    [Senate Hearing 117-825]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-825

                            CONFIRMATION HEARING ON
                              FEDERAL APPOINTMENTS

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 14, 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

    54-686                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair

    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California             Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Durbin, Hon. Richard J...........................................     1
    Grassley, Hon. Charles E.........................................     3
    Blumenthal, Hon. Richard.........................................     5
    Booker, Hon. Cory A..............................................     4

                              VISITING INTRODUCERS

    Schumer, Hon. Charles E., U.S. Senator from New York.............    10
    Menendez, Hon. Robert, U.S. Senator from New Jersey..............     7
    Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     8
    Murphy, Hon. Christopher, U.S. Senator from Connecticut..........     6
    Van Hollen, Hon. Chris, U.S. Senator from Maryland...............     9

                                    NOMINEES

    Cobb, Jia M......................................................    37
        Questionnaire................................................   371
        Responses to written questions...............................    55
        Additional materials.........................................   291
    Merriam, Sarah A.L...............................................    37
        Questionnaire................................................   402
        Responses to written questions...............................    91
        Additional materials.........................................   282
    Olsen, Matthew G.................................................    40
        Questionnaire................................................   451
        Responses to written questions...............................   127
        Additional materials.........................................   298
    Pan, Florence Y..................................................    38
        Questionnaire................................................   506
        Responses to written questions...............................   167
        Additional materials.........................................   317
    Perez, Myrna.....................................................    12
        Questionnaire................................................   552
        Responses to written questions...............................   197
        Additional materials.........................................   324
    Willaims, Karen McGlashan........................................    39
        Questionnaire................................................   595
        Responses to written questions...............................   253
        Additional materials.........................................   365

                            CONFIRMATION HEARING ON
                              FEDERAL APPOINTMENTS

                                  ----------

                            WEDNESDAY, JULY 14, 2021

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:59 a.m., in
    Room 226, Dirksen Senate Office Building, Hon. Richard J.
    Durbin, presiding.
        Present: Senators Durbin [presiding], Whitehouse,
    Klobuchar, Coons, Blumenthal, Booker, Padilla, Ossoff,
    Grassley, Lee, Cruz, Hawley, Cotton, Kennedy, Tillis, and
    Blackburn.
        Also present: Senators Schumer, Menendez, Cardin, Murphy,
    and Van Hollen.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,

               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. This hearing will come to order. Today, we
    have five judicial nominees, and one nominee to the Department
    of Justice. Myrna Perez, nominated to the second circuit. Judge
    Sarah Merriam, nominated to the District of Connecticut. Judge
    Karen Williams, nominated to the District of New Jersey. Two
    nominees to the DC district court: Jia Cobb and Judge Florence
    Pan. Matt Olsen, nominated to serve as Assistant AG for the
    Justice Department's National Security Division. A number of
    our colleagues will formally introduce the nominees, but I'd
    like to make a few observations.
        First, with these nominees, the Biden administration and
    the Senate continue to bring diversity and professional balance
    to the bench. Today's slate includes Myrna Perez, who will be
    the first Latina to serve on the second circuit since Justice
    Sonia Sotomayor. We will also hear from Florence Pan, who will
    be the first Asian-American woman to serve on the DC district
    court.
        This slate also includes professional diversity. We have
    two sitting Federal magistrate judges, a judge of the DC
    Superior Court, who was previously an assistant U.S. attorney,
    and a former DC public defender. In Mr. Olsen, we have an
    accomplished national security expert who spent decades working
    to protect America from enemies, foreign and domestic. We have
    a civil rights champion in Ms. Perez, who has devoted her
    career to protecting and defending America's right to vote. It
    is a fitting time for her to join the bench, particularly after
    late rulings by the Supreme Court. I won't go into detail here,
    in an effort to make sure that we get to the nominees as
    quickly as possible. Make no mistake, voting rights are a major
    issue and will continue to be for some time.
        I'm thankful for President Biden in putting forward
    nominees like Ms. Perez, who have such extensive experience.
    She has an impressive career as a litigator and an advocate,
    and an incredible insight into the impacts that restricted
    voting laws have on minorities. This type of legal experience
    is underrepresented on the court, and it's rare to see a voting
    rights attorney nominated to the Federal bench. This
    perspective will bring diversity to our courts. Ms. Perez's
    record shows she's driven by her dedication to serving others
    and the Constitution.
        Before turning it over to Ranking Member Grassley, I'd like
    to introduce two of the district court nominees. Eleanor Holmes
    Norton was unable to make it this morning. Jia Cobb and Judge
    Florence Pan, both nominated to the DC circuit district court.
    Both of these nominees have her support, and she submitted
    statements for the record.
        I'm privileged to introduce Ms. Cobb this morning. Not only
    is she an excellent nominee, but she is an honorary Illinoian,
    having attended college at Northwestern, and then clerked in
    Chicago for my friend, Judge Diane Wood on the seventh circuit.
    After graduating Harvard Law, clerking for Judge Wood, Ms. Cobb
    began her career in DC as a public defender, representing
    indigent defendants charged with criminal offenses. For the
    past 9 years, she has worked as a national civil--at the
    national civil rights firm Relman & Colfax, representing
    plaintiffs in fair housing, disability rights, and employment
    discrimination claims. Ms. Cobb's extensive courtroom
    experience has undoubtedly prepared her for roles that await
    her on the U.S. District Court for the District of Columbia.
        In the past 15 years, and this is remarkable--anyone who's
    practicing law today will know it is--Ms. Cobb has tried more
    than 30 cases to verdict, both criminal and civil. During her 6
    years as a public defender, she handled more than 200 cases,
    and appeared in the court almost daily. It's an incredible
    record, and I wish we could look to that for every nominee
    who's coming before us. Having represented both sides in the
    courtroom, I understand--she understands that she needs to be a
    voice in our Nation's court so that the law is applied even-
    handedly.
        Next, I'll introduce Judge Florence Pan, also nominated to
    the DC court here in DC. After graduating summa cum laude with
    two bachelor's degrees from the University of Pennsylvania,
    Judge Pan received her law degree with distinction from
    Stanford, then clerked for Judge Michael Mukasey, well-known to
    this Committee, on the U.S. District Court for the Southern
    District of New York, and Judge Ralph Winter on the second
    circuit.
        Before her appointment to the DC Superior Court, Judge Pam
    spent her entire legal career in public service. She was
    selected for the prestigious Bristow Fellowship in the Office
    of the Solicitor General. She was an attorney in the appellate
    section of the Criminal Division at the Justice Department, and
    the senior advisor in the Treasury Department. Finally, she
    served as assistant U.S. attorney for the District of Columbia
    for a decade, litigating local and Federal courts at the trial
    and appellate level.
        In 2009, President Obama nominated her to serve on the DC
    Superior Court. She was confirmed by a voice vote. She was also
    nominated to the DC district court by President Obama, and
    favorably reported out of this committed by a voice vote in
    2016; however, the majority leader at the time refused to hold
    a floor vote on her nomination before the end of the 114th
    Congress. Upon confirmation, Judge Pan will become the first
    Asian-American woman to serve on the district court for the
    District of Columbia.
        With that, I turn to my colleague, Senator Grassley.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. Congratulations to all the nominees. I'll
    start by addressing the nominee of Myrna Perez for the second
    circuit, New York. Ms. Perez is a civil rights lawyer, focused
    on voting rights. I think it's good for the President to look
    beyond the usual talent pools in picking judges. President
    Trump, for example, nominated a number of civil rights lawyers
    to the Federal bench. Judges like Kyle Duncan of Louisiana,
    Matt Kacsmaryk in Texas, and Sarah Pitlyk in Missouri were all
    civil rights lawyers for significant portions of their careers.
        Indeed, should Ms. Perez be confirmed to the second
    circuit, she'll join two other civil rights lawyers of color
    appointed by Trump: Michael Park and Steven Menashi. Judge
    Park, of course, led the fight to end racial discrimination in
    higher education, a fight that's unfortunately still ongoing.
    Judge Menashi, among other things, ended religious
    discrimination against historically Black colleges at the
    Univer--Department of Education. I think we've seen the court
    benefit from this diverse perspective, and it all goes to show
    that civil rights can take many forms.
        That said, my Democratic colleagues all oppose those Trump
    civil rights lawyers. Perhaps Democrats didn't think that civil
    rights that they were fighting for. I think the more charitable
    interpretation is that Democrats disagreed with their judicial
    philosophy. Yes. They all protected civil rights, but they also
    believed in textualism and originalism. Ms. Perez seems to be
    of the opposite of that. A prominent opponent of voter
    integrity laws, Ms. Perez seems to be very committed to a
    living Constitution. This obviously concerns me, and I hope to
    discuss this issue with her today.
        I'd also like add one more thing about Ms. Perez. Last
    night, the Committee received the supplement from her. It was
    an article she wrote, which the progressive Christian journal
    Sojourners had just published, entitled, quote, ``The GOP
    Campaign to Make Elections Less Free,'' end of quote. Ms. Perez
    says that this article was submitted before she was a nominee,
    and that she did not see or approve the title of the article
    before it was published. I expect to have a number of written
    questions about this, but I would make a few points: First,
    given the content of the article and the timeline of Ms. Perez'
    nomination, it's very unlikely that Ms. Perez submitted this
    inflammatory article while under consideration for her--this
    seat.
        Second, while the authors typically don't choose their
    titles, I have to image Ms. Perez could have gotten Sojourners,
    which isn't The New Yorker or The Washington Post, to
    accommodate a title change that wouldn't be an insult to half
    of this Committee. I'll also note that this article's
    outrageous subtitle, quote, ``Voters are Supposed to Choose
    Their Politicians, Not the Other Way Around,'' was written by
    Ms. Perez.
        Third, regardless of when it was submitted, Ms. Perez is
    bound by the Code of Conduct as a judicial nominee, and it's
    hard to see how publishing this article as a nominee is
    consistent with Canon 5 of the Code of Conduct.
        As to the other nominees, Ms. Cobb seems to have similar
    problems, having in the past called for interpreting statutes
    based upon their social histories other than their texts. Judge
    Merriam seems to have gotten--had a highly partisan political
    career.
        On the other hand, I remember Judge Pan from her last time
    before the Committee. She seems extremely well qualified for
    this position, being well acquainted with the challenges faced
    by the District of Columbia, both as a prosecutor and a local
    judge.
        Judge Williams also seems to be well qualified.
        Last, we have Mr. Olsen. I think it's critical important
    that the National Security Division focus on protecting us from
    the security threats and not focus on domestic politics. I hope
    that Mr. Olsen agrees with me on that.
        Thank you, Mr. Chairman.
        Chair Durbin. Thank you very much, Senator Grassley. We
    have some introductions. I note my colleague, Senator Booker is
    here, and I believe you are prepared to introduce one of the
    nominees.

               OPENING STATEMENT OF HON. CORY A. BOOKER,

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

        Senator Booker. I am, Mr. Chairman. I know you always get
    very excited when there is a New Jersey nominee.
        Chair Durbin. Always.
        Senator Booker. Always. As does Ranking Member Grassley. I
    am excited. I think all of New Jersey is especially excited,
    especially around the city of Camden, New Jersey, that I have
    the opportunity to introduce one of President Biden's nominees
    to serve as a district judge on the United States District
    Court for the District of New Jersey, Karen Williams.
        Judge Williams is currently serving her second term as a
    United States magistrate judge, where she has handled thousands
    of cases and demonstrated her incredible skill as a jurist, and
    her commitment to justice and law. She is, in many ways,
    through many eyes, a local hero. She is a light to many in our
    community as someone who is showing how to conduct yourself
    with professional excellence, with dignity, honor, and a deep
    empathy for all of humanity.
        As part of her many duties, including handling both
    criminal and civil cases, Judge Williams also presides over the
    District of New Jersey's Re-Entry Court. Renew Camden, which
    works to assist formerly incarcerated people with their re-
    entry into the community, is yet another testimony that she is
    living what a great American author, another African-American
    woman, wrote that, ``We are each other's harvest. We are each
    other's business. We are each other's magnitude and bond.''
    Judge Williams recognizes the bonds we have to each other, that
    ``love your neighbor'' does not have conditions. She lives a
    life of great magnitude.
        Judge Williams is ready to serve as a Federal judge. She
    has experience. She has skill. She has qualifications. She has
    empathy. She has a life that is a testimony to the qualities we
    want on the bench.
        The American Bar Association just recently unanimously
    rated her as ``well qualified'' to be a district judge. She has
    also the full-throated support of the New Jersey Bar
    Association, the Garden State Bar Association, and the
    Association of the Federal Bar of New Jersey.
        When, God willing, she is confirmed, Judge Williams will be
    the first Black woman to serve as a United States district
    court judge in the Camden, New Jersey, Federal courthouse. She
    is a trailblazer and a history-maker, should she be confirmed.
        I am grateful for her commitment to the law. I'm grateful
    for her commitment to service. I am grateful for her commitment
    to her fellow humans. I urge my colleagues to advance Judge
    Karen Williams's nomination to serve as a Federal judge.
        I just want to take a moment, though, if I can. I know I'm
    stepping out of my lane here, but President Biden's nominee to
    serve on the Second Circuit Court of Appeals, Myrna Perez, is
    an extraordinary candidate. I have read about her, and I just
    want to celebrate her presence here. I'm grateful that she is
    someone who has been advocating, tirelessly and relentlessly,
    for our democracy's most sacred ideals, which are voting
    rights. I'm excited about her nomination, and I will vote in
    favor of her to be another Federal circuit judge.
        Chair Durbin. Thank you very much, Senator Booker. We are
    in a semi-awkward situation. This is the first time that we are
    officially gathering in person instead of Zooming in our
    comments, which was extraordinarily convenient, but disjointed
    in its presentation. We're trying to get everybody back in
    attendance. Some of the Members are on their way, I am told. It
    leaves me in a situation where I could give a long speech, but
    I won't. I hope my friend won't either. I don't think he will.
        [Laughter.]
        Senator Booker. Would you like me to say more about Judge
    Williams?
        [Laughter.]
        Chair Durbin. I think you've really done a fine job.
        Senator Booker. Thank you.
        Chair Durbin. Don't risk it. Senator Blumenthal is on the
    way.
        Okay. There you are. To the rescue, Senator Richard
    Blumenthal of Connecticut has arrived in time to say a few
    words about his nominee.

             OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,

              A U.S. SENATOR FROM THE STATE OF CONNECTICUT

        Senator Blumenthal. Thanks, Mr. Chairman. Thanks for giving
    me this opportunity. I'm enormously honored and proud to be
    introducing Sarah Merriam today. Sarah Merriam is the lawyer we
    all want to grow up to be after we graduate from Yale Law
    School, and I say that as a dad of a daughter who has just
    graduated from Yale Law School, and would do well to emulate
    her extraordinary career in the law and in community service.
        Senator Murphy and I recommended Judge Merriam to the White
    House, and I am grateful to President Biden that he has agreed
    with our recommendation.
        She received her B.A. from Georgetown University in 1993,
    and her J.D. from Yale Law School in 2000.
        I spent a good deal of my career, several decades, as a
    litigator in the Federal court, and I have a particular
    allegiance to the values and ethos of the very highest quality
    that we should be seeking, as well as diversity in our Federal
    judiciary. Judge Merriam fulfills those qualifications, and
    expectations, and much, much more.
        Her work in the courtroom began long before she joined the
    bench. After graduating from Yale Law School, she clerked for
    two Federal judges, both I admire greatly: Judge Alvin Thompson
    in the District of Connecticut, and Judge Thomas Meskill on the
    second circuit. She was in private practice. She became an
    assistant Federal defender in the District of Connecticut from
    2007 until she took the bench in 2015.
        I am really just thrilled that Federal prosecutors agree
    with Senator Murphy and myself. Their statement is in the
    record. So do members of the private bar. Their statements are
    in accord. I will just say that Judge Merriam really embodies
    the highest ideals and traditions of our Federal district court
    in Connecticut.
        As a former United States attorney and attorney general for
    our State, I'm very proud to recommend her to this Committee.
        Thank you, Mr. Chairman.
        Chair Durbin. Thanks, Senator Blumenthal. Senator Murphy.

                 STATEMENT OF HON. CHRISTOPHER MURPHY,

              A U.S. SENATOR FROM THE STATE OF CONNECTICUT

        Senator Murphy. Thank you very much, Mr. Chairman. I know
    you have a busy agenda ahead of you, and a number of our
    colleagues who want to introduce the nominees.
        Let me just associate myself with the remarks of Senator
    Blumenthal. I don't know that you're going to see a nominee
    before this Committee who has, I think, a more important
    breadth of experience in the legal field than Judge Merriam.
        She has been an advocate for working people. She has been a
    very capable lawyer in private practice, as mentioned. She
    spent the bulk of her career as a Federal public defender, and
    now she has been a very well-regarded Federal magistrate,
    someone who comes to this hearing with deep experience in the
    Federal court system. I think her resume and her testimony will
    speak for itself.
        I come to you today as someone who has known Judge Merriam
    for 20 years, both professionally and personally. I will tell
    you candidly that when I began my time in public service, Sarah
    was someone that modeled just a unique combination of joy, and
    compassion, hardheadedness, commonsense, that to me, caused me
    to choose to pursue a life in the service of the people of
    Connecticut.
        All of us, I think, have one or two of those people that we
    were able to interact with early in our career that inspired us
    to decide to pursue a life in public. Judge Merriam is one of
    those people for me.
        From a very personal standpoint, I am incredibly humbled to
    be able to stand here today and to recommend my friend, to
    recommend one of Connecticut's brightest legal minds to this
    Committee.
        Last, I'm just so glad that she's here with many of her
    family members that others are watching from home. As she will
    mention, they are a big part of the reason why she is here
    today. They are all good and close friends of mine. I welcome
    the extended Merriam family to this meeting today.
        Again, a busy meeting ahead of you. Very, very pleased to
    add my words of introduction to those of Senator Blumenthal.
        Chair Durbin. Thanks, Senator Murphy. Senator Menendez.

