    [Senate Hearing 117-820]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-820

                            CONFIRMATION HEARING ON
                              FEDERAL APPOINTMENTS

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 23, 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

    54-643                    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

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Durbin, Hon. Richard J...........................................     2
    Grassley, Hon. Charles E.........................................     3
    Leahy, Hon. Patrick J............................................     5
        Prepared statement...........................................    55
    Hirono, Hon. Mazie K.............................................     6
    Booker, Hon. Cory A..............................................     9
    Ossoff, Hon. Jon.................................................     1

                              VISITING INTRODUCERS

    Markey, Hon. Edward J., U.S. Senator from Massachusetts..........     7
    Menendez, Hon. Robert, U.S. Senator from New Jersey..............     8
    Warren, Hon. Elizabeth, U.S. Senator from Massachusetts..........     6

                                    NOMINEES

    Gelpi, Hon. Gustavo A............................................    10
        Questionnaire................................................   285
        Responses to written questions...............................    57
        Additional materials.........................................   224
    Greenfeld, Helaine Ann...........................................    36
        Questionnaire................................................   449
        Responses to written questions...............................   116
    Kelley, Hon. Angel...............................................    34
        Questionnaire................................................   377
        Responses to written questions...............................   133
        Additional materials.........................................   238
    O'Hearn, Christine P.............................................    35
        Questionnaire................................................   421
        Responses to written questions...............................   164
        Additional materials.........................................   243
    Schroeder, Christopher H.........................................    37
        Questionnaire................................................   267
        Responses to written questions...............................   197
        Additional materials.........................................   261

                            CONFIRMATION HEARING ON
                              FEDERAL APPOINTMENTS

                                  ----------

                            WEDNESDAY, JUNE 23, 2021

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:32 a.m., in
    Room 216, Hart Senate Office Building, Chair Ossoff presiding.
        Present: Senators Ossoff [presiding], Durbin, Leahy,
    Whitehouse, Klobuchar, Blumenthal, Hirono, Booker, Padilla,
    Grassley, Lee, Cruz, Hawley, Cotton, Kennedy, Tillis, and
    Blackburn.
        Also present: Senators Warren, Markey, and Menendez; Puerto
    Rico Governor Pierluisi and Representative Gonzalez-Colon.

                 OPENING STATEMENT OF HON. JON OSSOFF,

                A U.S. SENATOR FROM THE STATE OF GEORGIA

        Chair Ossoff. The Senate Judiciary Committee will come to
    order. Today, we will hear from five nominees: Judge Gustavo
    Gelpi, nominated to the first circuit; Judge Angel Kelley,
    nominated to the District of Massachusetts; Christine O'Hearn,
    nominated to the District of New Jersey; Helaine Greenfeld,
    nominated to lead the Justice Department's Office of
    Legislative Affairs, or OLA; and Christopher Schroeder,
    nominated to lead the Justice Department's Office of Legal
    Counsel, or OLC.
        I'll introduce two of the nominees, and we'll hear from a
    number of our colleagues today to introduce the remaining
    three. Before I make my introductions, I'd like to extend a
    note of thanks to Chair Durbin for the opportunity to preside
    at this hearing. The Committee does enormously important work,
    and these nomination hearings are no exception. Thank you,
    Chair Durbin.
        Turning now to the introductions. First, I have the
    privilege of introducing Judge Gustavo Gelpi, who has been
    nominated to the First Circuit Court of Appeals. Judge Gelpi
    currently serves as a United States District Court Judge for
    the District of Puerto Rico, a position he's held since the
    Senate unanimously confirmed him to that role in 2006.
        In his time on the bench, which included 5 years as a
    Federal magistrate judge before his appointment to the district
    court, Judge Gelpi has presided over some 3,400 cases,
    including 62 jury trials. He's written more than 880 opinions
    on a range of legal and constitutional issues from Social
    Security benefits to the Federal Tort Claims Act, to the First
    Amendment.
        Judge Gelpi came to the district court with a unique and
    varied perspective, having served as both a Federal public
    defender and with the Puerto Rico Department of Justice, where
    he handled criminal matters on behalf of the Attorney General
    of Puerto Rico. He'll bring that same perspective along with
    two decades of judicial experience to the first circuit. It's
    no surprise, then, that the American Bar Association
    unanimously rated Judge Gelpi ``well qualified.''
        I'd also note that when confirmed, Judge Gelpi will be just
    the second judge from Puerto Rico to ever sit on the first
    circuit, and likewise, the second judge of Hispanic origin to
    serve on that same court.
        Congratulations to you and your family, Judge Gelpi. We
    look forward to hearing from you in just a few minutes.
        It's also my privilege to introduce Christopher Schroeder,
    nominated to lead the Office of Legal Counsel. Mr. Schroeder
    currently serves as a Deputy Assistant Attorney General at OLC.
    In many respects, his nomination to head this office is
    something of a homecoming. His first stint in that office was
    in 1993, when he served as a counselor to the Assistant
    Attorney General.
        Mr. Schroeder is also well-known to this Committee. He
    served as a special nominations counsel and chief counsel to
    the Senate Judiciary Committee when now President Biden was the
    Committee Chairman. During the Obama administration, he served
    for 3 years as the Assistant Attorney General in charge of the
    Office of Legal Policy.
        In addition to his Government service, Mr. Schroeder spent
    more than 40 years in legal academia as a professor of law and
    public policy at Duke University's School of Law, where he
    taught classes on environmental law, constitutional law,
    administrative law, property and civil procedure, and fittingly
    Congress and the legislative process.
        Congratulations to you and your family as well, Mr.
    Schroeder, for your nomination. We look forward to hearing from
    you on the second panel.
        Is Chair Durbin with us? Before I turn to Ranking Member
    Grassley for his opening remarks, I'd like to recognize Chair
    Durbin to make brief opening comments.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,

               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. Senator Ossoff, thank you very much for
    Chairing this hearing. As I mentioned to several, I have to
    testify in the House this morning, and I won't be able to stay.
    You are in good hands, I say to all the nominees.
        Senator Ossoff is one of our most recent additions and an
    invaluable Member of the Committee. As he mentioned, we have
    five outstanding nominees before us. Senator Ossoff has already
    introduced two: Judge Gelpi and Christopher Schroeder.
        The Committee will also hear from Judge Angel Kelley,
    nominated to the District of Massachusetts; and Christine
    O'Hearn to the District of New Jersey. I'd like to say a word,
    and I'm sure there'll be much more said by Senator Leahy,
    appropriately, about the final nominee, Helaine Greenfeld,
    nominated to the Justice Department's Office of Legislative
    Affairs.
        I know that both Senator Leahy and Senator Hirono will make
    formal introductions, but I wanted to add a word. In a very
    real sense, Ms. Greenfeld has been the mainstay of this
    Committee's work. From her time as chief nominations counsel to
    Senator Leahy to her work as chief counsel to Senator Hirono,
    Ms. Greenfeld has been a widely respected staff member, a
    wonderful colleague, and a mentor to so many people.
        She has now been given what some might consider a tough
    assignment, responding to the requests from this Committee. We
    know, though, that she's up to it, and that she will serve the
    Justice Department in the way she served this Committee with
    professionalism, integrity, and dedication.
        Thank you to all the nominees. With that, I turn it back to
    Senator Ossoff.
        Chair Ossoff. Thank you, Mr. Chairman. I'd like to turn to
    Ranking Member Grassley for any opening statement he wishes to
    make.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. I congratulate all the nominees, and I'm
    going to take my time not so much to talk about the nominees,
    as a couple of other issues that's related to the judiciary.
        Last week, the Supreme Court threw out the latest Obamacare
    suit. Justice Barrett joined Justice Breyer's opinion doing so.
    I'm old enough to remember when my Democrat friends insisted
    that the main reason we were confirming Justice Barrett to the
    Supreme Court was so that that new Justice could dismantle
    Obamacare in that very case. Of course, that turned out to be
    nonsense, and it was a nonsense at the time it was stated. My
    colleagues still boycotted the markup and left in their place
    pictures of children who would supposedly lose their healthcare
    if Justice Barrett was confirmed. It was fearmongering, and of
    course, we know now they aught to be convinced that was false.
        Have any Democrats apologized to Justice Barrett for
    questioning her integrity? Of course not. In fact, one Democrat
    went so far as to say that maybe the attacks on her character
    bullied her into voting the right way. It's sad that Democrats
    see judges as mere politicians beholden to special interests
    and vulnerable to personal attacks. It's also refreshing to see
    independent judges, like Amy Barrett and Brett Kavanaugh, do
    the right thing under the law.
        I also want to talk a little bit about judicial philosophy.
    My Republican colleagues and I have asked Biden nominees many
    questions about judicial philosophy, some of those may be asked
    of our nominees today. We don't often get an answer. Hardly
    ever. In fact, they seem to be allergic to the very idea of
    judicial philosophy. They won't agree to being originalists or
    textualists.
        They won't oppose the living Constitution. That's fair
    enough. They're Democrats. They won't embrace that living
    Constitution philosophy either. It seems they just don't want
    to talk about philosophy at all. To me, this means one of two
    things: It could mean that they're interpretative liberals, and
    they don't want to admit it. Namely, they believe in the
    liberal method of interpreting the Constitution like Justice
    Brennan or an interpretative statute like Judge Posner, but
    don't feel comfortable defending those views in public. More
    troubling, it could mean that they're being honest, and they
    don't have any interpretative method at all, and it really is
    just politics all the way down.
        I've started to ask nominees about whether law is just
    politics. How do they view law generally? How does the law
    relate to politics? Where does morality fit in? Where does the
    law get its power? They aren't any more forthcoming on
    jurisprudence questions than they are in interpretation
    questions.
        Our colleague, Senator Kennedy, has observed, ``Surely,
    they've thought about this,'' meaning what I just spoke about.
    They've thought about it. He observes that all these nominees
    are very smart people. They are smart people. I have no doubt
    that President Biden and Demand Justice and expect them to have
    thoughts about these issues. What's the point in hiding your
    judicial philosophy? They are hiding it.
        Chairman Durbin recently quoted a Trump nominee, saying he
    or she didn't like labels, to argue that nominees over the last
    4 years didn't answer questions about judicial philosophy
    either. Of course, that's just not correct. It's true some
    Trump nominees didn't embrace the originalist label, but not
    all Trump nominees were originalists. The fact is that the
    Trump nominees didn't run from their place.
        Neil Gorsuch said, quote, ``I'm happy to be called an
    originalist.'' Amy Barrett agreed, quote, ``I'm an
    originalist.'' I count at least a dozen Trump circuit and
    district nominees who either identified as originalist or said
    that they subscribe to originalist or textualist methods when
    asked. Maybe that's why so many Democrats voted against them.
    Maybe Democrats today figure a diverse group of criminal
    defense judges will reach policy outcomes that they like, and
    that's good enough for them.
        It's not good enough for me or, I suspect, the American
    people. It shouldn't be good enough for any Senator who views
    the role of a judge as someone who will impartially follow the
    law and not just be a partisan in robes.
        We're going to keep asking about judicial philosophy to see
    if Biden nominees can defend their views of the judiciary and
    the rule of law. We'll see if any of our friends on the other
    side join us in that effort.
        As to today's nominees, we surely won't get this kind of
    equivocation from Judge Gelpi, a replacement for the phenomenal
    Judge Raul Arias, whose nomination was unfortunately withdrawn
    by Biden. Judge Gelpi has a long history as a judge in Puerto
    Rico, where he has also opined at great length on multiple
    language--in multiple languages on his constitutional views. He
    even wrote a book about constitutional history. I look forward
    to discussing those views with him.
        Judge Kelley and O'Hearn have interesting records that I'll
    want to talk about. Mr. Schroeder and Ms. Greenfeld hold hands
    at their respective positions, and I can only hope that they
    will give them the expertise and knowledge they need to assist
    me and my oversight requests at the Justice Department. Which,
    by the way, for all Members of this Committee, I still haven't
    gotten my documents from Garland that we wrote about 6 or 8
    months--6 or 8 weeks ago.
        Thank you all.
        Chair Ossoff. Thank you, Ranking Member Grassley. We'll now
    hear from several colleagues who are joining this morning to
    introduce nominees, beginning with Senator Leahy, who will
    introduce his former aide, Helaine Greenfeld.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,

                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. Thank you, Mr. Chairman. I apologize. I'm
    going to have to be brief because I'm going to the memorial
    service for a dear friend and former colleague, Senator John
    Warner.
        It is a great pleasure to introduce Helaine Greenfeld this
    morning. She's dedicated her career to public service. I take
    special pride, though, in knowing Helaine Greenfeld's first job
    on Capitol Hill was as my counsel on this Committee.
        I knew how well she'd do. She graduated at the top of her
    law school class at Georgetown Law, also my alma mater, and
    continued on doing amazing things. She was an instrumental
    player in the confirmation of the late Justice Ruth Bader
    Ginsburg. It's no exaggeration that her tireless work to get
    Justice Ginsburg confirmed changed the world.
        She joined my Judiciary Committee team as I took over as
    Chairman for the first time in 2001. She was my senior
    nominations counsel. I was a brand-new Committee Chairman, and
    I had a lot to learn, and she was by my side throughout those
    years.
        Thinking what the Ranking Member just said about should we
    look at people as individuals. She guided me through two
    Supreme Court nominations. One of those was the nomination of
    Chief Justice Roberts. I know a number of Democrats opposed
    Chief Justice Roberts. I'm proud to say I cross party lines and
    I supported Chief Justice Roberts' confirmation because our
    Supreme Court, the crown jewel of our independent judiciary, is
    so much more important than partisanship.
        It was her wise counsel that helped me on every one of
    these, and helping us get a number of lifetime judgeships
    through. I think I can say I have voted for probably more
    Republican nominees as judges than virtually any Republican
    Member of this Committee when we speak about partisanship. She
    helped me get through judges, no matter what their political
    background were, if they were the most qualified.
        I also know how--what a great sense of humor she has. I can
    remember walking down the halls and hearing these roars of
    laughter coming from her office as she was briefing the staff
    and getting things ready. I look forward to supporting her
    throughout this.
        I would ask my full statement be placed in the record. I
    could tell you we could not have a better person. Thank you.
        Chair Ossoff. Thank you, Senator Leahy. Please give our
    respects to Senator Warner's family. Senator Hirono will join
    in introducing Ms. Greenfeld.

               OPENING STATEMENT OF HON. MAZIE K. HIRONO,

                A U.S. SENATOR FROM THE STATE OF HAWAII

        Senator Hirono. Thank you, Mr. Chairman. If you listed the
    ideal qualifications, skills, and experience for someone
    nominated to serve as Assistant Attorney General for
    Legislative Affairs, you'd be hard-pressed to find someone with
    more suitable experience for the job than Helaine Greenfeld.
        Over the 2 years Ms. Greenfeld served as my chief counsel,
    I came to depend on her expertise, professionalism, and
    strategic advice. I also benefited regularly from her years of
    experience serving in the Department of Justice and on the
    Hill. It is precisely this combination of skill and experience
    that makes Ms. Greenfeld well-suited to this role, and why I
    enthusiastically endorse her nomination.
        Over the years, Members of the Committee on both sides of
    the isle have expressed frustration with DOJ's lack of
    responsiveness to congressional oversight, and requests for
    technical assistance, and other information. I have shared this
    frustration at times myself.
        Having worked on both the executive and legislative
    branches of Government, Ms. Greenfeld understands and respects
    Congress's responsibility to conduct oversight. She also
    understands that timely information from DOJ is an essential
    tool for Congress to legislate effectively. As a member of OLA
    leadership since the beginning of the Biden administration, Ms.
    Greenfeld is already setting a positive tone in the
    relationship between Congress and DOJ.
        I saw this firsthand earlier this year when DOJ provided
    timely and important technical assistance on the COVID-19 Hate
    Crimes Act. Working on a bipartisan basis, we were able to
    incorporate elements of DOJ's guidance into the bill, which
    passed the Senate almost unanimously, and which President Biden
    ultimately signed into law. I understand that other Members of
    Congress have enjoyed similar productive dialog with OLA, and
    I'm sure Ms. Greenfeld will speak more about this subject
    during this hearing.
        On a personal note, I can vouch for Ms. Greenfeld's
    professionalism and character, and yes, her sense of humor. I
    know how much her family's experience as Jewish refugees
    fleeing the Holocaust drove her to a life of public service. I
    know she will excel in the role to which she was appointed and
    offer a strong endorsement for her confirmation.
        Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Hirono. Senator Warren
    will introduce Judge Angel Kelley.

                  STATEMENT OF HON. ELIZABETH WARREN,

             A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

        Senator Warren. Thank you, Senator Ossoff and Ranking
    Member Grassley. Today I have the privilege of introducing
    Massachusetts Superior Court Judge Angel Kelley, who has been
    nominated to serve as a judge on the Federal district court of
    Massachusetts.
        Judge Kelley's 28-year legal career has provided her
    excellent preparation for joining the Federal bench in
    Massachusetts. Judge Kelley has served as a judge in the
    Commonwealth since 2009, as an associate justice on both the
    State district court and superior court in Brockton. She also
    served as a regional administrative judge from 2017 to 2020.
        Judge Kelley's legal career has also consistently centered
    on public interest. She began her career working as a staff
    attorney in the juvenile rights division at the Legal Aid
    Society in New York, where she served as a law guardian in
    child protective matters, representing abused and neglected
    children. She also worked as a public defender in juvenile
    delinquency cases. Her public service career continued in the
    law department of the Port Authority of New York and New
    Jersey, and later as an assistant U.S. attorney in Boston for 2
    years. Judge Kelley also taught at the Legal Aide Bureau at the
    Harvard Law School, where she supervised students in probate
    and family court and taught courses in family law and
    litigation skills.
        Judge Kelley is supremely qualified to serve on the Federal
    district court in Massachusetts. In addition to her
    professional commitment to public service, Judge Kelley has
    made it a personal mission to bring about change through her
    role on the bench, both in her courtroom and in the courtrooms
    of her colleagues. For years, Judge Kelley has led efforts to
    encourage our State courts to reflect on and publicly
    acknowledge the injustices that Black Americans have long-faced
    in this country. Those efforts have included community
    listening sessions and educational events on race, including a
    conversation on, quote, ``Confronting Racism in the Courts,''
    for Massachusetts judges.
        In 2019, Judge Kelley single-handedly organized a judicial
    educational program to travel to Montgomery, Alabama, to visit
    the Equal Justice Initiative's Legacy Museum. Judges and their
    families traveled to Montgomery to meet with members of the
    Alabama judiciary to tour the Legacy Museum and National
    Memorial for Peace and Justice; to visit the Rosa Parks Museum;
    and to reflect, as a group, on the role of the judiciary in our
    country and the implications of judicial decisions on the
    broader society.
        I could go on and on about her personal and professional
    qualifications for the bench. Judge Kelley has demonstrated a
    deep commitment to advancing equal justice under law. She has
    gone out of her way to educate her colleagues on how they could
    bring about a more equitable legal system. I have no doubt that
    she will continue this work on the Federal district court in
    Massachusetts.
        I want to say a welcome to Judge Kelley, and
    congratulations on your nomination. Also, welcome my colleague
    and partner, Senator Markey.
        Chair Ossoff. Thank you, Senator Warren. Senator Markey,
    you're recognized to join in the introduction of Judge Kelley.

