[Senate Hearing 117-168]
[From the U.S. Government Publishing Office]
S. Hrg. 117-168
NOMINATIONS FOR MARY KATHERINE DIMKE,
CHARLOTTE N. SWEENEY, HOLLY A. THOMAS,
MAAME EWUSI-MENSAH FRIMPONG,
JENNIFER L. THURSTON AND HERNAN D. VERA
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
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OCTOBER 20, 2021
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Serial No. J-117-8
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
55-153 WASHINGTON : 2024
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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OCTOBER 20, 2021, 10:03 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Padilla, Hon. Alex, a U.S. Senator from the State of California.. 1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 2
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 3
INTRODUCERS
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 5
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado....................................................... 6
Hickenlooper, Hon. John W., a U.S. Senator from the State of
Colorado....................................................... 26
STATEMENTS OF THE NOMINEES
Witness List..................................................... 34
Dimke, Mary Katherine, nominated to be a United States District
Judge for the Eastern District of Washington................... 27
Frimpong, Maame Ewusi-Mensah, nominated to be a United States
District Judge for the Central District of California.......... 27
Sweeney, Charlotte N., nominated to be a United States District
Judge for the District of Colorado............................. 28
Thomas, Holly A., nominated to be a United States Circuit Judge
for the Ninth Circuit.......................................... 8
Thurston, Jennifer L., nominated to be a United States District
Judge for the Eastern District of California................... 29
Vera, Hernan D., nominated to be a United States District Judge
for the Central District of California......................... 30
QUESTIONS
Questions submitted to Mary Katherine Dimke by:
Ranking Member Grassley...................................... 45
Senator Hirono............................................... 55
Senator Cruz................................................. 41
Senator Sasse................................................ 56
Senator Hawley............................................... 48
Senator Cotton............................................... 39
Senator Tillis............................................... 35
Senator Blackburn............................................ 40
Questions submitted to Maame Ewusi-Mensah Frimpong by:
Ranking Member Grassley...................................... 71
Senator Hirono............................................... 83
Senator Cruz................................................. 64
Senator Sasse................................................ 56
Senator Hawley............................................... 76
Senator Cotton............................................... 62
Senator Tillis............................................... 58
Senator Blackburn............................................ 63
Questions submitted to Charlotte N. Sweeney by:
Ranking Member Grassley...................................... 96
Senator Hirono............................................... 107
Senator Cruz................................................. 90
Senator Sasse................................................ 56
Senator Hawley............................................... 100
Senator Cotton............................................... 88
Senator Tillis............................................... 84
Senator Blackburn............................................ 89
Questions submitted to Holly A. Thomas by:
Chair Durbin................................................. 113
Ranking Member Grassley...................................... 119
Senator Hirono............................................... 132
Senator Cruz................................................. 114
Senator Sasse................................................ 56
Senator Hawley............................................... 124
Senator Cotton............................................... 111
Senator Tillis............................................... 108
Senator Blackburn............................................ 112
Questions submitted to Jennifer L. Thurston by:
Ranking Member Grassley...................................... 143
Senator Hirono............................................... 153
Senator Cruz................................................. 139
Senator Sasse................................................ 56
Senator Hawley............................................... 146
Senator Cotton............................................... 137
Senator Tillis............................................... 133
Senator Blackburn............................................ 138
Questions submitted to Hernan D. Vera by:
Ranking Member Grassley...................................... 164
Senator Hirono............................................... 176
Senator Cruz................................................. 160
Senator Sasse................................................ 56
Senator Hawley............................................... 169
Senator Cotton............................................... 158