                   STATEMENT OF HON. ROBERT MENENDEZ,

               A U.S SENATOR FROM THE STATE OF NEW JERSEY

        Senator Menendez. Thank you, Mr. Chairman, Mr. Ranking
    Member, and distinguished Members. It's my pleasure to join my
    colleague, Senator Booker, a distinguished Member of this
    Committee, to introduce Karen Williams, an exceptionally
    qualified nominee for the U.S. District Court for the District
    of New Jersey, where she has served as a U.S. magistrate judge
    for more than a decade.
        If confirmed, she would be the first Senate confirmed
    African-American Federal judge to sit in the District of New
    Jersey's Camden courthouse. Yet it is the breadth and diversity
    of her experience in the field of law that makes her such an
    incredibly strong nominee.
        Originally from Long Island, Judge Williams attended Penn
    State University on a track scholarship, and she's never looked
    back. Started out her career as a wage analyst at the New York
    University Medical Center. After her mother took a job managing
    labor relations for the Golden Nugget Casino in Atlantic City,
    she relocated to Egg Harbor Township, and earned her J.D. from
    Temple University Beasley School of Law in Philadelphia, and
    she has called South Jersey home ever since.
        Prior to her appointment as a U.S. magistrate judge, she
    spent 17 years practicing employment and labor law at the firm
    of Jasinski and Williams. There, she defended workers' rights,
    negotiated collective bargaining agreements between unions and
    local municipalities, and led litigation before State and
    Federal courts.
        In 1998, Judge Williams successfully argued on behalf of
    Atlantic City before the New Jersey Supreme Court in a case
    that affirmed the local fire department's ability to discipline
    a firefighter for hurling racial epithets at a police officer.
        Since her appointment as a U.S. magistrate judge in 2009,
    Judge Williams has displayed an unyielding commitment to the
    fair administration of justice, to equal rights under the law,
    to a deference to precedent, and to the safety of our
    communities. Indeed, two of the most notable cases she has
    presided over involve threats to public safety. One case
    concerning an individual accused of planning attacks on
    synagogues. Another involving a defendant who advocated for
    rioting and looting during protests against police brutality
    during the death of George Floyd.
        In addition, Judge Williams has also served as an adjunct
    professor at Rowan University, where her classes on law and
    justice have undoubtedly inspired many students to pursue the
    legal profession.
        Judge Williams may have been born in New York, but she
    represents the best of New Jersey. I have complete confidence
    in her judgment, her values, her intellect, and her capacity to
    serve as a U.S. district court judge for the District of New
    Jersey. As you know, Mr. Chairman, and I appreciate this
    Committee and your leadership in dealing with the emergency of
    judicial vacancies that exist in New Jersey that have been
    declared a national emergency. The Committee has been moving
    through nominees. I urge the Committee's support for her
    nomination as well to help us meet that challenge.
        Chair Durbin. Thanks, Senator Menendez. I might say to you
    and Senator Murphy. I know you have a busy schedule, and if you
    would like to leave at this point, it's perfectly acceptable.
        We now turn to Senator Cardin from Maryland.

                 STATEMENT OF HON. BENJAMIN L. CARDIN,

               A U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Cardin. Thank you, Chairman Durbin, and Ranking
    Member Grassley. Thank you for giving Senator Van Hollen and I
    the opportunity to introduce a proud Marylander, President
    Obama's nominee for--President Biden's nominee for Assistant
    Attorney General for National Security Division.
        Mr. Matt Olsen is a proud Marylander. He hails from
    Kensington, which is also the home of our distinguished
    Senator, Senator Van Hollen, and we're very proud of his
    appointment.
        Matt Olsen has tremendous experience at the intersection of
    law enforcement and intelligence community at exactly the point
    where the National Security Division straddles these two
    distinct Government functions. Mr. Olsen has nearly two decades
    of experience in a wide variety of roles at the justice and
    intelligence community.
        Mr. Olsen received his B.A. from the University of
    Virginia, and his J.D. from Harvard Law School. He served as a
    judicial law clerk for Hon. Norma Holloway Johnson, the first
    Black woman to serve on the DC circuit. Judge Holloway became
    Mr. Olsen's lifelong mentor.
        After completing his clerkship, he joined the Justice
    Department's Civil Rights Division, where he enforced the
    Voting Rights Act. He also joined the U.S. Attorney's Office
    for the District of Columbia, where he supervised the
    investigation and prosecution of domestic terrorism, espionage,
    and export violation cases. Mr. Olsen has prosecuted homicide
    cases, RICO cases, and drug and gang related offenses. I
    understand that it was Mr. Olsen's work as a U.S. attorney that
    led him to serve as special counsel to then FBI Director
    Mueller, where he supported the FBI's national security and
    counterterrorism work.
        After departing the U.S. Attorney's Office and the FBI, Mr.
    Olsen helped create the National Security Division, and served
    as one of its first officials as both Acting Assistant Attorney
    General and a Deputy Assistant Attorney General. He oversaw 125
    career professionals, and managed intelligence and surveillance
    operations and oversight activities. In this role, he worked
    closely with the intelligence community.
        At the National Security Division, Mr. Olsen led the
    Justice Department's participation in the interagency
    Guantanamo Review Task Force created by President Obama to
    evaluate the status of individuals detained at Gitmo Bay, which
    as we all know, is an extremely difficult assignment.
        In 2010, he was appointed as general counsel to the
    National Security Agency, which is headquartered in Fort Meade
    in Maryland. As NSA's chief legal officer, he played a critical
    role in supporting the Agency's operation mission.
        Mr. Chairman, I could go on and on. He has incredible
    experience in the intelligence community, and justice, and law
    enforcement. He has the whole package. I want to thank him for
    his willingness to continue to serve the public, and thank his
    family for their willingness to allow him to continue. I'm very
    proud to recommend his nomination to this Committee, and I urge
    you to consider his nomination.
        Thank you, Mr. Chairman,
        Chair Durbin. Thanks Senator Cardin. Senator Van Hollen.

                  STATEMENT OF HON. CHRIS VAN HOLLEN,

               A U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Van Hollen. Thank you, Chairman Durbin, Ranking
    Member Grassley, and Members of this distinguished Committee.
    I'm very proud to have the opportunity to also join my
    colleague, Senator Cardin, in introducing the President's
    nomination to serve as Assistant Attorney General for National
    Security at the Justice Department, Matt Olsen. I would like to
    also welcome his family: his wife, Fern, and their three
    children, Elizabeth, Nate, and Will, who are here today.
        President Biden has selected wisely in picking a nominee
    who has the experience, the expertise, and the sound judgment
    for this very important position. He has very wisely selected a
    Marylander as well.
        I'm not going to cover all the details because Senator
    Cardin went over his very distinguished career, but I would
    point out that he has 20 years of experience in exactly the
    relevant areas for the position for which he's been nominated,
    national security, counterterrorism, and civil rights.
        I do want to highlight a couple of the areas where he
    served, including the Department of Justice, first in the Civil
    Rights Division, and then as Acting Assistant Secretary for
    National Security, where Senator Cardin said he helped
    establish the National Security Division at DOJ.
        His service as general counsel at the National Security
    Agency, covering issues like cybersecurity and surveillance law
    will also prove very important in his new position, if
    confirmed. His most recent Government post, Mr. Olsen served as
    the Director of the National Counterterrorism Center, where he
    worked tirelessly at the helm of the Nation's efforts to combat
    terrorism at home and abroad by integrating terrorism
    intelligence and connecting the dots to deter, detect, and
    disrupt terrorist plots. In short, his work has helped save
    American lives.
        Each of these experiences prepare him very well for the
    skills that he will need to serve in this role. There is no
    question in my mind, Members of the Committee, that Matt Olsen
    is ready to take on the important responsibilities as Assistant
    AG for National Security.
        I was delighted to see that just yesterday, 80 former
    senior officials of the United States Department of Justice,
    who have served under administrations of both parties, wrote to
    this Committee, expressing their, quote, ``unqualified and
    enthusiastic support for Mr. Olsen's nomination.''
        On a personal note, I can testify to Matt Olsen's good
    character, because I also know him as a good neighbor in
    Kensington, Maryland. My wife, Katherine, and I frequently
    encounter Matt, Fern, and their children, walking in the
    neighborhood. The only family who is not with them today is
    their dog, Kenie, who is a playmate of our dog.
        Chairman Durbin, Ranking Member Grassley, Members of this
    Committee, I am absolutely confident that, if confirmed, Matt
    Olsen will serve our country with honor and distinction. I urge
    you support his nomination for this important post.
        Chair Durbin. Thank you very much, Senator Van Hollen. I
    thank both you and Senator Cardin. Of course, you can go about
    your business if you wish. We'll continue here.
        We are going to pause momentarily, waiting for the arrival
    of Senator Schumer, who's going to introduce the nominee for
    the first panel. If everyone would please relax.
        [Pause.]
        Chair Durbin. Welcome, Senator Schumer. The floor is yours.

                 STATEMENT OF HON. CHARLES E. SCHUMER,

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

        Senator Schumer. Thank you, Mr. Chairman. I want to thank
    you and my colleagues on the Senate Judiciary Committee. It's
    always a pleasure to be back here where I served many happy
    years. In fact, if you add up my time on the House Judiciary
    Committee and the Senate Judiciary Committee, it's 1982 to
    2016. That's a lot of years. It's glad to be back.
        It's particularly glad to be back for the reason I'm here
    today. It's my honor, my true honor, to introduce a nominee to
    the Committee for the Second Circuit of New York, Myrna Perez,
    an experienced litigator, one of the foremost election lawyers
    in the country whom I was so, so proud to recommend to
    President Biden.
        Myrna Perez's life is a quintessentially American story.
    The daughter of Mexican immigrants, Myrna grew up in San
    Antonio, not quite Brooklyn, where her dad served in the Air
    Force, and her mom worked as a waitress and then at the post
    office.
        As she will tell you, her upbringing was steeped in the
    immigrant experience of many first-generation Americans. There
    was a constant struggle against racial, social, and language
    barriers as the Perez family found its place in America.
        In fact, when Myrna was a kid, her aunt would take her to
    the polls on Election Day. Even in her early years, she saw
    first-hand to how cultural differences and byzantine rules made
    it immensely difficult for Americans like her to engage in the
    political process, foreshadowing a career dedicated to the
    defense of voting rights and equal representation for all
    Americans.
        Make no mistake about it she--and it was no mistake,
    rather, that she chose the legal profession as a means to
    achieve that noble goal. Myrna's family will tell you the story
    of how once, as a kid, she protested that her cousin tried to
    keep a fish he caught that was technically below the legal size
    for catch-and-keep. Do you remember what kind of fish it was? A
    trout. A trout. We have those in New York too.
        It was the innate appreciation for the rule of law that
    propelled Myrna through Yale, Harvard, and eventually Columbia
    Law School. The first in her family to graduate from college. I
    hear these stories, and it gives me such faith in America. Such
    a strong desire to create greater and more equal justice in
    this country. We have so much potential. We have such a
    wonderful country; we just have to live up to it. With a
    nomination like this, we are.
        After two clerkships on the Federal bench, Myrna worked as
    a civil rights fellow in private practice before joining the
    Brennan Center for Justice at NYU, of course named after the
    great Justice Brennan. It was at the Brennan Center that Myrna
    established a reputation as one of the top voting rights and
    election lawyers in the entire country. For the last 15 years,
    she's been involved in election-related litigation. Everything
    from voter roll purges, discriminatory voter ID laws, the
    voting rights of formally incarcerated people, and protecting
    the ballot from unlawful rejection.
        My colleagues, the Federal bench has long been occupied by
    former prosecutors and corporate lawyers. While many of these
    people, many of whom I proudly recommended, have served
    admirably, it's past time that the Federal bench reflect more
    accurately the true depth, and breadth, and talent that the
    legal profession has to offer. It's about time that civil
    rights attorneys, Federal defenders, and voting rights experts
    like Myrna Perez join the ranks. Especially now, when our
    democracy in many ways is in peril, it's crucial that we
    elevate someone like Ms. Perez to the bench. Someone we can
    trust to faithfully and equally apply the law to preserve our
    great democracy.
        It's not only about her experience as a voting rights
    litigator. After all, she's going to hear all kinds of cases on
    the second circuit. What makes Ms. Perez so qualified for this
    job is not merely her experience, but her legal excellence.
    Just listen to what a few of her colleagues have to say about
    her: ``Brilliant,'' one fellow attorney wrote, quite
    succinctly. ``A force of nature,'' another said. Another
    colleague rated her legal skills as simply, quote, ``off the
    charts.''
        I would add one additional note to these well-deserved
    praises: Ms. Perez will serve as the first Latina to sit on the
    Second Circuit Court of Appeals since then judge, now Justice,
    Sonia Sotomayor, whom I had the great honor of recommending to
    President Obama for a seat on the highest Court.
        Let me just say, when I met Ms. Perez, she just knocked my
    socks off. Yes. She was brilliant, amazing. Yes. She had real
    compassion and depth of experience. She had a scintillating
    personality that I'm sure will help her persuade fellow members
    of the second circuit to the righteousness of the causes that
    she will follow. I can think of no one, no one more fitting to
    carry on Justice Sotomayor's legacy on the second circuit than
    Myrna Perez. She's amazing. I'm so proud to nominate her. She
    carries my highest, highest, highest recommendation.
        Chair Durbin. Thank you very much, Senator Schumer. We
    appreciate your remarks.
        At this point, we're going to ask the staff to prepare for
    the questioning of nominees. The first panel will be--Ms.
    Perez, who is seeking a spot on the circuit court, will be
    before the Committee.
        Then the second panel will include the other nominees.
        Senator Schumer is working this like a high school
    graduation.
        [Laughter.]
        Chair Durbin. He's attended many.
        Senator Schumer. I've spoken at over 100 of them virtually
    this year. Graduations.
        Chair Durbin. I'm sure virtuously too. Ms. Perez, why don't
    we ask you to please stand to be sworn. Please raise your right
    hand.
        [Witness is sworn in.]
        Chair Durbin. Thank you. Please proceed with your opening
    remarks.