                  STATEMENT OF HON. EDWARD J. MARKEY,

             A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

        Senator Markey. Thank you, Mr. Chairman, very much. I'm
    just going to add on to what Senator Warren just presented to
    the Committee, which is that it is a pleasure for us to be able
    to recommend for confirmation Judge Angel Kelley to serve as a
    judge on the United States District Court for the District of
    Massachusetts.
        In a legal career that has already spanned almost 30 years,
    Judge Kelley has excelled in everything she has done, and she
    has done a lot. She has been a trial attorney, a legal
    instructor, a State Court judge in our home State of
    Massachusetts. She has devoted her entire professional career
    to public interest and public service work.
        She began her practice of law, representing children in
    delinquency and protective care cases in New York. She went on
    to serve as a senior trial attorney and assistant chief of
    litigation in the fast-paced and demanding Port Authority of
    New York and New Jersey. She served as an assistant United
    States attorney.
        If you Google the words ``public service,'' Judge Kelley's
    picture pops up. It's been her life. She has taught litigation
    skills to students at Harvard University Law School and
    supervised them representing indigent clients appearing in
    probate and family court. As a judge sitting in Massachusetts
    district and superior courts, she has presided over several
    hundred jury trials that have gone to verdict or judgment.
        Judge Kelley has, throughout her career, demonstrated one
    thing above all else, and that is an abiding commitment to our
    Nation's promise of equal justice under the law. She has been a
    leader in the Massachusetts Judiciary on fulfilling this
    promise, especially to litigants of color. She has been a
    friend and mentor to many members of the legal community, and
    there are affinity groups with her nomination receiving strong
    support from the Massachusetts Black Lawyers Association, the
    Massachusetts Hispanic Lawyers Association, and the Asian
    American Lawyers Association of Massachusetts, among others. At
    a time when our Federal bench needs both diversity and
    experience in background more than ever, Judge Kelley meets the
    moment with a set of experiences that are unfortunately too
    rare for Federal judges.
        It is my sincere hope to see more nominees like Judge
    Kelley in the near future as we help reshape American's
    judiciary to better suit the people that it serves. In light of
    Judge Kelley's qualifications, expertise, and service, I
    respectfully ask that you send her nomination to the full
    Senate for confirmation. I hope that the Senate will quickly
    confirm her to fill the long-vacant seat on the Massachusetts
    Federal Court.
        Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Markey. Senator Menendez
    is now recognized to introduce Christine O'Hearn.

                   STATEMENT OF HON. ROBERT MENENDEZ,

              A U.S. SENATOR FROM THE STATE OF NEW JERSEY

        Senator Menendez. Thank you, Mr. Chairman, Distinguished
    Ranking Member, Members of the Committee. Before I do that, I
    want to take a moment as the highest-ranking Latino in the U.S.
    Congress to first acknowledge a historic nominee to the United
    States Court of Appeals for the First Circuit, Judge Gustavo
    Gelpi. Judge Gelpi will be the only second judge of Hispanic
    origin and the second judge from Puerto Rico ever to sit on the
    first circuit. He is deeply respected among his colleagues in
    the judiciary and a beloved member of the Puerto Rican legal
    community.
        As Governor Pierluisi, who is here with him, the Governor
    of Puerto Rico, can tell you, there is very little unanimity on
    many issues in Puerto Rico. There is unanimity on the
    incredible judge that Judge Gelpi is. I believe he will make an
    outstanding contribution to the first circuit.
        It's also my great privilege to join with my distinguished
    colleague of this Committee, Senator Booker, to introduce our
    exceptional nominee to the U.S. District Court for the District
    of New Jersey, Ms. Christine O'Hearn. She was born and raised
    in New Jersey, and she is an expert in labor and employment
    law, highly regarded among her colleagues for her sharp
    intellect. Ms. O'Hearn was twice named one of the top 40
    attorneys under 40. I forgot what that was like, but the top 40
    attorneys under 40 in New Jersey, and was featured in New
    Jersey's Law Journal's Women and Minorities in the Profession.
    Ms. O'Hearn is currently a partner of Brown & Connery in
    Westmont, New Jersey, where she practices labor, employment,
    and complex civil litigation.
        In 2020, Ms. O'Hearn was appointed to the U.S. Magistrate
    Judge Selection Committee, which, in essence, works to select
    all of the Magistrates of the Federal District, and has served
    on various distinguished boards, including the New Jersey State
    Committee of the American College of Trial Lawyers, and the New
    Jersey Court District for Ethics Committee. She also previously
    served as an adjunct professor at Rutgers University School of
    Law in Camden, preparing the next generation of lawyers.
        It's clear to me that Ms. O'Hearn has the astute judgment,
    even temperament, deference to precedence necessary to excel as
    a Federal judge. I am confident she will serve the people of
    New Jersey well through her administration of fair and
    impartial justice. I'm very proud to have recommended her for
    appointment to the U.S. District of New Jersey.
        I would just close, Mr. Chairman, by saying I think the
    Committee knows, and I appreciate that the Chairman has been
    working to move some of these nominees. New Jersey has a series
    of multiple vacancies which have been declared judicial
    emergencies by the Judicial Conference of the United States.
    Therefore, I ask your unanimous support and quick expedition of
    reporting out Ms. O'Hearn to the full Senate.
        Thank you very much.
        Chair Ossoff. Thank you, Senator Menendez. I'd like to join
    you as well as welcoming and acknowledging the presence of
    Governor Pierluisi. I'd now like to recognize Senator Booker,
    who will join in the introduction of Ms. O'Hearn.

               OPENING STATEMENT OF HON. CORY A. BOOKER,

              A U.S. SENATOR FROM THE STATE OF NEW JERSEY

        Senator Booker. Mr. Chairman, I am grateful to have this
    opportunity to follow the Senior Senator of New Jersey in
    heralding the qualifications of Christine O'Hearn, who I am
    excited that President Biden has nominated to be a U.S.
    District Judge for the District of New Jersey.
        My Senior Senator Menendez has already spoken to her
    qualifications. I will add that Ms. O'Hearn is truly Jersey
    through and through. She is the best of our State. I have heard
    rumors that both Bruce and Bon Jovi are jealous of her
    Jerseyness.
        [Laughter.]
        She was born in Camden, New Jersey. She went to the
    University of Delaware, who anybody that knows University of
    Delaware, it is a very Jersey school. She taught at Rutgers
    University Law School in Camden. She has practiced her career
    in Westmont, New Jersey, since 1993.
        She has decades now, 28 years as a career litigator. She
    has demonstrated herself to her peers and members of the
    Judiciary New Jersey as an extraordinarily exceptional
    litigator. She has represented both defendants and plaintiffs
    in a variety of issue areas that will be very indicative of her
    qualifications to be a judge, to be fair, balance, even-handed,
    judicious, and compassionate.
        What is really striking to me is her commitment to serving
    others. She has logged many, many hours of pro bono work,
    serving a New Jersey Supreme Court District for Ethics
    Committee, helping to provide oversight and integrity to her
    peers in the New Jersey legal community. She has been
    recognized by New Jersey lawyers for those qualifications. As
    Senator Menendez mentioned, distinguished herself early in her
    career.
        She has demonstrated a deep commitment to the values that
    we hold most sacred in our Nation. She understands that her
    role is to uphold public faith in the law and to make sure that
    no matter who comes before the bench, that they are treated
    with justice and equanimity.
        Christine O'Hearn's commitment to the law and her breadth
    of experience will make her a truly capable jurist. As Senator
    Menendez said, there is an urgency in New Jersey, not just to
    fill judicial vacancies, but to fill them with people of honor,
    and integrity, and qualifications. Ms. O'Hearn meets that
    measure and will make our State even more proud to have her.
        I hope that we will move her through this Committee quickly
    and get her to the floor for a vote. As a Jersey boy myself, it
    will be one of the prouder votes that I take on the floor to
    vote for her confirmation.
        Chair Ossoff. Thank you, Senator Booker. I now just ask for
    everyone's patience for a moment as we finalize the setup for
    our first panel.
        Judge Gelpi, will you please stand to be sworn?
        [Witness is sworn in.]
        Chair Ossoff. Thank you, Judge. Please proceed with your
    opening remarks.