Senator Tillis............................................... 154
Senator Blackburn............................................ 159
ANSWERS
Responses of Mary Katherine Dimke to questions submitted by:
Ranking Member Grassley...................................... 177
Senator Hirono............................................... 221
Senator Cruz................................................. 190
Senator Sasse................................................ 222
Senator Hawley............................................... 200
Senator Cotton............................................... 187
Senator Tillis............................................... 227
Senator Blackburn............................................ 186
Responses of Maame Ewusi-Mensah Frimpong to questions submitted
by:
Ranking Member Grassley...................................... 235
Senator Hirono............................................... 294
Senator Cruz................................................. 257
Senator Sasse................................................ 295
Senator Hawley............................................... 275
Senator Cotton............................................... 254
Senator Tillis............................................... 302
Senator Blackburn............................................ 250
Responses of Charlotte N. Sweeney to questions submitted by:
Ranking Member Grassley...................................... 311
Senator Hirono............................................... 350
Senator Cruz................................................. 324
Senator Sasse................................................ 351
Senator Hawley............................................... 334
Senator Cotton............................................... 321
Senator Tillis............................................... 354
Senator Blackburn............................................ 320
Responses of Holly A. Thomas to questions submitted by:
Chair Durbin................................................. 362
Ranking Member Grassley...................................... 365
Senator Hirono............................................... 420
Senator Cruz................................................. 382
Senator Sasse................................................ 421
Senator Hawley............................................... 397
Senator Cotton............................................... 379
Senator Tillis............................................... 425
Senator Blackburn............................................ 377
Responses of Jennifer L. Thurston to questions submitted by:
Ranking Member Grassley...................................... 432
Senator Hirono............................................... 473
Senator Cruz................................................. 443
Senator Sasse................................................ 474
Senator Hawley............................................... 452
Senator Cotton............................................... 440
Senator Tillis............................................... 479
Senator Blackburn............................................ 439
Responses of Hernan D. Vera to questions submitted by:
Ranking Member Grassley...................................... 486
Senator Hirono............................................... 528
Senator Cruz................................................. 501
Senator Sasse................................................ 529
Senator Hawley............................................... 512
Senator Cotton............................................... 498
Senator Tillis............................................... 536
Senator Blackburn............................................ 496
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Support for Mary Katherine Dimke:
American Bar Association (ABA), September 30, 2021........... 546
Benton & Franklin County Bar Association (BFCBA), October 14,
2021....................................................... 555
Confederated Tribes and Bands of the Yakama Nation, October
4, 2021.................................................... 565
Davis Wright Tremaine, LLP, September 28, 2021............... 548
Federal Bar Association of the Eastern District of
Washington, October 19, 2021............................... 566
First Step, Community Counseling Services.................... 557
IOWA, College of Law from Alison K. Guemsey, October 17, 2021 562
Kennewick Police Department, October 4, 2021................. 559
Letter from Judge Roger S. Rogoff (Ret.) Microsoft
Corporation, September 22, 2021............................ 553
Letter in support of Mary K. Dimke from Rick Hoffman, October
1, 2021.................................................... 550
Letter in support of Mary K. Dimke from Michael C. Ormsby,
October 5, 2021............................................ 560
Letter in support of Mary K. Dimke from Darrell W. Zorn,
October 8, 2021............................................ 558
Remarks from Senator Maria Cantwell, October 20, 2021........ 547
Support for Maame Ewusi-Mensah Frimpong:
American Bar Association (ABA), from Hon. Ann Claire Williams
(Ret.), October 19, 2021................................... 579
State of California, Court of Appeal, October 15, 2021....... 571
Signature Resolution, October 17, 2021....................... 575
The Superior Court, County of Los Angeles from Judge James R.
