[Senate Hearing 117-806]
[From the U.S. Government Publishing Office]
S. Hrg. 117-806
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
JUNE 9, 2021
__________
Serial No. J-117-8
__________
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
54-504 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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Page
OPENING STATEMENTS
Durbin, Hon. Richard J........................................... 1
Grassley, Hon. Charles E......................................... 3
VISITING INTRODUCERS
Murray, Hon. Patty, U.S. Senator from Washington................. 9
Schumer, Hon. Charles, U.S. Senator from New York................ 5
Cantwell, Hon. Maria, U.S. Senator from Washington............... 376
Bennet, Hon. Michael F., U.S. Senator from Colorado.............. 7
Gillibrand, Hon. Kirsten E., U.S. Senator from New York.......... 4
Hickenlooper, Hon. John W., U.S. Senator from the State of
Colorado....................................................... 8
NOMINEES
Estudillo, David................................................. 30
Questionnaire................................................ 40
Responses to written questions............................... 274
Additional materials......................................... 511
King, Lauren..................................................... 31
Questionnaire................................................ 98
Responses to written questions............................... 306
Additional materials......................................... 529
Lee, Eunice...................................................... 11
Questionnaire................................................ 177
Responses to written questions............................... 351
Additional materials......................................... 579
Lin, Tana........................................................ 32
Questionnaire................................................ 204
Responses to written questions............................... 402
Additional materials......................................... 589
Rossman, Veronica................................................ 12
Questionnaire................................................ 242
Responses to written questions............................... 449
Additional materials......................................... 605
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
----------
WEDNESDAY, JUNE 9, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
216, Hart Senate Office Building, Hon. Richard J. Durbin,
Chairman of the Committee, presiding.
Present: Senators Durbin [presiding], Leahy, Feinstein,
Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker,
Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse,
Hawley, Cotton, Kennedy, Tillis, and Blackburn.
Also present: Senators Murray, Schumer, Bennet, Gillibrand,
and Hickenlooper.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing will come to order. Today we
have five judicial nominees: Eunice Lee, nominated to the
second circuit; Veronica Rossman, to the tenth; three nominees
to the Western District of Washington, Judge David Estudillo,
Lauren King, Tana Lin. Several of our colleagues will formally
introduce the nominees. I'd like to make a few observations
before we start.
First, with these five nominees, the Biden administration
and Senate Democrats continue to strive for professional
balance on the bench across America. Today's slate includes,
for example, two Federal public defenders, a former immigration
attorney, an expert in Tribal law, and a civil rights champion.
I will concede that, historically, there are many former
prosecutors who ascend to the bench, and many of them do an
extraordinary job, so it's no reflection on their backgrounds,
what I'm about to say, but we need in our judiciary a
reflection of America across the board: demographics and
professional experience. To date, Federal judges have come from
that narrower pool of professional backgrounds, which I've
said, nothing wrong with that, they make great contributions to
justice in America, but we want to see if we can bring
diversity to the bench across America, and I think that's a
good goal.
Consider how many active circuit court judges have
experience as Federal prosecutors, active circuit court judges
in the Federal system: 48. How many have experience serving as
public defenders across America? Two. The numbers are even more
stark when it comes to the second and seventh--second and tenth
circuits, where 50 percent of the active circuit court judges
have Federal prosecutorial experience and not one as a Federal
public defender. I'm pleased to see efforts now underway to
address this imbalance, including the nominations of Ms. Lee
and Ms. Rossman to the second and tenth circuits, respectively.
My second observation is to note a fact that has been
raised many times by my Republican colleagues in previous
meetings, and that is about an organization known as Demand
Justice. To my knowledge, Demand Justice has no role in
choosing judicial nominees, and certainly the group has no
special influence over me. They've taken after me from time to
time, which is their right. Moreover, it's critically important
to look at who actually is driving the judicial selection
process in this administration. The answer is simple: the
President of the U.S. Senate.
Think about the five nominees before us today. They've been
recommended by and have the strong support of their home State
Senators. They were vetted and nominated by the White House.
Compare that to the role in previous Congress, where the
Federalist Society played an outsized role in selecting
nominees. Then-candidate Trump said, in a radio interview in
2016, and I quote, ``We're going to have great judges.
Conservative. All picked by the Federalist Society,'' he said.
Then-White House Counsel Don McGahn boasted in 2017 about the
prominence of the Federalist Society in choosing Trump's
judicial nominees. It's quite ironic that those who acquiesced
or even supported the Federalist Society's determinative role
in picking judges now have overstated the role of another
organization, Demand Justice.
My third observation is this. We should not expect or
require every judicial nominee coming before this Committee to
ascribe to originalism as their judicial philosophy. As my
friend Lori Lightfoot, the Mayor of Chicago, pointed out,
there's a very good reason why support for originalism should
not be a litmus test. This is what she said last year, and I
quote, ``You ask a gay, Black woman if she's an originalist?
No, ma'am, I'm not. That Constitution didn't consider me a
person in any way, shape, or form before I was a--because I was
a woman, because I am Black, and because I am gay. I'm not an
originalist,'' said the Mayor of Chicago.
She continued, and I quote, ``Originalists say, `Let us go
back to 1776, and whatever was there in the original language,
that's it.' That language excluded, incidentally,'' she said,
``over 50 percent of the people living in America today. So,''
the Mayor went on to say, ``I am not an originalist,'' she's
rather outspoken, as you noticed.
Our most important lodestar should be whether nominees
before us have the hallmarks of what makes a good judge.
Independent? Can they set aside personal beliefs and leave
partisan politics in the robing room? Will they apply the law
to the facts? Will they approach every case in a fair-minded
way? I firmly believe we can answer yes to these questions for
each of these nominees before the Committee today.
With that, I turn to my friend and Ranking Member Chuck
Grassley.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. I think any originalist would admit that
we take into consideration all the constitutional amendments,
27 or 28 of them, that's been added to the Constitution. Today,
we're here to congratulate the nominees and to hear from five
of them, two for the circuit, three for the district. I want to
thank Chairman Durbin for following standard practice of
dropping a district court nominee from the second panel when
putting two circuit nominees on the first panel.
The two circuit nominees continue President Biden's trend
of nominating criminal defense judges. Both are Federal
defenders: one in Colorado, the other in New York. I've said
repeatedly why we need to evaluate such nominees carefully,
both because of how Democrats looked at Trump nominees and
because of what liberal activists say about how these defense
judges will behave on the bench.
I want to go into all that--I'm not going to go into all
that again, because I spoke to that in a previous circuit
nominees before us, but my concerns still apply. I think this
trend also presents other problems. A circuit judge needs to be
a generalist. Criminal defense lawyers aren't going to be
Criminal Defense judges. They'll be hearing every kind of
Federal appeal. We need to make sure that they're ready to do
just that job.
Ms. Rossman, the nominee for the tenth circuit, is a
Federal defender in Colorado and Wyoming. She would replace
Judge Carlos Lucero, who was the first and only Hispanic judge
on the tenth circuit. While Ms. Rossman may bring the diverse
experience of being a criminal defense lawyer, I want to know
if she has the kind of deep diversity of experience that we saw
in Trump's tenth circuit nominees.
Judge Joel Carson, for example, was a criminal defense
lawyer, as well, but he also had experience in oil and gas,
employment law, land use, and commercial litigation. Judge
Allison Eid had significant experience in Indian law,
constitutional law, employment law, criminal law, and civil
litigation, and she did it all from the perspective of a
government lawyer, a private lawyer, a legal academic, and a
State judge. I want to ask Ms. Rossman about her other legal
experiences beyond being a criminal defense lawyer.
It's a similar situation with Ms. Lee. She has spent her
career specialized in criminal appeals in State and Federal
courts. I'm sure that will bring a diverse perspective on
criminal matters, but what about the rest of the court's
docket?
Sure, Trump nominee, Judge Michael Park, brought the
perspective of being a civil rights lawyer fighting to end
racial discrimination in college admissions, but he also had
experience in a broader constitutional law, environmental law,
and banking. He did this in big firms, small firms, and within
the Justice Department. Likewise, Judge Steven Menashi, the
first Iraqi-American on the second circuit, brought the
important perspective of a legal academic and executive branch
official, while also having wide experience in issues beyond
constitutional law, like antitrust, securities regulation, and
products liability.
In many ways, the second circuit is a commercial circuit.
What background will Ms. Lee bring to that aspect of the job?
As for the district court, we have three nominees for the
Western District of Washington. There are seven authorized
judgeships for that court, and currently only two judges.
That's because of the blue slip policy. Neither Chairman Graham
nor I contemplated doing anything to pressure our colleagues
from Washington on the district court, even though it was being
kept empty. As far as we were concerned, that was between those
Senators and the White House.
As to the nominee Judge Estudillo--brings an interesting
perspective from Eastern Washington, what he has called ``East
Washington values.'' Ms. King seems well respected in the bar.
Ms. Lin seems to have been very involved with so-called legal
resistance during the Trump years. I expect to have questions
about that for her to answer. Thank you, Mr. Chairman.
Chair Durbin. Make sure I get the proper starting point,
here. We have a number of colleagues who are going to join us
this morning to introduce several of the nominees. I was
thinking the Majority Leader----
Unidentified Speaker: He's still on his way. He's on his
way, so if we start with Senator Gillibrand.
Chair Durbin. On his way? Then we're going to reward early
attendance by the Junior Senator from the State of New York,
Senator Gillibrand.
STATEMENT OF HON. KIRSTEN E. GILLIBRAND,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Thank you, Mr. Chairman. Chairman
Durbin, Ranking Member Grassley, and Members of the Judiciary
Committee, it's my honor to join you today to introduce Eunice
Lee, nominee to be judge on the Second Circuit Court of
Appeals. Ms. Lee grew up in a military family and saw the
importance of public service from an early age. That committee
to--that commitment to serving your community and protecting
the rights of others has been a cornerstone of her legal
career, which she has spent in service to those most in need.
Following her graduation from Yale Law School and
clerkships in both the Southern District of Ohio and the Sixth
Circuit Court of Appeals, she joined the Office of the
Appellate Defender in New York City. During her 20 years at the
Office of the Appellate Defender, Ms. Lee served as a
supervising attorney and represented clients who were in great
need of legal assistance but could not afford representation.
She dedicated her practice to ensuring that everyone
interacting in our legal system, regardless of their financial
circumstances, was able to be heard.
In 2019, Ms. Lee joined the Federal Defenders of New York,
where she has advocated on behalf of her appellate clients
throughout the sentencing process by developing and presenting
a full picture of their lives that is not exclusively defined
by their mistakes.
Throughout her career, Ms. Lee has represented more than
380 indigent clients in proceedings before State and Federal
appellate courts on direct appeal, in post-judgment motions,
and in habeas proceedings. Working on those cases gave her an
acute awareness of the awesome power of our judicial system.
She fundamentally understands the staggering effects that the
laws can have on people's lives and its disproportionate impact
on low-income individuals convicted of crimes. Her clients are
people who desperately are relying on the promise of fairness
from the legal system, and she's fought to deliver on that
promise throughout her professional life. She's uniquely
positioned to bring a critically important perspective to the
bench and to the second circuit.
If confirmed, Ms. Lee would be the first and only judge on
the circuit with experience as a public defender and just the
second Black woman to serve on the circuit's bench. Her
recognition that every decision has far-reaching effects and
her commitment to fairness throughout the entire legal process,
regardless of the outcome for individual clients, will be among
her greatest strengths as a judge. Her approach to the law will
ensure that all who come before the court are given the chance
to be heard, and her voice and her experience will bring an
important and much needed new perspective to the bench. I now
defer to my Senior Senator.
Chair Durbin. We'd like to welcome Senator Schumer back to
the Senate Judiciary Committee. Senator.
STATEMENT OF HON. CHARLES E. SCHUMER,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. It's good to be
back at the Judiciary Committee. I spent many, many years,
actually, between my House and Senate service. I got on the
Judiciary Committee in 1982 in the House; was on the Judiciary
Committee from the very beginning, in 1999, when I got to the
Senate. I miss you all very much, but I'm glad to be here on
this auspicious occasion.
I'm glad to be here with Senator Gillibrand and Senator
Bennet, and I have the pleasure to introduce Eunice Lee--she's
an incredible public servant--to be nominated for the Second
Circuit Court of Appeals, where she will succeed the great
Judge Robert Katzmann, who we pray for, he's ailing right now,
a model public servant who took senior status this year after
more than two decades on the second circuit.