              STATEMENT OF HON. GUSTAVO A. GELPI, NOMINEE

                TO SERVE AS UNITED STATES CIRCUIT JUDGE

                         FOR THE FIRST CIRCUIT

        Judge Gelpi. Good morning, Senator Ossoff. It is a
    privilege to appear before you. This is the first hearing
    you're Chairing in this Committee. I also want to thank Senator
    Menendez as well as you for making some introductory remarks. I
    appreciate that. I also want to thank the President of the
    United States, President Biden, for this nomination; and the
    Chair of the Committee, Senator Durbin; as well as the Ranking
    Member, Senator Grassley for making this hearing possible. I
    want to thank all the Members of the Committee who are also
    here today.
        It is an honor to be here. I was before this Committee 15
    years ago for my district judge nomination. Many of the
    Senators are still here. That was, at the time, the greatest
    honor of my professional life. If confirmed for this position,
    this would be an honor above that honor.
        I have been a public servant for almost 30 years, and I
    have been a judge now for 20 years. I was a magistrate judge
    for 5 years, and I've been a district judge now for 15 years.
    If confirmed, I will continue to apply the rule of law and our
    Constitution and laws to the cases that come before me with the
    same passion and commitment as I've always had.
        Present with me today are family members, my father who
    looks like me, Maria, law school colleagues, and childhood
    friends. Thank you also for introducing Governor Pierluisi, who
    is here. I appreciate his being here.
        Not here with me today is my mother, who is in Puerto Rico
    as well as my children, Diego and Maria. They're here in
    spirit. Also not present with us today, but present in spirit,
    are my three grandparents who were an integral part of my
    upbringing. My two maternal grandparents, my father was a
    disabled World War II veteran. His wife was a naturalized U.S.
    citizen. On my dad's side, my grandmother, worked for the U.S.
    Navy as a civilian for 43 years. That's a personal family
    record I hope to break someday.
        I also want to thank all of my friends in Puerto Rico and
    across the Nation who have supported me, as well as other
    individuals who have supported me all the way through these
    proceedings.
        I welcome your questions. Thank you, Senator.
        Chair Ossoff. Thank you, Judge Gelpi. I will now turn to
    questions. Senators will have 5 minutes to question the
    nominees in this first panel. I'll begin.
        Judge Gelpi, thank you again for joining us today.
    Congratulations, again, on your nomination and your years of
    distinguished service. You bring a unique background to the
    bench, having worked in the Federal Public Defenders' Office in
    Puerto Rico, where you represented defendants who lacked the
    resources to retain their own counsel. You served on the U.S.
    Sentencing Commission, where you worked to revise guidelines.
    You've also served as a prosecutor. Of course, you have
    extensive experience on the bench for the past two decades,
    first as a magistrate and now as a Federal district court
    judge.
        Judge Gelpi, can you address how this broad view and broad
    experience at multiple levels and in multiple roles in our
    justice system informs your understanding of justice and the
    rule of law in the United States today, and will guide your
    approach to judicial decision-making, should you be confirmed
    to this judgeship?
        Judge Gelpi. Senator, as an attorney during the first third
    of my professional career, I appeared before trial courts,
    Federal courts, and also courts of appeal, representing
    clients, both on the criminal side and then representing the
    Government on the Government side. I think that experience as
    an attorney was important for me as a judge to see the
    challenges that attorneys have. On the criminal side, it's
    important to recognize that attorneys have a constitutional
    right to represent their clients. Also, under civil rights,
    attorneys have ethical considerations, and they need to hold
    their representation to the higher standards. That is very
    important because I have been there, as I said, at the trial
    and appellate levels.
        As a magistrate judge, it was a very unique and important
    experience, also, because the magistrate judges are usually the
    first face of the Federal court any person who's arrested sees.
    Magistrate judges also work carefully in settling cases in the
    discovery phase of cases. As a district judge for the last 15
    years, I have tried numerous criminal and civil cases of all
    sorts, ranging from drugs to illegal firearms. On the civil
    side, I've had antitrust cases, I've had maritime cases, I've
    had civil rights cases. That gives me a unique experience.
        I've also had the opportunity as a district judge to sit by
    designation on four occasions on the court of appeals. I've
    been able to see the dynamics of sitting on a panel as
    resolving cases before me with two other judges, which is
    different from being the sole decision-maker. I also--being a
    judge for these years, and presiding over so many cases, I have
    also cherished the role the jury plays in our justice system,
    and that is a very unique experience. I have seen the jury from
    an attorney's perspective and also from a judge's perspective.
        Chair Ossoff. Thank you, Judge Gelpi. In addition to
    Governor Pierluisi, I want to acknowledge that Representative
    Gonzalez-Colon, a Delegate from Puerto Rico, has joined us.
    Thank you, Representative.
        At this time, would recognize Ranking Member Grassley for 5
    minutes.
        Senator Grassley. Judge Gelpi, you've been an outspoken
    person in your opposition to the so-called Insular Cases
    because of their effects on Puerto Rico. For almost a decade,
    the government of America Samoa has invoked the Insular Cases
    in court to protect what they call the Samoan way of life. Just
    last week, Judge Carlos Lazaro of the tenth circuit agreed with
    the America Samoa saying, quote, ``The flexibility of the
    Insular Cases framework gives Federal courts significant
    latitude to preserve traditional cultural practices that might
    otherwise run afoul of individual rights enshrined in the
    Constitution,'' end of quote.
        What effect would your constitutional position have on an
    unincorporated Territory like America Samoa that has relied on
    those cases for almost a century to preserve both its unique
    culture and its American sovereignty?
        Judge Gelpi. Senator, the Insular Cases that were decided
    in the early part of the 20th century were based on racist
    underpinnings, and the Supreme Court that decided those cases
    was basically the same Supreme Court that decided Plessy v.
    Ferguson. My criticism of those cases is in the historical
    aspect.
        As a sitting judge, and if confirmed to the court of
    appeals, I will continue to be a sitting judge, the question
    you have posed is a question that is currently before the tenth
    circuit. As you correctly stated, it was decided last week. It
    may be an en banc sitting that may be asked by the parties or
    may go to the Supreme Court. As a sitting judge, I do not think
    it's proper for me to answer that question. I hope my earlier
    answer has, at least, added something to my response.
        Senator Grassley. You have written and spoken extensively
    on Puerto Rico's Territorial status under the Constitution,
    denouncing it as colonialism. You even wrote a book about it.
        Will you commit to recuse on any future cases involving
    Puerto Rico's Territorial status, given your extensive
    commentary on the issue? Let me continue to ask another
    question along that line. Could you point me to any Territorial
    status cases where you have held the law compels an outcome
    different from those you have advocated in your writing?
        Judge Gelpi. Senator, I have had, over my 15 years'
    experience as a district judge, several cases involving the
    constitutional relationship between Puerto Rico and the United
    States. That is a very small fraction of my overall docket.
        I have always upheld the Constitution and the laws of the
    United States when resolving the issues pertaining to Puerto
    Rico status, even though those issues may be adverse. In most
    occasions, my rulings have been averse to Puerto Rico's
    citizens or status. I apply the law to the facts of each case.
        I have--so if the issue of recusal were to come before me,
    it's an issue I have to decide on a case-by-case basis. I have
    made expressions regarding the Territories as part of my
    opinions, but it's been--these expressions have been based on
    matters that have been raised by the parties in the proceedings
    before me. Like any other case, I will look at the Code of
    Judicial Conduct and determine on a case-by-case basis whether
    recusal is warranted or not.
        Senator Grassley. My last question for you. You had a case
    regarding disability payments in Puerto Rico where you ignored
    a 1980 Supreme Court judgment that Congress should prevent each
    payment by saying--prevent such payments by saying your court
    ``cannot simply bind itself to the legal status quo of 1980 and
    ignore important subsequent developments in the constitutional
    landscape,'' end of quote.
        One such subsequent development you identified was the gay
    marriage case of Windsor. This is in stark contrast to what
    your mentor, Judge Gimenez, said in a Puerto Rico gay marriage
    case, he addressed Windsor saying that he, quote, ``cannot see
    how any doctrinal developments at the Supreme Court changes the
    outcome of prior Supreme Court precedent or permit a lower
    court to ignore it,'' end of quote. He waited for the Supreme
    Court to overturn its precedent. He didn't do it at a trial
    court.
        Was Judge Perez wrong?
        Judge Gelpi. Senator, the case you're referring to is now
    before the U.S. Supreme Court. That's United States v. Vaello-
    Madero. I have to note that there are very similar challenges
    presently before me and other Federal judges. In that respect,
    I should not give an opinion about the case.
        I do want to note that when I decided Vaello-Madero, which
    has been confirmed by the first circuit and is now before the
    Supreme Court, the arguments that were raised before me were
    arguments that had not been made in the 1980 cases. I resolved
    those arguments that had not been raised before, and those are
    the arguments that will, I assume, be before the U.S. Supreme
    Court.
        Senator Grassley. Thank you very much.
        Judge Gelpi. Thank you, Senator.
        Senator Grassley. I congratulate you on your nomination.
        Chair Ossoff. Thank you, Senator Grassley. Senator Hirono
    is recognized for 5 minutes.
        Senator Hirono. Thank you, Mr. Chairman. Governor
    Pierluisi, it's good to see you. Welcome to this proceeding.
        I ask the following two questions of all nominees before
    any of the Committees on which I sit. I will ask you, Mr.
    Gelpi, the same questions.
        First of all, since you became a legal adult, have you ever
    made unwanted requests for sexual favors or committed any
    verbal or physical harassment or assault of a sexual nature?
        Judge Gelpi. Senator, the answer is absolutely no.
        Senator Hirono. Have you ever faced discipline or entered
    into a settlement referring to this kind of conduct?
        Judge Gelpi. Senator, same answer. Absolutely no.
        Senator Hirono. Senator Menendez, while he was here, noted
    that you would be only the second Hispanic on the First Circuit
    Court. Is diversity on our Federal courts important?
        Judge Gelpi. Senator Hirono, diversity is important in all
    courts. Diversity comes from my own DNA, or the DNA of any
    judge, but also comes from my professional experience. If I
    were to be confirmed to the Court of Appeals for the First
    Circuit, I would bring my diverse experience. Panels in any
    appellate court are composed of three judges, and the judges
    are all diverse. I've sat on the court of appeals. It's a
    very--for the first circuit. It's a very small court. Six
    judges. Two senior judges. You get to sit in that court with
    different judges every time. There is diversity every time you
    sit on a panel.
        Again, as I said, DNA diversity and also experience brings
    diversity.
        Senator Hirono. Thank you. Between your time as a
    magistrate judge and as a district court judge, you have been
    on the Federal bench for 20 years. What have you learned during
    that time that you will take with you if you are confirmed to
    the first circuit?
        Judge Gelpi. Senator, if I'm confirmed to the first
    circuit, I have learned as a magistrate judge and then a
    district judge, it is very important to listen to parties
    carefully, hear the arguments, respect the lawyers, respect the
    parties. Everybody must be treated equally.
        It is very important to always give every case the same
    type of hard work. There may be huge cases and small cases, but
    for every case, for every party, that is their case. Everybody
    needs to have that same attention. That is something I would
    definitely--based on my experience, I would continue doing at
    the court of appeals level.
        Senator Hirono. You've also sat, by designation, on the
    First Circuit Court a number of times. What are some of the key
    differences you see between the role of a district court judge
    in comparison to a judge on the circuit court?
        Judge Gelpi. As a district court judge, I presided over
    cases, acting on my own capacity. I'm there by myself. If these
    cases reach trial, I have to preside over--usually it's going
    to be--most of the time, it's going to be a jury trial. I have
    to preside over that event and make sure that the jury is
    instructed and that certain rules of trial are held.
        At the appellate level, it is different because I would be
    working with two other colleagues, or the cases heard en banc
    with six other colleagues--or five other colleagues, I mean.
    You have to decide decisions on a consensus basis. It is also
    different in that respect. Also, at the appellate level, I
    would be reviewing trial records from cases that are decided at
    the district level. It is--appellate review, that is different
    in that respect from presiding over cases.
        Senator Hirono. You are obviously well suited in either
    position, I'd say. You've spoken on the importance of your role
    in overseeing a consent decree between the U.S. Department of
    Justice and the Commonwealth of Puerto Rico's Police
    Department, calling it, I'm quoting you, ``one of the most
    satisfying and rewarding functions in which a Federal judge can
    engage in,'' end quote.
        What did you find so rewarding about this experience?
        Judge Gelpi. Senator, the consent decree that I preside was
    a consent decree filed by the United States Department of
    Justice against the Commonwealth of Puerto Rico. It was the
    result of an investigation by the Department of Justice that
    demonstrated that in Puerto Rico, there was a pattern and
    practice of unconstitutional policing. Profiling,
    discrimination based on sex, promotions, there were no
    policies. The idea of the consent decree is we had a 4-year
    capacity building period, which I oversaw, where the case is
    now in its monitoring stage.
        It is very important to see and it's very rewarding that,
    for example, there is a police academy now that has a
    curriculum. The police officers are trained. They get trained
    on use of force. There are policies. In the past, for example,
    no woman was a high-ranking colonel. At some point, women would
    get stuck in the system. It's based on merit. There are women
    who are commanders; they're colonels.
        In that sense, it's very rewarding. I have gone to police
    academy graduations. You see the pride these officers take.
    There is continued police education similar to continuing legal
    education, which attorneys and judges take. It's a matter of
    ensuring that police will constitutionally protect the public,
    and at the same time the police officers are trained to be the
    best police officers they can.
        Senator Hirono. There are a number of us on this Committee
    who will recognize the important role the consent decrees have
    in just and fair policing.
        Thank you very much, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Hirono. Senator Tillis is
    recognized for 5 minutes.
        Senator Tillis. Thank you, Mr. Chairman. Judge.
        Judge Gelpi. Good morning.
        Senator Tillis. Welcome. Congratulations to you and your
    family for the honor of your nomination. I have a quick
    question on United States v. Mercado-Flores. Are you familiar
    with that case?
        Judge Gelpi. Yes, sir.
        Senator Tillis. The grand jury returned a one-count
    indictment, charging the defendant with transporting a 14-year-
    old female minor within the Commonwealth of Puerto Rico with
    the intent to engage in criminal sexual activity. I believe the
    defendant pleaded guilty. You ruled that Section 2421 of Title
    18 of the United States Code does not apply to a wholly intra-
    Commonwealth transportation of an individual with the intent to
    engage in criminal sexual activity.
        The first circuit later vacated your opinion. Could you
    give me some sense of the reasoning behind your ruling?
        Judge Gelpi. Yes, Senator. Let me say that in Puerto Rico,
    we do have, unfortunately, a large number of these cases
    involving sexual abuse or sexual acts against minors. I have
    always taken these cases extremely seriously, and have applied
    the law, applied the sentencing guidelines and applied the law
    as required.
        This particular case, the defendant, I sentenced him
    pursuant to the plea agreement. I believe it was 57 months.
    Then, after the sentence, I determined that there was a
    jurisdictional issue. The sentence was vacated on the
    jurisdictional ground. That is the matter that went to the
    court of appeals. The court of appeals understood that I had no
    jurisdiction to discuss the jurisdictional issue, so it got
    remanded, and I re-sentenced the defendant to the sentence that
    I originally imposed. It was a procedural jurisdictional issue.
        Senator Tillis. Okay. Thank you. Have you ever heard a case
    on qualified immunity for a law enforcement officer?
        Judge Gelpi. Senator, yes. In Puerto Rico, we have--a large
    portion of our civil rights cases are--involve police
    misconduct, and doctrine has been raised on numerous cases.
        Senator Tillis. Going through those cases, do you believe
    that the current jurisprudence provides sufficient protection
    for law enforcement officers under the current settled law?
        Judge Gelpi. Senator, as a sitting judge for 20 years, I
    have applied the doctrine of qualified immunity when the facts
    and the law are appropriate. Other cases, I have found there is
    no qualified immunity, but as a doctrine that was created by
    the Supreme Court a few--several decades ago, and I have to
    apply it.
        There's also first circuit jurisprudence. As long as that
    is the law, and the law isn't changed, that is what I have to
    apply.
        Senator Tillis. Okay. Thank you. Congratulations again.
        Judge Gelpi. Thank you, Senator.
        Senator Tillis. Thank you, Mr. Chair.
        Chair Ossoff. Thank you, Senator Tillis. Senator Blumenthal
    is recognized for 5 minutes.
        Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
    your service, and you are extraordinary well-qualified as a
    public defender, as an Assistant Attorney General in an office
    that I know well and respect from my own days as attorney
    general. As a judge for some 20 years, and I agree with you
    totally on the need for diversity, and I really welcome your
    nomination. Congratulations to you.
        I would like to ask you whether you feel that we need more
    judges. Obviously, you can't speak to the appellate court
    level, but at the district court level, based on your
    experience in the District of Puerto Rico and your
    conversations with your colleagues around the country, do you
    feel that we need to expand the number of Federal trial court
    judges, district court judges, to meet the backlog that has
    accumulated and the increasing workload that they face?
        Judge Gelpi. Senator, that is a matter which the Judicial
    Conference of the United States every 2 years makes reports to
    the Congress of the United States. In fact, there are--
    depending on the district, there are certainly districts that
    require, based on that data, would require based on the
    workload additional judges.
        For example, the District of Puerto Rico, in my experience,
    it's seven judges. That was last--that hasn't changed since
    1979, the number of judges. At certain points, the Judicial
    Conference has recommended an eighth position. I have also seen
    that there are districts that the opposite has been
    recommended, that if there is a future vacancy, to eliminate
    that position. That's something the Judicial Conference and the
    Congress work together for district judgeships.
        I can say, for sure, in Puerto Rico, there have been
    requests for an eighth judgeship at particular points in time.
        Senator Blumenthal. How do you feel about the
    representation that Puerto Rico lacks right now? How do you
    feel that that may have affected the resources available to the
    judicial district in Puerto Rico? Would you expect that more
    would be allocated if Puerto Rico had representation in the
    Congress?
        Judge Gelpi. Senator, your question in a sense is a
    political question, which poses whether Puerto Rico would
    become a State or not. As a judge, I cannot answer that from
    that perspective. I do want to say that the Judicial Conference
    of the United States has always treated Puerto Rico as an
    Article III district court, a constitutional court. Judges are
    appointed for life. From my perspective, within the judicial
    branch, Puerto Rico is treated equally, just like any other
    district in the Nation. When the Judicial Conference makes
    requests to the Congress, it takes Puerto Rico into account
    just like it takes into account any other district.
        Senator Blumenthal. Do you think that the first circuit is
    the right place for Puerto Rico? Or should it be possibly the
    second circuit?
        Judge Gelpi. Senator, historically the first circuit--
    Puerto Rico has been a part of the first circuit since 1915, so
    it's been over 100 years. Even before I was born, my father
    also practiced before the first circuit for many years. That is
    what we know. We know the law of the circuit. We're proud to be
    a part of the first circuit. The first circuit likes Puerto
    Rico. Particularly in November and February of each year, it
    historically has had a sitting in Puerto Rico. I cannot reckon
    why, but I'm proud to be a part of the first circuit.
        Senator Blumenthal. We would welcome you in the second
    circuit if it ever happened.
        Judge Gelpi. Is it a very good circuit, then I'm also
    admitted to the second circuit.
        Senator Blumenthal. Thank you.
        Judge Gelpi. Thank you, Senator.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Blumenthal. Senator
    Blackburn is recognized for 5 minutes.
        Senator Blackburn. Thank you, Mr. Chairman. Judge, welcome.
        Judge Gelpi. Good morning.
        Senator Blackburn. We appreciate your being here. Just a
    couple of questions for you. Nan Aron, president for Alliance
    for Justice, recently praised a number of President Biden's
    judicial nominations, including you, with the following
    statement: ``President Biden made an open commitment to
    promoting diversity on our courts, and he is honoring that
    commitment with these nominations. These are also judges who
    have a demonstrated commitment to equal justice, a refreshing
    change from the litany of Trump judges with records of turning
    the clock back on our rights.''
        I want to ask you this, is it your opinion that the more
    than 200 Federal judges nominated by President Trump, confirmed
    by the U.S. Senate, and currently sitting on the bench include
    a litany of judges with records of turning the clock back on
    the rights of Americans?
        Judge Gelpi. Senator, I have been a judge now--Federal
    judge for now 20 years, and as a judge, the role I partake is
    to uphold the Constitution and laws of the United States in
    every case that comes before me. I, as a judge, if confirmed to
    a circuit judge, I would sit with judges appointed by different
    presidents. In my particular case, if confirmed, I would have
    been appointed by two Presidents: President Bush at the
    district level, and President Biden at this level--at the
    appellate level.
        As a judge, and from my experience sitting on the circuit
    with other judges, judges do exactly that. They follow the law.
    They follow precedent. They apply the law to the facts of each