Brandlin, October 15, 2021................................. 569
The Superior Court from Judge Kevin C. Brazile, October 15,
2021....................................................... 573
The Superior Court, County of Los Angeles from Judge Daniel
J. Buckley, October 19, 2021............................... 580
The Superior Court, County of Los Angeles from Judge Rupert
A. Byrdsong, October 15, 2021.............................. 582
The Superior Court, County of Los Angeles from Judge Samantha
P. Jessner, October 19, 2021............................... 583
The Superior Court, County of Los Angeles from Judge Carolyn
B. Kuhl, October 18, 2021.................................. 585
The Superior Court, County of Los Angeles from Judge Sam
Ohta, October 18, 2021..................................... 577
The Superior Court, County of Los Angeles from Judge Sergio
C. Tapia II, October 18, 2021.............................. 587
Support for Charlotte N. Sweeney:
American Bar Association (ABA), from Hon. Ann Claire Williams
(Ret.), October 15, 2021................................... 597
Letter in support of Charlotte Sweeney, September 3, 2021.... 589
Letter in support of Charlotte Sweeney, September 17, 2021... 590
Matthew Shepard Foundation, September 14, 2021............... 596
National Employment Lawyers Association, October 19, 2021.... 598
University of Denver, Sturm College of Law, September 24,
2021....................................................... 592
Williams & Rhodes LLP, from Rhonda Rhodes, Attorney at Law,
September 28, 2021......................................... 594
Support for Holly A. Thomas:
Alliance for Justice, October 18, 2021....................... 600
American Bar Association (ABA), from Hon. Ann Claire Williams
(Ret.), October 18, 2021................................... 605
LDF, Defend Educate Empower, October 19, 2021................ 609
National Council of Jewish Women (NCJW), October 19, 2021.... 608
People for the American Way, October 18, 2021................ 602
The Leadership Conference on Civil and Human Rights, October
18, 2021................................................... 606
Support for Jennifer L. Thurston:
American Bar Association (ABA), from Hon. Ann Claire Williams
(Ret.), October 19, 2021................................... 619
California Women Lawyers (CWL), October 22, 2021............. 622
King & Spalding, October 18, 2021............................ 618
Letter for support of Jennifer L. Thurston from David F.
Levi, October 18, 2021..................................... 616
Marderosian & Cohen, October 14, 2021........................ 613
Miles, Sears & Eanni, Law Offices, October 21, 2021.......... 620
Submitted support for Hernan D. Vera:
American Bar Association (ABA), from Hon. Ann Claire Williams
(Ret.), October 19, 2021................................... 633
Bird Marella, Paul S. Chan, October 12, 2021................. 624
Inner City Law Center, October 13, 2021...................... 629
Mexican American Bar Association of Los Angeles County,
October 14, 2021........................................... 626
O'Melveny & Myers LLP, Mark Samuels, October 15, 2021........ 627
South Asian Bar Association of Southern California (SABA-SC),
October 19, 2021........................................... 634
State Justice Institute (SJI) board members, October 12, 2021 631
NOMINATIONS FOR MARY KATHERINE DIMKE,
CHARLOTTE N. SWEENEY, HOLLY A. THOMAS,
MAAME EWUSI-MENSAH FRIMPONG,
JENNIFER L. THURSTON AND
HERNAN D. VERA
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WEDNESDAY, OCTOBER 20, 2021
United States Senate
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Alex Padilla,
presiding.
Present: Senators Padilla [presiding], Durbin, Whitehouse,
Blumenthal, Hirono, Booker, Ossoff, Grassley, Lee, Cruz,
Hawley, Kennedy, Tillis, and Blackburn.
Also present: Senators Murray, Bennet, and Hickenlooper.
OPENING STATEMENT OF HON. ALEX PADILLA,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Padilla. Good morning. This hearing will come to
order.
I want to thank you all for joining us for this hearing of
the Senate Judiciary Committee. My name is Senator Alex
Padilla. I've been asked by Senator Durbin to Chair today's
hearing, and I thank him for this opportunity as we will be
hearing from six outstanding judicial nominees: Judge Holly
Thomas for the Ninth Circuit, Judges Maame Frimpong and Hernan
Vera for the Central District of California, Judge Jennifer
Thurston for the Eastern District of California, Judge Mary
Katherine Dimke for the Eastern District of Washington, and
Charlotte Sweeney, who is joining us remotely for the District
of Colorado. Welcome to each of you and to your loved ones and
thank you all again for joining us.
Before we introduce these outstanding nominees, I'd like to
say a few words of thanks to my colleagues on this Committee.
You know, in the past 9 months, we've made incredible progress
helping the President reshape the Federal judiciary to better
reflect the people and the needs of our Nation. For too long,
corporate lawyers and former prosecutors had been
overrepresented on the Federal bench.
