhan, if I could start with you, I want to pick up 
where Senator Lankford left off just a moment ago and ask you 
about these lockdown orders that the District of Columbia held 
were unlawful. Just to follow up on something, did you have any 
role in the policy of these lockdown orders in terms of 
creating the lockdown orders?
    Ms. AliKhan. Thank you, Senator. No, I did not. The Mayor's 
Office of Legal Counsel passed those orders.
    Senator Hawley. OK. Did you have any role in the 
litigation? I see that you were not formally listed on the 
briefs but I just want to be sure. Were you involved in the 
litigation in any way?
    Ms. AliKhan. Yes, as with all high-profile litigation I was 
aware of it and I was involved, and as Solicitor General I make 
a decision of whether or not to take affirmative appeals from 
adverse decisions, and I think it is a matter of public record 
and not betraying any client confidences to say that the 
District did not appeal the preliminary injunctions in the 
Capitol Hill Baptist case and the companion Archdiocese case.
    Senator Hawley. Do you agree with the Federal District 
Court's conclusion in that case, that the restrictions violated 
the free exercise of religion?
    Ms. AliKhan. In light of ethical duties to my clients I do 
not think I can comment on whether the District Court's 
opinion, in my view, was correct or not. I can say, as a matter 
of public record, the District of Columbia did not appeal those 
preliminary injunctions.
    Senator Hawley. The U.S. Supreme Court, similarly struck 
down restrictive lockdown measures by New York and California 
in separate cases. Let me ask you this. What do you understand 
to be the current framework, doctrinally, for evaluating claims 
of religious discrimination?
    Ms. AliKhan. Sure. Senator, I think it depends. If you are 
in the RFRA context and a neutral law that substantially 
burdens religion will be subject to strict scrutiny and has to 
satisfy a compelling government interest and be narrowly 
tailored to that effect. Outside of the RFRA context, in the 
cases like Tandon and others that the Supreme Court was 
considering, they were applying the tests set forth in in 
Lukumi, which is that even a facially neutral law can have a 
burden on religion, and if so then strict scrutiny is 
triggered.
    I think what we learned from Tandon and the other cases, 
which were the first time the Court was able to address the 
question of how Coronavirus Disease 2019 (COVID-19) regulations 
interreacted with religious liberty, was that if any secular 
activity is treated more fairly than a religious activity that 
that raises the bar and strict scrutiny applies.
    Senator Hawley. Let me come back to the District of 
Columbia case. Given what the District Court found there and 
its holding, and given what the United States Supreme Court has 
found in the Brooklyn Diocese case and the South Bay United 
Pentecostal case, and others, what is your--let me put it to 
you this way. I mean, do you regard this issue now as settled, 
these cases as controlling, and are you prepared to follow this 
as a precedent-established case law?
    Ms. AliKhan. Thank you, Senator. With the caveat that in 
the district RFRA applies, I think yes, the standard has been 
set----
    Senator Hawley. Which ought to heighten the protections.
    Ms. AliKhan. Yes, which has heightened protections. But I 
fully understand that the Lukumi text, which has been 
reaffirmed time and again, from Fulton, and then was applied in 
the context of COVID-19, and Tandon and other cases, absolutely 
is the framework. It has been the framework and it is one that 
I would faithfully apply if I were presented with such a 
question, if I were fortunate enough to be confirmed.
    Senator Hawley. I appreciate that answer. I have been in 
the position, or akin to the position that you hold now. I was 
the Attorney General (AG) of my State, so I understand that 
sometimes, and similarly in my State, I was independently 
elected, and so the Governor and other officers in the State 
were my clients and, you do not pass the laws. You defend the 
laws. That is your job. In fact, you never get to choose what 
the laws are. You defend them. I understand the position that 
you were in as it regards to your client, and so fair enough.
    I do want to say, for the record, in light of the Capitol 
Hill case, the Capitol Baptist case, and the District Court's 
opinion there, I think that what the district attempted to do 
was very wrong. It was contrary to law, I think that it was 
unjust, and the District Court's opinion, which I have read a 
number of times now, is very unequivocal. It is very strong 
language. The idea that you would single out people of faith 
and say that they cannot even meet outdoors if they are masked 
and they limit their gatherings but yet other secular, non-
religious groups and entities can do that, that is hugely 
problematic.