    case, regardless of who appointed them.
        Senator Blackburn. It is not your opinion that this is a
    litany of judges that are there to turn the clock back on
    Americans' rights?
        Judge Gelpi. Senator, that, as a sitting judge, I cannot
    answer that precise question. Based on my experience, judges
    are judges, regardless of who appoints them, and they have to
    do the same thing. That is follow the law and apply precedent,
    and not make laws. They apply the law.
        Senator Blackburn. All right. 2006, when you went through
    your district confirmation, Senator Coburn asked you whether
    you had a judicial philosophy. You responded, ``I do not have a
    particular judicial philosophy. My own philosophy is to work as
    hard as I can and to apply the laws and Constitution of the
    United States at the trial level. That is what we do. We are
    not there to make new laws to enlarge the Constitution or
    abridge the Constitution. That is the Supreme Court's role. We
    have to follow precedent from not only the Supreme Court, but
    also the first circuit.''
        This seems contrary to your very prolific work on U.S.
    Territorial constitutional law since you've taken the bench.
    Senator Grassley talked with you a little about this with the
    Insular Cases. As you say, that is the law of the land, despite
    their imperialistic and racial underpinnings. In an article for
    Federal Lawyer, you again criticized the Supreme Court's
    handling of the Insular Cases, noting that ``the Supreme
    Court's interpretation of its own concocted doctrine has been
    fraught with irreconcilable inconsistencies.''
        You continued to criticize the Insular Cases in your book,
    ``The Constitutional Evolution of Puerto Rico and other U.S.
    Territories.'' A book, by the way, that you authored while
    sitting as a Federal judge. In Chapter 3 of this book, you
    describe the Insular Cases as, and I'm quoting you, ``a
    doctrine of pure judicial invention with absolutely no basis in
    the Constitution, and one that is contrary to all judicial
    precedent in Territorial practice,'' end quote.
        If you are confirmed to the first circuit, will you follow
    the precedent of the U.S. Supreme Court?
        Judge Gelpi. Senator, I will do that if confirmed to the
    first circuit. I have followed in cases before me the precedent
    of the Supreme Court, always.
        Senator Blackburn. Would you like to update your response
    pertaining to judicial philosophy?
        Judge Gelpi. Senator, my philosophy, and Senator Coburn
    asked me that question. I said I don't have a philosophy, but
    he did say, after your quote, ``You do have a philosophy.'' I
    agree. My philosophy is to work as hard as I can and to apply
    the laws and Constitution of the United States to the cases
    that come before me, and follow the precedent.
        Senator Blackburn. Okay. Let me ask you this, is it unusual
    for a sitting judge to author a book about cases or issues that
    are coming before him?
        Judge Gelpi. Senator, the book I wrote is based on
    historical facts and history. It does not touch upon--and I've
    been very careful because I know I'm a sitting judge. It does
    not discuss cases that could come before me or the outcome of
    those possible cases. I have been very careful to follow the
    Code of Judicial Conduct when writing that book.
        Senator Blackburn. Thank you so much.
        Judge Gelpi. Thank you, Senator.
        Senator Blackburn. Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Blackburn. Senator
    Whitehouse is recognized for 5 minutes.
        Senator Whitehouse. Thank you, Chairman Ossoff. Good to see
    you in the Chair. Welcome, Your Honor. Good to have you here. I
    think I'm the only first circuit member on the panel, so this
    is terrific news for me to see you nominated by President
    Biden. You'll have the terrific occasion to join what I think
    is an outstanding circuit. I really look forward to having you
    there. I'm just delighted.
        Judge Gelpi. I concur with you. It's an outstanding
    circuit, Senator.
        Senator Whitehouse. Yes. The Rhode Island member is
    Rogeriee Thompson, as you may know, who I recommended to the
    President for that position along with Senator Reed, and I
    think she'll be a wonderful colleague for you. Nobody else in
    the Committee will know or care about this, but Suffolk
    University has been a very important law school for Rhode
    Islanders, and I'm sure you had a great number of Rhode
    Islanders in your classroom. If you don't mind, we'll consider
    you a bit of an honorary Rhode Islander through your Suffolk
    credential.
        Judge Gelpi. I appreciate that. When I went to Suffolk Law
    School, Rhode Island did not have a law school. That's----
        Senator Whitehouse. Correct. You were kind of it, then.
        Judge Gelpi. Rhode Islanders went to Suffolk.
        Senator Whitehouse. Yes. We have our own, and it's a very,
    very good one. Roger Williams University School of Law. I
    commend it to anyone interested.
        Two questions. The first is a legal question, and it
    relates back to the question of qualified immunity. Is it true
    as a factual matter of legal doctrine that the qualified
    immunity doctrine interrelates with other doctrines, including
    sovereign immunity, the Monell case doctrine, the Bivens case
    doctrine, and that they interact with one another?
        Judge Gelpi. In my experience in Puerto Rico handling civil
    rights cases, they are usually raised in the same cases that
    come before me because there is sovereign immunity many times
    for the State, but the officers are sued in both personal and
    private capacity. Qualified immunity will apply to the officers
    or government officials. It doesn't have to be a police
    officer; it could be government officials acting in any
    capacity. It is a doctrine that is frequently raised.
        I do want to say, it's not only--most people think it's
    only the police context, but you can have a government
    official, a head of an agency, who fires individuals based on,
    let's say, political patronage, and then tries to raise the
    doctrine. It may apply. It may not apply. Depending on the
    particular case.
        Senator Whitehouse. The reason I asked you that question is
    to highlight for my colleagues that I think we have an
    opportunity to clear up this area of law in the current reform
    that is proceeding by solving not only qualified immunity, but
    also in essence applying the ancient doctrine of respondeat
    superior throughout the system, and eliminating what are really
    arbitrary distinctions between municipal, State, and Federal
    law enforcement agencies with respect to civil liability. I
    hope that we will take this opportunity to do that.
        The second question I have for you, Your Honor, has to do
    with juries. One of the things that we have seen in the Supreme
    Court has been a fairly persistent set of decisions that have
    raised the bars for plaintiffs to plead their cases in Federal
    court, discouraging certain types of cases from being brought
    in Federal court, undoing or restricting certain types of jury
    determinations regarding damages in Federal court, and that is
    in some districts added to by pressure to settle cases rather
    than take them to trial. The result has been described as a
    real crisis in jury trials in Federal courts.
        We meet every year with my State judges in our district
    court with Judge Smith, Judge McConnell, and Judge McElroy.
    There was a time when they hadn't had a civil trial in a year
    because lawyers were discouraged from going to Federal court,
    and they had an exclusively criminal docket. I don't know what
    the situation is in Puerto Rico, but my feeling is that robust
    jury trials are a very important part of American democracy.
        If you go back to the founding days and to the Constitution
    itself, the importance of juries and jury trials had great
    significance in the governance that the Founders were trying to
    establish, and in the principles that we fought a Revolutionary
    War over. It's sad to see the institution of the jury trial
    kind of wither on the vine. I think it can be made more robust.
    There are judges who are going out of their way to make it more
    robust, I think, successfully. I'd like any comments you may
    have on that situation.
        Judge Gelpi. Senator Ossoff, I know the red light is on,
    but if I could answer the question?
        Chair Ossoff. Of course.
        Judge Gelpi. Senator Whitehouse, in Puerto Rico, in the
    Federal court, there are a large number of jury trials, civil
    and criminal, conducted every year. One of the reasons is that
    at the State level, the local level, in particular in civil
    cases, civil--there is no right to jury trial in civil cases.
    Attorneys try to go, either through diversity or Federal
    question jurisdictions of the Federal court.
        I am a true believer in the jury system. I've had, as my
    Senate Judiciary questionnaire notes, I have presided, I
    believe, over 64 jury trials over the years. A few more when I
    was a magistrate judge. It is a very important role that the
    jurors play.
        Senator Whitehouse. Indeed. Thank you.
        Judge Gelpi. Thank you.
        Senator Whitehouse. Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Whitehouse. Senator Lee is
    recognized for 5 minutes.
        Senator Lee. Thank you, Mr. Chairman. Thanks for being
    here, Judge Gelpi. There has been some conversation today
    already about the criticism that you've leveled on the Insular
    Cases, which of course deal with the relationship under our
    constitutional system between the United States and Puerto
    Rico.
        I want to make sure that I understand your position on the
    Insular Cases. Is it your view that the U.S. Supreme Court
    could give Puerto Rico immediate statehood by overturning the
    Insular Cases?
        Judge Gelpi. Senator, I have never spoken about that issue.
    The issue of statehood is a political question that--it's up to
    the Congress to admit new States.
        Senator Lee. Okay. The Supreme Court couldn't do that?
        Judge Gelpi. As a sitting judge, I cannot answer that
    question. I can answer that historically, it has always been up
    to the Congress to admit the new States.
        Senator Lee. Okay.
        Judge Gelpi. In the case of Alaska and Hawaii, which were
    the two last States. Historically before, that's the procedure.
    It's been the Congress, not the Supreme Court.
        Senator Lee. Okay. You're unaware of any provision of the
    Constitution or any precedence suggesting the Supreme Court
    could do that?
        Judge Gelpi. I am not aware of any precedent from the
    Supreme Court, from any court of appeals, from any district
    court, or from any treatise or commentator. I have--this is the
    first time I've been asked that, and I studied the matter, but
    I've never heard of that before, Senator.
        Senator Lee. What effect would overturning the Insular
    Cases have?
        Judge Gelpi. Senator that is a question that--well, if the
    Insular Cases are no longer in effect, it is a matter that
    would come--only the Supreme Court can overturn the Supreme----
        Senator Lee. No. I understand that. That's not in dispute.
    I'm just--you've criticized the Insular Cases a lot. I want to
    understand what practical impact it would have if we were to
    overturn the Insular Cases.
        Judge Gelpi. Senator, that is a Puerto Rico--and I will say
    the case of Puerto Rico. Puerto Rico would still continue to be
    a Territory. Whatever respective relationship with or without
    the Insular Cases that Puerto Rico has, it's a political
    question that will be dealt by the U.S. Congress.
        Senator Lee. Okay. Let's talk about your judicial
    philosophy for a moment. You've stated repeatedly in response
    to other questions by my colleagues both today and in your
    previous confirmation proceedings that you don't have a
    judicial philosophy. I want to--but then you've described some
    of the roles that you think a judge does play and should
    properly play.
        I want to make sure you understand your thinking about
    this, regardless of whether we call it a judicial philosophy.
    Do you believe that the original public meaning of a statute or
    a provision of the Constitution should govern? Or do you
    believe that the meaning of the Constitution's text or a
    statutory text changes over time after it's been enacted or
    incorporated into the Constitution?
        Judge Gelpi. Senator, originalism is one of the ways to
    interpret statutes and the Constitution. The Supreme Court has
    done that in several areas, such as Second Amendment, the
    Confrontation Clause, just to give you some examples. In those
    particular areas, and there will be cases that could come
    before me or other courts, that there may be analogous areas.
    It is originalism has been recognized by the Supreme Court. As
    a judge in the area of originalism applies, I have to apply
    originalism.
        Senator Lee. Okay. Where would it not apply? Where would
    you not want to apply the original public meaning of a statute,
    for example? Let's----
        Judge Gelpi. Senator, let me give you an example where the
    Supreme Court has not applied it, and it's basically in the
    Fourth Amendment search and seizure context. The most recent
    example I can think of is the instance of cell phones. Under an
    originalist approach, there were no cell phones when the
    Founding Fathers were drafting the Constitution and the Bill of
    Rights. The Supreme Court, in 2018, recognized that cell phones
    are protected under the Fourth Amendment, and that is a
    departure from originalism, but is a departure that applies. As
    an appellate judge and as a district judge, appellate judge if
    confirmed, I have to apply.
        There are going to be instances where the Supreme Court has
    told judges to go on a separate route. I would always follow
    precedent. If it's originalism or it's any other type of
    precedent.
        Senator Lee. Sure. Obviously, you'll follow precedent.
    Still, there will be lots of instances. You will constantly be
    addressing issues of first impression, or at least issues where
    there is no controlling Supreme Court precedent, or perhaps
    even any first circuit precedent. In those circumstances--under
    what circumstances would you depart from the original public
    meaning from a statute after it's been enacted? Or the original
    public meaning of a provision of the Constitution?
        I can point to a myriad of examples of where courts have
    departed from it, and it's resulted in disastrous consequences.
    Dred Scott and Korematsu are both examples of where the court
    departed dramatically from the original public meaning, with
    dire consequences to civil rights and civil liberties in
    America. Under what circumstances would it be appropriate to
    disregard the original public meaning?
        Judge Gelpi. Senator, if it's a case of first impression,
    I'd have to look to originalism. I have to also see if it's an
    area sort of, for example, analogous within the Fourth
    Amendment, the cell phone issue for example. You look to
    similar precedent and determine whether original has to be--
    originalism has to be applied. Again, the Supreme Court has
    analogous cases suggesting you have to look to other tests----
        Senator Lee. Yes. I have exempted that out by explaining
    I'm not talking about a case bound by precedent. I'm talking
    about where you're construing statutory or constitutional text
    not governed by precedent, and you have to figure out what it
    means. Within that framework, when would it ever be appropriate
    to depart from the meaning as accepted by the public at the
    time of enactment or adoption into the Constitution?
        Judge Gelpi. Senator, if it's a case of first impression, I
    have to look to see if it's in an area that precedent, even
    though not in that particular area, but analogous precedent
    suggests otherwise or not. I have to be very careful, and it
    would have to be on a case-by-case analysis. In a vacuum, I
    cannot say in every case originalism doesn't apply--or in every
    case originalism doesn't apply or apply. It's a case-by-case
    analysis. Originalism is a tool that the Supreme Court has
    adopted and applies to cases, so I do recognize it is one of
    many tests that I have to apply.
        Chair Ossoff. The Senator's time has expired.
        Senator Lee. I see my time is expired. I would note here
    it's troubling that you can't answer that by saying it would
    not be appropriate. Look, bad things happen when we allow
    judges to impose their own will after a statute or a
    constitutional provision has been adopted. It subverts the will
    of democratic self-government when we elect lawmakers to make
    these laws. Then, judges after the fact, change the meaning of
    it to mean something other than what they meant at the time,
    the generally accepted public meaning at the time.
        I don't know why that one couldn't be answered in one word.
    Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Lee. Senator Hawley is
    recognized for 5 minutes.
        Senator Hawley. Thank you, Mr. Chairman. Judge,
    congratulations on your nomination. Thanks for being here. Can
    we just--I want to come back, if I could, to a question that
    Senator Whitehouse asked you about qualified immunity. This is
    a judicial doctrine, among other things. Are you of the opinion
    that the qualified immunity doctrine needs to be revised?
        Judge Gelpi. Senator, as a sitting judge, and if confirmed
    I will continue to be a sitting judge at the appellate level,
    that is a matter for me to apply the law as it currently
    stands. If it is revised by Congress or it's revised by the
    Supreme Court, I will apply whatever the law is.
        Senator Hawley. It's not for you to revise is what you're
    saying?
        Judge Gelpi. It is not for me to revise.
        Senator Hawley. You'll faithfully apply the precedent as it
    currently exists?
        Judge Gelpi. I will, sir.
        Senator Hawley. Very good. Let me ask you a follow-up on a
    question Senator Lee just asked you. I want to make sure I'm
    just crystal clear on this. He asked you whether the Supreme
    Court could admit new States. You started by saying you
    couldn't answer that question. I don't think that's your
    position. Let me just try again for the record. Can the Supreme
    Court of the United States, through its holdings or judgments,
    admit new States to the Union?
        Judge Gelpi. Senator, there is no precedent for that. If I
    could answer it through that way, that's my answer.
        Senator Hawley. Okay. There's no precedent for it. Is it
    permissible under the Constitution? I mean, this is a matter--
    if it came to you as a matter of first impression whether or
    not the judiciary could admit new States?
        Judge Gelpi. If you read the Constitution, it's the
    Congress that admits the new States.
        Senator Hawley. Okay. Good. Let's come back to the question
    of how you would interpret a statute, how you would proceed in
    a case where you have no controlling precedent on point from
    the U.S. Supreme Court or from your own circuit, should you be
    concerned. You have no controlling precedent on point. You've
    got to interpret a statute or a piece of the Constitution,
    again, where there's no controlling precedent.
        Walk me through how you would approach that. Let's take a
    statute. Let's just focus on that. How would you approach it?
    No controlling precedent. How do you move through the process?
        Judge Gelpi. The first thing, Senator, that any judge will
    do when interpreting a statute, you would look to its plain
    text. That would be step number one. Ideally, that will resolve
    the entire matter. If the text is clear, there's no issues, and
    you apply that statute to the facts of the case and resolve the
    case.
        Senator Hawley. The case when the text is ambiguous?
        Judge Gelpi. Where the text is ambiguous, you have to go to
    legislative history. If that does not resolve the matter, you
    may not have precedent on that same particular statute, but you
    have to then look for analogous precedent.
        Let me give you one example. Title VII of the Civil Rights
    Act has been applied and interpreted by the courts for many
    years. Years later, the Age Discrimination in Employment Act
    was enacted, and the precedent was that it should follow the
    same framework for ruling on the cases and applying the statute
    because they're similar.
        You have to look, perhaps, to similar statutes. Caselaw
    from my circuit, of course, but sometimes there's caselaw from
    other circuits. It's not binding precedent, but you have to
    look to see how everybody has been resolving the matter and----
        Senator Hawley. This, I think, gets us into the realm that
    Senator Lee was just talking about. What I don't hear you
    saying is that in the situation where the text is not plain on
    its face, where there isn't an obviously agreed-upon meaning,
    which you didn't say is, ``I would look to the original public
    meaning of the text at the time it was enacted.'' In other
    words, I would look and say, ``Well, when Congress or the State
    legislature, or whatever--whoever enacted the statute, when
    they enacted it, at the time, what was the public meaning?''
    You didn't say that. Is that not something that you would
    consider?
        Judge Gelpi. Senator, if new statutes are enacted, it's the
    original public meaning also can be considered for the statute.
    That is something that, for example, if Congress enacts a
    statute today or tomorrow, it is earlier to follow those
    statutes and apply those statutes because the public meaning is
    usually going to be evident. There's going to be statements
    also from the Senators and the Congressmen who enacted that
    law.
        Senator Hawley. What if the--a lot of the statutes that
    you'll be called upon to apply, of course, and you know this.
    You've been on the bench. You do this every day. Many of the
    statutes you'll be called upon to apply are decades old. The
    legislative history, maybe it exists, maybe it doesn't, maybe
    it's ambiguous. In the case in which you have a statute that
    you're trying to interpret, the plain text is disputed, and the
    litigants say, ``No. The plain text means this. No. The plain
    text means that.'' It's disputed. The statute is older. What do
    you do? How do you proceed? No precedent on point.
        Judge Gelpi. Senator, original public meaning is one of the
    ways to interpret the statute, the same with the Constitution.
    Again, I have to look at precedent, but that is also something
    I have to look at definitely.
        Senator Hawley. This gets at the question of your judicial
    philosophy, which is just another way of talking about your
    approach to statutory interpretation, the constitutional
    interpretation, to the role of the judge.
        I have to say I'm a little bit worried by what I'm hearing
    in response to Senator Lee and in response to the questions I'm
    asking you here. It doesn't seem to me that you actually would
    prioritize the text, its meaning. I don't hear any discussion
    about the methods for finding that meaning.
        There's a lot of talk about precedent. I understand that.
    Of course, if you're confirmed to this role, I think you're
    going to find yourself dealing with cases where you don't have
    as much precedent on point. You're going to have cases of first
    impression. In those cases, the Supreme Court of the United
    States has clearly instructed the text is to be the first and
    primary consideration. Then ascertain the historical meaning of
    the text. I mean, there's lots of Supreme Court precedent on
    point.
        I'll have some additional requestions for you for the
    record to try and nail this down and make sure I really
    understand where you're coming from.
        Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Hawley. Senator Kennedy is
    recognized for 5 minutes.
        Senator Hirono, do you wish to ask a second round of
    questions?
        Senator Kennedy. I'm sorry. I didn't know she had a first
    round. I apologize.
        Senator Hirono. I could--I would like to make a comment
    after what the Republicans goal----
        Chair Ossoff. Senator Hirono is recognized.
        Senator Hirono. No, no.
        Senator Kennedy. Well----
        Senator Hirono. I think Senator Kennedy should go first
    because he hasn't----
        Senator Kennedy. Mr. Chair, I think it was my turn. I----
        Senator Hirono. It is.
        Senator Kennedy [continuing]. Was trying----
        Chair Ossoff. I thought you had yielded to Senator Hirono.
    Senator Kennedy, you're recognized for 5 minutes.
        Senator Kennedy. I didn't know that Senator Hirono had had
    a first round.
        Senator Hirono. Here you go.
        Chair Ossoff. No problem. Please proceed, Senator Kennedy.
        Senator Hirono. Thank you. There you go.
        Senator Kennedy. Judge, I'm still uncertain about your
    answer. Can the U.S. Supreme Court, on its own, admit a State
    to the Union?