Let me be clear. Their expertise is valuable and important,
and I've been proud to support the nomination of some of these
nominees this year. We also need the knowledge of legal
professionals who have taken other paths: public defenders who
uphold the constitutional commitment that every person deserves
fair representation; public interest lawyers who defend
fundamental rights and the rule of law; consumer and voting
rights attorneys; labor and local government lawyers; and so
many others who serve diverse clients, advocate for different
interests, and bring critical insights on how everyday
Americans interact with the law.
We need all these perspectives to rebalance our Federal
courts, and hopefully strengthen public confidence in the
fairness of their rulings. A Federal bench that includes more
diverse voices provides better justice for all. This Committee
has answered that call, working alongside the President to
quickly process nominations of a new generation of
professionally diverse, outstanding legal thinkers.
We're also building a Federal bench with a greater
diversity of lived experiences. We've heard from and advanced
nominees who are immigrants and children of immigrants,
nominees who identify as LGBTQ, religious minorities, diverse
in race, ethnicity, and gender. Of course, we still have a long
way to go, and much more work to do.
Two hundred and thirty judges were appointed to the Federal
courts during the previous administration. More than 80 percent
of them were white, and nearly 80 percent of them were men. We
must continue working together to confirm a Federal judiciary
that better reflects the Nation it serves. As the first Latino
to represent the State of California in the U.S. Senate, I have
a particular appreciation for the importance of diversity in
all areas of Government. Our country is stronger and fairer
when our Government reflects the voices and the experiences of
all our people.
I'm proud of the work we've done so far to advance that
goal on the Federal bench, and I'm committed to keeping up our
critical work.
Before I have the pleasure of introducing several of our
nominees, I'd like to invite Ranking Member Grassley to offer
his opening statement.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Senator Padilla. Of these six
nominees, one is from the Ninth Circuit, five for District
Courts, California, Colorado, and Washington. Several of the
nominees have long histories of working in civil rights issues,
but also working as progressive activists.
Of course, civil rights lawyers can make very great judges.
After all, 30 years ago, the Senate confirmed a civil rights
lawyer to the Supreme Court. That's Justice Clarence Thomas. He
spent nearly a decade leading the Equal Employment Opportunity
Commission and Assistant Secretary of Education in the Office
of Civil Rights.
The dark money groups pushing this administration's
nominees aren't big fans of Justice Thomas. I like to think
it's because they oppose his judicial philosophy. He's
demonstrated a commitment to originalism and textualism. He's
consistently, evenhandedly upheld the rule of law. Liberal
activist groups like Demand Justice seem to have adopted the
opposite philosophy. They start with the answer they want and
work backward to what the legal rule should be regardless of
what Congress wrote in the statutes to say.
I hope to hear from the nominees today about the approach
that they would bring to the bench. It would be a nice surprise
to find that this administration nominees were committed to the
rule of law and civil rights as Justice Thomas was.
Today's nominees, thank you very much for being here, for
testifying, and we compliment you on your nomination and
welcome your families, as well.
For the benefit of the leadership of this Committee, as
well as my Republican colleagues, I'm going to be here through
the Ninth Circuit nominee to ask questions. Then I go to the
Judiciary Committee. We have a vote. I hope I get back in time
to ask questions of the District Court nominees. For my
Republican colleagues, if I'm not here, I hope some Republican
will take leadership of the Republicans. Thank you.
Senator Padilla. Thank you, Ranking Member Grassley. We've
been joined by Chair of the Committee, Senator Durbin. Senator
Durbin, any opening remarks?
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Thank you, Mr. Chairman and Senator Grassley.
I want to begin by thanking both of you for Chairing today's
hearing for the six nominees of our California seats, and I
want to thank Senators Padilla and Feinstein, as well as their
staff effort to fill these vacancies.
I'm pleased to welcome our six nominees and their families.
I could go through the list, but I know that we have colleagues
waiting. I do want to highlight one in particular, Charlotte
Sweeney, who's joining us remotely. Ms. Sweeney unfortunately
tested positive for COVID-19 a few days ago and has decided to
testify by video for obvious reasons. It's a testament to Ms.