                  STATEMENT OF MYRNA PEREZ, NOMINEE TO

                  SERVE AS UNITED STATES CIRCUIT JUDGE

                         FOR THE SECOND CIRCUIT

        Ms. Perez. Thank you, Chairman Durbin, Ranking Member
    Grassley, and Members of the Committee for considering my
    nomination today. Thank you, Senator Schumer and Senator
    Gillibrand for your support, and Senator Schumer for your kind
    words of introduction. I also want to thank President Biden for
    this nomination. It is the honor of my professional life.
        I first want to thank my judges, Hon. Anita Brody of the
    Eastern District of Pennsylvania, and Hon. Julio Fuentes of the
    third circuit. While they were appointed by Presidents from
    different political parties, they had a shared commitment for
    the rule of law and impartial adjudication.
        I want to thank my friends and colleagues. It is not
    possible to enumerate the many ways in which you enrich me. The
    support you have shown me has meant more than you know.
        I want to thank my church family: Saint Matthews
    Evangelical Lutheran Church, my extended church family of
    Crossroads Prison Ministry, and Grace Van Vorst Episcopal
    Church for all of their prayers. They availeth much.
        In the hearing room is my cousin, Hector Perez, standing in
    for my many wonderful cousins on the Perez and Garza side of my
    family. Of course, I want to thank my many aunts and uncles who
    played such a big part of my life during my formative years. To
    my cousins, my aunts and my uncles, my brother, my nieces and
    my nephews, thank you for the love from afar.
        My husband, Mark Muntzel is here. He is a devoted father
    and a really good sport about going along with my various
    community projects. Mark also gifted me with a bonus family who
    welcomed me with open arms.
        My parents, Myrna Perez and Victor Perez, Junior, came in
    from Texas to be here today. They immigrated from Mexico to the
    United States as children. While I never heard any complaints,
    I never heard the words discrimination or poverty, even as a
    young child, I knew that much of their life was very
    challenging and full of hardships.
        To their credit, they never communicated anything but
    gratefulness for what they had. They taught me to be resilient.
    They taught me to be resourceful. They taught me to be
    independent. They taught me to be self-reliant. They taught me
    to set high standards for myself, and to work very hard to
    achieve them. Most importantly, they taught me that on my worst
    day, I am still better off than most of the world on their
    best.
        Finally, in the room is my beloved son. He is my greatest
    source of strength, joy, and inspiration.
        Thank you so much, Members, for giving me a moment to thank
    all the people who got me here today. I look forward to your
    questions.
        Chair Durbin. Thank you very much, Ms. Perez. Let me,
    before we go into a few questions, say a few words about the
    disclosure yesterday of the article that was published in
    Sojourners Magazine. Let me tell you that I have taken a look
    at the standards of the Committee, and believe that you are in
    total compliance, both with the letter and spirit of the rules
    and law.
        You submitted to the Committee an article, which had been
    submitted for publication in May of this year, before your
    nomination to the second circuit. That article was published
    online yesterday. We have the letter of transmittal from you
    with the article in a timely fashion.
        Question 12(a) of the Senate Judiciary Questionnaire
    requires nominees to provide all published materials, including
    materials published on the internet, to the Committee. The
    question does not, however, require nominees to produce
    unpublished materials. You complied completely, as soon as it
    was published.
        I might also say that I read it. Having read it, some may
    take exception, I certainly believe they will. I would gladly
    give your article as a speech from me personally on the floor
    of the Senate any day of the week. I agree with what you said
    to the letter. I would also say that it is factually correct in
    every aspect that I'm aware of. We may disagree on policy,
    that's the nature of this U.S. Senate and our body politic. In
    terms of the article itself, as I said, I believe that it's
    accurate and I would embrace it.
        The only reference to the Republican Party was in the
    title, and that, you said, was not your choice, but the
    editor's choice. It speaks of issues in State legislatures
    without any partisan identification on that.
        Let's go further with this. You've worked with the Brennan
    Center. Senator Grassley raised a point which is entirely
    valid. We raise this point all the time. Do you come to this,
    really, awesome responsibility with a bias?
        You know, I think the world of Justice Brennan, and what he
    did on the Supreme Court--as a matter of fact, I think there's
    a quote in here. Let me find it, because it's worth
    remembering. There's a quote that said that Justice Brennan
    was--Justice William Brennan was probably the most influential
    Justice of the century. The source of that quote was Antonin
    Scalia. Brennan himself was a well-respected man, and I have
    turned to the Brennan Center many times when there are
    questions of policy that they have looked into.
        What would you say of your own philosophy? Textualist?
    Originalist? I don't know all the terminology of the
    Constitution. Please, the floor is yours.
        Ms. Perez. Certainly, Chairman Durbin. Thank you so much. I
    think the first place you start when examining the Constitution
    or a statute is with the text. It is the most probative example
    of how it should be interpreted. I think if, on its face, the
    text is not clear, you would then look to precedent. If
    confirmed, I would be looking to precedent both from the
    Supreme Court and the second circuit. If that still doesn't
    answer the question, you look to canons of construction. You
    perhaps approach a legislative history, but there is more than
    230 years of jurisprudence in this country, and there is
    relevant and probative jurisprudence on quite a number of
    issues. You start with the text, sir.
        Chair Durbin. Members of the Senate and many others swear
    allegiance to that Constitution. To defend it, people have
    given their lives in defense of that Constitution. Yet, I would
    say, in my own personal opinion, as great a document as it is,
    and it is great, it is not perfect. Its treatment of African
    Americans, women, and others reflected the mores and standards
    when the Constitution was written. I would just say, and you
    don't have to comment, that I am not a literalist when it comes
    to characterizing African Americans as two-thirds of a citizen
    or not including women in the right to vote. That, to me, is a
    reflection of the times, and thank goodness those times have
    changed.
        Speak to me, if you will, though, about the right to vote.
    That is the central issue that we're discussing in so many
    aspects. A group of Texas legislators decided to come to
    Washington so that they wouldn't make a quorum in Texas over
    controversy involving the voting rights law. People feel very
    intensely about it. Comment on that, if you would.
        Ms. Perez. Senator, the right to vote keeps us free. It
    protects us from tyranny. It is preservative of all other
    rights. As an advocate, I have been duty-bound to ensure that
    the promises this Constitution makes about being able to
    participate in your own self-governance is actualized.
        The position before you I seek is one of a different role,
    one in which I would not be involved in questions of policy,
    but merely evaluating the laws that were put before me
    alongside the record that the parties put in. The fundamental
    core of what is great about our country, the Constitution and
    the promises that it makes that we all deserve a free, fair,
    and accessible vote, is something that is timeless and
    something that is bipartisan.
        Chair Durbin. I know the answer to the question I'm about
    to give is very simply a yes, but I'm going to ask you if you
    would expound on the notion. Have we had any difficulty in the
    history of this Nation in providing the right to vote to all
    Americans?
        Ms. Perez. Yes, sir. There are times where we have not
    lived up to the great ideals of the Constitution, and I am very
    proud to say that we are improving on that, but it requires
    vigilance, and it requires all of us Americans being part of
    the ``We the People,'' in order to make and continue to make
    our union more perfect.
        Chair Durbin. Thank you. Senator Grassley.
        Senator Grassley. Thank you, and congratulations on your
    appointment. I want to talk generally about the approach of
    this administration. Many names, not just yours, but others
    that we've already dealt with, about these nominees refusing to
    even admit that they have a judicial philosophy, let alone talk
    about what their own judicial philosophy is. Even Judge Gelpi,
    who literally wrote a book on the Constitution didn't seem to
    want to talk about it.
        I think you're uniquely suited to answer these questions
    because you've spoken many times about the living Constitution
    concept in connection with your work at the Brennan Center.
    What does the living Constitution concept mean to you? You
    obviously agree with a living Constitution as a method of
    constitutional interpretation.
        Ms. Perez. Senator, Justice Brennan made famous and popular
    the idea of a living Constitution. Obviously, I've never spoken
    to him about what it meant or what his interpretation meant. I
    do think, as a nominee, I believe, and I'm comfortable saying,
    that the Constitution is an enduring document. Its great values
    of incredibly important things like equal justice under the
    law, liberty, the right to free exercise, all of those
    important attributes of the American experience are still
    relevant and guiding us today. If they continue to guide us, we
    will continue to be the greatest country in the world.
        Senator Grassley. Thank you for your willingness to express
    that. Others haven't been quite that outcoming.
        On May 27, 2021, you spoke on a virtual panel entitled,
    ``Voting Rights in America: Ensuring Fair and Full Voting for
    All.'' During your introduction, you spoke about Justice
    Brennan and his judicial philosophy. You also went on to say,
    quote, ``If you're one of these people who think that we were
    at our best when our country was first founded and didn't
    include women, or people of color, or people without property
    in the electoral process, this is probably not the conversation
    for you,'' end of quote. Who were you describing in that
    description?
        Ms. Perez. Senator, I do speak a lot, so I'm not 100
    percent confident that I remember the conversation. If it is
    the conversation I remember, I was getting a lot of hostile,
    inappropriate comments in the chat, and I was worried that it
    was distracting the audience and frustrating the organizers. I
    was trying to explain to the audience members that I was asked
    to speak on a particular topic, and I intended to speak on that
    topic as opposed to engaging with nameless, anonymous people
    via chat.
        Senator Grassley. Okay. Let me follow-up. Is it your view
    that originalists think America was, quote-unquote, ``at its
    best when people of color couldn't vote?''
        Ms. Perez. Senator, I think labels that get thrown around a
    lot, like originalist, are inchoate and constantly shifting,
    and so they're too broad and they're not particularly helpful
    in terms of answering questions.
        I will say that I--the people I have encountered that call
    themselves originalists, I do believe--believe that our country
    that is inclusive is preferable than the restrictions we saw
    when the country was first founded.
        Senator Grassley. Can you name any originalists who might
    hold that view?
        Ms. Perez. I'm sorry?
        Senator Grassley. Could you name any originalist who might
    hold that view?
        Ms. Perez. Who holds what view? The idea that the country
    has improved when we can all include? We are all inclusive.
        Senator Grassley. Okay. Then, let me go on to my last
    question. This deals with recusal. In your questionnaire, you
    said you would recuse yourself in matters which the Brennan
    Center was a party or represented a party. Does this also
    include matters which you or the Brennan Center advocated a
    policy position on? Let me follow-up that question with, you
    have spoken about New York election laws and pending voting
    legislation in Congress, and your positions on those bills are
    quite clear. Can you comment today to recusing yourself from
    litigation involving that legislation?
        Ms. Perez. Senator, I am very comfortable committing to
    consulting the statute of 28 U.S.C. Sec.  455 for recusals, and
    talking to the administrative office, and proceeding in
    accordance with those dictates.
        Senator Grassley. Thank you very much.
        Ms. Perez. Thank you so much.
        Chair Durbin. Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman. Welcome----
        Ms. Perez. Good morning.
        Senator Whitehouse [continuing]. Ms. Perez. I am delighted
    that you are here, and I look forward to supporting your
    confirmation.
        I want to ask you a question regarding the Voting Rights
    Act. There has been some criticism of your nomination that you
    have dwelt unduly on issues of race with respect to the Voting
    Rights Act. Could you let us know why, with respect to the
    voting rights law, that is actually a necessary thing to
    consider?
        Ms. Perez. Thank you, Senator. For the past 15 years or so,
    I have been an advocate on behalf of an organization and on
    behalf of clients who seek a free, fair, and accessible vote.
    As a civil rights litigator, I am duty-bound to be hyper-
    sensitive and attuned to issues of disparity and racism, and to
    protect and guard against any threats to a free, fair, and
    accessible vote. As such, I have been vigilant about
    monitoring, and watching, and resourcing, and researching
    potential threats to a fair vote.
        Senator Whitehouse. In fact, section 2 of the Voting Rights
    Act makes it actionable to deny or abridge the right of any
    citizen of the United States to vote on account of race or
    color, does it not?
        Ms. Perez. That is correct, sir.
        Senator Whitehouse. That's actually in----
        Ms. Perez. Part of----
        Senator Whitehouse [continuing]. The law.
        Ms. Perez. Part of my job, sir. Right now.
        Senator Whitehouse. Part of your job. It's a part of your
    job because it's part of the law.
        Ms. Perez. That is correct, sir.
        Senator Whitehouse. Yes. I'm actually, I think, more to
    your side than to the originalist side with regards to the
    Constitution. I like your use of the word enduring. I think we
    do have an enduring Constitution, and we do have principles in
    it that endure, but that have to adapt to changing
    circumstances in society, whether it's new means of
    communication, or new economic realities. I think too often,
    originalism is used as a device to try to impose value
    judgments rather than principle.
        I think it was William F. Buckley who, years ago, said,
    ``The purpose of conservatism is to stand athwart history,
    yelling, `Stop.' '' I don't think the Constitution is designed
    that way. I just want to say I appreciate your perspective. I
    tend to share it. I think your use of the word enduring is a
    very appropriate one. I don't know if you want to elaborate on
    that in any respect, but thank you for saying that.
        Ms. Perez. I would say, Senator, that I love the
    Constitution. I love the principles it sets out. I love that
    under the Constitution, we are all equal under the law, that we
    all have a right to life, liberty, and the pursuit of
    happiness. I love that we all have the right to free exercise.
        I am entirely persuaded in the wisdom of the frameworks it
    sets up. Things like the rule of law, separation of powers, and
    an independent judiciary and federalism. As part of those
    frameworks, it allows us as Americans to live up to our ideals.
    Those frameworks improve our values, and those values guide our
    framework. I think together, the country is getting stronger
    and can get stronger.
        Senator Whitehouse. In the context of frameworks, let me
    ask a final question here that I ask of a great many of the
    nominees who come before us, because in the framework of the
    United States Constitution is the jury. Criminal jury and the
    civil jury. The importance of the jury was something that was
    really evident to the founders. It was part of the casus belli
    of the Revolution. It was mentioned in our founding documents.
    I think many historians see it as a way for popular expression
    of governance by local communities.
        It's been with some degree of distress and dismay that I've
    watched jury trials more and more evaporate in the Federal
    system. A lot of it has to do with Supreme Court decisions that
    have made it easier for big and powerful interests to get out
    of cases before they, in some cases, even have to properly
    answer discovery. In other cases, it's been allowing big
    powerful interests to divert people away from juries and into
    mandatory arbitration, for instance, which is very often a
    rigged game. Would you say a word about the historic role of
    the jury, and whether you have any hesitation about protecting
    and defending the institution of the jury, as contemplated in
    the Constitution?
        Ms. Perez. Senator, the jury is an important bedrock
    position in our judicial system. Certainly, as an appellate
    court judge, I would not be interacting with juries, but I
    certainly would apply all the standards of deference and
    reverence for the decisions issued by juries.
        Chair Durbin. Thanks, Senator Whitehouse. Senator Tillis.
        Senator Tillis. I'll defer to Senator Kennedy.
        Senator Kennedy. I'm sorry, Mr. Senator. No. You go ahead.
    That's very kind of you.
        Chair Durbin. I could ask you to do it jointly.
        [Laughter.]
        Senator Tillis. That gives us 10 minutes?
        Senator Kennedy. Yes. Really.
        Chair Durbin. You have to fight over the 10 minutes.
        Senator Kennedy. I'll try not to take my whole time here.
    Thank you, Mr. Chairman. Counselor, how are you? Good morning.
    Congratulations.
        Ms. Perez. Thank you so much.
        Senator Kennedy. Do you think the Constitution should be
    used to create new rights?
        Ms. Perez. Senator, I think the Constitution is an enduring
    document, and that the----
        Senator Kennedy. Yes. I agree with you. It's been around a
    long time. It's enduring. I'm fond of it. You love it. I'm fond
    of it too. But do you think it aught to be used to create new
    rights?
        Ms. Perez. Senator, I think it is constantly being
    interpreted, and the Supreme Court has, through the 230 years
    of jurisprudence, has found rights in it.
        Senator Kennedy. Yes.
        Ms. Perez. If I am confirmed as an appellate judge, I would
    faithfully apply Supreme Court precedent.
        Senator Kennedy. Yes. But are you going to use to try to
    create new rights?
        Ms. Perez. Senator, appellate court judges don't create new
    rights. They take the record----
        Senator Kennedy. Sure they do.
        Ms. Perez [continuing]. Below them----
        Senator Kennedy. Sure they do, Counselor. We've been--we
    both have been at this a long time. They do it all the time.
    Then it goes up to the Supreme Court, and the Supreme Court
    says yea or nay. Or sometimes they don't say anything.
        Let me ask you this, what barometer should we use to decide
    whether a Federal judge ought to create a new right, or the
    people's elected representatives through a Congress or a
    legislature? What's the standard you use there?
        Ms. Perez. Senator, we have coequal branches of Government.
    The legislature does the policymaking. The judiciary----
        Senator Kennedy. Yes. What's the standard--I'm sorry to
    interrupt you. We had this problem in the last administration,
    and we have it in this administration. If you could just answer
    my question because 5 minutes just goes like that. What
    standard do you use, personally, to decide whether a new right
    ought to be created by a Federal judge or by the U.S. Congress,
    if it's a Federal right?
        Ms. Perez. Senator, I would be applying precedent, and
    precedent has standard----
        Senator Kennedy. I stipulate that you're going to apply
    precedent. I stipulate that. Let's take that off the table.
    What standard should be used to determine whether a new right
    ought to be created by a court, a Federal judge, unelected,
    appointed for life, or a United States Congress?
        Ms. Perez. Senator, appellate courts have standards of
    review when looking toward lower court decisions, and I would
    apply that standard----
        Senator Kennedy. Come on, Counselor. You're not answering
    my question. It's a real simple question, and you're very
    smart, and you know what I'm asking. You believe in a living
    Constitution. Okay. I get that. That's a legitimate point of
    view.
        You say you don't understand what an originalist is, but I
    think--I don't think you're being candid there. This is what
    my--let me ask my question again. What standard should be used
    to decide if you're going to create a new right in the
    Constitution, whether that right ought to be created by a
    Federal judge or the people's elected representative? Very
    simple.
        Ms. Perez. Senator, the Federal courts are of limited
    jurisdiction. The appellate courts sit in between a Supreme
    Court and----
        Senator Kennedy. Okay. You're not going to answer it. I get
    it. When you were at the Brennan Center--you're still there.
    Right?
        Ms. Perez. I am on leave, sir.
        Senator Kennedy. Okay. When you were there, did you
    advocate Federal courts to create new rights under the
    Constitution?
        Ms. Perez. No, sir.
        Senator Kennedy. You never did?
        Ms. Perez. No, sir.
        Senator Kennedy. Okay. When you----
        Ms. Perez. The right to vote is protected in the
    Constitution, and it's protected----
        Senator Kennedy. You never asked for new rights. You just
    said they're already there.
        Ms. Perez. Yes, sir.
        Senator Kennedy. Okay. How do you know a right's already
    there if it's not explicit?
        Ms. Perez. In the case of Boding----
        Senator Kennedy. No. No. Just in general. If I read your
    resume, and it's not--something's on there--well, that's a bad
    example.
        If you look at the Constitution, and it doesn't--let's just
    say--let's say reparations. Okay. It doesn't talk about
    reparations. How do you know whether a right should be granted
    if it's not there? That's what I understand you to be saying
    with the living Constitution.
        Ms. Perez. Senator, again, a case would not come before an
    appellate court unless parties presented an argument.
        Senator Kennedy. I get that. I understand how a lawsuit's
    tried. How--let me ask you again, how do you know if a right's
    not explicit in the U.S. Constitution that it's really there?
    It's hiding. It's lurking, and we just have never seen it.
        Ms. Perez. Senator, in Marbury v. Madison, the Supreme
    Court said that the Supreme Court interprets the Constitution.
        Senator Kennedy. Right.
        Ms. Perez. I would look to precedent. I would look to see
    if what----
        Senator Kennedy. What if there's no precedent?
        Ms. Perez. There's always some precedent. I----
        Senator Kennedy. See, here's my problem, Counselor. This is
    where I think you're headed. I think what you want to do on the
    Federal bench is advance a social agenda and rewrite the
    Constitution every other Thursday to advance a social agenda
    that you can't get by the voters through their elected
    representatives.
        Ms. Perez. Senator----
        Senator Kennedy. That's a legitimate thing to be for. This
    is America. You can believe what you want. You spent your whole
    career doing that. It bothers me that you're not defending that
    here, that you're dodging my questions.
        Ms. Perez. Senator----
        Senator Kennedy. You're not the only nominee who's done
    that. It happened under the prior administration. It must be
    something in the water at the White House. I'd respect you a
    lot more if you just upfront said it.
        Ms. Perez. Senator, I believe in the value of precedent. I
    think it makes our system----
        Senator Kennedy. So do I, but that's got nothing to do with
    our discussion. We both know that. I understand that you've
    been advised to say precedent, precedent, precedent. When in
    doubt. Is it raining outside? Precedent. It inhibits our
    ability to have a rational discussion.
        Thank you, Mr. Chairman.
        Chair Durbin. Do you want to complete your answer, Ms.
    Perez?
        Ms. Perez. I'm fine. Thank you.
        Chair Durbin. Thank you. Senator Tillis. I'm sorry. Senator
    Coons.
        Senator Coons. Thank you, Chairman Durbin. Great to be with
    you, Ms. Perez. The Committee received a number of glowing