Ms. Lee is the daughter of an Air Force veteran--thank you
for your service, sir--born on base in West Germany. Ms. Lee is
a first-generation college student who graduated summa cum
laude from Ohio State before receiving her J.D. from Yale Law
School. Beyond that, she hasn't taken the typical path to the
seat she now occupies, a nominee for the second circuit, which
we in New York believe is the most important circuit court.
Some don't, but we do. DC is very important, and they all are,
but we love the second circuit.
Ms. Lee is not a former prosecutor or a product of a big
corporate law firm. Instead, Ms. Lee spent her entire career in
public service, dedicating herself to representing those
criminal defendants who cannot afford counsel. If confirmed,
she would be the only Federal defender among the second
circuit's active judges. The only one.
Let me take a note here, Mr. Chairman. I recommended her to
President Biden, and not only because she was outstanding, but
because we want to bring a great diversity of experience, as
well as other parts--other reasons for diversity, racial and
religious and LGBTQ, et cetera, but we want experience
diversity. I have been proud, now, to ask two people to join
the second circuit and ask President Biden to nominate them,
Ms. Lee and, now, of course, a second nominee, who was the
leading voting rights defender from the Brennan Institute, Ms.
Perez, Myrna Perez.
We're changing who sits on the bench. It's not just going
to be partners in fancy law firms or prosecutors, but people
who have that diverse experience. Ms. Lee personifies not only
excellence as a lawyer but that diverse experience.
She's currently a member of the Federal Defenders. She has
spent more than two decades in the Office of the Appellate
Defender in New York. She's represented over 400 indigent
clients on direct appeal and in post-conviction proceedings, as
well as in Federal habeas corpus petitions. She has argued
cases both at the State level and before the second circuit,
and over the course of her career, Ms. Lee has helped
defendants receive fairer sentences, get fairer treatment
during incarceration, make sure their constitutional right to
counsel was not infringed.
You know, we've all heard those words in the Miranda
warning, ``You have the right to an attorney. If you cannot
afford an attorney, one will be provided to you.'' It's one of
those fundamental rights we have here in a democratic society,
our great democratic society. It's--you know, along with the
Fifth Amendment, it's vital to the fairness of our judicial
system, but it takes dedicated public servants, lawyers willing
to work longer hours for lower pay, to make those rights real
in American courtrooms every day. That's Ms. Lee: someone who
has dedicated her career to making sure that equal justice
under law is faithfully applied for the impoverished as well as
the privileged.
Eunice Lee would bring a unique breath of fresh air to the
Federal bench that has sorely lacked the perspective of lawyers
like her. I just want to say to Ms. Lee and to the audience
here, she will not be the only person from this type of
background. There will be many more.
I mentioned Myrna Perez. Dale Ho--I just suggested
President Biden nominate him to the Southern District of New
York. He's the leading voting rights lawyers of the ACLU. There
will be many more. The bench will be filled with appointments
who will restore the balance that we believe has shifted way
over to the hard right during the Trump years, but it will also
shift in terms of experience and represent much more of America
than it had represented in the past, under our Democratic
majority and under President Biden.
Let me just conclude, again, with some of Ms. Lee's great
qualifications. She's been described by her colleagues as a
brilliant advocate, a first-rate legal writer, a natural
teacher, and a mentor. She's also been an adjunct Professor at
New York University, and her clinic on criminal appellate
advocacy, which she designed herself, is one of the courses in
highest demand at the law school. When I met with her, I saw
for myself the breadth of her knowledge but also her measured,
judicious approach to the law. She combines that experience
with the understanding that you always have to try to walk in
someone else's shoes.
Someone else's shoes. Just this week, a group of over 70
former New York Federal prosecutors, the folks who often found
themselves on the opposite side of Ms. Lee, called her a
brilliant, accomplished advocate who's supremely well qualified
to serve on the bench. Again, those were the folks who came up
against Ms. Lee, urging the Committee to confirm her. I can't
think of a higher compliment.
The Committee should also be aware that, if confirmed, Ms.
Lee would break another barrier. She would become only the
second African-American woman to ever sit on the second
circuit. After 4 years of confirming nominees that were
predominantly male and predominantly white, we have a lot of
work to do, to make sure the Federal judiciary reflects the
diversity of our Nation.
As the Senator from New York, as I mentioned, as well as
the Senate Majority Leader, it's my intent to recommend and
work to confirm judges who would bring both demographic but
also professional diversity to the bench. Expanding the range
of experiences and perspectives on the bench strengthens the
public's trust in our judiciary system and strengthens the
courts' ability to apply the law fairly, impartially. Ms. Lee's
confirmation would do precisely that for the prestigious and
important Second Circuit Court of Appeals. She carries my
fervent and strongest recommendation. Thank you, Mr. Chairman,
and it's good to see you as Mr. Chairman over there.
Chair Durbin. Thank you, Senator Schumer. We know you have
a busy schedule and appreciate you coming by to introduce the
nominee. Senator Gillibrand, thank you, as well. Senator
Bennet.
STATEMENT OF HON. MICHAEL F. BENNET,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Bennet. Thank you, Mr. Chairman, for having me
today, and to the Ranking Member Senator Grassley. Thank you
very much for holding this hearing and for inviting me to
introduce Veronica Rossman, President Biden's nominee for the
U.S. Court of Appeals for the Tenth Circuit, the most important
circuit in the United States of America.
Before I begin, I want to welcome her husband, Ken, and her
daughter, Sophie, who join us today. Thank you guys for making
the trip to Washington. I also want to say a word of thanks to
Carlos Lucero, who held this seat before this nomination, who
served the tenth circuit and our country with such
extraordinary distinction. Thank you to him and to his family.
Ms. Rossman comes to this Committee with broad legal
experience and a sterling reputation in Colorado. Ms. Rossman
cares deeply about justice and the rule of law, because she
knows what it means to live without them.
Mr. Chairman, Veronica was born in Russia, where her family
faced anti-Semitism at every turn. Her grandparents couldn't
openly practice their faith because they feared retaliation at
work. Her father was a brilliant cancer scientist, but he was
routinely denied promotions. Her mother, who's a pianist and
music teacher, never openly shared her faith, and the family
fled Russia. Veronica was a child at the time, and she came,
like so many other people, to America as a political refugee,
and from virtually nothing, she built a distinguished legal
career.
After earning her B.A. from Columbia and J.D. from the
University of California, Hastings, she clerked for the Nevada
Supreme Court. She then practiced appellate litigation at
Morrison & Foerster, where she worked on some of the largest
international patent cases in history. Later, she served as a
staff attorney for the U.S. Court of Appeals for the Ninth
Circuit and taught law at the University of Denver.
At this point, Veronica could have pursued any number of
high-paying legal jobs. Instead, she became a Federal Public
Defender for the Districts of Colorado and Wyoming, and over
the past 12 years, Ms. Rossman developed rare expertise as an
appellate specialist handling direct criminal appeals from
every judicial district in the tenth circuit.
She also represented more than 250 indigent clients. Mr.
Chairman, from controversial defendants to people sentenced to
lengthy terms for a nonviolent offense, despite having no
criminal history. She fought for every one of those Americans,
often against the longest odds. More than that, she fought for
the American ideal that everyone deserves equal justice under
the law.
If confirmed, Veronica would be the only judge on the tenth
circuit with experience as a public defender. We need more
judges like Veronica who are not only highly qualified but who
know what it means to be on the wrong end of the legal system
that too often fails the most vulnerable in our society. Ms.
Rossman's qualifications are unparalleled. She's been a first-
rate lawyer, and she would make an outstanding judge. I urge
the Committee to approve this outstanding nominee. Thank you,
Mr. Chairman.
Chair Durbin. Thank you, Senator Bennet. Concluding the
circuit court nominees, we have Senator Hickenlooper. I hope
he's available for this.
Senator Hickenlooper. Yes, I am. I'm on the video, and I
apologize. Can you hear me?
Chair Durbin. We can hear you loud and clear. Proceed.
STATEMENT OF HON. JOHN W. HICKENLOOPER,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Hickenlooper. Great. I apologize for not being
there in person, but thank you, Chairman Durbin and Ranking
Member Grassley, for inviting me to share a few words about
Veronica Rossman, President Biden's nominee to serve on the
Tenth Circuit Court of Appeals. Senator Bennet did an excellent
job of summing up her background, coming over from Russia as a
political and religious refugee, having dealt with anti-
Semitism for much of her early life, and then working through
that and being able to go graduate from Columbia, get a law
degree from Berkeley, from Hastings College at Berkeley.
I think that what I'd like to emphasize is her commitment
to trying to deal with those most difficult cases. She really
is a seasoned practitioner. Ninety-five percent of her practice
has taken place in Federal courts, and in that time as a public
defender, she's personally handled and supervised over 100
criminal appellate matters arising out of, as Michael said,
every judicial district in the tenth circuit. In private
practice, she specialized in these numerous complex civil
litigation cases, including appellate cases and a number of
matters involving antitrust law and intellectual property.
Ms. Rossman, in dedicating her life and the majority of her
career in the legal practice to serving the Office of the
Federal Public Defender for the Districts of Colorado and
Wyoming, she brings that perspective that, I think, too often
is missing from the bench: an understanding of the real-world
impact of sentencing decisions and disparities. I think she
will bring a significant new perspective to how decisions are
made on this court of appeals.
Over the course of her career, Veronica has earned a
reputation for being not only fair but being tenacious and
really dedicated to equal justice under the law. I think she is
well respected. I can't tell you how strong her recommendations
were from fellow lawyers, from peers and colleagues, but
including many of those who have served as opposing counsel on
cases where she's worked.
I have absolutely no doubt that Veronica will serve with
impartiality, with honesty, and with integrity, and so I
enthusiastically support Senator Bennet's recommendation that
this Committee will approve her nomination, that the Senate
will act swiftly to confirm her. Thank you, Chairman Durbin and
Ranking Member Grassley, and every Member of the Committee, for
your consideration and hopefully approval and confirmation of
this outstanding nominee. Thank you.
Chair Durbin. Thanks, Senator Hickenlooper. Yesterday, on
the floor of the Senate, Senator Murray told me how excited she
and Senator Cantwell were about the three nominees she's about
to introduce. Senator Cantwell, unfortunately, can't be here in
person but has sent a letter of support. I now turn to Senator
Murray for a formal introduction of those nominees.
STATEMENT OF HON. PATTY MURRAY,
A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Thank you, Chairman Durbin and Ranking
Member Grassley. It is really my honor and I am excited to
introduce you to three nominees for Federal district court
vacancies in the Western District of Washington. As this
Committee knows, Washington State has had these vacancies open
for a number of years, so let me start by thanking President
Biden and this Judiciary Committee for working so quickly to
provide some long-awaited reinforcements to our bench in
Seattle and Tacoma.
In addition, I especially want to thank our nonpartisan
Judicial Merit Selection Committee, comprised of ten Washington
State lawyers and co-chaired by Ian Warner and Rob McKenna, who
guided us in selecting these highly qualified nominees that are
before you today. I will introduce them alphabetically.
First, I would like to introduce Judge David Estudillo. He
is here today with his family, his wife Sandra and three
children, Sophia, Sarah, and Sebastian. Judge Estudillo
currently serves as a Grant County Superior Court judge and has
a distinguished career as a litigator and immigration attorney
before his current role as the presiding judge of the Grant
County Superior Court.
He is a graduate of the University of Washington School of
Law and is a Washington State native whose parents came to the
United States from Mexico through the Bracero Program in the
1960s. Throughout his career, Judge Estudillo has consistently
provided pro bono services and legal education to Latino
communities across Washington State, helping people to better
understand immigration policy and procedure at community
forums. Judge Estudillo works hard to ensure that every person
who enters his courtroom is treated with respect and dignity. I
know he will bring that same approach to the Federal bench in
Tacoma and is well prepared to serve as a Federal district
court judge.
Turning to Ms. Tana Lin, Ms. Lin is today here with her
family: her husband, Paul Michael Holland; her son, Patrick;
and her daughter, Julia. Ms. Lin is a litigator with Keller
Rohrback in Seattle, where she practices in the Complex
Litigation Group. Her career has been dedicated to serving the
public, having served as president of the board of directors of
the ACLU of Washington, as a public defender for the District
of Columbia, a trial attorney with the Civil Rights Division at
the Department of Justice, and as an attorney with the Michigan
Poverty Law Program.