Sweeney and her perseverance that she wished to remain on
today's agenda. I wish her a speedy recovery and no doubt the
people of Colorado would be well served by her, and I'm sure
Senator Bennet's going to back that statement up.
All six of the nominees on today's slate will be ready on
day one to be effective, impartial, and even-handed. They
represent an important cross-section of professional
experience. Though five of the six are currently State court or
Federal magistrates, collectively, the six nominees have worked
on civil rights, public interest, and labor law, as attorneys
for State, county, and Federal agencies, including the
Department of Justice, and serving as Federal prosecutors.
Their qualifications are impressive. They understand the
difference between being an advocate and being a judge and the
limited role they assume in the judiciary. Above all, they know
their allegiance to the Constitution and the rule of law. I
welcome all of them and congratulate them on their nominations.
Thank you, Mr. Chairman.
Senator Padilla. Thank you, Chairman Durbin.
It is now my honor to introduce the four nominees from the
great State of California, all highly qualified nominees,
outstanding legal thinkers, and dedicated public servants.
Judge Holly Thomas is a proud San Diego native, and she's
joined today by her husband Dagan, her son Toren, her sister
Megan, and other close friends. Judge Thomas is a dedicated
advocate for equality under law and has made a career fighting
to ensure the civil rights of all Americans.
A graduate of Yale Law School and a former Ninth Circuit
clerk, Judge Thomas spent over 10 years working on civil rights
litigation and appeals, at the NAACP Legal Defense Fund, in the
appellate section of the Department of Justice's Civil Rights
Division, and in the New York Solicitor General's office.
In each of these roles, she was a tireless advocate for
equal justice, a skilled appellate lawyer, an insightful
thinker, and a valued colleague. In 2016, Judge Thomas returned
to California to serve as the chief liaison between the largest
civil rights regulatory body in the State, the Department of
Fair Housing and Employment, and the Governor's office. She
dedicated herself to protecting workers and families from
unlawful discrimination.
Recognizing Judge Thomas' outstanding work in 2018, then-
Governor Brown appointed her to the Los Angeles County Superior
Court. There, Judge Thomas requested to serve in a family law
division because of her great empathy for families, engaging in
difficult court processes.
As the first person in her family to go straight to college
after high school, Judge Thomas knows what it's like to
navigate unfamiliar institutions. As the granddaughter of
sharecroppers, she is a passionate fighter for equal justice.
Judge Thomas' compassion is matched by her legal acumen. I know
she'll serve with distinction as a judge on the Ninth Circuit.
Next, I want to introduce Maame Frimpong--Judge Maame
Frimpong, who is joined today by her husband, Yaw; her parents,
Theodora and Kewku; her in-laws; and other loved ones.
Judge Frimpong, a Los Angeles native, is the proud daughter
and wife of immigrants from Ghana, and a dedicated advocate for
equal justice. A graduate of Harvard College and Yale Law
School, Judge Frimpong learned the value of education from her
grandparents, none of whom had a high school diploma, and
understood at an early age the power and responsibility of
public service.
As a young attorney at the Department of Justice, her work
focused on protecting consumers and holding accountable those
who had done them harm. In 2010, she earned the highest award
presented by the Attorney General for her outstanding
litigation work.
After leaving the Justice Department, Judge Frimpong became
vice president and general counsel for the Millennium Challenge
Corporation, where she worked to fight poverty and strengthen
democracy around the world.
In 2016, Judge Frimpong joined the California Superior
Court for Los Angeles County as an appointee of Governor Brown.
She's known for the empathy and respect that she displays
toward every lawyer and defendant who enters her courtroom, and
she's regarded as a superstar by her colleagues, many who have
submitted letters to this Committee in support of her
nomination.
In addition to her skill and fairness as a jurist, Judge
Frimpong is a dedicated educator, helping students to better
understand the legal system and see the limitless possibilities
of their own careers. Californians of the Central District will
be lucky to benefit from her wisdom and her legal skill.
Next, Judge Jennifer Thurston is here, along with her
husband, Mark, and daughter, Paige.