    So it is sounds to me like you appreciate that because you 
have recognized the case law that is controlling on this now, 
and as we have now discussed, and I think established that U.S. 
Supreme Court has weighed in on this. But I cannot let this 
issue pass without noting that and saying again how deeply 
troublesome I find it. Again, I do not blame you or your office 
for defending the law. You are supposed to do that. I am glad 
that you did not take an appeal. I think that was the right 
decision. Hopefully that speaks well about your evaluation of 
the case.
    Let me ask you about something different. You were counsel 
of record, I believe, for an amicus brief on behalf of the 
District of Columbia and 17 States in the Brnovich case. Do you 
remember this case? It was in support of the Democratic 
National Committee (DNC), their position in the Brnovich case.
    Ms. AliKhan. Yes, Senator.
    Senator Hawley. So that caught my attention because 
usually--I mean, that case was about Arizona's interest as a 
State in regulating its own elections, and typically States 
support other States--D.C. is not a State, but D.C. as an 
entity, as its own independent entity, often it stands with 
other States in supporting federalism concerns. You did not do 
that here.
    I just am curious as to why you felt it was important to 
lead this effort on behalf of the DNC and the DNC's position, 
which the Supreme Court rejected. The Court did not agree with 
your position in the Brnovich case. But just walk me through 
why you felt it was important to weigh in here against 
federalism and in favor of uniformed Federal standards that the 
Supreme Court ultimately rejected.
    Ms. AliKhan. Thank you, Senator. The district wanted to 
provide the experience of States to show that while elections 
are a matter of State concern, Section 2 of the Voting Rights 
Act does not impose a substantial burden on them. We were 
writing a brief from experience, as many States do, to provide 
context to the Supreme Court of how a particular law plays out 
on the ground.
    The factors that we focused on in the Supreme Court were 
that it is a fact-specific, context-specific, evidence-specific 
totality of the circumstances inquiry and ultimately the 
Supreme Court did not rule in favor of the party we were 
supporting but they endorsed, in the majority opinion, the 
totality of the circumstances test. I see the amicus brief we 
filed as being consistent with the ultimate holding of the 
case.
    Senator Hawley. My time has just about expired, but can I 
just ask you, do you think voter ID requirements are illegal?
    Ms. AliKhan. I have not had occasion to consider that 
question in my 15 years of appellate practice.
    Senator Hawley. You do not have any opinion on it at all? 
It has been much litigated. It was at issue, in part, in the 
Brnovich case.
    Ms. AliKhan. No, Senator, I do not.
    Senator Hawley. Do you think it is unreasonable for States 
and counties to require a form of voter identification (ID) in 
order to vote?
    Ms. AliKhan. Senator, I would not want to give the 
impression that I had prejudged any issue, were I fortunate 
enough to be confirmed, and I can assure you that my personal 
beliefs have never come into play when I am considering the 
advocacy positions of my client or if I were to consider any 
law that were to come before me.
    Senator Hawley. If that is the case shouldn't the answer be 
real easy? Shouldn't the answer be that there are absolutely 
not illegal, given the Crawford case?
    Ms. AliKhan. Senator, the answer would be that if presented 
with such a case I would review the law, including Crawford, 
and I would apply it faithfully.
    Senator Hawley. So you recognize Crawford as good law and 
controlling?
    Ms. AliKhan. Yes, I do.
    Senator Hawley. OK. I might have some more questions for 
you on that. I am sorry, Mr. Howard and Ms. Noti, that I did 
not get to you. You probably are not sorry. But congratulations 
also on your nominations. I will have some questions for you 
for the record.
    Thank you, Mr. Chairman.
    Chairman Peters. Thank you, Senator Hawley.
    The nominees have filed responses to biographical and 
financial questionnaires.\1\ Without objection, this 
information will be made part of the hearing record,\2\ with 
the exception of the financial data which is on file and 
available for public inspection in the Committee offices.\3\
---------------------------------------------------------------------------
    \1\ The information for Ms. AliKhan appears in the Appendix on page 
26.
    \2\ The information for Judge Howard appears in the Appendix on 
page 67.
    \3\ The information for Judge Noti appears in the Appendix on page 
104.
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    The hearing record will remain open until 12 p.m. tomorrow, 
December 3, for the submission of statements and questions for 
the record.
    This hearing is now adjourned.
    [Whereupon, at 11:10 a.m., the hearing was adjourned.]

                            A P P E N D I X

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