Ms. Lin has consistently sought opportunities to help train
the next generation of lawyers, having also served as an
adjunct professor for Seattle University School of Law and
developing trainings for the National Institute for Trial
Advocacy and National Legal Aid & Defenders Association.
Ms. Lin would also make history, if confirmed. She would be
the first Asian-American Federal judge in Washington State
history. A Chinese-American, Ms. Lin immigrated from Taiwan
with her family when she was a child. She would strive to run a
courtroom where all litigants are seen, heard, and treated
fairly. I wholeheartedly support her nomination.
Finally, turning to Ms. Lauren King, Ms. King is here today
with her father, Jeff; her mother, Lisa; and her fiance, Sean.
Ms. King currently chairs Foster Garvey's Native American Law
Practice Group and has served as a pro tem appellate judge for
the Northwest Intertribal Court System. She has served as a
commissioner on the Washington State Gambling Commission and
taught Federal Indian law at Seattle University School of Law.
Ms. King is a citizen of the Muscogee Nation, and she would
make history by being the first Native American Federal judge
in Washington State. She would join only two other currently
serving Native American Federal judges and become the fifth
ever in United States history. Washington State is home to 29
federally recognized Indian Tribes, and it is absolutely
essential that Federal judges better reflect and understand the
unique histories of Native people and the legal principles that
protect and preserve Native American standing under Federal
law. Ms. King will bring important experience and a critical
perspective to the Federal bench.
Mr. Chairman, I am extraordinarily proud of these three
nominees before the Committee today. They represent the best of
Washington State and their country. It is my honor to submit
their names to President Biden, and I hope all the Members of
this Committee will join me in supporting these three highly
qualified nominees. Thank you.
Chair Durbin. Thank you very much, Senator Murray. We
appreciate that. As I mentioned, Senator Cantwell's letter of
support will be made an official part of the record.
[The information appears as a submission for the record.]
Chair Durbin. We're going to change over the table to
accept the first panel of circuit court nominees, so if you'll
just bear with us for a moment, stand at ease.
If the two nominees would come to the table, please? If
they'll remain standing for a moment, I'll administer the oath.
[Witnesses sworn.]
Chair Durbin. Let the record reflect that the witnesses
answered in the affirmative and that we have had a conversation
here during this brief recess of correcting the record so that
Ms. Lee's college of undergraduate work is officially noted as
``The Ohio State University.''
[Laughter.]
Ms. Lee. Thank you.
Chair Durbin. Now, I give each of you an opportunity to
make an opening statement. Ms. Lee.
STATEMENT OF EUNICE LEE, NOMINEE TO SERVE
AS UNITED STATES CIRCUIT JUDGE
FOR THE SECOND CIRCUIT
Ms. Lee. Thank you, Chairman Durbin, Ranking Member
Grassley, and all the Members of the Committee for inviting me
to appear today and for considering my nomination. I would also
like to thank my home State Senators, Majority Leader Schumer
and Senator Gillibrand, for their very kind and warm
introductions of me.
I'd also like to thank President Biden for nominating me to
fill the seat currently held by Judge Robert Katzmann. Judge
Katzmann is a very distinguished and well-regarded judge on the
second circuit, and he's someone whom I respect very much.
I have with me today four family members who came to
support me. They traveled here by car from Columbus, Ohio. They
are my parents, John and Irma Lee, and my brother and sister-
in-law, Eric and Noelle Lee. My sister, Edith Webster, who is a
public school teacher in Rockford, Illinois, could not be here
today because school is not quite out yet, but she's cheering
me on, as well. I also have many extended family members from
around the country who are supporting me and watching at home.
I appreciate the support from all of my family members, but
I would just like to take one moment to express particular
gratitude to my parents, who are with me today. During this
period of being--going through this process and receiving this
incredible honor and this incredible opportunity has made me
think a lot about my parents and their opportunities and what
they've experienced.
Both of my parents grew up poor in small-town Arkansas with
very limited opportunities. When my father joined the Air
Force, it was with the hope that they could have a better life
for them and for their family, and my siblings and I have
benefited greatly from the many sacrifices that my parents have
made for both of us--well, for all of us, during their lives,
and I am truly appreciative of that, and I feel truly blessed
to have them in my life. I feel very confident that I would not
be here today without their love and support.
Then, last, I would like to also thank my friends and
present and former coworkers who've also been incredibly
supportive throughout this process. It means a lot to me, and
so I'd like to thank them, as well.
Again, thank you to the Committee for having me appear
today, and I welcome your questions.
Chair Durbin. Thanks, Ms. Lee. Ms. Rossman.
I think the microphone is not turned on. I think if you
slide your thumb across, it might work.
Ms. Rossman [continuing]. To get it----
Chair Durbin. There you are, I think. Believe me, we
struggle with these mics all the time, so it's not unusual.
Ms. Rossman. Thank you.
Chair Durbin. Thanks, Mike. Senator Lee, thank you very
much.
STATEMENT OF VERONICA ROSSMAN, NOMINEE
TO SERVE AS UNITED STATES CIRCUIT
JUDGE FOR THE TENTH CIRCUIT
Ms. Rossman. Thank you. Sorry about that. Thank you,
Chairman Durbin and Ranking Member Grassley, and thank you to
all the Members of the Committee for your time this morning.
I'd like to thank President Biden for the honor of this
nomination, and thank you to Senators Bennet and Hickenlooper
for their support and their generous words this morning.
I'd like to acknowledge Hon. Carlos Lucero, senior judge
now, who has ably served the Tenth Circuit Court of Appeals
since 1995. Judge Lucero is an exemplary jurist and a role
model for all of us in Colorado and in the tenth circuit.
I'd like to introduce some members of my family, beginning
with two very important people who were unable to travel here
today, my parents: my father, Michael Illich Parkansky, and my
mother, Zoya Josif Parkansky. My parents and I came to the
United States from the former Soviet Union in the mid-1970s. We
were refugees. Like so many immigrants to our great Nation, my
parents left behind all that they knew to build a better life
in the United States. I still remember the day that we became
citizens. I was in middle school.
My parents led by example and instilled in me values I hold
dear today: hard work, perseverance, integrity, and generosity.
I want to thank them for their unwavering love and support and
for the many sacrifices they made for me. Given how our
American story began, it is beyond any of our wildest dreams
that I would be sitting here today.
Next, I'd like to introduce my husband and daughter, who
are seated just behind me. Kenneth Fisher Rossman IV is a
wonderful husband, father, and a brilliant lawyer. Our
daughter, Sofia Rebecca Rossman, just graduated high school
last week and will be starting college in California this fall.
Sofie, you are my greatest inspiration.
Thanks to my many other family members and dear friends
throughout the country who are watching this hearing and
supporting me. Finally, I would like to acknowledge the head of
my office, Virginia Grady, for encouraging me to pursue this
incredible opportunity, and to all my wonderful colleagues in
Colorado and Wyoming, my sincere thanks. I'm so grateful to
appear before you today, and I will do my very best to answer
your questions.
Chair Durbin. Thanks very much, Ms. Rossman. We'll do a
round of questions here from the Senators in attendance and let
me start. I'm not going to question your backgrounds and
experience. They are extensive and impressive. There's no point
in repeating for the record what has been already said about
what you have done with your lives and the time that you've
spent in professional service to the cause of justice.
I'm going to ask a more general, softball type question,
just to ask you to reflect for a moment. At any moment in
American history, if we had had this hearing, we could
certainly say we still face challenges in the United States
when it comes to justice based on race, gender, poverty,
religious belief, ethnic background. It still is a problem that
haunts us. You've seen that in real time, in your practice of
law. Would you comment on the present state of the national
debate on this issue of justice, Ms. Lee?
Ms. Lee. Thank you, Chairman. I think one of the critical
issues relating to justice, one of the critical concerns, is
the idea of equal access to justice, equal access to competent
counsel, in particular. One of the reasons that, in my
background and my experience, I've participated in a lot of
training programs with other attorneys is the idea that not
only is it important that people have access to counsel but
that the counsel that they have be competent and able to
vigorously argue their positions. Part of the calculus of
justice is--one important part is, of course, a fair and
neutral decision-maker, but also parties to vigorously pursue
the claims.
I think between the issues of access to the courts,
representation, fair decision-makers--all of those are
necessary to achieving justice, because the process is the
thing that we have. We can't guarantee outcomes, we can't rely
on assumptions about what's going to happen. We have to have a
fair and equitable process, and so with those in place, with
that kind of process, there can be a measure of justice,
regardless of the outcome. I think that, again, the question of
access is something, I think, that's really important to
address in our current system.
Chair Durbin. Thank you. Ms. Rossman.
Ms. Rossman. Thank you. I would echo what Ms. Lee just said
and simply add that, in my role as an appellate Federal public
defender, one thing that I have witnessed that has really
stayed with me is the importance of appellate courts in the
lives of ordinary people. People come to the appellate courts
wanting to be heard, wanting for the judges to be impartial,
neutral, receptive, in the sense of not an outcome-
determinative way in every case, but knowing they're going to
get a fair hearing before the court.
I see that in the tenth circuit with judges who are open-
minded and receptive, and I think that that is very significant
to ordinary Americans, in terms of how people understand the
judiciary, that they will get a fair day in court with
impartial, neutral decision-makers.
Chair Durbin. Ms. Rossman, let me be specific in one area.
I notice that you've devoted a significant portion of last year
raising the alarm about the spread of COVID-19 among our
Federal prison inmates. Senator Grassley and I have joined in
asking the head of the Bureau of Prisons a year ago what plans
were being made for this looming pandemic and crisis, and we
were told at the time not to worry, things were under control,
there were only three cases when it came to inmates and three
cases when it came to staff.
We know what happened afterwards, unfortunately. Many
hundreds died in our prisons. The rate of infection was six
times what it was with the general population, and we still
have genuine concerns and issues, such as compassionate
release, being debated. Tell us a little bit about your
background with this issue.
Ms. Rossman. Thank you. The First Step Act, which this body
has passed, is incredibly significant legislation. My work,
specifically, in the last year has focused on the so-called
compassionate release portion of the Act, which amended the
statute that allowed--that previously only allowed the Director
of the Bureau of Prisons to seek compassionate release for
inmates and changed the law in a way to allow inmates, if they
exhausted their claims appropriately, to pursue relief directly
with the court.
That change was significant, and what we saw during the
pandemic is a true crisis with individuals who were
experiencing COVID within the prison system. All actors, in my
view, were doing their very best under extraordinarily
difficult circumstances, but the availability of relief for
eligible individuals--certainly not for everyone, but for our
eligible clients--was an incredibly important avenue to pursue.
Chair Durbin. Thank you. Senator Grassley.
Senator Grassley. Before I ask you questions, I assume,
your family fleeing Russia, that the names of Sakharov and
Sharansky are important heroes for you. Would that be fair for
me to conclude?
Ms. Rossman. Sure.
Senator Grassley. Okay. Because they suffered a lot for the
work of the people that we call refuseniks.
Ms. Rossman. Yes.
Senator Grassley. Okay. You have a lot of experience when
it comes to criminal appeals. In 2019, the tenth circuit had
368 total criminal appeals, compared to 1,135 civil appeals.
There were over 150 appeals under diversity of citizenship
alone, to say nothing of the appeals involving contracts,
labor, torts, environment, tax, Social Security, and even
marine injury. You know where I'm coming from? What's your
experience that makes you a good fit for the generalist docket
of the tenth circuit?
Ms. Rossman. Thank you for that question, Senator. I have
been an attorney now for over 20 years and have had a variety
of different types of legal experience. In addition to clerking
for the Nevada Supreme Court and serving as a staff attorney
for the Ninth Circuit Court of Appeals, my training ground was
in civil litigation at a large law firm. I've benefited
tremendously from that experience. In my role as a litigation
associate, I worked on cases involving a wide range of civil
subject-matter areas, specifically antitrust law, intellectual
property law, contracts law, business litigation, things like
that.
This was certainly a long time ago, as I've spent the last
11 years at the Federal Public Defenders Office, but I consider
the work that I have done before as accessible to me. I think
that if I were so fortunate as to be confirmed and a case came
before me involving an area of civil litigation, that I would
approach it diligently, get back up to speed on areas that I
think I could access readily, and because I have spent the last
decade as--I call it ``at home in the tenth circuit,''
practicing appellate litigation in the tenth circuit, I would
be able to hit the ground running, in the sense that I'm very
familiar with the structure within which these various appeals
in a large range of subject areas would arise, and I'm
confident that, if confirmed, I could rise to the challenge.