Judge Thurston earned her law degree as a night student at
California Pacific Law School, balancing the demands of a full
course load with an even greater demand of working and raising
her children. After graduating, Judge Thurston spent a decade
serving as county counsel for Kern County. Her reputation for
diligence and outstanding litigation, skill, earned her an
appointment to serve as a Federal magistrate judge in
Bakersfield, California.
Today, she serves as the Chief Magistrate Judge for the
Eastern District of California, one of the most impacted
dockets in the country. She's known for her leadership, her
fairness, and her work ethic. She's deeply rooted in the
Eastern District's legal community where she has served
admirably as a judge for over a decade, and she's a constant
student of the law, returning to school in 2018 to earn her LLM
from Duke.
With already high caseloads further worsened by the ongoing
pandemic, Judge Thurston's confirmation to the Eastern District
bench cannot come quickly enough.
Finally, I'm proud to intrude Judge Hernan Vera, who is
here along with his wife, Barbara; his mother, Elvira; and his
brother, Leandro.
Judge Vera is a thoughtful jurist who has long demonstrated
his commitment to the rule of law. The son of Argentine
immigrants, Judge Vera earned his undergraduate degree from
Stanford and a JD from UCLA's School of Law. He has since had a
diverse legal career, split between time in corporate law, over
a decade in pro bono legal services, and now as a judge.
In every respect, Judge Vera is known as a star of
California's legal community. His 12 years of service at Public
Counsel, the Nation's largest pro bono law firm, is
particularly notable. First, as director of the Consumer Law
Project, and then as the organization's CEO, Judge Vera worked
tirelessly to expand access to justice for consumers, veterans,
the elderly, and the working poor.
In 2020, Judge Vera was appointed to the California
Superior Court for Los Angeles County by Governor Newsom, where
he adjudicates child dependency cases. Overseeing a high volume
of complex and sensitive cases, Judge Vera dedicates himself to
finding just outcomes in what are often the most difficult of
circumstances. His diverse legal and professional experience
and lessons learned from judicial service will make him a
welcome addition to the Central District's bench.
I urge my colleagues to confirm each of these highly
qualified nominees who have so graciously raised their hands to
serve California and our Nation, and I thank them for their
continued service.
At this time, I'd like to recognize Senator Murray for
introduction of nominees from her State.
STATEMENT OF HON. PATTY MURRAY,
A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Thank you very much, Chairman Padilla,
Ranking Member Grassley.
It is my honor today to introduce Judge Kit Dimke for a
District Court vacancy in the Eastern District of Washington.
To begin, I do want to thank President Biden for nominating
Judge Dimke for this position at my strong recommendation. I
also want to recognize my Nonpartisan Judicial Merit Selection
Committee, chaired by Andy Miller and comprised of top
Washington State lawyers who practice in Eastern Washington,
who so ably guided us in selecting Judge Dimke for this
position.
Let me share a little bit with you about Judge Kit Dimke.
She is currently a Federal Magistrate Judge for the Eastern
District of Washington. She knows the current judges and all
court components well, having served in that role since 2016,
and is a highly respected judicial colleague.
Given this current role, she has substantial experience in
both criminal and civil Federal litigation. She's active in
court governance and local public outreach, and would continue
this type of leadership if confirmed. She serves as the vice
chair of the Ninth Circuit Magistrate Judge Executive Board,
and participates in the court's Judicial Institute,
volunteering to judge the court's civics competition for
students.
She's actively engaged in the court's external outreach
involving the issue of missing and murdered Native American
Indigenous women, a significant and serious problem facing
tribal communities in Washington State. Her entire career has
been in public service, and she previously worked as an
Assistant U.S. Attorney in both the Eastern and Western
Districts of Washington.
A native of Washington State, she grew up in rural Asotin
County as the child of a cattle ranger and a lumber mill owner.
She knows Eastern Washington.
Judge Dimke attended the Running Start Program at Walla
Walla Community College and High School, and went on to obtain
her undergraduate degree from Pepperdine University and law
degree from Vanderbilt.