        Judge Gelpi. Senator, as I answered, the Constitution of
    the United States says----
        Senator Kennedy. This is a real simple question. Can the
    U.S. Supreme Court, on its own, admit a State to the Union?
        Judge Gelpi. I understand the answer is no.
        Senator Kennedy. Okay. Thanks. I appreciate that. Do you
    think the Federal judicial system is systemically racist?
        Judge Gelpi. Senator, I have had--as a sitting judge for 20
    years, I have had cases that come before me involving
    allegations of racism. I have presided over those----
        Senator Kennedy. Yes. I'm asking about the Federal judicial
    system. Is it systemically racist?
        Judge Gelpi. Senator, judges apply the Constitution and
    laws. We cannot--if you're asking about if judges are racist or
    the judicial system itself, we apply the laws. We do not--a
    judge cannot take race into consideration in----
        Senator Kennedy. Do you think the Federal--you know what
    systemic racism is. I mean, it comes up every day now in
    America. Do you believe that the Federal judicial system is
    systemically racist?
        Judge Gelpi. Well, Senator----
        Senator Kennedy. You've been a part of it.
        Judge Gelpi. Yes. I can give you an example that the
    Congress and the Sentencing Commission----
        Senator Kennedy. I appreciate an example. I'm just trying
    to get an answer. Do you believe it's systemically racist?
        Judge Gelpi. Senator, that's a question I cannot answer.
        Senator Kennedy. You're a sitting Federal judge right now?
        Judge Gelpi. I am a sitting Federal judge.
        Senator Kennedy. How long have you been a Federal judge?
        Judge Gelpi. Twenty years.
        Senator Kennedy. You haven't--you've heard these
    allegations that all our institutions are systemically racist,
    and after 20 years, you haven't drawn an opinion?
        Judge Gelpi. Senator, I can tell you in my court----
        Senator Kennedy. You don't have an opinion about whether
    the Federal judicial system is systemically racist after 20
    years?
        Judge Gelpi. Senator, I'd have to say no.
        Senator Kennedy. You think it's not. Or you don't have----
        Judge Gelpi. In my----
        Senator Kennedy [continuing]. An opinion?
        Judge Gelpi [continuing]. Experience--in my experience
    the----
        Senator Kennedy. Wait. Let me understand your answer. You
    think it's not systemically racist? Or you don't have an
    opinion?
        Judge Gelpi. No. I don't have an opinion.
        Senator Kennedy. After 20 years?
        Judge Gelpi. That is correct.
        Senator Kennedy. You want to be on the court of appeals?
        Judge Gelpi. Senator, yes.
        Senator Kennedy. Okay. What's your definition of justice?
        Judge Gelpi. Justice, Senator, to me means that the law is
    applied equally to all individuals, regardless of race, sex,
    position, and that all cases are heard by a fair and impartial
    judge, fair and impartial jury, and that the laws are applied
    equally.
        Senator Kennedy. Okay. How do we know--what is your
    barometer for deciding whether a law that's being applied
    equally is just?
        Judge Gelpi. As a judge, I have cases that come before me,
    individual cases, so----
        Senator Kennedy. I'm not asking you about a case. I'm
    asking about philosophy. How do you, just personally, look at a
    law and determine whether that law, in your judgment, is just?
        Judge Gelpi. It is not for a judge to determine whether a
    law is just or not----
        Senator Kennedy. I'm not asking you as a judge. I'm asking
    you as a person. I'm trying to understand you as a person.
        Judge Gelpi. Senator, whatever understanding I have if the
    law is just or not just, I have to apply that law----
        Senator Kennedy. I know. Let me stipulate that. Okay. I'm
    going to stipulate that. I'm not going to ask you how you rule
    on a case, and I know you're going to follow precedent. Okay.
    Always. I get that. How do you personally look at a law and
    decide whether it's just or not? Pretty basic.
        Judge Gelpi. Senator, that is not the role of a judge to
    determine if a law is----
        Senator Kennedy. No. It's the role of a human being. I'm
    just trying to get to know you. Do you have a personal
    definition of justice?
        Judge Gelpi. Senator, justice, in my particular case----
        Senator Kennedy. I know it's applied equally. How do we
    know if a law is just or unjust? In your opinion.
        Judge Gelpi. Senator, as I mentioned, I have to apply the
    laws as they stand, and I have to make----
        Senator Kennedy. Okay. Let's move on, Judge. I don't think
    you're going to answer. Do you think--let me ask you about
    crime. Do you sentence people?
        Judge Gelpi. Yes, Senator.
        Senator Kennedy. Do you think crime is a disease that needs
    a cure? Or do you think it's antisocial behavior that deserves
    punishment?
        Judge Gelpi. Senator, as a judge, and I've been sentencing
    felony defendants for 15 years as a U.S. district judge, I've
    always followed the sentencing statute and----
        Senator Kennedy. I'll stipulate that.
        Judge Gelpi [continuing]. And I have to----
        Senator Kennedy. I'm asking you about if a person commits a
    crime, do you see it as a disease that needs to be cured? Or do
    you see it as antisocial behavior that merits punishment?
        Judge Gelpi. Senator, each individual defendant has to be
    sentenced individually. I have had individuals who are
    antisocial. When you look at the presentence reports, you
    sentence them accordingly. You have career offenders. You have
    other individuals who have----
        Senator Kennedy. Judge, I can't vote for you if you won't
    answer my questions. I hate interrupting you. These are pretty
    basic questions that I would expect somebody who's been on the
    Federal bench for 20 years to have thought about.
        Chair Ossoff. The Senator's time is expired. Judge, if you
    wish to respond, you have that opportunity.
        Judge Gelpi. Senator, as a judge, every time I sentence an
    individual, and I do this on an individual basis, I consider
    the nature of the offense, aggravating factors, mitigating
    factors, the person's individual personal history, his criminal
    record, and I also consider the sentencing guidelines. I apply
    that exercise on a case-by-case individual.
        Senator Kennedy. Judge, I'm going to ask you this. We both
    know that----
        Chair Ossoff. Thank you, Senator Kennedy. Senator Hirono is
    recognized for a comment.
        Senator Hirono. Thank you very much. There were a lot of
    questions asked of this nominee relating to originalism, and
    the way I see it, as this was an effort to get Judge Gelpi to
    acknowledge originalism as the only way to do either
    constitutional or statutory interpretation. He did not allow
    himself to be boxed in in this way. We all know that statutory
    interpretation, there are cannons of construction. We all learn
    that in law school.
        Then, as for applying originalism in the constitutional
    context, if originalism were applied, I think that Obergefell,
    for example, that protects same-sex marriage would not have
    been decided in that way. In fact, it's one of the reasons that
    Justice Scalia was a dissenter in that case and one of the
    reasons that both Justices Alito and Thomas have indicated that
    they would like to revisit Obergefell. If originalism were
    applied, I would say that that really puts into jeopardy the
    decision in Roe v. Wade, which protects a woman's right to
    choose.
        All of this effort to try to box this nominee in is seen
    for what it is as far as I'm concerned. Thank you, Mr.
    Chairman.
        Chair Ossoff. Thank you, Senator Hirono. Senator Cruz is
    recognized for 5 minutes.
        Senator Cruz. Thank you, Mr. Chairman. Judge,
    congratulations on your nomination.
        Judge Gelpi. Thank you, sir.
        Senator Cruz. As a sitting Federal judge, you wrote a book
    entitled, ``The Constitutional Evolution of Puerto Rico and
    other U.S. Territories.'' In that book, you're highly critical
    of the Insular Cases, a series of opinions from the Supreme
    Court in 1901 that addressed the application of the
    Constitution to Territories where the United States exercised
    sovereignty. Specifically, you describe these cases as, quote,
    ``a doctrine of pure judicial invention with absolutely no
    basis in the Constitution and one that is contrary to all
    judicial precedent and territorial practice.''
        Later, in 2011, you concluded a Spanish language academic
    article on the Insular Cases by saying, quote, ``It is now the
    hour, and indeed it has already grown late, for the Supreme
    Court to reexamine and remedy this offensive and obsolete
    judicial dilemma which we have had to tolerate for more than
    100 years by over 5 million American citizens who live in
    Puerto Rico and other Territories of the United States.''
        I take it, then, based on your writings that you believe
    the Insular Cases were wrongly decided.
        Judge Gelpi. Senator, yes. When I wrote in those academic
    books about the Insular Cases, I discussed it from an academic
    perspective. I've made reference to the fact, particularly,
    that the Insular Cases were decided by the same Plessy v.
    Ferguson Supreme Court, and that they considered racial, ethnic
    discriminatory matters. The same Supreme Court took that into
    account. Those are matters that nowadays, I don't believe any
    Member of any branch of Congress--of the Government, I mean,
    would take those matters into consideration. That is my
    criticism of the Insular Cases.
        In cases that I've had before me, I apply the doctrine as
    it still stands. That is the law of the United States, whether
    I like it or not.
        Senator Cruz. You've said you believe that Insular Cases
    were wrongly decided. Do you believe Brown v. Board of
    Education, was rightly decided?
        Judge Gelpi. Senator, I believe it was rightfully decided.
    Yes.
        Senator Cruz. Okay. What about District of Columbia v.
    Heller?
        Judge Gelpi. Senator, that is a case that is the law of the
    land. I have to apply Heller. I have to apply McDonald. It is
    the Supreme Court doctrine which I will apply.
        Senator Cruz. I understand that, but that was not the
    question I asked you. You just told us you believe the Insular
    Cases were wrongly decided. You just told us the----
        Judge Gelpi. Not the Insular Cases. Oh, yes. Excuse me.
    Yes. Sorry.
        Senator Cruz. You believe the Insular Cases are wrongly
    decided. You just told us that you believe Brown v. Board of
    Education was rightly decided. I'm asking you what your views
    are on Heller v. District of Columbia. Was it rightly decided
    or wrongly decided?
        Judge Gelpi. Senator, as I mentioned, that is the law of
    the land, and I am aware that there are other challenges that
    will be upcoming. There's one in California that a similar
    challenge could be before my court or the court of appeals, so
    that is something that as a sitting judge, I--and that is a
    controversy that is live and ongoing, so I should not decide
    that. I will apply Heller and McDonald, I can guarantee you
    that.
        Senator Curz. You were a sitting judge when you wrote about
    the Insular Cases. Correct?
        Judge Gelpi. Senator, yes. I have criticized historically
    the underpinnings of the Insular Cases, but----
        Senator Cruz. Not just the underpinnings. You said flat out
    they were wrongly decided and the Supreme Court should reverse
    them. That was not just an academic observation. That was
    calling a decision wrongly decided, saying it should be
    reversed.
        Judge Gelpi. Correct. The decision based on racist
    underpinnings. I agree with you.
        Senator Cruz. Brown v. Board of Education certainly
    questions about race and litigation about what equal protection
    under the laws means. That litigation continues in courts
    across the country today. Is that right?
        Judge Gelpi. Not the Brown holding.
        Senator Cruz. The principles on which Brown was decided.
    Those were actively litigated issues.
        Judge Gelpi. There are particular equal protection cases
    filed in Federal courts every day. That's the purpose of
    Federal courts.
        Senator Cruz. How about the Citizens United case? Was that
    wrongly decided?
        Judge Gelpi. Senator, that is the binding precedent, and
    that is something that I could have a similar case in the
    future. Again, that is the law of the land. I have to apply it.
        Senator Cruz. It seems on cases where--I'm not clear what
    your standard is for when you will answer what questions were
    wrongly decided--what cases were wrongly decided, and what
    cases were not.
        Judge Gelpi. Senator, I can tell you historically speaking,
    Brown I can say was correctly decided. The Insular Cases,
    historically speaking, the rationale behind those cases was
    based on racist underpinnings. I have to say that that
    rationale was incorrectly decided as a matter----
        Senator Cruz. Senator Hirono just offered a defense of you,
    saying that you refuse to commit to originalism because
    originalism would prevent outcomes that she supports. It would
    prevent outcomes in cases like Obergefell, and Roe v. Wade.
    Because she supports those outcomes, she doesn't want judges
    who will follow the original understanding of the Constitution.
    Is that how you would articulate--is it right that you don't
    intend to follow the original understanding of the
    Constitution?
        Chair Ossoff. The Senator's time has expired. Judge, you
    may answer the question.
        Judge Gelpi. Senator, as I mentioned in an earlier
    question, I will apply originalism, and that is one of the
    factors of the tests that the Supreme Court has laid out for
    judges to follow, and I cannot ignore it. I have to follow
    originalism in the cases where it is appropriate.
        Senator Cruz. Do you agree with Senator Hirono----
        Chair Ossoff. The Senator's time has expired.
        Senator Cruz [continuing]. That those are the reasons?
        Chair Ossoff. The Senator's time has expired. Senator
    Padilla is recognized for 5 minutes.
        Senator Cruz. You know, this is a Committee where we've had
    a little bit of comedy, and I recognize that----
        Senator Padilla. Thank you, Mr. Chair.
        Senator Cruz [continuing]. Senator Ossoff is new----
        Senator Padilla. My time----
        Senator Hirono. Chairman----
        Senator Cruz [continuing]. But we generally don't have the
    Chairman trying to jump in----
        Senator Hirono [continuing]. I want a personal privilege--
    --
        Senator Cruz [continuing]. On 30 seconds in----
        Senator Hirono [continuing]. Mr. Chairman.
        Chair Ossoff. Thank you so much.
        Senator Padilla. I want my time.
        Senator Cruz. Mr. Chairman----
        Senator Padilla. The floor is mine.
        Senator Cruz [continuing]. Doesn't want these questions
    answered----
        Senator Padilla. Senator Cruz, the floor is mine.
        Senator Hirono. A point of personal privilege, Mr.
    Chairman.
        [Gavel is tapped three times.]
        Chair Ossoff. There will be order in the Judiciary
    Committee. Senator Cruz, your comment is noted. Senator Padilla
    is recognized----
        Senator Hirono. Mr. Chairman, a point of----
        Senator Padilla. Thank you, Mr. Chair.
        Senator Hirono [continuing]. Personal privilege.
        Senator Cruz. Chairman Ossoff just----
        Chair Ossoff. Senator Padilla----
        Senator Padilla. Out of respect to----
        Senator Cruz [continuing]. Does not want these questions
    answered.
        Senator Hirono. Point of personal privilege.
        Chair Ossoff. Senator Hirono.
        Senator Hirono. I would request that my colleague, Senator
    Cruz, not misstate what I'm saying. You know what, all this
    mansplaining, please stop. Thank you.
        Chair Ossoff. Senator Padilla is recognized for 5 minutes.
        Senator Padilla. Thank you, Mr. Chairman.
        Senator Cruz. What was mischaracterized, Senator Hirono?
        Senator Padilla. Mr. Gelpi----
        [Gavel is tapped two times.]
        Senator Cruz. You just said I mischaracterized something.
    What----
        [Gavel is tapped three times.]
        Senator Padilla. The floor is mine, Senator Cruz.
        Chair Ossoff. Senator Padilla is----
        Senator Cruz. Very proud you have a gavel----
        Chair Ossoff [continuing]. Recognized for 5 minutes.
        Senator Cruz [continuing]. But a point of personal
    privilege. Senator Hirono just said I mischaracterized
    something she said. I am asking her what was mischaracterized.
    You are welcome to explain what was mischaracterized.
        Senator Padilla. Mr. Chair--Mr. Chair. Mr. Chair, is the
    floor mine?
        Senator Cruz. Okay. So, you're not going to explain what--
    --
        Chair Ossoff. Senator Cruz----
        Senator Padilla. Mr. Chair----
        Senator Cruz [continuing]. Was mischaracterized.
        Chair Ossoff. Everyone bear with me. Senator Cruz, you may
    respond to Senator Hirono.
        Senator Cruz. I described what Senator Hirono said. I asked
    the judge if he agreed with her defense that he should not
    embrace originalism because it would not allow him to reach
    outcomes that she favored. She's now come back and said that
    was a mischaracterization of what she said. I'm inquiring, what
    is mischaracterized?
        Senator Hirono. Mr. Chairman, very briefly--because
    otherwise--you know, the thing with my colleague is he always
    has to get the last word in. That is a fact.
        One of the ways he mischaracterizes that I do not object to
    originalism is applied because it results in decisions that I
    don't agree with. I disagree with the way that the Court
    proceeded in some of the Members of the Court and how they
    proceed with originalism to get to the results that they want.
    That's it.
        Senator Cruz. Is it not accurate that you said you thought
    originalism----
        Senator Hirono. Thank you, Mr. Chairman.
        Senator Cruz [continuing]. Shouldn't be followed because it
    would lead to a different result in Obergefell and a different
    result in Roe? Is that not what you said in this Committee just
    a few minutes ago?
        Senator Hirono. No.
        Senator Cruz. Okay. Well, the record is clear.
        Senator Hirono. Some of the Court Members--some of the
    Court Members apply originalism, not all of them do. That is
    why in some instances, they have been in the minority.
        Senator Cruz. The record----
        Senator Hirono. Maybe not so much now.
        Senator Cruz [continuing]. Is clear what you said. Now,
    you're saying you didn't say that.
        Senator Hirono. Mr. Chairman, thank you----
        Chair Ossoff. Thank you for this exchange, Senators.
        Senator Hirono [continuing]. For your indulgence.
        Chair Ossoff. Senator Padilla is recognized for 5 minutes.
        Senator Padilla. Thank you, Mr. Chairman. Thank you to Mr.
    Gelpi for his patience. In 2006, this Senate unanimously
    confirmed you to serve as a Federal district judge for the
    District of Puerto Rico. Since then, you've heard thousands of
    civil and criminal cases, issued at least 880 opinions, and
    presided over 60 jury trials. In short, you're an experienced
    hand as a district judge.
        Given your depth of experience on the district court, why
    do you want to become a judge on the court of appeals?
        Judge Gelpi. Good morning, Senator, if it's still good
    morning.
        Senator Padilla. It's still morning.
        Judge Gelpi. I've been a judge--my legal career, since I
    graduated from law school 30 years ago, I had the opportunity
    when I was a law student to see a lot of the arguments before
    the Court of Appeals for the First Circuit. My father, who
    actually is here with me, argued many of those cases. Over the
    years, when I was a law clerk, I really cherished and
    appreciated the role of the court of appeals. To me, that was
    amazing as a law student. I would go sit through all our
    arguments.
        I always wanted to have a trial experience because--aside
    from appellate experience, but in all of my positions as a
    lawyer, when I was a Federal defender, I did all of my trial
    work, and I would always do my appellate work, and my
    colleagues who did not like doing appellate work, I would say,
    ``Please, hand me over the cases,'' because I really liked the
    dynamics of the appellate practice.
        When I was working for the Commonwealth of Puerto Rico, at
    the Department of Justice, as Solicitor General, I also--that
    was the bulk of my work, appellate practice.
        I've been on the district bench for 20 years. I love it.
    It's dynamic every day. I always go to work with a smile. I
    always come home with a smile. I feel this is a vocation. It is
    something I--my way of serving our great Nation.
        I understand that, based on the practice and experience
    I've had, and I sat on the court of appeals for many years. You
    get more admiration having done that. Also, you know, being a
    part of the first circuit, it is something that I would take as
    an honor and a privilege, bringing all of that experience that
    I've had to create--to join an already experienced bench, and
    to bring that perspective from Puerto Rico to the first
    circuit, which of course, encompasses other States.
        Senator Padilla. Great. You make a good case for how your
    experience gained as a district judge will inform your work on
    the circuit court. I want to go back slightly further back into
    your career and your trajectory.
        After you graduated from law school and finished your
    district court clerkship, you chose to work as an assistant
    Federal public defender for about 4 years. Is that correct?
        Judge Gelpi. That is correct. Three and a half years.
        Senator Padilla. The choice is notable because in the past,
    it was often said that the surest way to become a Federal judge
    is to first be a prosecutor. You chose a different path. I'd
    like to change that seemingly conventional wisdom too, and
    you're a great example. Let me ask you, what was it that drew
    you to become a public defender? How did that experience affect
    the arc of your legal career, including the time you spent on
    the other side as a lawyer for the Government?
        Judge Gelpi. Senator, what drew me to work for the public
    defender was the--I had been a law clerk, so I had seen many
    criminal trials. I had seen great prosecutors. I had seen great
    public defenders. What drew my attention at that time was that
    I recognized that I would be serving a constitutional role in
    representing clients. When I interviewed, I was told, ``You're
    going to have some very good clients. You're going to have some
    very bad clients.''
        To me, it was very important because every single client
    that I had, I represented him or her to the fullest. I ensured
    he or she was guaranteed every constitutional right, every
    benefit of the law. That is what--it's the important thing of
    being a public defender.
        You also have to deal not only with your client and with
    their families, you also learn how to deal with the
    prosecutors, particularly when the law favors the Government,
    and that is why criminal laws are enacted.
        It was a very dynamic experience. Having gone through that
    experience, it is something--same with representing the
    Government. It's a total opposite dynamic, but at the same
    time, you work as part of a larger justice system. Each person
    has an advocate. As a judge, I've taken those experiences into
    my judicial--as a part of my judicial background. I'm very
    aware of the roles of prosecutors and defense attorneys when
    they come before me. I've done that for 20 years.
        Senator Padilla. Thank you very much.
        Judge Gelpi. Thank you, Senator.
        Senator Padilla. Thank you, Mr. Chair.
        Chair Ossoff. Thank you, Senator Padilla. Thank you, Judge
    Gelpi, for appearing before the Committee today. That concludes
    our questioning. Please be mindful that Senators may submit
    written requests for additional answers following the hearing,
    and we'd ask that you work diligently to respond to those
    requests.
        With that, we will move to our second panel. I'd ask for
    everyone's patience for a moment as we finalize this setup for
    these next four nominees.
        Thank you, Your Honor.
        Judge Gelpi. Thank you, Senator. Thank you, Senator
    Grassley, and Senator Hirono, and Senator Padilla, and
    everybody else who is here.
        Chair Ossoff. We will now hear from our next four nominees.
    Before making your opening statements, I would ask that the
    nominees please stand and raise your right hand to be sworn in.
        [Witnesses are sworn in.]
        Chair Ossoff. Thank you. Please be seated. Judge Kelley,
    you may proceed with your opening statement.
        Judge Kelley. Good morning, Senator Ossoff----
        Chair Ossoff. I believe you need to toggle your microphone,
    Judge.
        Judge Kelley. Okay.
        Chair Ossoff. There we go.