Senator Grassley. Thank you for that answer. I think the
next answer you can give me a short answer to. You have an
impressive family story of fleeing the Soviet Union when you
were a child. I'd like to read to you something another nominee
whose family fled communism, Judge Barbara Lagoa, had to say.
Quote, ``If we are not bound by what the Constitution means,
then we are no different from the country my parents fled,
Cuba, because Cuba has a Constitution and a Bill of Rights, and
it means nothing because there is no one to say, `This is what
the definition of the Constitution means,' if it's already--if
it's always ever-changing.'' End of quote. In your words, a
fixed-meaning Constitution helps prevent tyranny. Do you agree
with Judge Lagoa on this?
Ms. Rossman. Thank you for that question, Senator. I'm not
familiar with his remarks, other than what you just read. I
have a deep, abiding love and respect for our Constitution and
our democratic system, largely borne of my experience as a
political refugee, but also with my experience as a practicing
lawyer, especially in the criminal justice area. The
Constitution is an enduring document, and it is amazing in its
ability to adapt over the years in countless Supreme Court
decisions that have interpreted it, but I believe the
Constitution is an enduring document.
Senator Grassley. One question for Ms. Lee. You've been a
public defender for nearly your entire career. According to
your questionnaire, you have no civil litigation experience. In
2019, the second circuit had 660 criminal appeals, compared to
2,294 civil appeals. To pick a few examples, there were almost
300 appeals in diversity, over 200 in labor and employment, and
well over 100 in intellectual property, securities, and
antitrust. This court's grab-bag category of ``all other civil
appeals'' is among the biggest in the Federal court system.
What's your experience that makes you fit for the generalist
docket of the second court?
Ms. Lee. Thank you for the question, Ranking Member
Grassley. Certainly, my practice has not been specifically in
those civil areas; however, over the course of my career as an
appellate litigator, I have often been confronted with topics
and subject areas with which I'm not familiar, and certainly
the experience of having to learn new topics in the context of
a specific case is something I'm very familiar with.
I've also had the occasion of--for many years, I was
practicing in State court, and making the switch from State law
to Federal law, as well, was a change. I think as an appellate
attorney and as an appellate judge, should I be confirmed,
you're presented with very discrete claims, one at a time, and
I have, as I said, a lot of experience learning new issues and
figuring out how to address the law that applies to a
particular case. Certainly, I have, as I said, no specific
experience in most of those topics that you raised, but I am
very confident in my ability to get up to speed and to handle
the cases that come before me.
Senator Grassley. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Grassley. Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman. Ms. Lee,
after Justice Thomas's 1991 confirmation hearing, in a letter
to the editor of The Ohio State Lantern, you made the assertion
that Justice Thomas, as a Black conservative, subscribed to the
view that racism isn't an obstacle to success. With this ill-
conceived assumption, which is a view that, by the way, I've
never heard Justice Thomas express or espouse, you proceeded to
criticize Justice Thomas's identification of his confirmation
hearing as a high-tech lynching, and in your words, you said,
quote, ``When it would make Thomas look better and garner
sympathy, he was willing to acknowledge that there is racism
and that it is an obstacle for millions of other Blacks,''
close quote.
Then, in concluding your remarks, you added the following.
Quote, ``I might stop short of calling Thomas a hypocrite, but
I'm reminded of the saying that there are no atheists in
foxholes. Perhaps you can also say that there are no Black
conservatives when in the political hotseat.''
First of all, what did that mean? I've got some follow-up
questions about that but tell me what that means.
Ms. Lee. Thank you for the question, Senator. First, I
would note that the letter that I wrote as a 20-year-old
college student 30 years ago does not reflect the views that I
have today. With regard to the nature of the letter, as I said,
I was a student in college, a political science major, and the
confirmation hearings were something that we talked about in
classes, and that's something--the views I expressed at that
time were the beliefs that I held, but in the time, in the 30
years since then, certainly I have learned and matured and
interacted with clients and lawyers and developed in a way
where I don't espouse the generalizations that are in that
letter, and that doesn't reflect the person who I am today or
the beliefs that I would bring to the bench, should I be
confirmed.
Senator Lee. Okay. You no longer regard Justice Thomas as
someone who denies that racism is an obstacle?
Ms. Lee. Senator, as I said, I don't espouse the views in
that letter now, and I also, as a judicial nominee subject to
the Code of Conduct for Judges, I don't think it would be
appropriate for me to comment specifically on Justice Thomas or
his--speculate on his views or his beliefs, but at the time
when I wrote that letter as a 20-year-old, those were my
beliefs. As I've said, those are not my beliefs. The letter
does not reflect my current beliefs.
Senator Lee. What about the contempt that you expressed for
Black conservatives in 1991? Do you still hold that view?
Ms. Lee. As I said, it's not reflective of my current
views, and I would also say that, to the extent that--my
personal views on any topic would not influence the decisions
that I would be making, should I be confirmed as a judge. I
know it's critically important that judges don't put--don't
bring personal beliefs to the judging act, and I am confident I
would not do that.
Senator Lee. Given your vast experience as a defender, as a
criminal defense attorney, do you--are you confident in your
ability to be objective in cases involving criminal
prosecutions?
Ms. Lee. Thank you, Senator. Actually, I am. One of the
tasks of being a criminal defender, public defender, is, I've
had to, over time, put aside my personal feelings about the
case or the client or the issue, and I've had to put aside
concern about public opinion or perception of the work that I'm
doing, and so that experience of making the difficult decisions
and putting aside personal beliefs is something that I have had
to do. I think in the context of criminal cases that would come
before me, should I be a judge, I--you know, to the extent that
I have more experience in that than perhaps some of the other
judges, the beauty of the appellate process on the circuit, and
the fact that it's a collaborative process, I think, is
something that also ensures that many different views will be
heard and that a fair hearing of the issue will occur.
Senator Lee. Thank you. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Lee. Senator Coons.
Senator Coons. Thank you, Chairman Durbin, and my thanks to
both of you for your long service. It is inspiring to me to
have such highly qualified and impressive candidates before us.
Both of you have demonstrated a commitment to justice and
fairness throughout your extraordinary legal careers.
You would also bring greatly needed professional diversity
to the circuit courts to which you've been nominated, given
your long experience as public defenders, and I'm proud to
support President Biden's commitment to diversity of all kinds,
but in your cases particularly, professional diversity. I look
forward to supporting your nominations.
Ms. Lee, I was struck to learn that over 70 former Federal
prosecutors in New York--so, the very people against whom you
were litigating over and over and over in court--signed a
letter in support of your confirmation. They called you
brilliant and accomplished and said you are the right candidate
at the right time for this important seat. Can you speak to how
you've maintained mutual respect and collegiality with the very
prosecutors against whom you were often in court and how that
approach will translate to your service as a judge on the
second circuit?
Ms. Lee. Yes. Thank you for the question, Senator. I think
one important factor for me, over my career, that I've learned,
is that everyone is fulfilling their role in the system. You go
up in court against another attorney who's representing the
government, and it's about the role. They're supposed to do
their best. We're supposed to do our best. It's not about--it's
not personal. I think that a lot of the attorneys who I have
gone up against in court have recognized or realized that I
also understand that, and that I'm serving an important role
and that we're--you know, we make vigorous and strong arguments
against one another, but it's what the system requires. I think
that the attorneys who I've appeared with and against respect
that and understand that. I think when you're dealing with
other attorneys in a fair and open way, they do respond to
that, as well.
More broadly, in terms of prosecutors signing on and
encouraging the appointment of someone with a public defender
background, I think many of the attorneys in the criminal
field, in particular, also understand the importance of balance
and do respect the role of a public defender in the system. I
think that's part of the reason for the support.
Senator Coons. Thank you for that answer and for your
conduct as a public defender that would lead to such a sterling
letter of support from the very prosecutors against whom you
were often in court.
Ms. Rossman, you similarly received a letter from a broad
range of over 90 members of the Colorado legal community. It
includes former prosecutors but also government attorneys and
many others, and that letter describes you as having an abiding
respect for your colleagues on the other side of the aisle in
the courtroom and a commitment to fairness and collegiality.
I have the same question for you. Can you speak to how you
developed this professional courtesy, this collegiality, and
how would that bear on your service on the circuit court?
Ms. Rossman. Thank you for that question, Senator. Again, I
have to echo Ms. Lee. Everyone plays their role in the system,
and in my experience, it has been a privilege and a collegial
experience. The thing that I have recognized is that each party
represents their interests, but we are all officers of the
court, and that informs our practice, that everything that each
side does is done ethically, within the bounds of the rule of
law, because doing it any other way wouldn't be appropriate,
wouldn't advance the cause.
I've just found, in my experience, that it is one of mutual
respect, even when it's a contentious case or contentious
issue, and I think that that sort of mutual respect and
professionalism is so important to the integrity of the legal
profession, and it restores the public's faith, I would hope,
in the justice system.
Senator Coons. Ms. Rossman, Ms. Lee, as public defenders,
part of your role is to be an advocate: to be an advocate for
your clients, to be an advocate for justice. The role of a
judge is distinct from the role of an advocate. Could you just
take a moment and distinguish the difference, in your mind,
between your service as a public defender and your service
should you be confirmed as a judge on the circuit? Ms. Rossman
first, then Ms. Lee.
Ms. Rossman. Thank you, Senator. The roles could not be
more different. The role of an advocate is nothing like the
role of a judge, and I have reflected on this quite deeply. A
judge needs to be neutral, impartial. An advocate proceeds
within the rule of law, is also an officer of the court, but
has a very different, focused objective. Over the course of my
career, I have had a number of different roles that have
required a number of different types of behavior and conduct
and approaches, and I am confident that recognizing the
difference between what an advocate does and what a judge does
will serve me well if I am confirmed.
Senator Coons. Thank you. Ms. Lee.
Ms. Lee. Yes. I would echo what Ms. Rossman said about the
importance and the distinct nature of the roles. Really the
only point I would add is that being a public defender for all
of these years, I critically recognize the importance of a fair
decision-maker. That is the thing that all of the clients who I
have represented over the years have wanted, and so I would
take that duty to be that kind of decision-maker incredibly
serious, should I be so fortunate to be confirmed.
Senator Coons. Thank you, Ms. Lee and Ms. Rossman. I
appreciate your answers, and I look forward to supporting your
nominations. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Coons. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman. Congratulations,
Ms. Rossman and Ms. Lee, for being here, and to your, I'm sure,
very proud family. Ms. Lee, one thing I want to say up front. I
thought your answer to Senator Lee's question about being a 20-
year-old--maybe your thoughts have changed over the years--I'd
like for that to be the standard for all nominations hearings.
I think that if you've--you've stipulated that perhaps if you
wrote today, you wouldn't have written the same thing, and I
think it would be nice, as we consider future judges and other
nominees, that we take that into account, versus going to
yearbooks and dumb texts and letters and all the body of work
that we're going to have when your daughter graduates from
college, so be careful on the phone.
Ms. Lee, I want to ask you a question. You were at a
criminal defense lawyers'--I think it was the New York State
Association, and the--I think that the panel was crafting a
persuasive statement of facts and argument, very important
thing for a defense attorney to take into mind. You went on to
submit notes and, I think, have some discussion about avoiding
cop talk. Can you tell me a little bit about, you know, what
you were focused on there? I have a few points, but just to
give me an idea of why that was important and what was
discussed.
Ms. Lee. Thank you, Senator. It's been a while since I have
looked at those specific notes.
Senator Tillis. It was 2013.
Ms. Lee. I believe in that particular training, the
suggestion is to not craft your brief in a way where you're
just automatically using the language of the transcript or
describing things in the way that perhaps that the police
officers at trial testified, and so I think the suggestion it
was making was, when you are writing your statement of facts,
don't just parrot what the witnesses at trial say. Try to
present the facts in a way that most favorably describes the
facts of the case and sets up the narrative for what you're
doing on your brief on appeal.
Senator Tillis. Ms. Rossman, I know during the height of
the COVID pandemic, you supported, as I do, compassionate
release of prisoners, but you seemed to take a position on a
broader swath of those who were incarcerated. The question I
have there is, we heard the Chair talk about a number of
statistics and the incidence of infections in the prisons, but
if you dig below the surface, the incidence of infections in
the broader community, in certain at-risk populations, were
roughly the same as the prison population. What was the
rationale behind that focus on a broader swath of prisoners?
The reason I ask the question is, I really believe in
criminal justice reform, did it as Speaker of the House when I
was in North Carolina, for early release, and I wonder
sometimes if we go too far, if it could actually put efforts
further back. What was the rationale behind the broader release
of prisoners?
