[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
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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
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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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