                STATEMENT OF HON. ANGEL KELLEY, NOMINEE

                TO SERVE AS UNITED STATES DISTRICT JUDGE

                   FOR THE DISTRICT OF MASSACHUSETTS

        Judge Kelley. Good morning, Senator Ossoff. Thank you for
    Chairing this hearing. I'd like to thank Chairman Durbin and
    Ranking Member Grassley for including me in today's panel.
        I wish to thank publicly President Biden for nominating me
    to the U.S. District Court for the District of Massachusetts. I
    am truly humbled by this high honor and President Biden's faith
    in me. Also I wish to thank my home State Senators, Elizabeth
    Warren and Ed Markey, for their kind remarks, and having their
    trust and confidence in me. Thank you to the bipartisan
    Committee who forwarded my name to the Senators.
        First, I want to acknowledge my mother and father, who are
    no longer with me physically, but always in my heart. Through
    their life lessons, my parents taught me to be resilient when
    faced with adversity, to live an honorable life, and to adopt a
    work ethic that does not permit excuses. I know I would not be
    here before this Committee if it was not for my parents and all
    those who contributed to my life's journey as role models,
    mentors, supporters, and uplifters.
        Some of my supporters and uplifters are here with me today.
    Introducing first, Mrs. Elsey, who traveled from California to
    be here in place of her daughter, Gina Elsey, who we lost 9
    months ago. Gina was my best friend at Georgetown Law Center. I
    know she's here with us now.
        Also joining me from Georgetown is another dear friend,
    Alexis Taylor. Naomi Thompson and her mother, Mrs. Cabral, are
    also present. They represent the Massachusetts contingent.
    Naomi Thompson is my best friend from Colgate University. I am
    doubly blessed to have two mother figures with me today. They
    counsel me and comfort me like my mother would.
        Representing my birth State and New York contingent is my
    best friend Darlene Jareeth Mangani. We began our legal careers
    together at the Legal Aid Society.
        Thank you to those who could not be here, but send their
    love and support, like my brother in Texas, other family
    members, friends, and colleagues.
        With that, Senators, I thank you again for this invitation
    to appear before you, and welcome your questions today.
        Chair Ossoff. Thank you, Judge Kelley. Ms. O'Hearn, you may
    now also proceed with your opening remarks.

               STATEMENT OF CHRISTINE P. O'HEARN, NOMINEE

                TO SERVE AS UNITED STATES DISTRICT JUDGE

                     FOR THE DISTRICT OF NEW JERSEY

        Ms. O'Hearn. Good morning. Thank you. I would like to thank
    Chairman Durbin and Ranking Member Grassley for scheduling this
    hearing, Senator Ossoff for Chairing the hearing, and the
    entire Committee for considering my nomination. I would like to
    thank Senators Menendez and Booker for recommending me to the
    President, and Senators Menendez and Booker also for their kind
    introduction this morning. I would like to thank President
    Biden for the honor of nominating me to serve in this important
    position.
        First, I would like to recognize my parents. My mother,
    Charlene Steinmetz, is a retired public-school teacher. She is
    unable to be here today but is watching from home. I appreciate
    her love and support. I'd also like to recognize my late
    father, William McCall, who was always there for me and gave
    the best advice.
        I would like to introduce my two children who are here with
    me today. My daughter, Jessica, is a recent graduate of Widener
    Law School. She is completing a clerkship, and I know she will
    be an excellent lawyer. My son, Robert, is a graduate of Marist
    College, and works for a global aerospace company as a systems
    integration analyst. He has the most extraordinary work ethic,
    and I'm so proud of the young adults they have both become.
        I would next like to introduce my law partner and mentor of
    nearly 30 years, Bill Tambussi. Everything I know about being a
    lawyer I learned from watching or working with Bill.
        Finally, I would like to introduce two of my closest
    friends: Hon. Sherri Schweitzer and Susan Leming. I thank them
    both for their friendship and for being here.
        There are many other friends, family, and colleagues who
    could not be here today and who are watching from home,
    including my brother, Bill, and his family. I thank them for
    their support during this process.
        I would like to especially recognize my Brown & Connery
    family, the law firm I have spent my entire career. Thank you,
    and I'm happy to answer any questions you may have for me.
        Chair Ossoff. Thank you, Ms. O'Hearn. Ms. Greenfeld, please
    proceed with your opening statement.

              STATEMENT OF HELAINE ANN GREENFELD, NOMINEE

                TO SERVE AS ASSISTANT ATTORNEY GENERAL,

                     OFFICE OF LEGISLATIVE AFFAIRS

        Ms. Greenfeld. Thank you. Thank you to Chairman Durbin and
    Ranking Member Grassley for arranging this hearing today, and
    to you, Mr. Chairman. If I may, I'd like to thank all the
    staff. As a former staffer, I know how hard they work to put
    these hearings together. A truly heartfelt thank-you to my
    former bosses, Senator Leahy and Senator Hirono, for
    introducing me to the Committee today. It was my time working
    for each of them that taught me to love the Senate, understand
    its history, and respect its responsibilities.
        After so many years sitting behind Senators and witnesses,
    it is strange for me to be sitting on this side of the table.
    Having Senators Leahy and Hirono speak for me today makes me
    feel at home.
        I'd like to introduce my family with me here today: my
    husband, Richard; my children, Jake and Abby; as well as my
    mother, Ruth; and sister, Susan. Watching from home are my
    sister, Jennifer, my brothers- and sisters-in-law, my mother-
    in-law, and other extended family. I'd like to thank them for
    their love and support. My dad, who passed away almost 5 years
    ago, cannot be with us, but if he were, he would be the first
    one to brag about this to every stranger he met.
        [Laughter.]
        Eighty-two years ago, when my grandparents fled Nazi
    Germany with their 2-year-old, my mother, got off a boat in
    Hoboken, New Jersey, and headed for Baltimore, Maryland, they
    could not have dreamt that their granddaughter would have the
    great honor of being nominated by the President of the United
    States to a position working for the Attorney General of the
    United States. I know they would be proud.
        My grandparents and my mother's life journey, escaping the
    Holocaust, and finding a home in the United States, led to my
    interest in studying law and in public service. From a young
    age, I understood that the United States, a country founded and
    dedicated to the rule of law, gave my family refuge, and I
    wanted to be a part of that system. I have been very lucky to
    do that over the course of my nearly 30-year career, serving 8
    years as a Senate staffer in the Judiciary Committee, going on
    13 at the Department of Justice.
        During that time, I came to appreciate the complementary
    powers and responsibilities of the executive and legislative
    branches, which require close communication and the spirit of
    dynamic compromise. The American people expect and deserve no
    less. If I am confirmed as Assistant Attorney General for
    Legislative Affairs, I will do my best to lead the proud
    professionals of OLA, to ensure that the Department of Justice
    supports you completely in fulfilling your role under the
    Constitution.
        Chair Ossoff. Thank you, Ms. Greenfeld. Finally, Mr.
    Schroeder, your opening remarks.