Ms. Rossman. Thank you, Senator. I guess I'd look at it a
little bit differently. We didn't go into the work thinking
that there was going to be necessarily an enormous flood of
release. The compassionate release----
Senator Tillis. I'm assuming they were nonviolent offenders
that we were referring to?
Ms. Rossman. The compassionate release statute has certain
criteria.
Senator Tillis. On compassionate release, I was talking to
the broader population. Was it your opinion that that would be
limited to nonviolent offenders, or----
Ms. Rossman. That's--the criminal history of the defendant
certainly factored into the court's decision, but when we were
making a decision about whether to pursue compassionate
release, it was a multifaceted one. We have a standing order of
appointment in our district, where we review every pro se
compassionate release petition. It serves the court; obviously,
also serves the client. We're looking first at eligibility--is
this someone who would satisfy the letter of the law?--before
we turn to whether we file a motion that also advocates under
the sentencing statute.
The situation with COVID, alone, was not necessarily
something that would satisfy the criteria for release. It was
looking at the individual, which is what sentencing law does.
It looks at the individual defendant. In the case of
compassionate release, it looks at it in terms of how the COVID
pandemic, the situation within the Bureau of Prisons, for that
individual--it was always about the individual--whether that
would merit a motion for release.
Senator Tillis. Okay. If I could just ask you all both to
respond. I'm very concerned right now with what we're seeing in
the law enforcement community. We've got a lot of brave men and
women making split-second decisions, and there's a discussion
about qualified immunity. If you all could just very briefly--
thank you for indulging me, Mr. Chair. Just what do you think
the proper scope of qualified immunity should be, for men and
women in law enforcement being granted qualified immunity? Ms.
Lee, we'll start with you.
Ms. Lee. Thank you, Senator. Certainly, I know that the
topic of qualified immunity is one that many bodies, including
this one, is looking at. My--as a judge, should I be confirmed,
I'm bound by what the current law is, and the Supreme Court has
upheld a standard for qualified immunity, and so that's what I
would impose. In terms of the policy considerations or whether
or not it should be changed or modified in some way, certainly
that's not----
Senator Tillis. That's our job.
Ms. Lee. That's--that is your job, and so----
Senator Tillis. Ms. Rossman.
Ms. Rossman. Thank you, Senator. I agree with Ms. Lee. I'd
say that law enforcement has a tremendously important and
challenging job. If I'm confirmed as a circuit judge, I would
follow the law of qualified immunity as developed by the
Supreme Court in cases like Harlow and others and the caselaw
that's developed in the tenth circuit. With respect to any
policy positions that may implicate the doctrine of qualified
immunity as a doctrinal judicial matter, that would be outside
the scope of what I would be concerned with as a judge, if I'm
confirmed.
Senator Tillis. Thank you. Thank you, Mr. Chair.
Chair Durbin. Thanks, Senator Tillis. We have a remote
visit from the Senator from New Jersey, Cory Booker. Can you
hear us, Senator?
Senator Booker. I hear you loud and clear. Can you hear me,
Chairman?
Chair Durbin. Yes, we can. Proceed.
Senator Booker. I'm really grateful, and especially to
Senator Lee and Senator Tillis. I thought the thoughtful
discussion about one of the nominees' background was handled
the right way, and I think it is fair to ask people about their
past writings, even if it goes back to college or high school,
but as I think Senator Lee--Senator Tillis just sounded, that
it should be viewed within the totality of grace, of the
understanding of grace and that all of us evolve. I'd like to
ask Ms. Lee a quick question. Ms. Lee, how do you know me?
Ms. Lee. We went to law school together.
Senator Booker. Yes. If I had known back then of the
potentiality for this moment, I would've really demanded that
you share your notes with me back then, because this is a great
moment for me, to an old friend. I did not know you in college,
and--but I will tell you this: I knew you as a law student. You
were universally viewed, by people of all different
perspectives--and we had a highly charged intellectual
environment, back then, but you were one of these people that
everybody saw that did walk with grace and had a extreme
abundance of generosity of spirit to everybody you greeted.
I just want to give testimony to the fact that you are an
extraordinary person in terms of your values, and what also was
very impressive to me back then, you are an extraordinary
person in terms of your brilliance. I got into, probably, Yale
because they needed someone to help them win the Intramural
Basketball Championship. You got in there because of your
extraordinary intellectual gifts. I'm excited that someone like
you that I knew back when there was not Senate hearings or a
public spotlight, you are a kind and decent and gracious human
being, and I cannot tell you how excited I am about your
potentially sitting on the United States Federal circuit.
I just want to ask you, maybe to that spirit--you know, we
had conservative professors and we had more liberal professors.
We had conservative classmates and more liberal classmates. You
were someone that I thought was intellectually honest and open
to different ideas, but we were in our 20s then, and I'm
curious just for you to speak maybe to what maturity, what 20
years has done to your heart and your experience with serving
in a capacity as a judge, to balancing differing views,
differing ideals, and coming to what we want from our jurists,
coming to analyze what's before you in a way that speaks to the
highest values that I know my colleagues on both sides of the
aisle hold dear.
Ms. Lee. Thank you for that question and also for your kind
words, Senator. One of the things, I think, that has had the
biggest effect on how I've grown and developed as a person,
since being in my 20s, has been representing clients. I have
represented people from so many different walks of life, people
whose views and values, on a host of topics, have often
differed from mine. When you are dealing with someone as a
client, you know, you're in a particular role, and your role is
not to judge or to persuade someone to your point of view. It's
to advocate zealously for them.
Being exposed to so many different people over my career,
working with so many people--I've worked with a lot of pro bono
attorneys at law firms, again, coming from a very different
perspective than the one that I started with, and just being--
dealing in the realm of criminal defense, where there are so
many tough choices and so many different situations that you're
confronted with, I think you do naturally grow as a person.
I think the fact that I've had so many opportunities and
worked and dealt with so many different people in my career
really has shaped who I am and shaped the views that I have on
the world, that the generalizations and assumptions that I had
and that I made when I was younger--they don't exist in the
same way. I've--my views on life and the law are much more
complicated and nuanced than they were, and so it's really been
a learning experience and a growing experience over the last 30
years.
Senator Booker. My friend, I'm thrilled, and I look forward
to voting for both you and Ms. Rossman, but I will say this. As
I look behind you--my mom would embarrass me during one of my
recent campaigns by going around and telling people, ``Behind
every successful child is an astonished parent.'' She tells me
I have astonished her. I also know what James Baldwin said,
that children are never good at listening to their elders, but
they never fail to imitate them.
I just want to say to your family behind you that when I
knew you in our mid-20s, you--they raised an extraordinary
human being who's lived a life that should make all of us feel
a sense of gratitude. Your life and your commitment to serving
others was evident in law school, and you have stayed in fierce
allegiance to that, and it's a tribute to your parents, to your
family, to your ancestors, and may God bless you both in your
continued journey of helping our Nation to live up to its
ideals of justice for all.
Ms. Lee. Thank you.
Chair Durbin. Thank you, Senator Booker. Ms. Lee, I'd just
say, for those of us who work with Senator Booker on a daily
basis, we, too, wish you would've shared your notes with him.
[Laughter.]
Senator Hawley.
Senator Hawley. Thank you very much, Mr. Chairman. Thanks
to the witnesses for being here. Congratulations on your
nominations, your respective nominations.
Ms. Rossman, if I could just start with you, I want to come
back to the compassionate release topic that Senator Tillis was
pursuing with you a minute ago, if I could. You wrote during
the pandemic a great deal about the compassionate release of
inmates from jails and prisons, if I'm not mistaken.
I want to talk about, first, the case U.S. v. Wilson, which
you might remember. That's where you sought compassionate
release of a prisoner on the basis of his age. I think he was
58, had an underlying health condition, diabetes. He had been
sentenced to 4 years in prison for being a felon possessing a
firearm. He'd only been in prison, though, about a third of his
sentence. The district court denied your motion. The court
found that Mr. Wilson's criminal history and the circumstances
of the incidence--of the incident offense, rather, suggest that
he's a danger to the community.
Here's what I want to ask you about. You wrote in your
brief that the length of the prison term already served is not
dispositive or disqualifying in the compassionate release
analysis. Again, he'd only served less than a third of his
term. Let me just ask you, do you think that the length of term
served, or the prison term served is relevant in any way to the
compassionate release analysis? Give us some indication of your
thinking on this.
Ms. Rossman. Thank you, Senator. Certainly, the length of
the term served is a factor. It is a multi-factor analysis, as
all sentencing decisions are. They're individualized decisions
where, especially in the compassionate release context, if the
individual is eligible--and what that means in the context of
that statute is that they've demonstrated an extraordinary and
compelling circumstance warranting release--then the court
needs to balance a number of sentencing factors, and certainly
the amount of time that the individual has served is one of
many.
Senator Hawley. In your view, is there a reasonable
percentage of a sentence that ought to be completed before
consideration of compassionate release or consideration for
compassionate release?
Ms. Rossman. Thank you, Senator. You know, in the abstract,
that's a difficult question to answer, and that's because these
are such fact-specific inquiries that, again, the amount of
time an individual has served their custodial sentence--
certainly, a sentence has multiple components. There's the
custodial component, there's also supervised release, which is
part of the sentence, but the district court has the discretion
in these cases to consider all of those factors.
Senator Hawley. What about if--well, let's say the
defendant only served a day. Would that be too little?
Ms. Rossman. A day, you know, perhaps might be too little,
but certainly the--it would all be a very fact-specific
inquiry, and I only hesitate to take a position on this because
some of the cases that we were litigating in the compassionate
release context involved individuals who were seriously ill and
elderly. Again, because sentencing, as the Supreme Court has
told us, is an individualized process, it's very difficult to
answer those questions in the abstract.
Senator Hawley. Let me ask you about another case, the Moon
case, United States v. Moon. You made a similar argument for
the pretrial release of a 52-year-old individual male who'd
been diagnosed, I think, with head and neck cancer.
What got Mr. Moon indicted in that case was that his adult
children reported that he was threatening them. The
government's brief explained that, when he was arrested, the
defendant--that is, the police found 12 firearms, multiple
shotguns, multiple rifles, a loaded handgun underneath his
pillow, a revolver, two self-made, fully automatic machine
guns. They also found two self-made silencers, a ballistics
vest, and 4,602 rounds of ammunition. Neither the machine guns
nor the silencers had serial numbers, making them untraceable.
This is somebody who had an arsenal, basically, in his home.
We're seeing an epidemic of gun violence in this country.
This is somebody who was ready to engage in such violence and
unfortunately also had a history of doing that. His criminal
history included willful poisoning, witness-victim bribing,
third-degree assault, and harassment. His children were placed
in protective custody after they reported him to the police.
Moon sent people to go after the children, and one of the
people told Moon's roommates, ``Those kids are done for.''
You argued Mr. Moon should've been released to home
detention. I want to ask why you felt the risk of this repeat
offender, who is clearly dangerous, someone who is stockpiling
illegal firearms--why would the danger to the community be
outweighed by, in this case, health issues? I mean, give us a
sense of how you balance this with a violent offender like Mr.
Moon, who was engaged in all manner of violent, illegal
activity?
Ms. Rossman. Thank you for that question, Senator. I think
that, in the abstract, it might seem like there's absolutely no
balancing to be done, but when we approach these cases, we're
not asking the court to simply release an individual onto the
streets. We don't even approach the court unless we have a
release plan, something that we believe, in good faith, under
the bounds of the law, we can bring to the court and say,
``Here are terms and conditions that the probation department
can weigh in on, that we believe will satisfy all of the
concerns, including the risks to the community.''
In Mr. Moon's case, in particular, he was suffering from
terminal cancer, and at the time that he was arrested and so
forth, he was--his cancer treatment was interrupted, and the
type of disease that--progression that he had, the concern was,
he would get much, much worse if his treatment wasn't
immediately reinstated.
Senator Hawley. This is my last question, Mr. Chairman.
You--in the case of Mr. Moon, Ms. Rossman, you don't think that
somebody like that poses severe danger to the community, a
violent felon, someone who has an arsenal in his home, who is
threatening his children, is hiring hit men to go after them? I
mean, help me understand why this person doesn't pose such a
risk that you would say, ``Sorry. I mean, you have a history
here of violent felonies. We're just not going to release
you.''