    letters in support of your nomination. I was struck by one in
    particular, a letter that I reviewed closely from Reverend
    Canon Dr. Allison DeFoor of the Episcopal Diocese of Florida.
    Before his service as a faith leader, Reverend DeFoor practiced
    law, serving as a county judge, a circuit judge, a prosecutor,
    a sheriff of Monroe County, and a public defender. He also
    sought elected offices for the Republican nominee for
    Lieutenant Governor.
        He emphasized in his heartfelt letter of support for you,
    and I quote, ``Myrna is, as a lawyer and individual, a person
    of the highest integrity. She's thoughtful and sound in her
    judgment and committed to principles of justice that transcend
    politics. She embodies the true meaning of public service and
    would be an exceptional Federal judge.'' He adds, ``This is an
    informed opinion,'' something many of us in the Senate would
    benefit from adding on occasion, if it were true.
        Given this informed opinion that I assume is rooted in your
    close work together, I'd just be interested in learning more
    about your work with the reverend, and former judge, and
    sheriff on criminal justice issues. What motivated you to
    engage in that work? What lessons have you taken from that work
    which you might apply in your future service?
        Ms. Perez. Certainly, sir. The Brennan Center takes the
    position that all Americans who are living and working in the
    community should be able to have the right to vote. I have been
    very fortunate to work with people from all kinds of
    backgrounds to try and work in the legislative branch,
    primarily to make that so.
        Reverend Allison is one of the many different kinds of
    people that I have worked with on this issue. There are a quite
    a number, and I think it is really encouraging that there are
    still some issues in which we can get bipartisan support for.
        Senator Coons. We've managed to get bipartisan support for
    criminal justice reform, even on this Committee, with the
    leadership of our Chairman.
        Ms. Perez, I was also struck that your work has included
    extensive litigation experience, both at the district and
    appellate level, and I'd like to give you a chance to talk
    about your litigation experience, and its relevance to your
    service, should you be confirmed in the position for which
    you've been nominated. How would your experience with complex
    litigation inform your service as a judge, if confirmed?
        Ms. Perez. It would give me a very strong appreciation for
    what it is that district courts have to do. It would make me be
    very faithful to the standards of review. It would remind me
    every day that the parties are the masters of their lawsuits.
    It would also bring to me almost two decades of experience,
    analyzing constitutional and statutory claims, voluminous
    documents, a massive amount of motions practice, and would
    allow me to make sure that I am aware of exactly what it is
    that parties are doing when they are arguing and prosecuting
    their cases.
        Senator Coons. That's great. Thank you very much. I
    appreciate your testimony before this Committee today. No
    further questions. Thank you, Mr. Chairman.
        Chair Durbin. Thanks, Senator Coons. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chairman. Ms. Perez, thank
    you for being here. Congratulations on the honor of----
        Ms. Perez. Thank you, sir.
        Senator Tillis [continuing]. Being nominated, and to your
    family.
        Ms. Perez. Thank you.
        Senator Tillis. What's your son's name?
        Ms. Perez. His name is Diego Isaias.
        Senator Tillis. Welcome. I've got a quick--just a couple of
    quick questions. I was speaker of the house down in North
    Carolina when we passed voter ID laws in the State. You know, I
    feel like--it's difficult for me to understand. I think we have
    different views about this. When we try to do everything we
    could to make sure that anyone who wanted--that needed an ID in
    order to vote, that we would even pay for it. That we would
    make sure that we gave people not only the opportunity to vote,
    but fully participate in civil society.
        When I went through the TSA, I had to present an ID. When I
    checked into a hotel 2 weeks ago, I had to present an ID. When
    I got prepped for my surgery about 2 months ago for prostate
    cancer, I had to submit an ID to be admitted into the hospital.
        It just seems to me that--I'd like for us to get to a point
    to understand that if we want every American to fully
    participate in every aspect of society, that an ID is a pretty
    important part of that. I'm not going to ask you. I know where
    you are on it, so we'll agree to disagree on that.
        I did want to ask you about something I think you argued
    in--there was a ballot harvesting case in the 9th District,
    down in North Carolina. In that particular case, it was a
    Republican candidate, so I appreciate again, your consistency
    on the issue. Give me an idea on a State like North Carolina,
    where ballot harvesting is not allowed, why you think that that
    is a suppression--a voter suppression measure?
        Ms. Perez. Certainly, Senator. I am happy to answer your
    question. I would, again, recognize that if I am confirmed, I
    would be taking on a different role, and you are referencing
    work that I did as an advocate.
        We examined the issue in North Carolina and found that
    there was a disadvantage that was occurring because of the
    illegal activity that happened there. We responded----
        Senator Tillis. For those whose ballots were harvested?
        Ms. Perez. Those whose ballots were tampered with and
    thrown away. As an advocate, I was duty-bound to call that
    attention to the public to ensure that I could do everything
    within my role, that those voting rights of the impacted voters
    would be vindicated.
        Senator Tillis. Do you--just on a broader question. Again,
    I understand the limits that you have because of matters that
    may come before you. Wouldn't it also follow, then, that the
    same rationale for saying that those votes had been suppressed
    because they had been tampered with opens up ballot harvesting
    to potential fraud?
        Ms. Perez. Senator, the striking the balance between how
    much restrictions you need to ensure fraud doesn't happen is
    something that's better suited for the legislature. If I am
    confirmed, I would merely be evaluating the law and the
    precedent before me, as applied to the facts and the record
    that the parties put before me.
        Senator Tillis. Thank you. Thank you, Mr. Chair.
    Congratulations, again, to the family, and the story of your
    family. Thank you.
        Ms. Perez. Thank you.
        Chair Durbin. Senator Hawley.
        Senator Hawley. Thank you, Mr. Chairman. Thank you, Ms.
    Perez, for being here. Congratulations on your nomination.
        I just want to pick back up where Senator Tillis left off
    when it comes to ballot harvesting. This is an issue that the
    U.S. Supreme Court has recently taken up in the Brnovich case.
    You've had quite a lot to say about the Brnovich case. You've
    had quite a lot to say in quite a number of the Supreme Court's
    precedents, which you will be called upon to apply.
        I'd like to get your views on those. You seem to be fine
    and perfectly willing to characterize Supreme Court precedent,
    so I look forward to your testimony here under oath. You said
    that the Brnovich case was a clear-cut case. The Supreme Court
    ruled, and you actually characterized that some of the
    arguments in the case made by Brnovich and made by various
    amici in support of Arizona as outrageous and harmful,
    including a brief filed by my colleague, Senator Cruz. I take
    it you think the Brnovich case was wrongly decided?
        Ms. Perez. Senator, my views on the Brnovich case are
    immaterial because, if confirmed, I would be duty-bound to
    apply it, and I would do so without reservation.
        Senator Hawley. I think they're quite material to get at
    your judicial philosophy. Let's try again. Do you think the
    Brnovich case was wrongly decided? You said that the case was
    clear-cut. The Supreme Court ruled differently than you
    thought. I take it you think it was wrongly decided.
        Ms. Perez. Senator, I would apply the precedent without
    reservation.
        Senator Hawley. Do you think the Brnovich case was rightly
    decided?
        Ms. Perez. Senator, I would apply the Brnovich case without
    reservation. It is the law of the land. The country that I care
    so much about depends upon stare decisis and the application of
    precedent.
        Senator Hawley. That's not what I'm asking you. I'm asking
    you about your comments on a Supreme Court case, which you
    will, indeed, be duty-bound to apply. I think understanding
    your view on that case is relevant.
        Let's try a different one. Shelby County. You said that the
    Shelby County case gutted voting rights. You think that case
    was wrongly decided. Will you be able to apply that case
    faithfully?
        Ms. Perez. Without reservation.
        Senator Hawley. Do you think that the Heller case was
    wrongly decided?
        Ms. Perez. Senator, Heller is the law of the land, as is
    its application through the States of McDonald. I would apply
    it without reservation.
        Senator Hawley. Do you think Brown v. Board was wrongly
    decided?
        Ms. Perez. Senator, I would apply Brown v. Board without
    reservation.
        Senator Hawley. Do you think Brown v. Board was rightly
    decided?
        Ms. Perez. Senator, I think there--it was rightfully
    decided, and it----
        Senator Hawley. It was rightly decided. Shelby County was
    wrongly decided, you say. You won't say about the Brnovich
    case. You won't say about Heller. What's the line, here? How am
    I to adjudge how you are going to apply the law if you won't be
    frank with the Committee about what you've said in the past and
    about your own views now?
        I mean, you've been an activist for quite some time. You've
    commented on many laws. You've called voter ID laws, like we
    have in my State of Missouri, which by the way, the voters of
    my State passed directly. The voters passed. You've criticized
    those as Jim Crow-type laws. That's an extraordinary statement
    for a judge, someone who wants to be a Federal judge. Not an
    activist. Not a constitutional lawyer. A Federal judge. You've
    called the precedent of the U.S. Supreme Court, you've talked
    about them gutting voting rights. You've criticized them in the
    harshest of terms. You've done this repeatedly.
        I think it's fair game to ask about your view of precedent.
    How are we going to know? I mean, let's come back to the Heller
    case, the McDonald case, that followed on from Heller. Was that
    rightly decided?
        Ms. Perez. Senator, I would apply it without reservation.
    If I may say, I for the last 15 years, have been an advocate
    when under our system requires zealously pursuing the interests
    of my clients.
        A judge plays a completely different role, and by accepting
    this nomination, I am pledging to this body, to the American
    public, before my God, that I would faithfully discharge my
    duties under the Constitution, which require me to put aside
    any personal policy viewpoints I have, and examine what the
    matter is before me, and apply the precedent of the Supreme
    Court and the second circuit. I do this without reservation. I
    am willing and able to serve my country in this way.
        Senator Hawley. Do you still think the Shelby County case
    gutted voting rights?
        Ms. Perez. Senator, as an academic, as a researcher, as an
    advocate, I have done a number of research where I have had
    been able to lift out and identify instances in which policies
    that passed that were not likely to have passed, had it not
    been for Shelby County. Shelby County is the law of the land,
    and I would apply it without reservation.
        Senator Hawley. Let's talk just a little bit about your
    broader judicial philosophy. You've been an advocate of living
    constitutionalism. You said in 2021 that if you were one of
    those people who think that we are at our best when our country
    was first founded and didn't include women, or people of color,
    or people without property in the electoral process, then this
    conversation about living constitutionalism is probably not for
    you. I take that to be a disparagement of originalism.
        You've also said that the Constitution is not static or
    frozen in time, but it has to evolve and be dynamic in order to
    actualize its principles. Is this the judicial philosophy you
    would follow in cases of first impression when you don't have a
    controlling precedent on point and you have to construe the
    Constitution, you would look to dynamic and evolving
    principles?
        Ms. Perez. Senator, I believe in the conversation that you
    are speaking of, I was talking about Justice Brennan's
    definition of a living Constitution----
        Senator Hawley. What would be yours?
        Ms. Perez. I believe that we have a Constitution that is
    enduring. I think its great values are applicable, and
    relevant, and can guide us today. I think they're timeless. I
    believe that they make our country strong.
        Senator Hawley. Do you consider yourself a living
    Constitutionalist?
        Ms. Perez. I don't think those kinds of statements are
    helpful in explaining the approach that I would take, which
    would be first examining the text, then examining the
    precedent. If I needed to go beyond that, I would be looking at
    the canons of construction, the legislative history, the
    structure of what was at issue, and more importantly, I would
    be bound by the record of the parties that presented the case
    to me.
        Senator Hawley. My time has expired. Thank you, Mr.
    Chairman, for your indulgence on this. I'll just say that Ms.
    Perez, in conclusion, I want to echo Senator Kennedy's remarks
    that I think given your very lengthy record--your very lengthy
    record of statements about Supreme Court precedent, about many
    court precedents, I think to come to this Committee and refuse
    to answer questions about those, to refuse to explain your
    statements, to say you're not going to comment about decisions.
    You have commented frequently about decisions. I just think
    that, with all due respect, that's not candid. I think it's
    frankly not transparent with this Committee, and I won't be
    able to support your nomination.
        Thank you, Mr. Chairman.
        Chair Durbin. I might add to my friend from Missouri and
    others, it is not unprecedented. Trump nominees came before
    this Committee for four straight years, and with the exception
    of Brown v. Board of Education, which they acknowledged
    starting around 2019, they refused to say to a person whether
    other cases were, particularly recent cases, correctly decided.
        It is a question often asked by the other party in this
    Committee, and the answers you have given are ones we've heard
    before. I don't think it should come as a surprise to my
    colleagues. Senator Padilla.
        Senator Padilla. Thank you, Mr. Chairman. I appreciate the
    context and background. Ms. Perez, how are you?
        Ms. Perez. Great to see you, sir.
        Senator Padilla. Great to see you. You have spent virtually
    your entire career advocating for greater access to the ballot
    and stronger protections for our fundamental right to vote. In
    the course of that work, clearly you have litigated cases in
    court. You've advocated for policy changes in states around the
    country as well as right here in Congress. You and I have
    worked together in my prior capacity as the chief elections
    officer for the State of California, so I know how important
    advocacy on behalf of the right to vote is. Simply put, we are
    a stronger democracy when every eligible citizen is able to
    vote, particularly free of harassment, intimidation, and
    without any unnecessary obstacles or barriers.
        I have sort of a bigger picture question in why voting
    rights? Why have you decided to dedicate your career to the
    defense of our right to vote, number one? I think more
    specifically, and for purposes of this Committee, how your
    views on policy, which we're entitled to have, but how would
    they affect your rulings as a judge?
        Ms. Perez. Thank you, Senator. I think the right to vote
    keeps us free. I think it protects us from tyranny. I think it
    is preservative of all other rights. As an advocate, I have
    been privileged to work alongside with all sorts of Americans
    from all sorts of backgrounds to make sure that our ability to
    govern ourselves is able to happen because we all have a free,
    fair, and accessible vote.
        With respect to policy, that is a role that is an active
    part of my docket. By accepting this nomination, I am pledging
    to no longer participate in policy disputes. Instead, I will
    impartially and objectively review the law, apply it to the
    record before me, and be faithful to the precedent both of the
    Supreme Court and the second circuit.
        Senator Padilla. Good. I appreciate that answer. I thank
    you for your clarity. I thank you for your commitment. I thank
    you for your willingness to serve in this capacity, should you
    be confirmed.
        I do have another question, and sadly, very timely. At the
    end of the last election cycle, we saw the rule of law tested
    when President Trump and his enablers filed over 60 post-
    election lawsuits. Not even counting those that came prior to
    the election. 60 post-election lawsuits, challenging the
    outcome of the election. Thankfully, court after court rejected
    President Trump's frivolous challenges.
        There is no question that the system was strained by the
    former President's unfounded assault. As a voting rights
    lawyer, you saw this abuse of our judiciary up close. Can you
    speak to the importance of the rule of law and how you believe
    that judges can help exemplify and uplift it?
        Ms. Perez. Thank you, Senator. The rule of law is a
    foundational principle. It is all over the way that our country
    works, in addition to things like an independent judiciary and
    separation of powers. I think it's one of the genius of our
    Constitution, and part of the reason why I am very comfortable
    that I will be able to set aside my past role as an advocate
    and accept the role of a judge, if I am lucky enough to be
    confirmed, is because our system requires an independent
    judiciary.
        I know that when I'm a litigant in court, I want to be able
    to go before a judge that allows me to make the arguments,
    allows me to make the case, and sets aside whatever personal
    viewpoints. Our system does not work unless judges do that. I
    am ready to do that. The country that I love so much depends
    upon it.
        Senator Padilla. Thank you. Thank you for your responses.
    Thank you, Mr. Chair.
        Chair Durbin. Thanks, Senator Padilla. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman. I'd like to follow-up
    on one of the questions that Senator Hawley raised with you.
    You said that you were referring, in those discussions about a
    living Constitution, to Justice Brennan's interpretive style.
    Is that correct?
        Ms. Perez. That is what I believe the quote he was
    referring to was referring to.
        Senator Lee. Okay. Is this the quote in which you said
    while you were discussing--I think this was in a panel of
    discussion just a couple of months ago that Senator Hawley was
    asking about in which you said, ``If you're one of those people
    who think that we were at our best when our country was first
    founded and didn't include women, or people of color, or people
    without property in the electoral process, this is probably not
    the conversation for you.'' What I'd like to know, first, what
    conversation is that? I want to understand the context? What
    you mean? What conversation isn't for you--are you
    characterizing people who believe in originalism as believing
    that we were at our best as a country when we didn't include
    women or people of color?
        Ms. Perez. Senator Lee, as I indicated to Senator Grassley,
    I do speak a lot. If I remember that conversation correctly, I
    was getting a lot of hostile and inappropriate comments in the
    chat. It was causing a disruption to the organizers and the
    planners who seemed to think that I would be engaging in some
    conversation with them. I was trying to set expectations for
    what the conversation would be like.
        Senator Lee. I understand that. It's good to know. I'd
    still like to know what you were referring to.
        Ms. Perez. I was trying that--if again that was the
    conversation that I recall, and I believe that it was, it was
    me attempting to deescalate some people who believed that that
    conversation was a source of a--or was a potential for a back-
    and-forth over chat, which I was not going to let it devolve
    into.
        Senator Lee. Okay. Do you believe that's a fair
    characterization of originalists?
        Ms. Perez. I do not believe that that is a fair
    characterization of originalist. I, again, if this is the right
    conversation that I'm recalling, was trying to deescalate folks
    who were disrupting a conversation via chat.
        Senator Lee. In response to Senator Hawley's questions a
    moment ago, you said you were referring--when referring to the
    living Constitution, you were referring to Justice Brennan's
    approach to interpreting the Constitution. Then you said that
    that would not necessarily be your approach. Did I understand
    your response to his question correctly?
        Ms. Perez. Senator, I am not a judge. I don't have a
    judicial philosophy yet. My approach would be to first look at
    the text, then look at precedent, look at the canons of
    construction, and keep myself limited to what the parties in
    the matter presented before me.
        Senator Lee. Okay. Insofar as you were characterizing
    Justice Brennan's approach to constitutional interpretation,
    how would you characterize that approach today? What is his
    approach? What was his approach?
        Ms. Perez. Again, I've never spoken to Justice Brennan. I
    didn't have the pleasure of meeting him.
        Senator Lee. You said a moment ago you were trying to
    characterize his approach.
        Ms. Perez. He has had quotes about the Constitution not
    being static, as has Justice John Marshall, in McCulloch v.
    Maryland. What I believe is true, and I believe it's a truism,
    is that our Constitution is enduring, that it has great values
    that are universal and timeless, and that those values make our
    country stronger. Values like freedom of religion. Values like
    liberty. Values like equal justice under the law.
        Senator Lee. Okay. If you were confirmed, are you saying
    you would not adopt a living Constitution approach?
        Ms. Perez. Senator, if I'm confirmed, the first place I
    would look when evaluating a constitution or a statute would be
    at its text. That is the most probative offering of what a
    piece of writing means. If required, I would look to precedent
    from both the Supreme Court and the second circuit. If that
    still didn't answer the question, I would look to the canons of
    construction, the----
        Senator Lee. Okay.
        Ms. Perez [continuing]. The structure----
        Senator Lee. All right. I understand. Back in 2014, you
    described new voter integrity laws, including, as I understand
    it, voter ID laws, as representing, quote, ``the biggest voting
    rights rollback since the Jim Crow area.'' Personally, I think
    it's an insult to the brave Americans who engaged in the Civil
    Rights Movement to draw any comparison between the heinous,
    race-motivated requirements imposed by the Democratic Party
    under the Ku Klux Klan's influence, to compare those to today's
    commonsense, race-neutral, and often bipartisan election
    security measures, which according to some polls are supported
    by a majority of African-American voters. Do you stand by that
    statement today, that voter ID laws are the biggest voting
    rights rollback since the Jim Crow area?
        Ms. Perez. Senator, I understand and very much believe in
    the importance of election integrity. Elections are how we
    resolve our political differences peacefully.
        The Supreme Court has spoken and provided standards for
    assessing voter ID in the Crawford case. If I am lucky enough
    to be confirmed, I would be duty-bound to apply that precedent
    to any case in controversy that came before me, and I would do
    so without hesitation or reservation.
        Senator Lee. I understand that. I am asking about a
    statement that you, in fact, made. Do you stand by your
    statement that it's the biggest voting rights rollback since
    the Jim Crow era?
        Ms. Perez. Senator, if that is the statement that I recall,
    it was occurring alongside a great number of pieces of
    legislation across the country that, as an empirical matter,
    looked different than what we had seen since earlier times.
    That was what the reference was to.
        Senator Lee. You were not referring to voter ID laws?
        Ms. Perez. I--again, if I remember correctly, it was a wide
    array of laws that would have included voter ID laws, because
    around the time period that you're talking about, we saw a
    number of them introduced. Again, the Supreme Court has said
