[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
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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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