Ms. Rossman. Thank you, Senator. I understand the concern,
and I'm--it's been a long time since I litigated that case, so
I don't recall all of the specific facts that you're
referencing, but I can assure you that I've never brought a
case or an appeal or made an argument to a court that wasn't
made in good faith according to the bounds of the law, and in
Mr. Moon's case, it was no different. I applied the law that I
thought was consistent with the position that I was advancing
and asked the court to do its job, which in this context is to
exercise its discretion, to weigh and balance the appropriate
factors. We didn't prevail in that case, but the argument was
made in good faith.
Senator Hawley. Thank you, Mr. Chairman.
Chair Durbin. Thank you. I think Senator Kennedy is next.
Senator Kennedy. Thank you, Mr. Chairman. Ms. Lee,
congratulations. Do you think the United States Constitution
should be interpreted according to how people understood it at
the time it was adopted?
Ms. Lee. Thank you for the question, Senator. With regard
to the interpretation of the Constitution, should I be
confirmed as a circuit judge, I'll be bound by Supreme Court
and second circuit precedent.
Senator Kennedy. I know that. I know that, and I'm not
going to ask either of you--I know you've been coached. The
Trump White House coached the Republicans when they were
nominated, to always carefully say you're going to follow
Supreme Court precedent. I stipulate that. I'm asking your
opinion, your judicial philosophy, not how you're going to rule
on a case.
Let me rephrase it. Do you think the United States
Constitution should be interpreted according to how people
understood it at the time it was adopted?
Ms. Lee. Thank you, Senator. I don't have a personal
judicial interpretation philosophy, apart from what the----
Senator Kennedy. You're going to be on the United States
Court of Appeals, if you're confirmed, and you don't have a
judicial philosophy about how the United States Constitution
should be interpreted?
Ms. Lee. Senator, I--in terms of how it would be
interpreted, I'm going to be bound by how others have said we,
the circuits, the judges, interpret it. And so----
Senator Kennedy. Yes, but we don't decide cases using
algorithms and just take all the U.S. Supreme Court cases and
put them in. They haven't addressed every issue. Very few cases
get to the U.S. Supreme Court.
Let me ask it again. Do you think the United States
Constitution should be interpreted according to the way that
people understood it at the time it was adopted? If you don't,
that's cool. Some don't. Many don't. What--how do you think it
should be interpreted? It's a very simple question for a court
of appeal nominee.
Ms. Lee. Thank you, Senator. I think the question actually
is a little more complicated. The Supreme Court has----
Senator Kennedy. No, it's not. It's about as basic as you
can get.
Ms. Lee. In--it----
Senator Kennedy. It's Con Law 101.
Ms. Lee. Thank----
Senator Kennedy. I'm not trying to be disrespectful, but--
and I know both--you know, the thing now, but with all
Presidents, Republican and Democrat, is to coach the nominees,
but you're going to be on the court of appeal, if confirmed,
and I'm asking you, how do you interpret the Constitution?
Ms. Lee. I--oh, I'm sorry. We're----
Senator Kennedy. I'm done. I'm sorry.
Ms. Lee. No, no, I'm sorry, Senator. No, I think certainly
the interpretation of the Constitution has to start with the
text, and to the extent that that's not--to the extent that
that's unambiguous, that's what we work with, but in terms of
whether or not--when there's lack of clarity and there's a need
to look to something else, I do think that, in fact, precedent
gives us a lot of examples of when----
Senator Kennedy. Let me--let me try it again. The problem
may be mine. The United States Constitution: do you think it
should be interpreted according to the way that people
understood it at the time it was adopted, or another way?
Ms. Lee. I think there are many circumstances where it
should be interpreted according to what people thought at the
time it was adopted.
Senator Kennedy. When? When?
Ms. Lee. For instance, in the case of Heller, the Supreme
Court applied original meaning to determine the scope of the
Second Amendment right, and so we----
Senator Kennedy. When shouldn't we apply original meaning?
Ms. Lee. I think when there are Supreme Court precedents
that apply something--have applied something other than that--
--
Senator Kennedy. On an original question.
Ms. Lee. On the--I'm sorry.
Senator Kennedy. When, on a situation or a right or a
privilege that--and I'm sorry to have to interrupt you, but we
have so little time. When do you--under what circumstances do
we not interpret the Constitution according to the way that
people understood it at the time it was adopted?
Ms. Lee. There are circumstances where the Supreme Court
has not interpreted the Constitution explicitly in that
fashion, and so I would always, as----
Senator Kennedy. Give me an example.
Ms. Lee. I would----
Senator Kennedy. What example are you thinking about?
Ms. Lee. There are times, in the context of judging what is
cruel and unusual punishment under the Eighth Amendment, when
the Supreme Court has looked to----
Senator Kennedy. That's a good example.
Ms. Lee [continuing]. Looked to prevailing norms, in terms
of interpreting what----
Senator Kennedy. Let me just--I've got 15 seconds left. I'm
sorry. Let me try it again. You get a constitutional case.
There's no precedent on it. You've got to interpret the
Constitution. I think I understand your testimony to be that
sometimes we interpret the Constitution according to the way
that people understood it at the time the Constitution was
adopted, and sometimes we don't. How're you going to proceed?
How're you going to decide which of those philosophies you're
going to use on a particular case?
Ms. Lee. Thank you, Senator.
Senator Kennedy. If there's no precedent.
Ms. Lee. I think that when there is not--I think the
circumstances where there's not going to be either controlling
or, at the least, instructive precedent from the Supreme Court
or from the second circuit, I think is fairly rare, and so I
can't say in the abstract, ``Well, this is the philosophy that
I would apply,'' because, again, I'd be driven by what the
precedent says, and so I can't give you a specific judicial
philosophy.
Senator Kennedy. Okay. I'm way over. Listen, I'm going to
send you both a letter. I can't vote for you if I don't know,
and I didn't get a chance to talk to you, Ms. Rossman. I can't
vote for you if I don't know how you're going to--what approach
you're going to use to interpret the United States
Constitution, and I don't believe for a second you both haven't
thought about it. You couldn't have gotten through law school
without thinking about it. I need to know what you think about
it. Okay? Thank you for your time, and I'm sorry I had to
interrupt.
Ms. Lee. No.
Chair Durbin. Thank you, Senator Kennedy. Senator Cotton is
online. Senator, begin. Can you speak?
Senator Cotton. Yes. I hear you, Mr. Chairman. Thank you.
Oh, and thank the witnesses, too, for their appearances.
Both of you have spent your careers as a criminal defense
attorney. Have you ever represented a terrorist detained at
Guantanamo Bay? We'll start, Ms. Rossman, with you.
Ms. Rossman. No, Senator.
Senator Cotton. Ms. Lee?
Ms. Lee. No, Senator.
Senator Cotton. Have you ever represented someone charged
with a terrorism offense under Federal law, Ms. Rossman?
Ms. Rossman. I have not, personally, no.
Senator Cotton. Ms. Lee?
Ms. Lee. No, I have not, Senator.
Senator Cotton. Okay. Thank you. Ms. Lee, in a civil case
in Federal court, when do the parties have a right to a jury
trial?
Ms. Lee. Thank you for that question, Senator. My practice
has been primarily in criminal, and so I'm not familiar with
all of the rules of civil procedure in terms of entitlement to
jury trials and the like. Certainly, though, I have experience,
as I noted before, in terms of figuring out new issues when
they've been presented to me and determining what the law is
and how it applies to the particular circumstances.
Senator Cotton. Ms. Lee, I understand you've spent most of
your career in criminal law, but it's a fairly basic question
about when a civil litigant has a right to a jury trial. You
don't have an answer to that question?
Ms. Lee. Thank you, Senator. No, I don't, off--I do not
know what the requirement is, or the rule is for entitlement to
a jury trial in the civil context. As I said, I have a lot of
experience in figuring out unfamiliar areas of law, and
certainly when those are presented to me, I start with the
specific claim being presented and work through the law and
what I need to figure out to answer the question at issue.
Senator Cotton. Okay. The Seventh Amendment guarantees a
right to trial by jury in all cases where the value in
controversy exceeds $20. How many jurors are there on a Federal
civil jury, Ms. Lee?
Ms. Lee. Thank you, Senator. My understanding is that, in
the context, as well, of a civil jury trial, that an individual
is still entitled to 12 jurors, although, as I said, I have not
practiced in the civil context, and so the specific procedural
rules, I'm not--I have not had occasion to be familiarized
with--familiarize myself with, I should say.
Senator Cotton. Okay. They're entitled to at least 6 and no
more than 12. Can subject matter jurisdiction be waived in
Federal court, Ms. Lee?
Ms. Lee. Subject matter jurisdiction?
Senator Cotton. Yes.
Ms. Lee. I do not--thank you for the question, Senator. I
do not believe that subject matter jurisdiction can be waived;
however, as I said, I'm not--I have not practiced civil
litigation.
Senator Cotton. That's right, it cannot be waived. For the
purposes of determining diversity jurisdiction in a Federal
civil case, in what States is a corporation considered a
citizen?
Ms. Lee. Thank you, Senator. I'm not positive about that.
My understanding--well, I will say, I'm not positive what the
rules are on when a corporation can be considered--did you say
a citizen or a party to a----
Senator Cotton. For purposes of diversity jurisdiction.
Ms. Lee. Right.
Senator Cotton. For purposes of diversity jurisdiction, in
what State is a corporation considered a citizen?
Ms. Lee. Correct. Okay. Thank you, Senator. No, I'm not--I
cannot answer for you what the circumstances are for that.
Senator Cotton. The State where the corporation is
incorporated and/or has its principal place of business. In a
Federal civil jury, each side is guaranteed at least three
peremptory strikes. Can civil litigants remove potential jurors
because they don't like their political beliefs?
Ms. Lee. Thank you, Senator. I am not positive on what the
rules are on that. It does not present the same claim, the same
issue, certainly, in the criminal context, where there are
limitations on peremptory strikes, but I am not familiar with
the rules for the jury service and use of peremptories in the
civil context.
Senator Cotton. The answer is, yes, they can. They can't
use their strikes, of course, due to race or sex, though.
Ms. Lee, you've said several times that you've spent your
career in criminal practice, which I understand. However, you
did work for 2 years as a law clerk in the Federal courts,
where the caseload is more than two-thirds civil, and these are
fairly basic questions of civil procedure. These are not
obscure questions about, say, riparian rights. I'm surprised
that you weren't prepared to answer these questions today, one
of the most important moments in your professional career, and
it raises concerns to me about what litigants should expect
from you, should you be confirmed, at the level of preparation
you will bring into oral arguments. I have some more questions,
but my time is expired, so I'll yield back to the Chairman.
Chair Durbin. Thank you, Senator Cotton. I believe Senator
Blackburn is next.
Senator Blackburn. Thank you, Mr. Chairman, and
congratulations to each of you on being here today. Ms. Lee, I
want to return to the question that Senator Tillis started with
you on your 2013 comments to the Criminal Defense Lawyers CLE
program----
Ms. Lee. Yes.
Senator Blackburn [continuing]. About avoiding cop talk. In
the piece that I read on this, you said it was--to avoid that
because--and I'm quoting. This may refresh your memory. You
made the mention that you had used this to most favorably
describe an outcome that you were seeking, but in what I read,
you said, and I'm quoting you, ``It legitimizes the behavior of
the police,'' end quote. What did you mean by that?
Ms. Lee. Thank you, Senator. I don't--without--I don't know
the portion of the document that you're reading. I'm not--
without hearing what preceded it and what comes after, it's
difficult for me to respond specifically on that. I believe,
though, that what I was--the point that I was trying to make
with that was the idea of, by, again, parroting exactly how the
witnesses or a police officer in a trial transcript described
what occurred, by presenting it that way in your brief, you are
accepting, this is what happened, this is the version of events
that should be--the judge on appeal should accept, and so as an
advocate, we don't want to just present the facts in the way
that supports what the witnesses are claiming. I believe that's
what I was getting at with that description.
Senator Blackburn. Would you review that and then submit an
answer in writing for us? I think that would be helpful,
especially as we look at the environment. Law enforcement is
one of the main concerns when I talk to Tennesseans. Safe
communities, safe streets. Then, to hear that you, as recently
as 2013, would have said, ``avoid cop talk'' and then state
that it legitimizes the behavior of the police, I think you can
understand why this would give us pause and why we would seek
further clarification from you. I would ask that you submit
something in writing that you review that and clarify.
Okay. Ms. Rossman, let me come to you. I'm--I like to know
where someone stands with the Constitution and the rule of law.