    that, within certain confines, the voter ID laws are
    acceptable. The fifth circuit en banc also said that there are
    times when voter ID laws cross the line.
        If I am a judge, I would be required to look at all the
    relevant precedent and examine any law that was before me to
    figure out if unlawful discrimination was present.
        Senator Lee. Okay. I see my time's expired. I do find it
    concerning that the witness still hasn't distanced herself. I
    understand sometimes people say things and later regret them.
    She hasn't distanced herself from statements made to that
    effect a few years ago, and I think that's significant. Thank
    you.
        Chair Durbin. Thank you, Senator Lee. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Ms. Perez, as I look
    at your career, I see the career of someone who has been an
    activist, and I believe a radical activist. You have waged
    litigation campaigns and opposed voter ID laws. You have
    opposed voter integrity laws. You have opposed prohibitions on
    ballot harvesting. You have advocated for felons being able to
    vote. As I look at your record, year after year after year of
    being an extreme partisan advocate, I'm left with the very
    likely conclusion that if you were confirmed to the bench, you
    would likewise be a radical activist on the bench.
        Voter ID laws, as Senator Lee just pointed out, you
    described as the greatest rollback of voting rights in this
    country. Eighty percent of Americans support voter ID laws.
    Sixty percent of African-Americans support voter ID laws. Do
    you believe voter ID laws are constitutional?
        Ms. Perez. Senator Cruz, the Supreme Court has said that
    there are no per se restrictions against voter ID laws. In
    Crawford----
        Senator Cruz. I asked what you believe. I was one of the
    parties litigating in Crawford, so I'm very well familiar with
    that case, and led a coalition of States defending voter ID
    laws. Justice Stephens wrote the majority opinion, upholding
    Indiana's voter ID law. My question to you is, do you believe
    voter ID laws are constitutional?
        Ms. Perez. Senator, I believe they are constitutional. I
    believe that they can be constitutional because the Supreme
    Court has said they can be constitutional. In Marbury v.
    Madison, the Supreme Court gets to decide.
        That is what our system depends on. We have a concept of
    vertical stare decisis. We have rules of law. We have
    precedent----
        Senator Cruz. Ms. Perez, just a couple of months ago, in
    March 2021, you said that the voter ID laws that have been
    passed were due to, I'm going to quote you to get your words
    right, ``anxiety over the browning of America. People having
    anxiety of the fact that certain folks in power are not going
    to be able to stay in power.'' Do you believe the 80 percent of
    Americans who support voter ID laws and the 60 percent of
    African Americans who support voter ID laws are doing so
    because they're concerned about the browning of America?
        Ms. Perez. Senator, that quote is clearly referring to
    politicians. It's not referring to African Americans----
        Senator Cruz. Which politicians here do you believe are
    concerned about the browning of America?
        Ms. Perez. Senator, that context was with respect to State
    politicians. And----
        Senator Cruz. It's only State politicians.
        Ms. Perez. Senator, that context that I'm on record for
    were referring to State politicians.
        Senator Cruz. All right. Let's talk about politicians here,
    in this body. As you know, I filed an amicus brief on behalf of
    11 Senators in the Brnovich case. You made a comment that the
    brief that I filed was outrageous and harmful. Do you stand by
    that characterization?
        Ms. Perez. Senator, the Supreme Court, as you know, issued
    its decision in the Brnovich case and struck down--I'm sorry,
    and upheld the restrictions on Arizona. Brnovich is law----
        Senator Cruz. Okay. I'd like you to answer my question.
        Ms. Perez. Brnovich----
        Senator Cruz. Do you stand by the characterization that the
    amicus brief that I filed on behalf of 11 Senators was, quote,
    ``outrageous and harmful''? That's how you characterized it.
        Ms. Perez. Senator, the Supreme Court has issued its ruling
    on----
        Senator Cruz. I'm going to try again. Do you stand by your
    characterization? I'm not asking you what the Supreme Court
    did. You described an amicus brief filed on behalf of 11
    Senators as outrageous and harmful. Do you stand by what you
    said just a few months ago?
        Ms. Perez. Senator, what I said as an advocate when it was
    pending before the Court is not relevant to the issue before
    you----
        Senator Cruz. Do you stand by it or do you retract it? You
    have a choice.
        Ms. Perez. Senator, as an advocate, I pursued----
        Senator Cruz. Okay. You're going to refuse to answer me on
    that. I assume you also believe the Supreme Court 6-to-3
    decision, agreeing with the position advocated in my amicus
    brief, I assume you believe that decision was also outrageous
    and harmful, because that's the language you used.
        Ms. Perez. Senator, the Brnovich case is the law of the
    land. It has been settled.
        Senator Cruz. You're not going to answer that either?
        Ms. Perez. The law of the land has been settled. What I am
    going to say, Senator, is that I am pledging to apply
    precedent.
        Senator Cruz. At the time, you discussed the brief filed by
    a number of Senators on this Committee as outrageous and
    harmful. At that time, had you any discussions with the Biden
    administration about being nominated to be a judge?
        Ms. Perez. I would need to remember the timing a little
    bit. That----
        Senator Cruz. When was the first discussion you had with
    the Biden administration about being nominated to be a judge?
        Ms. Perez. I need to--can--I would need to reference my
    Senate Judiciary Questionnaire, because that's where I recorded
    it. I don't have it committed to memory.
        Senator Cruz. You have advocated that felons should be able
    to vote. Do you believe all felons should vote?
        Ms. Perez. Senator, my work in advocacy has been on behalf
    of persons who are living and working in the community.
        Senator Cruz. Do you believe currently incarcerated
    prisoners, in jail, should be allowed to vote?
        Ms. Perez. Senator, I have been advocating on behalf on
    people who are----
        Senator Cruz. You're not answering my question.
        Ms. Perez. Senator----
        Senator Cruz. I didn't ask what you've advocated in the
    past. I'm asking what you believe.
        Ms. Perez. Senator, the canons of judicial ethics preclude
    me from answering that question because a situation may come
    before me.
        Senator Cruz. Let me ask you this. You have advocated in
    favor of a living Constitution. Indeed, as both Senator Hawley
    and Senator Lee asked you about, you have disparaged those who
    believe in originalism as essentially racist and bigots. How do
    you think you will be able to serve with colleagues on the
    court of appeals if you have disparaged their constitutional
    interpretation as racist and bigoted?
        Second, why is it that when you advocate a, quote, ``living
    Constitution,'' that somehow the livingness of it always makes
    the Constitution agree with the policy positions you happen to
    embrace? How is that consistent with democracy, to have a judge
    able to implement whatever policy positions you believe in?
        Ms. Perez. Senator, we have had more than two dozen
    amendments added to the Constitution since it was ratified in
    1788.
        Senator Cruz. That's not what a living Constitution is.
        Ms. Perez. Women----
        Senator Cruz. A living Constitution means you as a judge,
    if you're a judge, can change it to whatever you want, and that
    the voters don't get to speak on it, isn't that right?
        Ms. Perez. Senator, women now have the right to vote.
    African----
        Senator Cruz. We passed an amendment for that. That's a
    terrific victory, and it was done the right way through an
    amendment. A living Constitution is judges changing it. Why are
    judges changing the Constitution to meet their policy
    preferences consistent with any respect for the democratic
    process and the ability of voters to decide policy issues?
        Ms. Perez. Senator, it is clear that our great Constitution
    is one that is enduring. It is clear with things like Brown v.
    Board overruling Plessy v. Ferguson that evolution happens.
        It is also clear that our great Constitution establishes
    separation of powers. There are bodies, like this one, that
    engage in policymaking. There are judges that review the cases
    and controversies that are put before them.
        I am pledging, by accepting this nomination, that I am
    going to cease being an advocate, and I would impartially,
    without reservation, objectively apply the law to the facts of
    the case and controversy before me.
        Senator Cruz. Your record is overwhelmingly to the
    contrary.
        Chair Durbin. Thank you, Senator Cruz. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. The simple fact
    of the matter is you haven't been a judge before, have you?
        Ms. Perez. That is correct, sir.
        Senator Blumenthal. When my colleague, Senator Cruz, says
    your record is overwhelming to the contrary, I'm not sure what
    he is referring to. You have been an advocate, correct?
        Ms. Perez. That is correct, sir.
        Senator Blumenthal. Tell me how you view the role of
    advocate as being different from a jurist?
        Ms. Perez. Thank you. In the great genius of our
    Constitution, people play different roles. Advocates zealously
    argue on behalf of their clients in as many fora as they can. I
    have had the privilege and pleasure of doing that.
        Judges take on a different role. They are limited in what
    they have jurisdiction over. They are limited in the cases that
    come before them. They are limited to the arguments what
    parties put before them. They are limited to binding precedent.
        I believe that the most important thing a judge can do, and
    must do, is in fact, duty-bound to do, is to impartially and
    objectively apply existing precedent to the facts and the
    record of the case before them.
        Senator Blumenthal. As an advocate, you've had strong
    beliefs, and you have strong values, and you've advocated
    causes strongly. I take it, as a member of the Court of Appeals
    for the Second Circuit, you would be able to put those beliefs,
    and values, and positions aside, and look at the law,
    specifically the Constitution and the statutes of the United
    States of America, correct?
        Ms. Perez. Not only would I be capable, sir, I must. The
    country that I care so deeply about depends upon people playing
    their roles. I, if given the chance to serve this country,
    would not betray its values of an independent judiciary. I
    would faithfully, to the best of my ability, uphold my duty
    under the constitution, which would be to fairly and
    impartially evaluate the cases and controversies before me.
        Senator Blumenthal. In fact, all of us who have been
    advocates, and I've argued cases in the court of appeals that I
    expect you'll soon join, as well as the district court and U.S.
    Supreme Court, as well as State courts in Connecticut, like
    you. As an advocate, you don't want to be an objective,
    neutral, arbitrator. You want to be on the side of your client,
    and your cause. That's your record.
        If you were, in fact, acting as a judicial official while
    being an advocate, you'd be betraying your client and your
    cause, wouldn't you?
        Ms. Perez. That is correct, sir.
        Senator Blumenthal. When Senator Cruz tries to argue you
    shouldn't be a judge because you were a good advocate, in
    effect--and I know he--I think he understands the point I'm
    making. Your record, in fact, exemplifies your faithfulness to
    the role that you have been playing as an advocate because our
    whole system is designed to have fierce and ferocious advocacy
    on the basis of the law and the facts. In fact, sometimes
    arguing that courts should expand the law by an expansive
    interpretation.
        Whatever you have argued as a lawyer and an advocate, you
    would have--you accept the fact, in fact, I sense you embrace
    it, that you would have a different role as a member of the
    United States Court of Appeals for the Second Circuit.
        Ms. Perez. That is correct, sir.
        Senator Blumenthal. Thank you.
        Ms. Perez. Thank you, sir.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Chair Durbin. Thanks, Senator Blumenthal. Senator
    Blackburn.
        Senator Blackburn. Thank you, Mr. Chairman. Welcome.
        Ms. Perez. Good morning, Senator.
        Senator Blackburn. Congratulations----
        Ms. Perez. Thank you.
        Senator Blackburn [continuing]. To you. I just want to be
    sure I'm understanding some of the comments----
        Ms. Perez. Yes, ma'am.
        Senator Blackburn [continuing]. That you have made.
    Basically, you're saying as you move to the role of a judge,
    you would set aside all of your previous opinions?
        Ms. Perez. They would not make its way to into any
    courtroom that I was sitting in.
        Senator Blackburn. Basically, you're saying you would erase
    all of this activism from your past?
        Ms. Perez. What I'm saying, Senator, is that I would apply
    the precedent of the Supreme Court----
        Senator Blackburn. You're going to say what you're going to
    do is basically, when it comes to your philosophy of the law
    and your philosophy of the Governmental structure, you are
    going to hit the reset button, and you will be a neutral and
    blank slate. Is that what you're telling us?
        Ms. Perez. I will be an impartial and objective
    adjudicator, limited to the subject matter and personal
    jurisdiction of the case before me, and the arguments----
        Senator Blackburn. Okay. Let's----
        Ms. Perez [continuing]. That the parties have put in front
    of me.
        Senator Blackburn. Let's do this, then. Let's go on to the
    issue of voter ID. Because this is something that causes not
    only me, but a lot of people in Tennessee who are viewing your
    nomination, they're really unhappy about your nomination.
    Because most Americans, as you've heard from others today, they
    support voter ID laws. They also support the fact that it is up
    to the State to tend to this. They're very concerned about
    where you would go.
        You know what? They really don't want activist judges. What
    they want is someone who is going to be an originalist, who is
    going to look at the text of the Constitution and look at
    precedent. Things you've said you're going to do, but the
    answers to your question do not indicate that that is going to
    be what you're going to do.
        I get this funny feeling that you're trying to hedge us,
    that you've rehearsed your answers, that you're spouting out
    what you think will not get you into trouble so that you can go
    through the confirmation process. Then do the happy dance and
    get on the court, and then go back to your activist ways. That
    is what is coming across, ma'am. That is what I'm perceiving.
        Talk to me just a little bit about what your view is of the
    elections clause. Then, do you agree that the States have the
    right to conduct the elections in their State in the manner
    that they see fit?
        Ms. Perez. Senator, States play the primary role in
    election administration.
        Senator Blackburn. It is their prerogative, correct?
        Ms. Perez. We have a system of federalism within certain
    bounds, pursuant to the election clause and the statutes of--
    that this body has created. States play the primary role in the
    administration of elections.
        Senator Blackburn. Your previous work in election law and
    voter ID would not preference any of the decisions that you're
    going to make?
        Ms. Perez. I would very strictly adhere to the precedent of
    the Supreme Court----
        Senator Blackburn. You cannot give me a yes or no to that?
        Ms. Perez. Yes. I guess--if you don't mind rephrasing the
    question, I'd like to if I can.
        Senator Blackburn. I said your prior work in election law,
    that will not influence your decision-making in election law,
    electoral cases.
        Ms. Perez. If what you're asking, Senator, is whether prior
    policy positions as an advocate----
        Senator Blackburn. Your prior work. That's right.
        Ms. Perez. My--I am pledging to you that if I am confirmed,
    that I will set aside any personal views I have as to the
    merits of policy and apply the country's precedent, which
    includes cases like Crawford, which as we have indicated
    before, says that voter ID laws are not per se
    unconstitutional, and I would apply Crawford and any other
    relevant Supreme Court or second circuit precedent on any
    matter involving a photo ID law that came before me.
        Senator Blackburn. Okay. I'm going to send to you a
    question for an answer in writing, because I will not have
    enough time for you to give a fulsome answer. It deals with
    felon enfranchisement on voting and the positions that you have
    taken in that previously. You did not answer Senator Cruz's
    question about felons having the right to vote. You were
    opposite of Governor DeSantis in having them pay all their
    fines. I will send that question to you in writing for a
    written answer.
        Then, I'm also going to send to you a question dealing with
    your qualifications.
        Mr. Chairman, thank you. I yield back.
        Chair Durbin. Thank you, Senator Blackburn. Senator Cotton.
        Senator Cotton. Thank you, Mr. Chairman. Ms. Perez, I
    watched some of the hearing on television earlier. I apologize
    I missed Senator Hawley's question because I was on the floor
    voting. I was just wondering if you'd return to some of the
    things he said. My crack staff gave me a summary, but I assume
    it must be incorrect.
        Was it your testimony that Brown v. Board was correctly
    decided?
        Ms. Perez. Yes.
        Senator Cotton. Was it your testimony that you cannot say
    whether Shelby County and Brnovich are correctly decided?
        Ms. Perez. Senator, there's an important distinction that
    if you will give a moment of your time, I'd be happy to
    explain, but that is accurate.
        Senator Cotton. Was Roe v. Wade correctly decided?
        Ms. Perez. Senator, it is the law of the land, and I would
    apply it.
        Senator Cotton. Was Lochner correctly decided?
        Ms. Perez. Senator, it is not really the law of the land
    anymore, but if I had been confirmed during that period, I
    would have applied it.
        Senator Cotton. Was Dred Scott correctly decided?
        Ms. Perez. Senator, it is----
        Senator Cotton. Surely, you can say Dred Scott was
    incorrectly decided.
        Ms. Perez. Senator, it was incorrectly decided.
        Senator Cotton. What's the distinguishing line of cases you
    will say were correctly decided and cases you won't say?
    Because it seems like you're willing to say that they're
    correctly decided if you like them. If you don't like them, you
    can't comment on it.
        Ms. Perez. Senator, I do appreciate the question, and I
    think it is important, and I want to clarify this. As a
    judicial nominee, I am bound by the code of ethics to ensure
    that any prospective litigant before me knows that they are
    getting an impartial and fair hearing where they will not be
    prejudged, where they will be given the opportunity to present
    their case.
        I think that it will not happen that a case of the
    permissibility of de jure, segregation in schools, would make
    its way before me. As such, I am comfortable that I would not
    be violating my code of ethics by commenting on it. There are a
    handful----
        Senator Cotton. Well, that----
        Ms. Perez [continuing]. Of other cases that that may be
    true. Loving is probably one of them. Marbury v. Madison.
    Everything else, I would be very, very reluctant to give a
    potential litigant the wrong impression that they will not get
    a fair day in court.
        Senator Cotton. What about abortion? That's a live issue in
    the courts.
        Ms. Perez. I am not----
        Senator Cotton. You're not going to say whether Roe v. Wade
    was correctly decided.
        Ms. Perez. That is correct.
        Senator Cotton. Okay. You've certainly had a lot of harsh
    things to say in the past about cases like Shelby and Brnovich,
    and some of the issues that were adjudicated there. In fact, we
    just got notice last night about this article that just was
    published that you wrote. The title of it is, ``The GOP
    Campaign to Make Elections Less Free.''
        You noted in the letter you sent with the article that you
    did not see or approve of the title before it was published----
        Ms. Perez. That is correct, Senator.
        Senator Cotton [continuing]. Which I can understand.
    Authors don't choose their own titles. I understand that. You
    didn't say whether you agree with it. Do you believe that GOP
    is campaigning to make elections less free?
        Ms. Perez. Senator, the entire piece does not mention any
    political party, and that is because I am an advocate for the
    right to vote. I would criticize any politician who would
    impede that right, irrespective of their political party.
        Senator Cotton. Do you think requiring voter ID is an
    impediment to vote and shouldn't be permitted?
        Ms. Perez. Senator, the Supreme Court in Crawford said that
    voter ID laws were not per se unconstitutional. However, a
    fifth circuit en banc said that a particular voter ID law was
    illegal. This is a case-by-case inquiry where we are fortunate
    enough to have precedent on, precedent that I would apply
    faithfully and without reservation.
        Senator Cotton. Another--I think Senator Durbin said that
    this article sounded like a speech he would give on the Senator
    floor. I agree. I don't think it proves the point you may have
    been trying to prove though, Senator Durbin. Ms. Perez, you
    live in the New York City area?
        Ms. Perez. I live in Jersey City.
        Senator Cotton. Okay. How did you get down here?
        Ms. Perez. I took an Amtrak.
        Senator Cotton. Okay. Did you have to show an ID to get
    your ticket or get on the Amtrak?
        Ms. Perez. I don't believe so, sir.
        Senator Cotton. Okay. Last time you flew, did you have to
    show an ID?
        Ms. Perez. I did, sir.
        Senator Cotton. Do you think that's an unfair restriction
    on your ability to travel?
        Ms. Perez. That is the policy, and I am a rule-follower,
    and I'm happy to abide by it because I can.
        Senator Cotton. Okay. If someone commits a murder, do you
    think it's fair to call them a murderer?
        Ms. Perez. If someone has been convicted----
        Senator Cotton. Yes. Convicted.
        Ms. Perez [continuing]. For murder----
        Senator Cotton. Yes.
        Ms. Perez [continuing]. Under--yes.
        Senator Cotton. If they commit rape, do you think it's fair
    to call them a rapist?
        Ms. Perez. Have they been convicted?
        Senator Cotton. Yes.
        Ms. Perez. Yes.
        Senator Cotton. Convicted.
        Ms. Perez. Yes.
        Senator Cotton. If they commit a felony, do you think it's
    fair to call them a felon?
        Ms. Perez. I think that that is a bit different because
    there's a temporal issue. I think that there's a raging policy
    debate on that.
        Senator Cotton. Because in the past, you've said that you
    don't like to use that word. In fact, you said, ``I don't use
    words like `felons' to describe people. I mean, we don't
    describe people by a mistake that they made.''
        Ms. Perez. I don't. I believe that every person is a child
    of God, capable of being redeemed. I never look at anybody and
    see the worst thing that they've ever done.
        Senator Cotton. Those convicted murders or rapists get
    released from prison, often under misguided policies. Do you
    think it's still fair to call them a murderer or rapist?
        Ms. Perez. Irrespective of what their label was, sir, I
    would be on record as an advocate of trying to advocate for
    their right to vote if the criminal justice system had deemed
    them to be fit to be living amongst us.
        Senator Cotton. All right. Thanks for your testimony.
        Chair Durbin. Thank you very much, Ms. Perez, for appearing
    before the Committee. You may receive some written questions,
    which we hope you will provide timely answers to.
        Ms. Perez. I will do so, sir. Thank you.
        Chair Durbin. Thank you very much. I'd like to let the
    staff prepare for the second panel and ask them to please step
    forward.
        I'm going to ask Senator Coons to take over while I go vote
    and return.
        [Pause.]
        Senator Coons [presiding]. Please be seated, if you would.
    I look forward to hearing from our--I'm sorry. We're all just
    going to have to stand back up to take the oath, so please
    don't be seated. I look forward to hearing from our next five
    nominees.
        Before making your opening statements, would the nominees
    please stand to be sworn in?
        [Witnesses are sworn in.]
        Senator Coons. Thank you. Please be seated. Ms. Cobb, you
    may begin with your opening statement.