             STATEMENT OF CHRISTOPHER H. SCHROEDER, NOMINEE

                TO SERVE AS ASSISTANT ATTORNEY GENERAL,

                        OFFICE OF LEGAL COUNSEL

        Mr. Schroeder. Thank you, Senator Ossoff. My thanks as well
    to Chairman Durbin and Ranking Member Grassley for organizing
    this hearing and for the honor bestowed on me by President
    Biden with this nomination.
        With your permission, I'll just briefly introduce my family
    who is with me today: my wife of 45 years, Catherine Bartlett;
    two of my three children--two of our three children, Dr. Emily
    Schroeder and Ted Schroeder; and my daughter-in-law, Katherine
    Turner. We're missing our youngest, our third child today, who
    is home in Newton, Mass., taking care of a newborn who is 1
    week old--1 week and a day, and she makes the sixth of our
    grandchildren, none of whom made the trip today and may be
    watching today, who are probably climbing the walls and doing
    other kinds of things with their time.
        I would just say if I am fortunate enough to be confirmed
    by the Senate, I would be returning to an office that I served
    in the Clinton administration. I think I have a real
    appreciation for the role and responsibilities of the Office of
    Legal Counsel. It's not a policymaking office in the Department
    of Justice. We assist in the legal interpretation tasks of the
    Attorney General, providing advice to the executive branch in
    the most competent, even-handed, impartial, and objective way
    that we can in order to help contribute to the important work
    for the country of bringing to life the ideal of the rule of
    law in which all individuals are created and treated equally
    and in the system of the administration of law that follows
    those precepts as well.
        I am honored to be here today, and happy to answer any of
    your questions.
        Chair Ossoff. Thank you, Mr. Schroeder. Members will have 5
    minutes to question this panel. I'd like to begin with you, Mr.
    Schroeder.
        At its best, the Office of Legal Counsel should develop
    what it believes to be the best interpretation of a statute and
    offer rigorously vetted advice, independent of partisan
    pressure or personal interest, that protects the separation of
    powers and ensures that executive action respects congressional
    prerogatives. Mr. Schroeder, how will you ensure that the OLC
    operates according to these principles? Do you agree with the
    principles just stated?
        Mr. Schroeder. Senator, I agree thoroughly with them. I
    think they are fundamentally important to the work of the
    Office. I also think the Attorney General has indicated the
    same expectations for the Office, as has the President. The
    starting point is I will work with--for two bosses who are
    giving me exactly the same kind of instructions that you have
    just articulated.
        We attempt, in the Office of Legal Counsel, to observe a
    form of deliberation that ensures that all matters are
    thoroughly ventilated by both career and the political
    leadership in the Office as thoroughly as time permits. In many
    instances, that is enough time, I think, to delve very deeply
    and carefully into the questions that are posed.
        I would--I plan to implement the practices of the Office
    that I think have worked best in the past to ensure that that
    kind of thorough deliberation is visited on every question that
    comes before us.
        Chair Ossoff. Mr. Schroeder, during your career at DOJ and
    your past tenure at OLC, have you provided advice that perhaps
    you disagreed with personally or politically, but that you
    believed reflected the law?
        Mr. Schroeder. Senator, I have. I perhaps can give you an
    example from the Clinton years, which have been explored in
    hearings before the House and the Senate. They're matters of
    public record.
        This reflects work we did on something that we came to call
    the ``Shoot Down Opinion,'' which was a decision that we
    reached after being asked a question about whether in
    connection with the war on drugs, some of our armed forces
    information about the location of small, private planes coming
    out of South American countries could be provided to those
    countries to aid in the interception of those planes because
    they were delivering illegal drugs across the border, into the
    southwestern States, landing and departing without enough
    warning for our law enforcement to apprehend them. We attempted
    to establish a cooperative relationship with some South
    American countries who were being supportive of our efforts.
        We had to deliver the news that upon analysis of this
    program, which was a very high priority in the war against
    drugs, that it was quite likely unlawful. Perhaps even worse,
    it exposed participants in the assistance and the possibility
    of being liable for aiding and abetting in the event that
    innocent people were harmed by actions by other countries on
    the basis of the information we were supplying. As in shooting
    down those planes.
        This was not received well because this was an important
    policy priority of the administration at the time. It is an
    example that I can talk about in which we had to render advice
    that was not consistent with the policy positions being taken
    in the administration.
        Chair Ossoff. Thank you, Mr. Schroeder. In addition to
    serving on the Judiciary Committee, I Chair the Homeland
    Security Committee's Permanent Subcommittee on Investigations,
    also known as PSI. In the past, at times, Federal agencies have
    been reluctant to provide PSI with documents concerning matters
    subject to ongoing litigation or Federal investigations which
    can impair the legitimate oversight prerogatives of Congress
    and of that Subcommittee. Can you please speak, Mr. Schroeder,
    to the advice or guidance that you'll provide to Federal
    agencies facing congressional requests for information relevant
    to ongoing litigation?
        Mr. Schroeder. Senator, I understand the importance of
    oversight review by this body and the other body. I've worked
    for the Senate Judiciary Committee myself for about 4 years in
    the Reagan and Bush administrations, and I know how frustrating
    it is to make requests that are not timely complied with.
        At the same time, there are long-standing issues related to
    the disclosure of information that affects important law
    enforcement interests and ongoing investigations that have to
    be weighed as well in an equation about whether documentation
    is provided. I think the Department is going to make every
    effort it can to accommodate oversight requests in all areas,
    but there may be situations in which the nature of the
    documents that are involved will be ones in which we are just
    going to have to agree to disagree.
        Chair Ossoff. Thank you, Mr. Schroeder. Ranking Member
    Grassley, you're recognized for 5 minutes.
        Senator Grassley. Thank you very much. Mr. Schroeder, I'm
    going to start with you. OLC, under President Trump, issued an
    opinion relating to the Equal Rights Amendment and the current
    belated ratification process. It's unlikely that the current
    administration agrees with the previous one as a matter of
    policy on the ERA, but the law is the law. I'm not asking you
    how you would rule, but I'd like to know what factors would you
    consider in deciding whether or not to rescind that opinion?
        Mr. Schroeder. Senator Grassley, that specific opinion, I
    believe, is the object of litigation currently against the
    Archivist who has announced that he will follow the OLC advice.
    He has also said he will follow whatever the final judgment of
    the court is in the case.
        I don't--I would not come into the job, under any
    circumstances, with an agenda to look specifically at any prior
    opinion. In this instance in particular, I think we will all be
    best suited if we allow the litigation process to answer that
    question.
        Senator Grassley. I agree with that part of it. I'm only
    asking you what you would--what factors you would take into
    consideration to decide whether or not to rescind that opinion.
        Mr. Schroeder. What would be most important to me is if
    there was an ongoing request for legal advice that we had
    received in the Office. The Office of Legal Counsel is a very
    reactive office. We don't have our own agendas. We answer
    questions that other parts of the executive branch have posed
    to us.
        That would be--initially, we would need, I believe, a
    request to look at that exact issue, which I doubt that we
    would receive because of the nature of the ongoing litigation.
        Senator Grassley. Okay. Let me go on. As you know, I'm a
    strong advocate for Government transparency and congressional
    oversight. You've suggested that the Justice Department should
    have released more OLC opinions, saying that, quote, ``Congress
    cannot exercise its governance responsibilities in regard to a
    problem if they don't know the problem exists,'' end of quote.
        Will you commit to transparency by releasing all of your
    opinions as an Assistant Attorney General for the Office of
    Legal Counsel in a timely manner to help Congress properly
    perform its oversight role? However, if you do not release an
    opinion, will you commit to ensuring that the public knows why
    that opinion was not released?
        Mr. Schroeder. Senator, I'm a very strong advocate of
    transparency, as that quote from--that you have read from me
    indicates. It is my intention to release Office of Legal
    Counsel opinions in a timely manner. We will make every effort
    to do so. There are situations in which the requestor may have
    requested confidentiality, and we have a relationship with the
    people who request opinions of us that we need to respect that
    judgment on their part because people will stop coming to us
    for advice if we say we will be confidential, and then we
    release the information. That may present an obstacle on an
    individual case-basis situation.
        Overall, I'm very much committed to the timely release of
    formal opinions of the Office of Legal Counsel. Yes, sir.
        Senator Grassley. In regard where maybe privacy or
    confidentiality is an issue, would you commit then saying, at
    least you can't release it because of the confidentiality that
    was promised?
        Mr. Schroeder. In that situation, we would make every
    effort to develop a method to make the basics of an opinion
    available to legitimate inquiries by the Congress.
        Senator Grassley. Okay.
        Mr. Schroeder. How exactly that would take place, what form
    it would take, it would have to depend upon the circumstances
    of a particular case.
        Senator Grassley. Okay. Ms. Greenfeld, on our call together
    that we had, I believe it was over the phone, I asked you about
    oversight, and specifically, about the lack of responsiveness
    from both DOJ and FBI to my oversight letters and requests. In
    your current role, you're responsible for responding to
    congressional oversight. Have you been instructed not to
    respond to any of my oversight requests? If so, by whom?
        Ms. Greenfeld. Senator, my experience as a Senate staffer
    has given me tremendous respect for the role of Congress in
    conducting oversight. No one has given me instructions not to
    answer your requests. Indeed, the Attorney General has been
    very clear that we should respond to congressional requests,
    which we do. Every day, they come in through email, phone. We
    get requests for briefings for technical assistants on
    legislation. The vast majority of requests that we get are
    easily complied with. We are able to work on a bipartisan basis
    with many offices.
        Every once in a while, we do get more complex requests, and
    some of yours are among them. We have been working very hard to
    get responses for you. Where we can, we have members of the
    Office of Legislative Affairs are in conversation--very
    frequent conversation with your oversight counsel trying to
    find ways that we can get you the very best answers we can.
        Senator Grassley. My time has run out. I've got five things
    that I'm going to submit to you in writing. I'd like an update
    on those five separate requests.
        Ms. Greenfeld. Yes, Senator.
        Chair Ossoff. Thank you, Senator Grassley. Senator Hirono
    is recognized for 5 minutes.
        Senator Hirono. Thank you very much. I'd like to thank
    Senator Klobuchar for her courtesy in letting me go first. I
    will not take up the full 5 minutes.
        I would just like to ask my preliminary questions of this
    panel. By the way, welcome to all of you, and a special aloha
    to Helaine, of course.
        I will ask the two initial questions that I ask of every
    nominee, and I will ask the full panel. Since you became a
    legal adult, have you ever made unwanted requests for sexual
    favors or committed any verbal or physical harassment or
    assault of a sexual nature?
        Judge Kelley. No, Senator.
        Ms. O'Hearn. No, Senator.
        Ms. Greenfeld. No, Senator.
        Mr. Schroeder. No, Senator.
        Senator Hirono. Have any of you ever faced discipline or
    entered into a settlement related to this kind of conduct?
        Mr. Schroeder. No.
        Ms. O'Hearn. No, Senator.
        Ms. Greenfeld. No.
        Judge Kelley. No, Senator.
        Senator Hirono. Thank you. Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Hirono. Senator Cotton is
    recognized for 5 minutes.
        Senator Cotton. Mr. Chairman, rising rapidly to the top so
    early. Us younger, newer Members have to stick together.
        Ms. Greenfeld, I want to talk about the case of Terry v.
    United States which the Supreme Court recently handed down. It
    concerns convictions and sentencing for crack cocaine,
    specifically under the First Step Act. The United States had
    defended its conviction and sentence for this crack dealer,
    which is typical in these cases, even when the Government
    thinks the verdict might have been overturned. That was not the
    case, though, here since it wasn't even close.
        In March, while you were the Acting Assistant Attorney
    General before your nomination, however, the Department waited
    until the very last moment. I think the day its brief was due
    in the Supreme Court, and then sent the Court a letter, saying
    the Department had changed its mind following the change in
    administration and would no longer defend the sentence. In
    fact, it took a step further and took the unusual step of
    confessing the error, saying that it wasn't just going to stop
    defending the case, but rather it said the Department had been
    wrong all along.
        This required the Supreme Court to appoint an outside
    lawyer to the Department of Justice's job. Just last week, the
    Court ruled unanimously in favor of the very position the
    Department abandoned in March.
        Who decided in the Department to change the Department's
    position in this case?
        Ms. Greenfeld. Senator, I do not know. I presume the
    decision was taken in the Office of Solicitor General.
        Senator Cotton. Were you aware of this case?
        Ms. Greenfeld. No, Senator.
        Senator Cotton. Or the Department's unusual behavior in the
    case for the day?
        Ms. Greenfeld. I think I was aware generally from reading
    the news. I was not involved in that.
        Senator Cotton. You and your Office was not involved in the
    decision----
        Ms. Greenfeld. No. The Office----
        Senator Cotton [continuing]. To change its position?
        Ms. Greenfeld. The Office of Legislative Affairs serves as,
    I would say, a conduit for communication between the Department
    and the Congress. We take in questions from staff members, from
    Members of Congress, about enforcement schemes, about pieces of
    legislation that they want to author. We give technical
    assistance on those. We get letters that Members of Congress
    send on behalf of constituents and on behalf of themselves. We
    are not involved in any decisions about litigation.
        Senator Cotton. Okay. I think the First Step Act was a
    disaster. If the Department proceeds in similar fashion in the
    future, and you're confirmed, you should probably just go ahead
    and reach out to my office in advance because you'll be hearing
    from us very quickly to get answers about these kinds of
    matters.
        Mr. Schroeder, I want to ask you about the case as well.
    The Department's letter to the Court on March 15th said the
    Department no longer defended the sentence. It also said the
    Department had, quote, ``begun a process of reviewing the
    Government's interpretation of Section 404 of the First Step
    Act,'' after President Biden was sworn in.
        At the time, you were the Acting Assistant Attorney General
    for the Office of Legal Counsel. Were you involved in this
    review of Section 404 of the First Step Act in particular or
    the broader interpretations of the First Step Act?
        Mr. Schroeder. No. I wasn't, Senator Cotton.
        Senator Cotton. If it wasn't OLC conducting this review,
    who was conducting it?
        Mr. Schroeder. I don't know. I was unaware of the review.
    It strikes me as a kind of a----
        Senator Cotton. You were the Acting Assistant Attorney
    General. The Department was conducting a review of its
    interpretation of a major statute, and you were not aware of
    this review?
        Mr. Schroeder. Senator, I was not.
        Senator Cotton. That's pretty amazing. How could the
    Department have gotten it so wrong in this case? This is not a
    highly charged political case. This was not like the Yale
    University discrimination case where the Department decided
    that it was okay for Yale University to discriminate as long as
    it was discriminating against Asians. This was a statutory
    interpretation case that was easily decided below, and then
    decided unanimously at the Supreme Court. How is it possible
    the Department got it so wrong?
        Mr. Schroeder. I'm just--I'm sorry. I just can't speculate,
    Senator.
        Senator Cotton. Okay. It reminds me of the old line that
    goes, ``Do you know why the Supreme Court decided this case 9
    to nothing? Because there aren't 11 Justices to decide it 11 to
    nothing.''
        [Laughter.]
        Mr. Schroeder, the administration has come out in favor of
    a House bill that would grant DC statehood. Setting aside the
    political arguments about whether Washington should or should
    not be a State, I want to ask you a very specific
    constitutional issue on DC statehood, namely the Twenty-Third
    Amendment. Have you been involved in the Department's review of
    that House bill and whether it's constitutional under the
    Twenty-Third Amendment?
        Mr. Schroeder. Yes, sir.
        Senator Cotton. What is your conclusion about that bill's
    constitutionality?
        Mr. Schroeder. We have not completed an analysis, but we
    did take a preliminary look at the bill and participated in the
    formulation of the administration position.
        Senator Cotton. You believe that bill would pass
    constitutional muster if Congress passed it and the President
    signed it into law?
        Mr. Schroeder. That's a matter we are still reviewing.
        Senator Cotton. This may be a pretty simple take, but I
    think sometimes the simple takes are the right one. The Twenty-
    Third Amendment, of course, says that Washington, DC is
    entitled to the number of electors in the Electoral College to
    which it would be entitled, quote, ``if it were a State.'' It's
    hard for me to imagine how a law could make Washington, DC, a
    State when the Constitution itself refers to DC, ``if it were a
    State.'' My time's expired.
        Chair Ossoff. Thank you, Senator Cotton. Senator Klobuchar
    is recognized for 5 minutes.
        Senator Klobuchar. Thank you very much, Chairman. It is
    wonderful to be here with all the nominees. I'll have some
    questions of our judicial--of our nominees here at the
    beginning of the panel. I noticed you haven't been asked as
    many questions, but I will do that in writing.
        I wanted to start out by asking you, Mr. Schroeder, and
    good to see you again, just to reaffirm some of the questions
    Senator Grassley had asked about the opinions from the OLC.
    Back in 2017, I sent a letter along with five of my colleagues
    to then AG nominee Sessions, asking for his commitment to
    publicly disclose OLC's written legal opinions to the
    President. Do you think we should have a process for the
    Department to review prior, undisclosed OLC opinions to
    determine whether public disclosure is now appropriate? Do you
    think that's important for maintaining transparency?
        Mr. Schroeder. Senator, thank you for that. Yes, I do think
    it is important for transparency. We do have a process in the
    Office of Legal Counsel to do a publication review of opinions
    that have not yet been published. I have not ascertained the
    status of the unpublished opinions that you are referring to. I
    would be happy, however, to communicate with you further about
    specifics. In general, I do think that it is very important for
    the Office to be transparent in the legal advice that it
    reduces to final opinions.
        Senator Klobuchar. Okay. We talked about this. During the
    previous administration, the Brookings Institute published a
    report on the reversal rate of the Trump administration's
    agency actions. You can go back and look at the whole time
    period, and they had a 29.5 percent success rate when defending
    agency actions with previous administrations, including
    Republican administrations having an average of 69 percent
    success rate.
        Why do you think the reversal rate is high? Most
    importantly, you will lead an office that advises the executive
    branch on whether its actions are legal. How would you reverse
    the trend? Do you intend to do that?
        Mr. Schroeder. Senator, I suspect we have to give better
    legal advice to reverse that trend to the extent we're
    participating. I haven't looked at the individual cases. I know
    the general failure rates that you're referring to.
        It's very important, I think, for the entire
    administration. I know the Department thinks and feels this
    way, that we do our very best work interpreting statutes and
    staying within the confines of the statutes that Congress has
    enacted so that we can avoid the kinds of really unproductive
    administrative action that doesn't affect the purposes for
    which it's designed because they are reversed that courts. That
    doesn't sound like a very productive way to proceed to me.
        Senator Klobuchar. Okay. Very good. Ms. Greenfeld, welcome
    back. Good to see you.
        Ms. Greenfeld. Hello, Senator.
        Senator Klobuchar. Before rejoining the Justice Department,
    at the beginning of this year, you served as a senior counsel
    on this Committee, chief counsel to our friend Senator Hirono,
    and chief nominations counsel to then Chairman Leahy on the
    Judiciary Committee. Earlier in your career, you were a law
    clerk for a Federal judge. Could you talk about how with your
    background, how your views are on Congress's constitutional
    role to provide oversight of the executive branch? What do you
    think is the role of the executive branch in responding to our
    inquiries and oversight?
        Ms. Greenfeld. Thank you, Senator. My time spent working as
    a Senate staffer and also in the Department of Justice has
    given me a keen appreciation and immense respect for the role
    of Congress, the role of Congress in conducting oversight, the
    role of Congress in legislating. The Office of Legislative
    Affairs at the Department of Justice has a duty to assist
    Congress in those responsibilities as best we can, consistent
    with our responsibilities to protect confidentiality interest,
    to make sure we protect the criminal investigations, and
    information protected by law, for instance, grand jury
    material.
        It is important for the Department to assist Congress. We
    should do the very best we can. We should always be listening
    very closely to what Members of Congress are saying. They are
    reflecting important needs of their constituents, and important
    aims, and we should try our very best to assist you when we
    can.
        Senator Klobuchar. Very good. I appreciate that. Again,
    good look. Judge Kelley, Ms. O'Hearn, I look forward to getting
    your answers on the record. I'm very pleased about your
    nominations. Thank you.
        Chair Ossoff. Thank you, Senator Klobuchar. Senator Kennedy
    is recognized for 5 minutes.
        Senator Kennedy. Thank you, Mr. Chairman. I want to talk to
    our judicial nominees, and I'm going to stipulate up front to
    save you time and me time that you're going to follow
    precedent. Okay. Counsel, tell me the test that the U.S.
    Supreme Court uses to overturn its precedent. Counsel O'Hearn?
        Ms. O'Hearn. Thank you, Senator Kennedy for that question.
    As you know, my practice has primarily focused on civil matters
    for the past 28 or 30 years. I have not had occasion to deal
    with a case where it would go to the Supreme Court where the
    issue of overturning its own precedent would be an issue, but
    they are obviously far and few between.
        Senator Kennedy. Okay. You don't know the test?
        Ms. O'Hearn. Sitting here today, Senator, I could not
    articulate that for you.
        Senator Kennedy. Okay. That's cool. Let's talk about a
    pretty famous case that we all learned in the first year of law
    school. Tell me the importance of McCulloch v. Maryland.
        Ms. O'Hearn. Senator, I went to law school 30 years ago.
    I've practiced law for 30 years in many different areas for
    both plaintiffs and defendants in State and Federal court, and
    I have not come across that case that I can recall and tell you
    its holding as I sit here today.
        Senator Kennedy. Okay. If you're going to be on the Federal
    district court bench, you're going to come across the issue of
    universal or nationwide injunctions. What's the legal basis for
    a universal injunction?
        Ms. O'Hearn. Senator, I'm aware of the current discussion
    in the public domain about the propriety of district courts
    issuing nationwide injunctions. I have not encountered a case
    in my practice in State or Federal court where that's been an
    issue. I think as a nominee, it would be inappropriate for me
    to comment on the propriety of that issue since it's currently
    being litigated.
        Senator Kennedy. I'm not asking about the propriety. I'm
    just asking you, do you know the legal basis for it?
        Ms. O'Hearn. Senator, I know that Federal courts are courts
    of limited jurisdiction and are supposed to be restrained in
    taking action, and decide only the issues before them involving
    the parties before them and the issues. I think it would have
    to be a rare exception that an issue before a district court
    judge----
        Senator Kennedy. Yes, ma'am. I know. We both know universal
    injunctions are issued, and if you issue a universal injunction
    and you're asked by one of the litigants, ``Well, why did you
    do that, Judge? What's your legal basis?'', what are you going
    to say?
        Ms. O'Hearn. Senator, as I said, Federal courts are courts
    of limited jurisdiction, and I think it would be extremely rare
    that as a district court judge----
        Senator Kennedy. What's the legal basis, Counselor?
        Ms. O'Hearn. I think I----
        Senator Kennedy. I'm just asking you what the legal basis
    is for a universal injunction.
        Ms. O'Hearn. Senator, I think as a district court judge--if
    confirmed as a district court judge, I would need to have
    jurisdiction and believe I had appropriate jurisdiction to
    issue----
        Senator Kennedy. Okay. Let's move on.
        Ms. O'Hearn [continuing]. That.
        Senator Kennedy. You're not going to answer it. Tell me the
    holding in Marbury v. Madison.
        Ms. O'Hearn. Marbury v. Madison is one of the pinnacle