No one wants to see activist judges on the bench. They want
them to abide by the rule of law. Same type question that
Senator Kennedy got into with Ms. Lee, over, are you--how do
you believe the Constitution would be interpreted? Are you a
textualist? What do you believe?
Ms. Rossman. Thank you for that question, Senator. I don't
have a specific judicial philosophy, and I think in part
that's----
Senator Blackburn. Okay. I'm going to stop you right there,
because I find it astounding that neither of you have a
judicial philosophy as to how you feel about the Constitution.
Mr. Chairman, I think this is something that should cause all
of us a little bit of concern.
Let me return to the cases on the compassionate release. I
read through some of this in your background and the Wilson
case and then also, specifically, the Moon case that Senator
Hawley was referring to. You know, if you think compassionate
release should be used, and in the Wilson case, you argued that
Mr. Wilson being in--a felon in possession of a gun is a
nonviolent gun possession offense and that he should be
released because of that and given compassionate release, and
then you turn around with the Moon case, and there are several
felonies and the threats, but you have not been able to explain
where you think the court finds its balance.
Each of these are violent offenders with felony records,
but yet in your mind, you thought they deserved that release
because of a health issue and without consideration of danger
to the public and public safety. It is very difficult to
understand how you would approach that balance, and that is
something that you--we would be well served if you could
explain to us in writing: how should the courts balance compel
early release cases? Where would you find that? I know I'm out
of time, and I will yield back. Thank you, Mr. Chairman.
Chair Durbin. Thank you very much, Senator Blackburn. I
thank the nominees for appearing before the Committee, and
please be mindful, as was noted, that some Senators may submit
written questions. We'd ask you to work diligently to respond
to those. Thank you very much, and as they would say in court,
you're excused.
At this point, we are going to move to our second panel.
I'd ask for everyone's patience for a few moments while we
finalize the setup for this panel, with the three nominees
coming to the witness table.
[Pause.]
Chair Durbin. If you would approach the table and raise
your right hand?
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that the three
witnesses have answered in the affirmative. Judge Estudillo?
Did I pronounce that correctly? I've heard two or three
versions, and I may have gotten it wrong. Is that correct,
Estudillo?
I'm sorry about these microphones. They're tricky. That's
the first test before the Judiciary Committee. Phil, could you
help with these crazy microphones? There we go. We start off by
saying, Judge, did I get your name right?
Judge Estudillo. Yes. Thank you, Senator Durbin. If I were
speaking with my parents, it would be Estudillo.
Chair Durbin. Estudillo.
Judge Estudillo. Everybody goes by--or refers to me as
Estudillo.
Chair Durbin. That sounded the same to me, so I'm going to
stop right there.
Judge Estudillo. There's a slight difference. Slight
difference.
Chair Durbin. Please proceed with your opening statement.
STATEMENT OF DAVID ESTUDILLO, NOMINEE
TO SERVE AS UNITED STATES DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON
Judge Estudillo. Thank you, Senator. First, let me thank
you, Chairman Durbin and Ranking Member Grassley, and the rest
of the Members of the Committee, here, for allowing me to be
here and to answer your questions. I also want to thank
President Biden for the honor of this nomination. I am truly
honored and humbled for even being considered for a possible
judicial position.
I want to thank my home State Senators, Senator Murray and
Senator Cantwell, for the trust they have placed in me in
recommending me to President Biden, and I want to thank Senator
Murray for her kind words this morning, introducing myself. I
also want to thank those members of the Judicial Selection
Committee that forwarded my name to my home State Senators, and
I want to thank all of those colleagues, attorneys, friends,
individuals that I've known throughout my life who have
supported me and helped me in my career and my personal
choices.
I'd like to briefly recognize the family who has
accompanied me here today. First, my spouse, Sandra, who's
right here next to me. She is my best friend and my confidante,
and I don't know where I would be, quite frankly, without her
today. I want to acknowledge my children: my oldest, Sophia, my
daughter Sarah, and then my son, Sebastian. They are so
wonderful and doing their best to listen today and be
attentive. I want to acknowledge my mother-in-law, Adelina
Gonzalez, who is here, as well, traveled with us to be with us
here today and help out with the children.
I also want to acknowledge my nine siblings, although I
will not give their names and their spouses' names, but they've
all provided really good role modeling for me, growing up, in
particular my older siblings, as I am the ninth of ten children
and the older ones were true role models for me. Last, I want
to acknowledge my parents, Eloy and Esperanza Estudillo, who
are no longer with us. It was their faith and their belief in
the promises of the United States that gave my siblings and I
the opportunity to live out the continuing chapters of their
American Dream. If it weren't for them, I don't know where I
would be at this moment in time.
Thank you, again, for listening, and I am happy to answer
your questions.
Chair Durbin. Thanks, Judge. Ms. King.
Ms. King. Thank you. Can you hear me?
Chair Durbin. Yes.
STATEMENT OF LAUREN KING, NOMINEE TO
SERVE AS UNITED STATES DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON
Ms. King. Thank you. I would like to thank Chairman Durbin,
Ranking Member Grassley, and Members of the Committee for
having this hearing today. I would also like to thank President
Biden for the honor of this nomination; Senator Murray, for the
very kind introduction; and Senators Murray and Cantwell, for
recommending me to this important position of public trust.
The fact that I am here today is a credit to the public
servants who came before me. The first lawyer in my family was
my great-grandfather, John Jacobs, who also served in the House
of Kings and the House of Warriors in the Muscogee Nation
government. My great aunt, Irene Cleghorn, was the first woman
to serve on the Muscogee Nation National Council; and my
grandmother, Anna Jacobs, proudly served her country in the
United States Army in the Korean War. There is a saying in
Native America that we should devote our lives to protect and
benefit the next seven generations, and they certainly did.
I have many others to thank for the amazing honor of being
here today. I have spent my career surrounded by many inspiring
attorneys, judges, and community leaders. The privilege of
working with all of them has made me a better judge, a better
attorney, and a better person.
I would also like to acknowledge my family. With me today
is my father, Jeff; my mother, Lisa; and my fiance, Sean. My
stepmother, Sharon; my mother's partner, Henrik; my future
parents-in-law, Susan and William; and my brothers, Michael,
Tim, and Sam could not be here today, but they're watching this
hearing from home. I have many other members of my family and
loved ones who also could not be here at this time, located all
around this country and the world. I'm deeply grateful to them
all for their support.
I've struggled to find words, and, in fact, I think there
are none, to express how much my family means to me. They are
the best part of me, and I would not be who I am or where I am
today without their support.
Thank you, and I look forward to answering your questions
today.
Chair Durbin. Thank you very much. Ms. Lin.
Ms. Lin. Is this on?
Chair Durbin. Now it is.
STATEMENT OF TANA LIN, NOMINEE TO SERVE
AS UNITED STATES DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF WASHINGTON
Ms. Lin. Thank you. I'm humbled, honored, and grateful to
be sitting here before you today as a nominee for the Western
District of Washington. I thank Senators Murray and Cantwell
for recommending me to the White House and President Biden for
the nomination.
I also thank you, Senator Durbin, and Ranking Member
Grassley, as well as each Member of this Committee and your
staff, for taking time out of your very busy schedules to
participate in this hearing. This Chinese-American woman,
immigrant, and first lawyer in her family would not be sitting
here but for the sacrifices and support of so many.
First, my parents, Chung Chao Lin and Ejung Fong Lin, also
known as Peter and Jane. My father came to America as a
graduate student in 1966, shortly after the U.S. resumed
admitting Chinese nationals. He decided to stay, to give his
daughters a better chance of success, and part of his dream
came true when my older sister, Wendy Lin, became a doctor,
like we were all supposed to. My father was unhappy with my
decision to go to law school, because he feared that the law
was no place for an immigrant, someone whose first language was
not English, and women.
It also knocked my younger sister, Betty Lin-Fisher, off
track. She became a journalist for the Akron Beacon Journal,
one of just a handful of Asian-Americans with a regular column.
My father passed 2 years ago, but I know that if he were here
today, he would tell me that he's glad I didn't listen to him
all those years ago and that he's proud of me.
My mother, who will be watching from Seattle, worked
overtime shifts for years and sacrificed so much so that her
daughters could go to college, an opportunity that she never
had, and have a chance at a better life. Thank you, Mom, and I
love you.
I also thank my husband and children, who are here with me
today, for lifting and inspiring me every single day. My
husband of 28 years, Paul Holland, is a law professor at
Seattle University School of Law, and he's the most amazing
partner, father, and friend. My son, Patrick Holland Lin, a
2019 Northwestern University graduate, is a chemistry teacher
at a charter school in Chicago and, perhaps making up for my
errant ways, an aspiring future doctor. My daughter, Julia
Holland Lin, is a rising junior at Annenberg School of
Journalism at the University of Southern California. I also
thank my big Chinese family, my husband's family, my friends
and mentors for their love and support over the years.
Finally, I thank my colleagues at Keller Rohrback and my
former colleagues at PDS, DOJ, the EEOC, and the Michigan
Poverty Law Program, from whom I have learned so much and with
whom I had the opportunity to do truly meaningful work. Thank
you, Senators, and I look forward to answering your questions.
Chair Durbin. Thank you very much. I'm going to have a few
questions. I want to make one observation from the previous
panel. There was an effort by several of my colleagues to pin
people down about their theory of the Constitution, and, of
course, that is a misleading question or at least a dangerous
question, because there are different people who put different
labels on things and come to different conclusions.
In fact, the nominees who were presented by the previous
president avoided that question completely and came back with a
standard answer that was given over and over again: ``I tend
not to label myself, because the term `originalist' or
`textualist' may mean different things to different people.''
But obviously the preparation for the previous panel did not
include that standard response. I encourage consistency from
nominees of both political parties on that question and
response.
This is an amazing panel. When I look at your backgrounds
and what you bring to this Judiciary Committee meeting and this
court, I feel good about this country, because each one of you
has something affirmative to say about opportunity and also
about a struggle that you or someone in your family has been
through so that you could be here today.
Judge, that your parents or grandparents were in the
Bracero Program. Ms. King, that your background with Native
Americans--I was amazed as she talked about generations in the
Muscogee Nation and their leadership in that regard. Ms. Lin,
as an Asian, coming to this country, I know that you struggled
many times, your family did, with prejudice. Yet, despite all
those things, here you sit today, taking an oath and aspiring
to serve in the Federal judiciary. It's a great testimony to
our Nation, that we've been able to overcome some of the
prejudices of our past and that you, with your determination,
come before us.
Ms. Lin, you immigrated to the U.S. from Taiwan at the age
of three, initially settling with your parents in Kansas and
later moving to Chicago. You didn't speak English until age 5,
is that correct? Your family faced some prejudice as you were
growing up. How did your childhood and immigration experience
factor into your decision to become a civil rights lawyer?
Ms. Lin. You know, it factored greatly into my decision to
try and help others that were in my situation. As you stated,
Senator Durbin, I did not speak English when I first started
school, and so my earliest memory really is of the teacher who
thought I wasn't listening to her, because I didn't understand
what she was saying, pointing at me and telling me to put my
head on my desk. I spent most of my first year in school with
my head on the desk, not because I was disobeying her, but I
didn't listen to her.
You know, another deeply formative experience for me was
when my parents moved us to the suburbs, someplace where they
thought it would be safe, because there was a lot of gun
violence in the neighborhood that we were living in. We were
one of the first families of color, and along with that came,
apparently, you know, the inability to use swings, because I
remember being on a swing when a much larger girl came up and
shoved me off, yelled an expletive, and asked why I thought I
could use it. The principal, when I was sent to the office,
asked me what I had done to provoke the girl, and I was sent
home.
Those experiences were deeply formative for me, and--you
know, and I've also watched my parents. My mom, everything
about her is about helping others. My father and his dream for
us to become doctors is about servicing others, so service and
helping and doing good has been the bedrock of sort of my
upbringing.
Chair Durbin. Ms. King, it appears that you have come from
two different worlds: the regular world of law, as we have
learned it, many of us, and the world of Intertribal law and
custom. How have you been able to reconcile those in your mind?
Ms. King. Thank you, Chairman. In my 8 years of experience
as an appellate judge on the Northwest Intertribal Court
System, it's been a very valuable experience, because that
system serves over 20 member Tribes, so when I'm assigned to a
new case, I have to familiarize myself with the new sovereign's
code and constitution. It's helped me keep an open mind and at
the same time contributed to faithful adherence to the law,
because I'm working within a different system every time.