               STATEMENT OF JIA M. COBB, NOMINEE TO SERVE

                  AS UNITED STATES DISTRICT JUDGE FOR

                        THE DISTRICT OF COLUMBIA

        Ms. Cobb. Thank you so much, Senator Coons, and to all the
    Senators here, to Chairman Durbin for that wonderful
    introduction, to Ranking Member Grassley. I'd also like to----
        Senator Coons. Ms. Cobb, your mic, please. Your mic,
    please. Sorry, Ms. Cobb.
        Ms. Cobb. Thanks. That's much better. I'd also like to
    thank Representative Norton for recommending me, and for
    President Biden for nominating me.
        I have been drawn to a career in the law for as long as I
    can remember. My father's an attorney. I have such a great
    respect for the role of our courts in our democracy to
    interpret the laws.
        I do want to take some time to introduce family members who
    I have here today. First, my parents, James and Anita Cobb, who
    drove up from Michigan to be here with me to support me, as
    they always do. Now, that I'm a parent, I understand the
    significant sacrifices that they made to ensure that me and my
    sister had an education and opportunity. I would not be here
    but for their support.
        My sister, Jenna Cobb, is also here, who has been a best
    friend and an enduring source of support and encouragement. She
    is here with my brother-in-law, Keith Farrugia, who has just
    been a wonderful addition to our family.
        I want to thank all of my friends, colleagues for their
    support.
        Then, last but not least, my son, Ricky, is here. He is
    missing Slip 'N Slide day at camp to support me here today.
    Everything that I do is to be an example for him. I'm so
    thankful that he has an opportunity to have a first-row seat to
    see how our great democracy works.
        I look forward to answering the questions today. Thank you.
        Senator Coons. Thank you so much, Ms. Cobb. My thanks to
    your family and to Ricky in particular. This will be a riveting
    and hopefully painless session during which your mother will
    answer some important questions.
        Your Honor, Ms. Merriam, if you would please, proceed with
    your opening statement.

                STATEMENT OF SARAH A.L. MERRIAM, NOMINEE

                TO SERVE AS UNITED STATES CIRCUIT JUDGE

                    FOR THE DISTRICT OF CONNECTICUT

        Judge Merriam. Thank you, Senator Coons. Thank you to the
    Committee for holding this hearing, and frankly, all these
    hearings. I do want to thank President Biden for the great
    honor of this nomination. I want to thank both Senators
    Blumenthal and Murphy for their support in this process and for
    their very kind introductions.
        Four of my favorite people are here with us today: my
    mother, Anne; my stepfather, Michael; my best friend, Paul; and
    one of my closest friends for over 30 years now, Jenny. My
    father, Dwight; my little brothers, Jonathan and Alexander, who
    are not so little anymore; and my baby sister, Lucy, could not
    be here in person, but I'm confident they're with us through
    the miracle of streaming video.
        There are many others I want to acknowledge who have
    supported me both throughout this process and throughout my
    career. My extended family, scores of aunts, and uncles, and
    cousins all over the country, from Alaska, to Oregon, to
    Colorado, to Virginia, to Massachusetts, and just about
    everywhere in between. I'm thinking especially of my Uncle
    Ross, down in Florida today.
        I am blessed with an incredible court family in the
    District of Connecticut, which we believe to be the oldest
    operating Federal court in the country. My phenomenal career
    clerk, Samantha; my term clerk, Annie; and my courtroom deputy,
    Andrew, make everything work. I especially want to acknowledge
    my fellow magistrate judges who serve our court and our country
    with such skill and dedication.
        Finally, my friends from every stage of my life from New
    Haven, from New South, from the district, from Edgewood School
    to law school, who have become like family to me so much so
    that their kids call me auntie, and I love them like my own.
        I appreciate the opportunity to speak to you today.
        Senator Coons. Thank you, Your Honor. Judge Pan.

                 STATEMENT OF FLORENCE Y. PAN, NOMINEE

                TO SERVE AS UNITED STATES DISTRICT JUDGE

                      FOR THE DISTRICT OF COLUMBIA

        Judge Pan. Thank you, Senator Coons. I want to thank
    Chairman Durbin and Ranking Member Grassley for the opportunity
    to appear at this hearing today. I want to thank President
    Biden for the tremendous honor of this nomination.
    Congresswoman Eleanor Holmes Norton for recommending me to the
    President. I also want to thank Chairman Durbin for his kind
    introduction today.
        I am the daughter of immigrants from China. My parents, Wu
    Ching and Felicia came to the United States in 1961 to pursue
    graduate degrees in New York City. They chose to remain here
    because they recognized that this country offered the best
    opportunities for their children, my sister Gloria and me.
        Both of my parents became American citizens. After
    naturalization ceremonies, each of them took an oath of
    allegiance before a United States district judge. When they
    took those oaths, they never imagined that one of their
    children might one day be nominated to assume a position of
    such trust and responsibility. I think it's fair to say that my
    presence before this Committee is a fulfillment of the hopes
    and dreams that my parents held when they chose to make their
    lives here in the United States.
        My parents can't be here today, but they're watching these
    proceedings from their home in Virginia with my sister, Gloria.
    I want to thank them for the sacrifices and the choices that
    they made which allowed me to become the person that I am
    today.
        With me in the hearing room are my wonderful husband, Max
    Stier; our son, Zachary, who's 16, and probably will be asking
    all the Members of the Committee for their autographs after
    this hearing.
        [Laughter.]
        Also, I'm pleased to have with me, my brother-in-law, John
    Neuffer. My younger son, Noah, who is 15, can't be here today
    because he's in Sewanee, Tennessee, at the Sewanee Summer Music
    Festival.
        I also want to acknowledge and thank other family members
    who are supporting me from afar. My cousins, Pearl Wong,
    Sanchez Chi, Stephanie Chi, and Debbie Wen are watching from
    the great State of New Jersey, which is where I grew up. My in-
    laws, Serena Stier and Steven Burton, are watching from the
    great State of Iowa.
        Thank you, and I look forward to answering any questions
    from the Committee.
        Senator Coons. Thank you, Your Honor. Judge Williams.

                 STATEMENT OF KAREN McGLASHAN WILLIAMS,

               NOMINEE TO SERVE AS UNITED STATES DISTRICT

                  JUDGE FOR THE DISTRICT OF NEW JERSEY

        Judge Williams. Good morning. Thank you, Chairman Durbin,
    Ranking Member Grassley, and--I'm sorry. Senator Coons for
    holding this hearing today and the honor of appearing before
    this body.
        Senator Booker, I believe our ancestors are indeed smiling
    down on us this morning. Senator Menendez, thank you for your
    ever so kind words.
        I have many thanks--many to thank for the journey that
    finds me here today. My village is strong, and the list is
    long, but I will be quick.
        My family is here with me. Jim, my husband of 32 years,
    thank you for all that you do and all that you have done. Our
    daughter, Danielle, who works in elementary education. Our son,
    Justin, who works with Hope Scholars. My mother, Millicent
    Tate, who transitioned from this life in 2004, was the
    strongest, most resilient woman I have ever known, and the
    first person to tell me that I was enough. She showed me and
    prepared me for the grind. My dad, Norman Tate, who is here
    with me. The man brave enough to marry a divorced mother of
    four, thank you for lighting a new path for all of us.
        Eton Carver White, also known as Uncle Jimmy, and his
    family. Uncle Jimmy, thank you for your service to this country
    and our family. My siblings, Michelle, Diane, Patrick, and
    Julian, their spouses, and my nieces and nephews. To the Lewis
    family and all of those born McGlashan, all of the cousins who
    started out on West Street in Jamaica, came through Brooklyn,
    and landed all over this country. To my in-laws, Jackie,
    Bonnie, Judy, Andre, Cathy, little Jimmy. My sis, Lisa, and her
    family.
        To the sisterhood--my sisterhood, known as Alpha Kappa
    Alpha Sorority, Incorporated, for its service to all mankind
    and instilling that purpose in me. David Jasinski for allowing
    me the room to develop as an attorney. Finally, the District of
    New Jersey, my Federal family. My court family, my courthouse
    family, my chamber staff, Nicole, Tiana, and Cara.
        Shout-out to Camden. Shout-out to the seven southernmost
    counties of New Jersey, especially Atlantic County, where I put
    down my first legal roots.
        My village is strong. My list is long. I appreciate the
    patience of this body for allowing me this time.
        Senator Coons. Thank you. Finally, Mr. Olsen.