    decisions about the judicial branch, as you mentioned earlier,
    every law student learns in law school.
        Senator Kennedy. Yes. What's the holding?
        Ms. O'Hearn. In terms of affirming that the judiciary is
    the interpreter of the Constitution.
        Senator Kennedy. Okay. What rule does the Supreme Court
    follow in determining whether an admissions policy of a
    university that uses race as part of the admissions process is
    constitutional?
        Ms. O'Hearn. Senator, my understanding is that race would
    qualify the application of strict scrutiny. In cases the
    Supreme Court has addressed this issue, they have found that
    while they do not--while quotas are not constitutional, that
    race may be a factor that's considered if there's a legitimate
    and rational purpose for it.
        Senator Kennedy. Okay. Let me just ask your personal
    philosophy on a couple of things. Do you believe that crime is
    a disease that we should try to cure? Or do you believe that it
    is an antisocial behavior that should be punished?
        Ms. O'Hearn. Senator, my practice over the past 28 years
    has been in the civil arena. I have----
        Senator Kennedy. Right.
        Ms. O'Hearn [continuing]. Not had occasion to practice
    criminally. I must----
        Senator Kennedy. No. I'm just asking your philosophy. I'm
    not asking the law.
        Ms. O'Hearn. Absolutely. I will say that from what I have
    seen and--as a human being, as you referenced earlier, I think
    that that's a very complicated question.
        Senator Kennedy. Yes. That's why I ask it.
        Ms. O'Hearn. I think there are many factors that would play
    into any case of any particular crime or defendant.
        Senator Kennedy. Can you tell me what you believe?
        Ms. O'Hearn. Senator, I don't know that I can say one way
    or the other what I believe is the answer----
        Senator Kennedy. Have you thought about it?
        Ms. O'Hearn [continuing]. Of the question. I'm sorry?
        Senator Kennedy. Have you thought about it?
        Ms. O'Hearn. I can't say that it's something that I've
    given an extensive amount of thought.
        Senator Kennedy. Okay. Thank you.
        Ms. O'Hearn. It's very complicated.
        Senator Kennedy. Thanks, Mr. Chair.
        Chair Ossoff. Thank you, Senator Kennedy. Senator
    Whitehouse is recognized for 5 minutes.
        Senator Whitehouse. Thank you. Just for the record, I've
    been the State's attorney general with plenary criminal
    authority, and I've been the United States attorney, and I
    haven't given much thought to the question of whether crime is
    an illness or behavior. You're presented with a set of facts.
    You have laws. You apply them, and you try to make sure you
    deter crime. Where people need treatment, you try to make sure
    that they get it. I think that's a pretty simple answer there.
        If I may, let me start with Ms. Greenfeld. I'll focus on
    the DOJ witnesses. You are probably well-aware that I have been
    a constant critic of the persistent and recurring refusals by
    the Department of Justice and the FBI to answer Committee
    questions. A persistent and recurring refusal which seems to
    rise in difficulty in synch with the likely difficulty of the
    answers, were they to be provided.
        You aren't terrible about getting the easy stuff to us, but
    anything that looks like it might be required to disclose
    something challenging, it pretty much stops. There are
    variations around that. The FBI wouldn't tell me what their
    tip-line rules are. They refused to answer that question. We
    were able to find out through internet searches that the FBI
    publicly disclosed what its tip-line rules were in other
    forums. We were able to find it that way.
        From the FBI's point of view, even public stuff like that
    were being denied probably because it touched on a difficult
    topic, which is whether the Kavanaugh tip-line was real or not.
    I don't think that's acceptable.
        At the other end, when stuff actually could have a real law
    enforcement concern about it, we've seen a fast-lane that runs
    around the stonewall, the traffic jam, and brings stuff,
    including pretty delicate FBI stuff directly to at least the
    Republicans on the Committee when they wanted to investigate
    the FBI investigation of the Trump Committee.
        There doesn't seem to be a solid rule here. We've heard
    every excuse in the world. It has to go through OMB. Great. The
    political operatives at OMB stopping information that is duly
    requested from the Department of Justice, I don't think, is a
    good outcome. There's an interagency process. I mean, you can
    invent an interagency process to slow things down. That doesn't
    seem credible to me.
        There's a new Congress, and so stuff we stalled you on for
    2 years, we're going to now ignore. That is, I think, an
    imagined obstacle. Very often, just no excuse at all. Just
    total stonewall.
        Can you give me any assurance that this nonsense will stop?
    Can you give me any assurance that you will have some authority
    over the FBI, which has been its own separate set of disclosure
    problems?
        Ms. Greenfeld. Senator, I am aware that you have sometimes
    been a critic of the responsiveness of the Department. I
    appreciate your need and the need of every Member of Congress
    for information from the Department for purposes of oversight
    and legislation.
        I can assure you that we--and the Attorney General has
    instructed us to respond to every inquiry. When there are times
    that we feel that the balancing test that we use doesn't permit
    us to reveal some information or produce some documents, that
    we explain why.
        Senator Whitehouse. Yes.
        Ms. Greenfeld. That we be clear.
        Senator Whitehouse. That's the way it's supposed to work.
    That's the way it works in civil discovery. That's the way it
    works in criminal discovery. That's the way it works
    everywhere, and we just have varied from that now for quite a
    long period of time at the Department of Justice. So good. I
    will count on you to fix that.
        Mr. Schroeder, you are coming into the OLC, which has its
    own rather unfortunate history. There are a variety of highly
    critical decisions of OLC memoranda and opinions, and the most
    recent one being Judge Amy Berman Jackson's slamming of the OLC
    conduct in CREW v. DOJ. Before that, you had the twin poundings
    in the Committee on Judiciary v. McGahn, of Judge Ketanji Brown
    Jackson, and of Judge Marrero up in the Southern District of
    New York in Trump v. Vance. Interestingly, the latter two
    referred back to the Committee on Judiciary v. Meyers, which
    slammed the OLC decision on absolute immunity, which OLC didn't
    seem to take seriously as a judicial decision because it was
    still making the same arguments 10 years later in Vance and
    McGahn cases.
        Every time an OLC opinion seems to get in front of a court,
    it gets pounded into the ground, and that doesn't seem to be a
    good thing. I think ignoring Meyers, and I don't know if OLC is
    going to respond to the other decisions I just mentioned, or if
    they're just going to bull their heads down and say, ``We know
    better,'' and insist on sticking by their guns, even when
    judges have overruled them. You've got the whole question of
    prosecuting the President of the United States, which OLC has
    put into a boxed canyon so that it never gets judicial review,
    which I think an absolute--just a seizure of authority that
    doesn't belong.
        Then you've got this history of Department revolt, both on
    the torture memos out of OLC when they became public. The
    Department, in that administration, blew up, and withdrew and
    corrected them. With the warrantless wiretapping cases, people
    threatened to resign if the conduct continued that the OLC had
    approved. You've got a real problem on your hands. I think OLC
    has a real credibility problem with courts, and with this
    Committee, and we can spend more time talking about this, but I
    wanted to put that on the record and give you the chance to
    make a quick response of how seriously you take this record of
    problems at OLC that used to be the great place, the high
    temple of the law in the Department of Justice.
        Bring it back and respond.
        Mr. Schroeder. Thank you, Senator, for the encouragement
    and the litany of, what I hope will be viewed from the
    perspective of history, aberrations in the work of the Office
    of Legal Counsel. I know all of the instances to which you have
    referred. It's my intention, if I'm fortunate enough to be
    confirmed, to aspire to the highest quality analysis that we
    can achieve. That certainly will take cognizance of judicial
    decisions that differ from interpretive stances that the office
    has taken in the past, and much more. We are hoping that we
    will be able to have a conversation with you 4 or 5 years from
    now in which the litany will feel a little more dated than it
    does now.
        Senator Whitehouse. Good. Count on me to be a persistent
    scourge, thorn in the side, nag, pain in the rear, whatever you
    want to call it, until we get that back because it's a really
    important part of the Department of Justice. When it sends
    signals like that, it harms the reputation of the entire
    Department. Thank you.
        Chair Ossoff. Thank you, Senator Whitehouse. Senator Cruz
    is recognized for 5 minutes.
        Senator Cruz. Thank you, Mr. Chairman. Welcome, to each of
    the nominees. Ms. Greenfeld, let's start with you. You were
    chief counsel to Senator Hirono during the now infamous
    confirmation of Justice Brett Kavanaugh. As we know, after
    Justice Kavanaugh's first hearing, when it was clear that he
    had the votes to be confirmed, somebody on this Committee
    leaked the allegations by Dr. Christine Blasey Ford to the
    publication The Intercept. Do you know who leaked Dr. Ford's
    allegations to The Intercept?
        Ms. Greenfeld. No, sir.
        Senator Cruz. Did anyone on the Committee ever tell you or
    otherwise communicate to you who leaked the story to The
    Intercept?
        Ms. Greenfeld. No, sir.
        Senator Cruz. When did you first learn about the
    allegations against Justice Kavanaugh?
        Ms. Greenfeld. I think when they were in the news.
        Senator Cruz. All right. Mr. Schroeder, you and I had a
    good conversation this week. The Office of Legal Counsel is an
    extraordinarily important office in the Department of Justice,
    one that in more recent years has had less respect than it had
    in prior decades. You and I discussed, a major reason for that
    has been the willingness of OLC, at times, to subordinate
    following the law to the political or policy priorities of
    whichever administration happens to be in power. How should the
    Office of Legal Counsel handle an issue when there is a
    conflict between what the law provides and the political or
    policy priorities of the administration?
        Mr. Schroeder. Senator Cruz, I think the responsibilities
    of the Office of Legal Counsel, and certainly my intention
    should I be confirmed to be able to lead it, is a very direct
    injunction to interpret the law. We are not a policymaking
    operation inside the Department of Justice or inside the
    administration. Our function is to, through delegation from the
    Attorney General, to fulfill that obligation to provide the
    best legal advice in an impartial and independent way to the
    executive branch.
        Senator Cruz. When you and I talked in the office, you also
    expressed concern about the decision early in the Obama Justice
    Department when the Office of Legal Counsel had given a
    particular opinion concerning the District of Columbia, the
    Attorney General's decision to go instead to the Solicitor
    General and seek a different opinion. You expressed concerns in
    terms of the institution of the Department of Justice. What are
    those concerns you have?
        Mr. Schroeder. The instance you referred to was an occasion
    in which the Attorney General sought the advice of the Office
    of Legal Counsel, and then sought other advice from the
    Solicitor General. I think, as a general operating rule, that's
    not a good practice. I think the Department should be relying
    upon the Office of Legal Counsel, which by the way consults in
    difficult matters on many occasions with the very skillful
    attorneys who are in the Solicitor General's Office as well as
    the other components in the Department.
        Hard issues that the Office of Legal Counsel faces are the
    object of discussion, debate, advice, with skilled people
    throughout the Department. We perform something of a collecting
    function when we are trying to wrestle with a hard problem. If
    we've gone through that process in that careful, thorough,
    deliberative way, it would be my hope and expectation that
    that's the advice that would be followed once we give it.
        Senator Cruz. Okay. Judge Kelley, I want to ask you about a
    case, Commonwealth v. Muniz. In that case, you allowed a
    dangerous, violent, illegal alien to vacate his guilty plea.
    This defendant originally pled guilty to two counts of armed
    assault with intent to murder, two counts of assault with a
    dangerous weapon, one count of possessing a firearm without an
    FID Card, one count of carrying a loaded firearm without a
    license, and one count of malicious damage to a motor car.
        During his plea colloquy, you warned him that, ``If you are
    not a citizen of the United States, your guilty plea can result
    in your deportation, exclusion from the United States, and
    denial of citizenship.''
        Sure enough, several months later, after his guilty plea,
    ICE determined that this violent, criminal, illegal alien was
    deportable. However, you decided to vacate his guilty plea
    because you said, quote, ``the interest of justice required you
    to do so because you,'' quote, ``inadequately warned the
    defendant of the immigration consequences of his guilty plea.''
        Why wasn't your warning very clear? Why would you allow and
    admitted violent criminal to vacate his guilty plea?
        Judge Kelley. Senator, that case, the defendant had filed a
    motion to vacate his conviction--or his guilty plea--excuse
    me--because I had failed to advise him that he could be denied
    admission into the United States, per our statute. That was the
    reason why I denied it, and then it was reversed by the appeals
    court.
        Senator Cruz. Wasn't your warning clear and sufficient?
        Judge Kelley. It was not a verbatim warning, as required by
    the statute, so I thought that I had made an error, and so I
    tried to correct that error.
        Senator Cruz. Thank you.
        Chair Ossoff. Thank you, Senator Cruz. Senator Blumenthal
    is recognized for 5 minutes.
        Senator Blumenthal. Thank you, Chairman. Thank you all for
    your service. I'd like to begin with Ms. Greenfeld, and I know
    that I am repeating in some part ground that's already been
    covered in raising the politicization of the Department of
    Justice's response to questions and requests that have been
    posed in the past.
        In the previous administration, your Office, or the Office
    to which you have been nominated, would respond quickly to
    oversight requests from Republican, not so much from Democrats.
    In fact, Members on this side of the aisle were routinely
    stonewalled by the Office of Legislative Affairs in the
    Department of Justice. I would like your commitment that you
    will, in fact, restore the integrity and independence of the
    Office of Legislative Affairs.
        Ms. Greenfeld. Yes, Senator.
        Senator Blumenthal. I'm confident that you will because you
    have seen it from our side as well as, I know, from your
    previous experience, your commitment to the goals and mission
    of the Department of Justice. Over the last couple of years, I
    have been involved with families that suffered losses on 9/11.
    They have sued the Government of Saudi Arabia.
        The Senate of the United States enabled them, in fact, to
    get relief in that lawsuit through the JASTA Legislation.
    President Obama vetoed it, we overrode the veto, they are
    proceeding with their litigation. I'm not taking an advocacy
    position in the litigation, but I know that they have been
    denied information that is absolutely essential to their day in
    court. The Department of Justice and the FBI has invoked the
    State secret privilege, to withhold documents, testimony, and
    information that is relevant and important to that litigation.
        I've sent letters on this issue in February and May of this
    year, which followed on letters that I sent in 2019 and 2020. I
    have been joined by various colleagues in these letters. I've
    received no response.
        I've asked Attorney General Garland about them, most
    recently in the confirmation hearings, that is the public
    discussion with him. I asked Director Wray about this issue in
    oversight hearings. I would like a commitment from you that
    there will be a response from the Department of Justice to
    these inquiries that I pose.
        Further, I would like to suggest that the Department of
    Justice should avoid standing in the way of these families
    having their day in court and should provide the public and
    them with an explanation as to why this information is
    continuing to be withheld. They owe that explanation to the
    American people as well as these families. Can you commit to me
    that you will be responsive to these requests?
        Ms. Greenfeld. Yes.
        Senator Blumenthal. Thank you. On February 19th of this
    year, I wrote to then Acting Attorney General Wilkinson
    concerning the Department of Justice's failure to release a
    long-pending Inspector General report on the FBI's mishandling
    of the Larry Nassar investigation. You will recall, I'm sure,
    that Larry Nassar was convicted and sentenced to life
    imprisonment as a result of his abusing young girls, women, in
    the Olympics training program. I have yet to receive a response
    to this letter, and there has been no report issued on the IG
    investigation. Will you commit that you will be responsive to
    these requests that I have made for release of that report?
        Ms. Greenfeld. Yes. I will.
        Senator Blumenthal. Thank you. Mr. Schroeder, I know from
    your previous and current tenure as Deputy Assistant Attorney
    General at the Office of Legal Counsel, that you are committed
    to independent and principled advice on the application of the
    law to ensure the administration of justice. I hope that you
    will, if confirmed, fulfill that goal.
        I'd like to ask whether you will commit to reviewing the
    opinions of your predecessors for instances of improper
    political influence?
        Mr. Schroeder. Senator, I don't come to the Office--I would
    not come to the Office, if I am fortunate enough to be
    confirmed, with an agenda to go back, reviewing prior opinions
    of the Office. To my knowledge, no predecessor of mine has done
    that. At the same time, to the extent that there are opinions
    that take positions that are relevant to questions that we are
    being asked by the current administration, and therefore we
    look to them for what they have said, and they will--and
    determine that they are mistaken, we will not hesitate to
    revise them and revisit them as the case may be, depending upon
    the contents and the merits of the individual opinions we're
    reviewing.
        Senator Blumenthal. I think accountability is important,
    and I hope you will go back and review those prior opinions for
    mistakes or errors in legal opinions. If the reasons for those
    mistakes or errors were related to improper motives or
    benefits, accountability is important. I recognize this issue
    runs through the Department of Justice, and the new
    administration's evaluation of past performance.
        In a number of instances, as I have raised with the
    Attorney General, when he sat where you are in his confirmation
    hearing, I think that the Department of Justice, which is
    responsible for law enforcement, has a responsibility to review
    its own past performance for possible lawbreaking. What I'm
    asking from you is a commitment that you will, in fact, report
    to us in the event you find impropriety or lawbreaking in your
    view of those past opinions.
        Mr. Schroeder. Senator, I appreciate that, and I appreciate
    your wider concern about the Department. As I'm thinking about
    this, it is very difficult to ascertain intent when you're
    reviewing a formal legal opinion, and it would require, it
    seems to me, a great deal of forensic inquiry into the
    circumstances around the creation of opinions about which we
    don't keep precise records. We keep precise records about what
    we write, not about interactions of the kind that might lead to
    an interest in exploring the possibility of improper influence.
        Should we come over that kind of circumstance, we will
    certainly draw it to the attention of the appropriate
    leadership components of the Department because I think that's
    the kind of referral that would be appropriate in the first
    instance, should we come across that kind of situation.
        Senator Blumenthal. I hope that you will be proactive in
    that review, and that you will report any indication of
    impropriety or wrongdoing.
        I want to ask you about a specific Office of Legal Counsel
    opinion. On January 15, 2021, at the tail end of the last
    administration, there was a memorandum of opinion issued for
    the Bureau of Prisons relating to home confinement for Federal
    prisoners after COVID-19. The opinion essentially commands the
    Bureau of Prisons to stop home confinement under the CARES Act
    for medically vulnerable inmates and to haul them, in effect,
    back to prison from their homes, even though they were
    nonviolent, posed no harm--no danger of harm to the community.
        That interpretation strikes me as unnecessary and cruel,
    and possibly even vindictive. I would like to get from you a
    commitment that you will review that opinion and correct it if,
    in fact, there is no legal basis for it, and in fact, it serves
    no public policy purpose.
        Mr. Schroeder. Senator, this, I think is a very important
    issue that you have raised. I'm aware of the situation. I know
    that the leadership of the Department is actively engaged in
    working out the most humane approach to the inmates who have
    been released into home confinement early that you have
    referred to under the CARES Act, and I will commit that our
    Office will provide whatever support the leadership Office
    requires of us in order to develop a policy that is consistent
    with the laws as we understand them.
        Chair Ossoff. The Senator's time has expired.
        Senator Blumenthal. Yes. Let me just conclude by saying I
    don't know what that means. You know, I'm asking that you
    review an opinion that essentially, in my view, was simply
    vindictive, unnecessarily unnecessary. I know Senators Durbin
    and Grassley have expressed the same concerns about this memo.
    I'm asking for a commitment to reevaluate this opinion under
    the CARES Act and other controlling legal authorities related
    to home confinement and the pandemic. I am disappointed by a
    failure to commit clearly to reevaluate that opinion with
    respect to inmates who are medically vulnerable and pose no
    risk to public health or public safety.
        Mr. Schroeder. I appreciate that, Senator. What I can tell
    you is I will commit myself to working with the leadership
    offices who are now engaged actively with this issue to
    ascertain what is the most appropriate and humane way forward.
        Senator Blumenthal. Thank you, Mr. Chairman.
        Chair Ossoff. Thank you, Senator Blumenthal. Senator
    Whitehouse is recognized for 5 minutes.
        Senator Whitehouse. Just--I won't take 5 minutes. This will
    be very quick. One will be a question for the record to Mr.
    Schroeder. That is, I would like to ask you to, when you get in
    there, get for me a description of what was done at OLC between
    the McGahn decision in 2019 and the Vance decision in 2019, and
    today's date, at OLC to reconsider the merits of the OLC
    opinions that were critiqued in those judicial decisions. Okay?
        The purpose here is to test whether before I asked this
    question, OLC undertook any steps to reconsider its own
    undercut opinions in the wake of the judicial decisions, the
    Article III decisions that undercut them. Can you get me that
    information once you're in?
        Mr. Schroeder. Understood. Yes, I will.
        Senator Whitehouse. Great. Thank you. Ms. Greenfeld, this
    is a process question. Many of the problems we've had with
    selective response to Committee questions and highly
    politicized selective response to Committee questions have come
    out of the FBI. As a former U.S. attorney, I'm aware of there's
    a certain amount of healthy rivalry, if you'll say, between the
    FBI and the DOJ. I heard it once said that the problem with the
    Department of Justice is that it doesn't understand that it
    works for the Federal Bureau of Investigation. There's always a
    bit of a tension there.
        Do you, in your position as OLA at DOJ, oversee and control
    how the FBI responds to us? Or does that go through a separate
    channel that you do not oversee?
        Ms. Greenfeld. There is some consultation when responding
    to requests. The FBI does write and the Director signs, or the
    head of the Office of Congressional Affairs, signs letters
    addressed to the FBI.
        Senator Whitehouse. Over at the FBI?
        Ms. Greenfeld. Correct.
        Senator Whitehouse. We have to have the same conversation
    with the FBI Office of Legislative Affairs because you don't
    control the FBI's response to our requests. The FBI does that.
        Ms. Greenfeld. We work with the FBI. There should not be,
    as you described, any kind of preferential answering or
    refusing to answer on any basis that's partisan in any way.
    That is the job of the office----
        Senator Whitehouse. Presumably if that--if this gets kicked
    up to the DAG's desk or the Attorney General's desk, at that
    point, the FBI has to conform to what the Attorney General and
    the DAG decide. That's correct?
        Ms. Greenfeld. Yes. The Office of Legal--the Office of
    Legislative Affairs does have cooperation, and we work very
    closely with the FBI. We can do better. We should do better in
    that relationship.
        Senator Whitehouse. Great. It may take the Deputy or the
    Attorney General to make them do better. That's in the chain of
    command. I look forward to working with you in that structure,
    and I appreciate you clarifying all of that. Thank you very
    much, Chairman.
        Ms. Greenfeld. Thank you, Senator.
        Chair Ossoff. Thank you, Senator Whitehouse. Thank you,
    again, to our panel. Before adjourning today's hearing, I will
    enter a number of letters into the record and make a few
    logistical notes.
        We've received several letters of support for today's
    nominees, including letters of support for Judge Gelpi from the
    Federal BAR Association and Puerto Rico BAR Association; a
    letter of support for Judge Kelley from the Massachusetts
    Association of Hispanic Attorneys; letters of support for Ms.
    O'Hearn from among other organizations, the New Jersey State
    Bar Association and the Ironworkers Local Union 399; and a
    letter of support for Mr. Schroeder from more than 30 academics
    and former executive branch lawyers.
        Questions for the record will be due to the nominees by 5
    p.m. on Wednesday, June 30th. The record will likewise remain
    open until that time to submit letters and similar materials.
        Thank you, again, to the nominees for your attendance and
    answers today.
        With that, this hearing is adjourned.
        [Whereupon, at 12:29 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

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