Chair Durbin. Judge Estudillo, I'm sure I'm mispronouncing
your name again, but you know what I'm trying to do and to be
respectful of you. As you hear conversations about immigration
and the Hispanic population in America and reflect on your own
family story, how does it affect your role or how you envision
your role as judge?
Judge Estudillo. Thank you, Senator, for the question. My
parents' immigration story is both unique but the same as many
other immigrants that have arrived here in the United States
and sought a better life. I recognize that, so when people come
in front of me, I'm open-minded about different backgrounds,
different, you know, histories, et cetera, and I want to make
sure I have an inclusive environment in everything that I do,
because I recognize people are different, just--and you don't
have to be an immigrant to be different. Sometimes people are
just different than you, and you need to be open-minded about
people's differences and be willing to work with everyone. That
is an approach I take with me every single day on the bench.
Chair Durbin. Thank you. Senator Grassley.
Senator Grassley. Yes. My first question is to Ms. Lin, to
see if there's some consistency in her position. In 2017, you
wrote a letter to Sessions about Trump's rhetoric toward Judge
Robart in Seattle. You said Trump's efforts, quote, ``to
publicly vilify individual judges was a wholly inappropriate
assault on the independence of the judicial branch.''
Last week, San Diego Judge Roger Benitez, who is a Latino
immigrant, issued an opinion striking down California's AR-15
ban. The Governor of California called the opinion, quote, ``a
disgusting slap in the face to those who lost loved ones to gun
violence'' and, further quoting, ``a direct threat to public
safety and innocent Californians.'' One prominent liberal
commentator called Judge Benitez, quote, ``a death-worshipping
fascist,'' while a liberal law professor called it, quote, ``a
diatribe disguised as a judicial opinion.''
You don't have to agree with this opinion, but those
statements, including by the Governor of California, go beyond
disagreement. Given what you said in 2017, do you condemn these
attacks by Judge Benitez on--as inappropriate assaults on
judicial independence?
Ms. Lin. Senator, I would note that I didn't write the
letter. I did sign onto the letter, along with thousands of
other attorneys, and the reason I signed onto the letter is
because I think that the impartiality and independence of the
judiciary is a bedrock, again, of our judicial system, and so I
think comments that attack judges for just doing their job
aren't helpful, and I think, as Judge Gorsuch said during his
confirmation, are disheartening and demoralizing.
Senator Grassley. You have been very involved with the
ACLU, including at a leadership level. A recent article in the
New York Times catalogued how the ACLU seems to be abandoning
its traditional role as a protector of free speech regardless
of its content. The article says, quote, ``Some ACLU lawyers
and staff members argue that the First Amendment is more often
a tool of powerful than the oppressed,'' end of quote. Do you
agree with that statement?
Ms. Lin. Your Honor, I--Senator, I understand that there
was a New York Times article about the ACLU, and I would note
that I'm involved with the ACLU of Washington, which is an
affiliate of the organization. I believe that free speech is a
fundamental right that is important to be protected.
Senator Grassley. The article goes on to say, in 2018, the
ACLU, quote, ``unfurled new guidelines that suggest that
lawyers should balance taking a free speech case representing
right-wing groups because such a case might give offense to
marginalized groups,'' end of quote. Did you agree with these
guidelines when they were set out? If not, what did you do from
your leadership position to oppose them?
Ms. Lin. Senator, I believe that article was talking about
the ACLU National, and so I'm not familiar with the guidelines
that were issued there, because, again, I am a member of an
affiliate board.
Senator Grassley. I might ask you to respond in writing to
further that discussion, because I think that's pretty basic to
how things would be. I've got one question for Ms. King.
I've received lots of letters supporting you, from Native
American Tribes. You obviously have an impressive support
within that community. In some ways, it's a mirror image of
what happened when Eric Miller was nominated for the ninth
circuit. At that time, I got countless letters from Tribes
opposing him. While I appreciated their respectives, I thought
the arguments against Miller was pretty unfair, namely, that
because he frequently litigated against Tribes, he'd be biased
as a judge. I think our legal system works best when both sides
of the case are well represented, including Indian law cases,
and we should evaluate nominees based on their records more
than their clients. What do you think?
Ms. King. Thank you, Senator, for that question. I know and
respect Judge Miller, and he was certainly a zealous advocate
who took very seriously his obligation to be the voice of his
clients. As a judge, he takes very seriously his oath to be the
voice of the law, and if I were so fortunate as to be
confirmed, I would do the same.
Senator Grassley. Okay. I yield. I'll submit questions to
Judge E. later on.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank all of you
for your service already to our Nation and to your State of
Washington and your willingness to serve in this very important
position. I'm tremendously impressed by your qualifications and
experience. You will bring to the bench really a lifetime of
service in our courts, with a very detailed knowledge about
what fairness looks like in our legal system, at a time when
the rule of law and norms that underlie our judicial system are
very much under challenge.
You also bring diversity to our system, as the Chairman has
remarked. President Biden has really, in his nominees so far,
demonstrated the importance of diversity in our judicial
system, but I would be interested in all of your views, maybe
beginning with Judge King and Ms. Lin--because, if confirmed,
you will be, respectively, the first Native American Federal
judge in the Western District of Washington; and, Ms. Lin, you
will be the first Asian-American appointed to either of
Washington's judicial districts--what you see the value and
importance of diversity being, in our judicial system, if you
could comment.
Ms. King. Thank you, Senator. I believe diversity of all
kinds is very important to the Federal judiciary. I believe
that it improves public confidence, and it also serves and
important modeling function, so everybody who might aspire to
be public servants is aware that this path is open to them.
With respect to Washington, in particular, as Senator Murray
mentioned at the outset, there are 29 federally recognized
Tribes in the State, and to my knowledge, we've not had a
Federal judge in the Western District with a background in
Indian law, so I believe that my unique background in that area
of the law would serve me well if I'm so fortunate as to be
confirmed. Thank you.
Senator Blumenthal. Thank you. Ms. Lin.
Ms. Lin. I echo what Ms. King said about diversity
increasing public confidence. As far as role modeling, I would
say that, you know, in my nearly 30 years of practice, I
haven't yet had the pleasure of appearing before somebody that
looks like me, and I was stunned, when I was thinking about
applying for this job and looking into the past judges, to
learn that there had not yet been an Asian American, because,
according to the last census, in King County alone, 20 percent
of the population is made up of AAPI people.
I certainly hope that, if I am lucky enough to be
confirmed, as Ms. King said, it will be--it will demonstrate
that the bench is open to people of all different backgrounds.
For me personally, and given my personal story, you know, I
certainly hope that it will also assure or reassure some
immigrant parents that the law is an honorable and good
profession for their children, especially their daughters.
Senator Blumenthal. Thank you. Judge Estudillo, if you have
any comment, I'd welcome it.
Judge Estudillo. Yes. Thank you, Senator. I'll just be
brief. I do agree with the public confidence aspect that
diversity brings, as well as the role modeling, and just to
add, on the role modeling, I regularly meet with young
individuals that are students, in the juvenile court system,
and many of them are from Latino backgrounds and whose parents
also work in the fields.
Even though I don't know if I can truly change their
thoughts and what they're doing and some of the decisions
they've been making, I've tried to use that role modeling in
front of them and say, ``Hey, look, there are opportunities if
you just are willing to try. Your parents are here to help you,
and the juvenile justice system's here to help you, as well.''
I hope--I hope--that, at some point, I'm able to at least
inspire one of those students or individuals in the juvenile
justice system to make better decisions. That's my hope,
anyway.
Senator Blumenthal. Thank you. Thank you all. Thanks, Mr.
Chairman.
Chair Durbin. Senator Lee.
Senator Lee. Ms. Lin, I'd like to start with you. A moment
ago, one of my colleagues referenced a letter that you signed
from a group called DOJ Alumni. I'd like to refer to another
letter you signed with that group about a year ago. In that
letter, you condemned the Department of Justice's decision to
dismiss charges against General Michael Flynn, and in that same
letter, you also urged District Court Judge Emmet Sullivan to,
quote, ``closely examine the Department's stated rationale for
dismissing charges and to deny the motion and proceed with
sentencing if appropriate.''
Is this an appropriate thing? Is it a proper role for an
Article III judge to determine whether a criminal prosecution
should proceed, after the Government has sought dismissal?
Ms. Lin. I think, as a matter of the checks and balances,
it is the role of the judge to look at the specific--I'm not
saying always, but it would really depend on the specific facts
of the case, as--you know, as well as the arguments put forth
by the parties.
Senator Lee. Ms. King, I want to turn next to you. In 2016,
you opposed a proposal that would've prohibited religious
practices at Washington State Bar events. You argued that an
opening blessing or ceremony before or after an event was an
inherent and normal part of Native American culture and that
blaming religious practices was inconsistent with principles of
diversity, equality, and cultural understanding. You also
quoted the Supreme Court's holding that such practices are,
quote, ``deeply embedded in the history and tradition of this
country.''
Ms. King, I just wanted to applaud you for those
statements. I think they're spot on. Can you explain to us
briefly why it's vital that we be willing to respect religious
freedom and religious expression in the public square?
Ms. King. Thank you, Senator. I take freedom of religion
very seriously. I think it's no coincidence that freedom of
religion is included in the very first of our amendments, in
the Bill of Rights, and the arguments that we put forth in that
letter were consistent with the Supreme Court holding in Marsh
v. Chambers, I believe.
Senator Lee. In 2018, you gave a presentation that
described arguments based on the plain meaning of a treaty's
text as, quote, ``ethnocentric.'' Could you explain how
arguments based on plain meaning of a legal text could be
considered ethnocentric?
Ms. King. Thank you, Senator, for that question. I don't
recall making that argument. I believe you're referring to the
United States v. Washington case, where our task was to prove
on behalf of our client the meaning of a treaty term in 1855.
The strongest evidence and the evidence that we relied upon was
from treaty time.
Senator Lee. Okay. Yes, this was taken from a PowerPoint
that you presented in that presentation, so these were your
words, not mine. I wasn't sure what you meant by ethnocentric.
You wouldn't regard that as a wrong thing to do, to look to the
text of a legal document being interpreted by the court.
In this--getting back to some questions asked earlier today
with other nominees, without regard to whether you call
yourself a textualist or originalist, if people are
uncomfortable using those, that's surprising to me, given that
this focuses on the text, let me just ask it this way. Is it
the case that courts should look at the text of a statute and
look to ascertain the understanding at the time of enactment or
adoption into the Constitution of those words and how they're
understood at the time?
Ms. King. Thank you, Senator. The text of a statute is
certainly the most probative evidence of legislative intent.
With respect to the Constitution, though----
Senator Lee. It's the most probative evidence. If it's the
most probative evidence, what other evidence could there be?
Ms. King. Well----
Senator Lee. I mean, isn't that your job, is to figure out
what is said? How do you ascertain the collective and--how do
you ascertain the subjective intent of anyone and everyone?
Don't we view that by looking at the text?
Ms. King. The analysis starts with the text, and if the
text is clear and unambiguous, your task is generally done. I
would look to text, statutory context, apply the canons of
construction, if needed, and if needed, could also look to
legislative intent, or legislative history.
Senator Lee. Okay. Ms. Lin, do you share that view?
Ms. Lin. I do.
Senator Lee. Mr. Estudillo?
Judge Estudillo. Yes, I agree.
Senator Lee. Right. These are questions that I believe are
not remarkable. They're not controversial, given that it is the
job of the judicial branch of Government to say what the law
is, and as Hamilton explained it in Federalist 78, or to decide
cases and controversies using the language of Article III of
the Constitution, meaning when multiple parties come together
and they disagree as to what the law says, and it's a matter
before the jurisdiction of the court, the court has to decide
what that means. In defining that, it's important for us to
know how jurists will approach that task. I'm pleased to hear
that each of you would be driven by the text in that analysis.
Thank you.
Chair Durbin. Thanks, Senator Lee. Before I adjourn today's
hearing, I want to enter a number of letters into the record
and make a few logistical notes.
We've received letters of support for today's nominees from
across political, professional, and ideological spectra. These
include letters of support from national civil rights
organizations, Federal prosecutors and law enforcement, support
from numerous Native American Tribes and Tribal groups. They'll
all be entered into the record without objection.
[The information appears as submissions for the record.]
Questions for the record that may be directed toward the
nominees will be due to the nominees by 5 p.m. on Wednesday,
June 16th. The record will likewise remain open until that
time, to submit letters and similar materials. With that, this
hearing is adjourned.
[Whereupon, at 12:18 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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