                 STATEMENT OF MATTHEW G. OLSEN, NOMINEE

                TO SERVE AS ASSISTANT ATTORNEY GENERAL,

                       NATIONAL SECURITY DIVISION

        Mr. Olsen. Thank you. Thank you, Senator Coons and Members
    of the Committee. I am so honored to appear before you today as
    the nominee to be the Assistant Attorney General for National
    Security. I am grateful to the President for his confidence in
    nominating me for this position. I would also like to thank
    Senator Cardin and Senator Van Hollen for those very kind
    introductions.
        I am joined here today by my family: my wife, Fern; my
    three children, Elizabeth, Nate, and Will. I would not be here
    without their love and support.
        I would also just like to take a moment to remember my
    parents, Myrna and Van. I was born in North Dakota. I moved
    here as a young kid because my dad got a job with a Member of
    the House of Representatives from North Dakota. We were going
    to move back to North Dakota in 2 years, and we ended up
    staying here for my entire life. My mom was a school nurse.
    Public service is--was the--is the most noble calling in my
    family.
        Congress established the National Security Division after
    9/11 and charged it with carrying out the Department of
    Justice's most important priority, and that is to protect the
    Nation from terrorism and other threats to our national
    security by pursuing justice through law. The threats we face
    today are diverse and complex. The National Security Division
    plays a vital role in protecting the Nation.
        I believe that our greatest strength in defending the
    Nation comes from our career public servants. They are
    dedicated to securing our country with fidelity to our founding
    values.
        If confirmed, it would be my absolute honor to lead and
    support the extraordinary workforce of the National Security
    Division. We will confront domestic and international
    terrorism. We will counter threats to our cyberinfrastructure.
    We will protect our Nation from espionage and foreign
    adversaries. We will work to foster trust of the work of the
    Intelligence Community.
        I believe that my experience has prepared me to take on
    this critical responsibility. I began my career in the
    Department of Justice in the Civil Rights Division as a trial
    attorney. As an assistant United States attorney, as a Federal
    prosecutor in Washington, DC, for over a decade, I prosecuted
    crimes at the State and the Federal level. Those included
    murders, homicides, complex conspiracies, and public corruption
    cases.
        I learned to pursue justice based on the evidence and based
    on the law. I learned to protect both the public safety and the
    rights of the accused and all Americans under our Constitution.
        The terrorist attacks on September 11, changed the course
    of my career. It led me to shift my focus to National security.
    I first worked at the FBI as special counsel to Director
    Mueller, helping to support the transformation of the FBI after
    9/11.
        In 2006, I returned to Main Justice to help establish the
    new National Security Division. I was responsible for
    overseeing the Department's intelligence work, including the
    implementation of Congress's landmark changes to the Foreign
    Intelligence Surveillance Act. I was the general counsel of the
    National Security Agency, and from 2011 to 2014, I served as
    the Director of the National Counterterrorism Center, which
    Congress established to unify and coordinate our
    counterterrorism efforts.
        At every stage of my career, I have been guided by the
    values of the Department of Justice, devotion to the
    Constitution, to the search for the truth and to the pursuit of
    equal justice under the law.
        If I am confirmed, I will follow the facts and I will
    follow the law. I will work relentlessly to advance the
    security of the Nation.
        I look forward to answering your questions. Thank you.
        Senator Coons. Thank you. Thank you to all of our five
    witnesses of this panel for your opening statements. We're now
    going to proceed to 5-minute rounds of questioning. As you all
    know, the Senate is currently in the middle of a vote series,
    thus Senators will come in and out, and I presume that the
    Chairman will return, and I will go for a second vote.
        Let me begin. If I could, Mr. Olsen, from your opening
    statement, it's clear you're no stranger to the critical work
    of the National Security Division. I'd be interested in having
    you just elaborate a little bit on the time you spent working
    there previously. Can you explain the critical role that office
    plays in supporting our national security? Then, just elaborate
    a little bit more on your service, working for the U.S.
    Attorney's Office in the Bush administration, and how that
    experience prepared you for your service in the subsequent
    Obama administration.
        Mr. Olsen. Yes. Yes. Absolutely. Thank you, Senator. I--you
    know, I was there at the very beginning of the National
    Security Division. I was there at the very beginning of the
    National Security Division.
        It was established by Congress because of a recognition
    that the Department of Justice's various elements that worked
    on national security, whether that's the Foreign Intelligence
    Surveillance Act, or counterterrorism, or counterespionage,
    were not sufficiently unified. The decision was made to create
    the first new division in several decades, the National
    Security Division, which like a number of other parts of the
    Government, were reformed in response to the attacks of 9/11.
        In my judgment, the division has been an unqualified
    success. Bringing together intelligence professionals,
    attorneys who work on applications to the FISA court, along
    with the prosecutors who handle and oversee counterterrorism
    cases and counterespionage cases, and really been part of the
    broader national security reformation following the attacks of
    9/11.
        I should add that it's also continued to evolve since I
    left a decade ago. I left in 2009, and it has changed to evolve
    to meet the threats we face today, whether those threats are
    from cyber actors, from those that would seek to steal our
    intellectual property. It has continued to grow and evolve as
    the threats that we face have grown and evolved. Again, to
    continue to represent the Intelligence Community very
    effectively.
        Senator Coons. Thank you, Mr. Olsen. I think based on your
    broad and deep service and experience, we're lucky to have you
    nominated to continue your public service in this role.
        Ms. Williams, if I might--Judge Williams. Forgive me.
    You've served as a magistrate judge, I think, for a dozen
    years. How has that role and experience prepared you for an
    Article III judgeship? What aspects of that new role for which
    you've been nominated are you most excited about, if confirmed?
        Judge Williams. Thank you, Senator. For the past 12 years,
    I have served the District of New Jersey as a magistrate judge,
    and I am lucky to be in the District of New Jersey, which has
    delegated quite a bit of authority to magistrate judges in our
    district. Most of my work is managing cases and preparing them
    for disposition by the Article III judges.
        How my work as a magistrate judge has prepared me is to
    understand the process of judging, and justice, and to ensure
    that everyone who appears before me as a magistrate judge or,
    if confirmed, as a district court judge, is privy to a fair,
    impartial process.
        Senator Coons. Thank you, Your Honor. Judge Pan, during
    your tenure as a magistrate judge, if I understand correctly,
    you've presided over more than 650 trials. That is an
    astonishing body of work. You've spent your entire career in
    public service. President Obama noted your unwavering
    commitment to justice and integrity upon your initial
    nomination. I just would be interested in how your experience
    as a magistrate judge, and your long public service dedication
    will inform your service in the Federal judiciary as an Article
    III judge, should you be confirmed?
        Judge Pan. Thank you, Senator Coons, for that question. For
    the last 12 years, I've served as a judge on the District of
    Columbia Superior Court, the local court of general
    jurisdiction in the District of Columbia. I've served in the
    criminal division, the civil division, and the family court.
    Before that, I was an assistant United States attorney for 10
    years. I have devoted the last 22 years to serving the citizens
    and residents of the District of Columbia.
        Senator Coons. It didn't seem that long at the time, but
    when you say it, it seems like a long time, doesn't it?
        Judge Pan. Yes. It's been an honor and a privilege. I would
    be honored to continue my service to this same community in
    this new capacity as an Article III judge to consider issues of
    constitutional and Federal importance, and to continue my
    service in that regard.
        Senator Coons. Thank you very much. My 5 minutes are up.
    Senator Cotton.
        Senator Cotton. Thank you, Mr. Acting Chairman.
    Congratulations to you all. Mr. Olsen, I remember when you used
    to come briefly to Congress as the Director of NCTC, and I
    always found you to be a sober, reasonable, national security
    professional. I guess when Joe Biden nominated you to this
    position, I thought it was one of his better choices.
        Then, I started looking at what you've been up to for the
    last 4 years, and I have questions about which Matt Olsen we're
    getting. In 2017, you wrote an op-ed, entitled, ``The Electoral
    College, a National Security Threat.'' I want to repeat that.
    ``The Electoral College is a National Security Threat.'' Do you
    believe that--still believe that the Electoral College is a
    national security threat?
        Mr. Olsen. Senator, let me begin by thanking you for your
    initial comments about my time as the National Counterterrorism
    Center Director. I spent a better part of my career as a
    Government public servant, protecting the country.
        I left the Government in 2014 and entered the private
    sector. I wanted to stay--remain engaged on the issues that I
    thought were important. As a private citizen, of course, I
    expressed some views, including that article you're referring
    to, in a way that I wouldn't and haven't expressed as a
    public--as a public or Government servant.
        That view, yes. There are aspects, in context, if I may
    explain. There are aspects of the way in which the Electoral
    College allowed--or could allow nefarious cyber actors to
    pinpoint their efforts to influence an election. There are ways
    in which the Electoral College makes us more vulnerable to
    nefarious, particularly nation-State cyber actors to influence
    elections. That's----
        Senator Cotton. That's what I----
        Mr. Olsen [continuing]. What I was seeking to highlight.
        Senator Cotton. I'm sorry. Our time----
        Mr. Olsen. No. Of course.
        Senator Cotton. Our time is very limited here. You still
    think the Electoral College is a national security threat?
        Mr. Olsen. I stand by the content of the article that I
    wrote.
        Senator Cotton. Okay.
        Mr. Olsen. Yes.
        Senator Cotton. Should the Department of Justice ever bring
    a lawsuit to try to force States to, say, adopt the National
    Popular Voter Compact?
        Mr. Olsen. Senator, I'm not familiar with any----
        Senator Cotton. Right.
        Mr. Olsen [continuing]. Statutory provisions or proposals
    along those lines.
        Senator Cotton. Last year, in the middle of riots that
    caused billions of dollars of damage, and had murders spiking
    at rates not seen in a generation, you described the situation
    as ``mostly peaceful protests.'' Do you think the rioting we
    saw last year was mostly peaceful protests?
        Mr. Olsen. I think that--I'm not sure exactly the comment
    you're referring to. But I----
        Senator Cotton. You signed a public letter last June saying
    that.
        Ms. Olsen. Yes. I will say this, Senator. If I am confirmed
    and have the opportunity to lead the National Security
    Division, the threat that we face from the types of violence
    that we've seen in the past several years, particularly any
    type of domestic terrorism, I would be responsible for
    enforcing our laws and enforcing those laws, regardless of
    ideology, and enforcing them fairly and impartially. That would
    be my pledge.
        Senator Cotton. You once wrote that, ``ISIS supports Donald
    Trump.'' Do you think that ISIS supported Donald Trump?
        Mr. Olsen. I appreciate again, Senator, the content--the
    article you're referring to, again--I--as a private citizen, I
    tried to stay engaged on the national security issues that I
    had worked on. I will answer your question directly.
        The article I wrote was based on statements that I had seen
    that I was very concerned about from a propaganda standpoint.
    In 2016, when I wrote that article, ISIS had risen and was
    using its propaganda machine to influence people in the United
    States, and they were using the language, the words, of then-
    candidate Donald Trump to advance their propaganda machine. I
    was referring to their exact words in making that statement.
        I stand by the article. I was concerned about the ways in
    which ISIS was using that--those comments to recruit and
    mobilize people in the United States.
        Senator Cotton. If it's true that ISIS supported Donald
    Trump, do you think Abu Bakr al-Baghdadi thinks he made a bad
    bet?
        Mr. Olsen. I'm very supportive of the nature in which we
    prosecuted--and the way the Trump administration took the fight
    to ISIS over the past several years.
        Senator Cotton. Okay. Mr. Olsen, I'll just say again, I had
    a lot of respect for the medals, in what we saw as the NCTC
    Director. I feel like something has changed here just in the
    last 4 years. To review what we've covered today, you've said
    ISIS supports Donald Trump. You referred to rioting last summer
    as mostly peaceful protests. You've said the Electoral College
    is a national security threat.
        It's one thing to leave the Government and comment on
    public affairs, and be partisan, to give money to candidates of
    your choice and to campaign for them. I feel like something
    about Donald Trump's Presidency in the last 4 years sent you a
    little bit around the bend. So it makes me wonder which Matt
    Olsen we're going to be getting at the Department of Justice.
        My time's expired.
        Senator Coons. Thank you, Senator Cotton. Senator
    Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. You know, I want
    to put in the record, first of all, a letter from more than 20
    former prosecutors in Connecticut, including 3 of my
    successors, maybe more, as U.S. Attorney Derick Dailey, Chris
    Crowley, and Stan Twardy. All of them among the most
    distinguished lawyers, but also former prosecutors in
    Connecticut. A rather extraordinary letter, attesting to the
    integrity and intellect of Judge Merriam. If there's no
    objection, I ask that it be put in the record, Mr. Chair.
        Senator Coons. Without objection.
        Senator Blumenthal. Thank you. The reason I focus on this
    letter is, Judge, because your career has been on the other
    side of the courtroom from them. All the Members of this panel
    who have been in the trenches of litigation, particularly in
    the criminal area, know how heated and contentious it can
    sometimes be. To have this kind of extraordinary vote of
    confidence in your integrity and credibility, I think, says far
    more than I could about the qualifications that you bring to
    this position.
        There are a lot of things going on here today here in the
    Capitol. The President's going to visit. We have potentially an
    infrastructure agreement. For all of us in Connecticut, your
    appearance here is one of the more consequential events of the
    day and of this year because you will serve on the bench for
    decades, God willing.
        You may well hear cases of students who are now in law
    school. Every one of you who will serve on the bench are the
    voice and face of justice to everyday Americans. Most litigants
    simply don't have the wherewithal, or the time, or resources to
    appeal to the Second Circuit Court of Appeals. For them, the
    decisions in the district court are justice in America.
        This position is so profoundly important to our Nation. To
    have someone who, as has been stated by those lawyers I
    mentioned, has, quote, ``brought an evenhanded and accessible
    approach to the Federal bench,'' end quote, and ``applied the
    law fairly and properly, without regard to personal
    preference,'' end quote, is an extraordinary gift to the people
    of Connecticut and our country.
        Maybe, if you don't mind, could you tell me a little bit
    about how your experience as a Federal defender has informed
    your work as a magistrate judge, and the approach that you will
    take on the United States district court bench?
        Ms. Merriam. Thank you, Senator, for those very kind words.
    Connecticut has the great benefit of being a fairly small
    Federal court. It is collegial, and people know each other, and
    they respect each other. I felt that as a defender. I felt that
    as a law clerk. I felt it in private practice. I feel it now,
    as a magistrate judge.
        In the 18 months in which I was appointed as a magistrate
    judge, two others were appointed in close succession: one a
    career prosecutor and one a career civil litigator. Over the
    past 4\1/2\ years, almost 5 years, the three of us have worked
    as magistrate judges together, asked for each other's advice,
    shared our ideas for how to better the system, and to better
    the experience of people that come in front of us. Because as
    magistrate judges, we are the first person a litigant usually
    sees. Likewise for a public defender, you're the first person a
    defendant turns to when they are caught up in a system that can
    be very scary.
        At the end of the day, I think my experience there helped
    me to see all sides of the system and to understand that when
    people come to court, it's because something has gone terribly
    wrong, and we need to help them get through that crisis with
    respect.
        Senator Blumenthal. Thank you. Mr. Olsen, you and I spoke
    about the 9/11 families when we had an opportunity to talk
    privately. I emphasized to you my concern about the Government,
    in effect, withholding evidence and information that they need
    to pursue their case against the government of Saudi Arabia. I
    think the failure to provide that evidence and information is
    absolutely unconscionable from what I know.
        I have purposely rejected opportunities to look at the
    classified information, because I want to talk as publicly as I
    can about what I do know without any threat or hint that I'm
    violating the rules of classification. I think the American
    people deserve an explanation as to why our Government is, in
    effect, withholding or concealing evidence that would aid the
    9/11 families in pursuing justice against the government of
    Saudi Arabia, which may well have aided and abetted the
    attackers on 9/11 that caused the deaths of their loved ones.
        I have written, along with my colleagues, Senators
    Gillibrand and Menendez, to the Attorney General Merrick
    Garland and Director Wray as recently as 2 weeks ago. Over the
    past couple of years, I've sent several letters with different
    groups of colleagues on and off this Committee concerning the
    Department's and the FBI's invocation of the state secrets
    privilege, still without any explanation.
        I asked Director Wray about this issue in 2019, and I've
    asked Attorney General Garland and Helaine Greenfeld about it
    earlier this year. The administration, so far, has provided no
    explanation or the evidence that the 9/11 families are seeking.
        We are approaching the 20th anniversary of that insidious,
    unspeakable act of horror, an attack on our Nation. The
    American people deserve to know, 20 years later, why that
    information still needs to be withheld.
        You and I talked about it. I know you're not in the job
    right now, but I would like a commitment from you that you will
    review this matter, and you'll consider whether the privilege
    has been properly invoked and provide an explanation to the
    American people.
        Mr. Olsen. Senator, thank you. Thank you for the
    opportunity to discuss this issue with you. As I mentioned, I
    am in this work of national security because of 9/11, and you
    have my commitment that, if confirmed, I will work with the
    Attorney General to review this matter closely.
        Senator Blumenthal. Thank you. By the way, on the Electoral
    College, I agree with you. Thank you.
        Chair Durbin [presiding]. Senator Grassley.
        Senator Grassley. Ms. Cobb, as a law student in 2004, you
    wrote an article on Federal statutes and regulations. You
    argued that social history should be used in statutory
    interpretation, a position that led you to criticize a dissent
    by Justice Thomas. In criticizing Justice Thomas, you wrote
    about, quote, ``the utility of looking at the social and
    legislative histories in tandem to garner a complete
    understanding of both the purpose and the meaning of the
    legislation,'' end of quote. Do you think that the words in a
    statute can change meaning based on social events?
        Ms. Cobb. No, Senator. If I could just put that in context?
    I believe you're referring to an article I wrote when I was
    maybe 23 or 24 years old. I had never had a client before,
    never been in court.
        My role as a judge is obviously different than my academic
    pursuits when I was in my 20's. I believe that you start with
    the text. I have never used----
        Senator Grassley. I think you've answered my question.
        Ms. Cobb. Thank you.
        Senator Grassley. You bet. I thank you for up front saying,
    no. Second, do you agree with Justice Kavanaugh that courts
    should phaseout the statutory term ``alien'' in favor of
    ``noncitizen'' because of the perceived social history of those
    terms?
        Ms. Cobb. I don't have a position on that, Senator. I have
    not considered that.
        Senator Grassley. In January of this year, you were a
    panelist for the Metropolitan and Washington Employment Lawyer
    Association. You spoke at a webinar entitled, quote,
    ``Litigating Race Discrimination and Employment in the BLM
    Era.'' My understanding--that's the end of the quote. My
    understanding is that you talked about both racial
    discrimination and sexual harassment.
        Will you please explain for us how litigation has impacted
    or changed by the Black Lives Matter era? In other words, I
    wouldn't think that that movement would change anything from
    what it would be previous to that. I'll wait for your opinion.
        Ms. Cobb. Senator, yes. I didn't choose that title, and I
    don't know that it actually captured what was discussed at that
    informal luncheon discussion. I think a better title, if I were
    choosing it, would be, ``Litigating Cases or Current
    Considerations for Litigating Cases.''
        I think that there is a lot more discussion about race.
    Whether you want to attribute that to the Black Lives Matter
    movement or anything else, I think people are more in tune to
    it.
        There are certain considerations as litigators. For
    example, one thing that came up that I recall from that
    informal discussion was just talking about voir dire. You have
    jurors that have, you know, exposure to what they're seeing on
    the news, and may have opinions that litigants need to flesh
    out to make sure that we're getting fair and impartial jurors.
    I think a better title would be, ``Current Considerations for
    Litigating Race Discrimination and Sexual Harassment Cases.''
        Senator Grassley. Okay. Mr. Olsen, as the head of the
    National Security Division, you will supervise the
    Counterterrorism Section. I'm deeply concerned, given recent
    events, that the current administration does not take an
    evenhanded approach to domestic terrorism. For example, we know
    that the FBI is currently investigating 500 domestic terrorism
    cases of primarily anarchist extremists that were open during
    the 2020 riots. These cases constitute 25 percent of the FBI's
    current domestic terrorism investigations, yet they are not
    mentioned in the administration's domestic terrorism strategy.
        Two questions. Will you commit to pursuing left-wing
    domestic terrorism cases in addition to right-wing ones?
        Mr. Olsen. Thank you, Senator Grassley. Absolutely. I will
    pursue all acts of violence, all acts of domestic terrorism,
    regardless of ideology. That's the commitment that I make.
    That's the commitment the Attorney General has made.
        Senator Grassley. Specifically, how do you plan to ensure
    that your Division is prosecuting left-wing domestic terrorism
    cases at the same rate and pace as right-wing cases?
        Mr. Olsen. Senator, I was a prosecutor here in Washington,
    DC, for 10 years. I worked as a career public servant on
    national security matters for another decade. My entire career
    has been based on following the facts and following the law,
    applying the law to those facts.
        If I'm confirmed, in the National Security Division, that's
    exactly what I will do. I will follow the facts, investigate
    every case that falls within my purview without regard to
    ideology.
        Senator Grassley. My last question is to Judge Merriam. At
    your investiture, Judge Alvin Thompson said, quote, ``I believe
    that in both her professional life and her personal life, she
    lives out the ideals of justice and fairness expressed by John
    Rawls in a publication, `A Theory of Justice.' '' What does ``A
    Theory of Justice'' mean to you?
        Judge Merriam. Thank you, Senator Grassley. I'm afraid I
    have not read it, and I'm not familiar with what Judge Thompson
    was referring to.
        Senator Grassley. As a magistrate judge, how does the
    concept of justice as fairness affect your job, if at all?
        Judge Merriam. Every day, Senator. Every day, it is my job
    to make sure that every party that comes in front of me is
    treated completely fairly.
        Senator Grassley. Do you think an effort to achieve justice
    from Rawls--well, I guess you can't command--comment on that. I
    won't ask that question.
        Judge Merriam. Thank you, Senator.
        Chair Durbin. I'll get you a copy of that book, Senator.
    This is a transition period. We're going live, as they say,
    except a couple of the Senators are in a remote, virtual
    situation. We're going to see if they're tuned in.
        Senator Klobuchar. Thank you.
        Chair Durbin. From the great State of Minnesota, Senator
    Klobuchar.
        Senator Klobuchar. Thank you. I am--I'm not in an
    undisclosed position here. I am in the Capitol, but thank you
    very much, Chairman Durbin. Thank you to our panel of
    witnesses, and I should say nominees.
        I want to welcome you, Judge Pan, especially back to the
    Senate with another opportunity to be considered. I know you
    got out of the Committee by voice vote last time back in 2016,
    and then sadly wasn't considered by the full Senate.
        In the years since you appeared before the Committee, you
    have continued to serve as a judge on the DC Superior Court.
    Could you talk a little bit about the last question from
    Senator Grassley? How do you ensure that those who appear
    before you believe that the court can reach a fair and just
    decision?
        I think it's very important right now for judges to think
    about this because over the last 4 years, we had some
    politicization from the White House of the judiciary. To me,
    that all citizens feel that judges can be fair in their
    decision-making process is really important.
        Judge Pan. Thank you, Senator Klobuchar. As a judge on the
    DC Superior Court for the past 12 years, I have tried every day
    to make sure that every litigant, every party, every witness,
    everyone that comes into my courtroom receives fair treatment,
    open-minded decision-making, and prompt decision-making from
    the court. I think that that's what they're entitled to from
    our system of justice. I'm deeply committed to ensuring that
    everyone who enters my courtroom receives the highest quality
    of justice and fair treatment. We've received training from my
    court to make sure that this happens. I try to do it every day.
    Thank you.
        Senator Klobuchar. Thank you. At a time where we've seen
    this horrific violence against the Asian-American community,
    it's critical that our institutions reflect the diversity of
    our country. If confirmed, you would actually be--I was
    surprised by this, the first Asian-American woman to serve on
    the district court for the District of Columbia. Can you take a
    moment to tell us what that would mean to you personally, to
    your family, and to the community?
        Judge Pan. Thank you, Senator Klobuchar. I think diversity
    on the bench is important because it contributes and promotes
    confidence in our judiciary for the community to see that the
    judiciary actually reflects the membership of the community as
    well. I also think it performs an important role model function
    for members of the bar who are people of color, and--or from
    groups that are not traditionally, or haven't been nominated to
    the bench in large numbers. I think that that is important.
        I'm deeply honored to be honored--to be nominated by the
    President. I was the first Asian Pacific American judge in the
    District of Columbia. It would be a tremendous honor to become
    the first female Asian Pacific American judge on the United
    States District Court in this jurisdiction.
        Senator Klobuchar. Very good. Thank you very much. Mr.
    Olsen, I enjoyed our discussion, and I want to welcome you as
    an honorary Minnesotan since you were born in Fargo. You've
    spent summers in our great State in Detroit Lakes.
        You spent more than two decades in Government service and
    national security, in numerous leadership roles under both
    President Bush and Obama. How has your experience in national
    security from across Government, and having served Presidents
    of both parties, prepared you for your role? Then, if you could
    just comment a little bit about what we talked about the other
    day, the cybersecurity and elections? Thank you.
        Mr. Olsen. Thank you very much for that, Senator Klobuchar.
    I came up on working in national security during a time when
    the Bush administration was in office. In fact, some of the
    most consequential work I did, in my own view, on national
    security took place during the Bush administration.
        The transformation of the FBI, the passage of the landmark
    changes to the Foreign Intelligence Surveillance Act. These
    were priorities of the Bush administration.
        I stayed on as a career national security official into the
    Obama administration. I think one of the enduring lessons of
    that experience was that national security really transcends
    political or partisan considerations. That's true, not just in
    my own experience, it is absolutely true of the people that I
    worked with, whether they were in the Intelligence Community or
    at the Justice Department. That people who worked on national
    security cared about protecting the country. They were not
    influenced, and they refuse to be influenced by political or
    partisan concerns.
        That would be the way I would proceed if I am fortunate
    enough to be confirmed, is to continue to lead the National
    Security Division according to that ideal of nonpartisan
    apolitical commitment to national security. That's what I
    learned from that experience.
        On the second part of your question, Senator, you know,
    cybersecurity has been an issue for a number of years. It has
    really taken prominence in the past several years as a national
    security threat. I would be committed to continuing the great
    work that the National Security Division has done in
    prosecuting cybercriminals, people who are engaged in nefarious
    cyber activity that threatens our national security,
    particularly our critical infrastructure. There are nation-
    states, particularly the Chinese--or China, that is involved in
    stealing our intellectual property, carrying out espionage
    through cyber.
        The National Security Division plays a critical role in
    countering that activity. That's something I think that's going
    to continue to be a priority going forward, and I look forward
    to, if confirmed, being able to work on that further.
        Senator Klobuchar. Thank you. Thank you to all the
    nominees.
        Chair Durbin. Thank you, Senator Klobuchar. Is Senator
    Ossoff with us?
        Senator Ossoff. Yes, I am. Thank you, Mr. Chairman.
        Chair Durbin. Take it away.
        Senator Ossoff. Thank you. Congratulations to these
    nominees on your nominations. Mr. Olsen, my first question is
    for you, please. Despite serious problems documented in the
    FISA application process by the Department of Justice Inspector
    General, among others, the Foreign Intelligence Surveillance
    Court approved electronic collection activity in response to
    all 459 of the final filed Government applications requesting
    such authority in 2020.
        Given the deficiencies that have been identified by DOJ's
    Inspector General in the FISA application process, are you open
    to and will you work with this Committee to develop possible
    legislative fixes to ensure the integrity of the process?
        Mr. Olsen. Senator, the answer--direct answer to your
    question is yes. I look forward to working with this Committee
    in continuing to improve the Foreign Intelligence Surveillance
    Act and its implementation.
        If I may just say, it is a landmark law. It has provided as
    a tool, indispensable intelligence to our--to protect our
    country. At the same time, I was very concerned by the findings
    of the Inspector General in its recent report on the deficiency
    in the way that the law has been implemented. I am absolutely
    committed. It would be, in fact, a priority, if I'm confirmed,
    to continue to work to address those deficiencies and to
    improve the process because the trust of the American people
    depends on their confidence in the way that law is implemented.
        Senator Ossoff. You acknowledge that the remedy to those
    documented flaws may include legislative fixes. You're willing
    to engage, in good faith, with this Committee to consider such
    fixes?
        Mr. Olsen. Yes. Of course. Working with the rest of the
    Justice Department and the Intelligence Community with this
    Committee and Congress to implement those changes. I've done
    that in the past, and I would do so again.
        Senator Ossoff. Thank you, Mr. Olsen. In your position, you
    will have responsibility for reviewing all applications for
    surveillance under FISA, is that correct?
        Mr. Olsen. Yes.
        Senator Ossoff. Based on the Department's disclosed FISA
    statistics for 2020, you personally would need to review and
    fact check at least one 25-page document every day in order to
    personally render such oversight. Can you please describe the
    process that you anticipate you would implement by which you
    would assess the accuracy of facts stated in applications to
    the Foreign Intelligence Surveillance Court?
        Mr. Olsen. Yes, of course. Senator, the National Security
    Division includes, when I was last there, approximately 100
    attorneys who are responsible for appearing before the FISA
    court, representing the Government before the FISA court, and
    working with the Intelligence Community, particularly the FBI,
    to review those applications. Ultimately, they go to a senior
    official, whether the Attorney General, the Deputy Attorney
    General, or if I'm confirmed, me in the role as the Assistant
    Attorney General, for final signature.
        The crucial point here, of course, is that the process
    needs to be sufficiently robust so that facts are checked and
    documents are reviewed by agents at the FBI, for example, who
    submit these applications, by lawyers at the FBI, by lawyers at
    the Department of Justice, by the individuals who support the
    judges. There's a multilayered process to check the facts and
    to ascertain the lawfulness of any application, that it meets
    the standards, in particular probable cause standard, before
    it's approved by the FISA court judge.
        Again, I was very concerned by the IG's finding of 17
    significant problems in a number of applications that the
    Inspector General reviewed. I know that there are a number of
    steps already underway by the FBI and DOJ to address those
    concerns. I would make it a priority to ensure that those are
    implemented.
        Senator Ossoff. Thank you. Mr. Olsen, you will take
    personal responsibility for ensuring that all applications to
    the FISC are factual and accurate?
        Mr. Olsen. Yes, Senator. That is part of this job, is to be
    personally responsible, in my view, for the FISA court process,
    and to represent the Government in a way to ensure that FISA
    court applications are complete and accurate.
        Senator Ossoff. Thank you. Section 702 permits the
    Government to obtain the content of communications between
    Americans and foreign surveillance targets. This, sometimes
    referred to as incidental collection of American
    communications, can sweep Americans into surveillance without
    warrants from courts other than the Foreign Intelligence
    Surveillance Court. Some would argue this deprives them of
    Fourth Amendment protections. What are your views on the scope
    of this incidental collection, and whether or not it does pose
    a threat to the privacy of American citizens?
        Mr. Olsen. Senator, in my views, section 702, first of all,
    has proven to be extraordinarily successful in collecting
    critical intelligence that's focused on non-U.S. persons, non-
    U.S. citizens who are outside the United States. It has been
    upheld numerous times by courts that have reviewed the way in
    which section 702 operates with judicial and congressional
    oversight.
        The concern that you raise is an important one, that is the
    privacy concerns are interests that are implicated when a U.S.
    person is--their communications are captured in the course of
    targeting a non-U.S. person overseas. The key here is that
    there are procedures in place to destroy that information if it
    does not involve foreign intelligence or for evidence of a
    criminal act.
        I would say that there have been a number of cases where
    that, as we've referred to, incidental collection has led to
    important foreign intelligence also being collected. For
    example, if a target outside the United States is communicating
    with a coconspirator inside the United States, the Government
    has identified that coconspirator inside the United States, and
    then have been able to follow-up appropriately under the Fourth
    Amendment to continue that collection.
        The law, I think, strikes the right balance. That said, we
    need to be careful and sensitive to the privacy interests that
    are certainly implicated by the way it operates.
        Senator Ossoff. Thank you, Mr. Olsen. I'll have additional
    questions on this subject for the record. If indeed you are
    confirmed, I look forward to working with you. Thanks for your
    testimony. I yield, Mr. Chairman.
        Chair Durbin. Thanks, Senator Ossoff. I think I'll be the
    last to wrap up. I just have a question for the aspiring
    judges, and it relates to my own experience here, serving in
    Congress.
        It was about 30 years ago when we declared a war on drugs.
    The reason that we acted as we did had a lot to do with the
    advent of crack cocaine. The arrival of this new narcotic was
    scary. It was very cheap, very addictive, and very destructive
    to many people. During the course of our debate on this issue,
    I was in the House at the time, there were incidents that
    occurred that gave us a sense of immediacy of all the discovery
    of this drug and such.
        There was a case that did not involve crack cocaine, but
    had a great deal of publicity involving a Maryland basketball
    player, Len Bias. As a consequence, we did something dramatic.
    We created a sentencing guideline for crack cocaine at 100
    times the level of powder cocaine. One hundred times.
        The idea was that if we came down that hard, that fast,
    that dramatically, that it would really break the back of crack
    cocaine in terms of its infiltration into America. We were
    completely wrong. Completely. The number of addicts increased.
    The price of the drug on the street went down instead of up. We
    started filling our prisons, primarily with African-American
    defendants. Dramatic increases in our Federal prison population
    to levels we'd never seen before.
        In some of the sentencing that went on as a result of it,
    we look back on it and say, ``How could we have done that?'' A
    man named Alton Mills in the Chicagoland area, three nonviolent
    crack cocaine sales, life in prison. Life in prison. Many
    others just like it. It went way beyond any deterrent effect
    and really reflected our desperation to bring this under
    control.
        Many judges commented, as they were forced by our mandatory
    minimum sentences and other guidelines, they didn't feel
    justice was being served in our courts when they imposed these
    sentences. I know several of those judges personally who talked
    to me at the time.
        Since then, I have tried to correct my mistake, and we
    passed two reforms of the sentencing law. Senator Grassley was
    my partner in the most significant one, the First Step Act, and
    Fair Sentencing before that.
        I'd like to ask the four of you who are aspiring to these
    district court judgeships, what lesson we should have learned
    from this experience? Judge Pan.
        Judge Pan. Thank you for the question, Senator. I think
    that you raise a question of deep significance that affects
    many people. The lesson that I've learned from what you've just
    said is that the legislature can learn from mistakes and seek
    to correct them through the legislative process. I think that's
    a very positive thing for the legislature to undertake.
        Of course, as a judge, this is not the kind of thing that
    we can address as a policy matter. I think sentencing
    considerations before judges are done on a case-by-case,
    individual, basis, and we are required to look at the facts of
    each case. From a judge's perspective, I think that making the
    sentencing guidelines no longer mandatory, now voluntary, is
    another thing that's been helpful in this regard.
        Chair Durbin. There are sentencing enhancements that are
    suggested by the Government in many cases. Does that come into
    play? That's a discretionary decision by the judge.
        Judge Pan. Yes. Of course, as a judge, and in performing
    the function of sentencing, which is so important because the
    liberty of another person is at stake, a judge must consider
    all the relevant factors, including the requests of the
    Government, and weigh all of that under the totality of the
    circumstances.
        Chair Durbin. Judge Williams.
        Judge Williams. Senator, my understanding of how, as a
    judge, if confirmed as a district court judge to deal with it,
    is informed by my handling of some misdemeanor cases, clearly
    not on point with addressing the crack cocaine issue. As I
    agree with Judge Pan, that's an issue for the legislature.
        What we have learned, what we learn and know as judges, is
    that we have guidelines to follow, 3553(a) allows judges to
    interact with a very, very seasoned and skilled probation
    office that helps inform and supply us with the information
    necessary to work through those guidelines on individual cases.
    I've done that in misdemeanor cases for individuals charged
    with crimes. Should I be confirmed, I look forward to working
    with our many talented probation officers as I work through the
    Sentencing Act in the role of sentencing as a district court
    judge.
        Chair Durbin. Judge Merriam.
        Judge Merriam. Thank you, Senator. When I was in the
    Federal Defender's Office, I was there when the initial changes
    in the crack/powder disparity went into effect. I was heavily
    involved in the process of organizing the district, which meant
    everyone. That was the prosecutors, and the probation office,
    and the judges, and the Marshals Service, and the defense bar
    to make those changes applicable to the clients where it was
    appropriate as quickly and efficiently as possible to try to do
    the justice on the ground that the legislature had seen fit to
    put in place.
        Those changes have certainly made a real difference over
    the years. At the end of the day, we're bound, now, other than
    by the mandatory minimums, by 3553(a), which is, as Judge
    Williams referenced, very broadly encompassing the kinds of
    factors and the kinds of considerations a judge can take into
    account. That discretion is an awesome one, and an important
    one, and allows judges, I think, to work within the law to try
    to do justice.
        Chairm Durbin. Ms. Cobb.
        Ms. Cobb. Thank you. It's hard to improve upon the
    responses that have been given. I think what struck me most
    about what you said is the fact that this body was paying
    attention to what was happening in the courts, and I think
    that's extraordinarily important. When laws are passed,
    particularly that provide criminal penalties, whether they be
    mandatory minimums or otherwise, to pay attention to kind of
    what the effect is on the ground once those laws are
    implemented.
        I know that the Sentencing Commission does some work in
    compiling statistics. I really think it's important to, you
    know, continue to pay attention to what's happening after these
    laws are passed.
        Chair Durbin. Let me just add one other thing that has
    changed the conversation. Twenty or 15 years ago, if you would
    have said, ``Oh, did you hear about that person who overdosed
    on drugs last night?'' the most common answer would be, ``No. I
    didn't. Was it an African American? Inner city? A man between
    20 and 35?'' You would have been right in most cases. Not
    anymore.
        When we talk about drug overdoses now, it could have been
    that cheerleader at the all-white high school in the suburbs.
    Drug addiction has how reached every corner of America. We're
    starting to look at it anew. It is no longer, ``Just say no.''
    We realize it is a medical problem, a disease. We haven't
    responded with the adequate resources to deal with addiction. I
    hope we will in the future. The conversation on drugs has
    changed in America because the victims have changed pretty
    dramatically. That is going to be part of the reality that I
    hope you soon will be dealing with in your new positions.
        I thank you for your cooperation at this hearing. It's been
    an important one. You may receive some written questions in the
    near term.
        Is there anything else I need to do formally?
        He wants me to read it and make sure you understand this.
    Questions for the record will be due to the nominees by 5 p.m.
    on Wednesday, July 21. The record will remain open until that
    time to submit letters and similar materials.
        With that, the hearing is adjourned. Thank you all very
    much.
        [Whereupon, at 12:54 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

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