Judge Dimke is someone who has a proven track record, who's
committed to improving access to the court and will identify
ways for the court to work equitably for all participants and
for each voice to be heard. She has already demonstrated
herself in this way, having, as a magistrate, worked to expand
the court's mediation services, improved and diversified the
court's indigent defense services, and more quickly resolved
one of the top areas of litigation the Eastern District sees,
Social Security Disability appeals.
Judge Dimke is eminently qualified to become a Federal
District Court Judge and will make an excellent addition to the
Federal bench from the Spokane Courthouse. I urge my colleagues
to support her nomination. Thank you very much, Chairman
Padilla and Ranking Member Grassley.
Senator Padilla. Thank you, Senator Murray. Next up is
Senator Bennet, here to introduce Ms. Sweeney.
STATEMENT OF HON. MICHAEL F. BENNET,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Bennet. Thank you. Congratulations, Mr. Chairman,
on your ascension to this role. I also want to thank Chairman
Durbin for allowing me to be here, and Ranking Member Grassley,
as well.
This is a great moment for Colorado, and I'm grateful to
have the chance to join you this morning to introduce Charlotte
Sweeney, President Biden's nominee for the U.S. District Court
for the District of Colorado.
For Charlotte, equality under the law is no abstraction. It
is her life's work. A native of Littleton, Colorado, Charlotte
grew up hiking and skiing with her family on the Rocky Mountain
trails within an hour of their home. Today, she hits the same
trails with the two most important people in her life, her
teenagers, Jordan and Addison.
As much as Charlotte loves our State, she also remembers a
time when it wasn't easy for LGBTQ Coloradoans like herself to
be open about who they were, especially at work. It was a time,
instead of leading the Nation on equality, Colorado actually
passed an amendment that blocked any laws to protect LBGT
people from discrimination. When the Colorado Supreme Court
declared the amendment unconstitutional, Charlotte saw the
power of the law to tip the scales for or against equality, and
she decided to spend the rest of her career on the side of
equality.
After graduating summa cum laude from the University of
Denver College of Law, she joined a small firm that focused on
representing plaintiffs. She rose to become a partner in just 2
years, and just 2 years after that, she became named partner of
the firm. That would have been enough for most people, but
Charlotte kept on going.
In 2008, she started her own firm to represent individuals
in unemployment law cases. In over the past 20 years, Charlotte
has become one of Colorado's top employment attorneys,
representing Federal, State, and private sector workers in
virtually every area of employment law. In one case, she
represented her former law professors at the University of
Denver, who had been paid less than their male colleagues for
decades. She obtained $2.6 million in relief for her clients on
top of their overdue pay raises.
Sadly, that outcome isn't the norm in America, where our
justice system too often sides against workers, even when the
facts of the case are on their side. That is corrosive to the
American people's confidence in the rule of law, and it's why
we need more judges with Charlotte's perspective, seeing the
legal system through the eyes of workers.
Charlotte's obvious credentials, integrity, and much needed
experience more than qualify her for this role, which is why I
strongly support her nomination. Mr. Chairman, if confirmed,
Charlotte would also become the first openly gay woman to serve
as a Federal Judge west of the Mississippi, a powerful
affirmation of America's commitment to opportunity and equality
for all.
I want to thank the Committee for considering this
exceptional nominee, and I urge Members of both parties to send
her to the floor with a strong bipartisan vote.
Senator Padilla. Thank you, Senator Bennet.
Also joining us to offer some introductory marks for Ms.
Sweeney is your other colleague from Colorado, Senator
Hickenlooper, who will be joining us virtually. If we can try
to patch him in via WebEx. He'd be here in person, but as is
often the case around here, has multiple committees meeting at
the same time, so he has a scheduling conflict, but making an
effort to join us virtually. Senator Hickenlooper, are you with
us?
In the meantime, Senator Murray, Senator Bennet, thank you
for your introductory remarks. Judge Thomas, if you can come
forward while we give Senator Hickenlooper just a few more
seconds. Otherwise his shot clock will expire, and we will move
on. Okay. He's signing in right now, we're told.
[Long silence.]
He may be very well tied up in questioning in another
committee, so we will move on, and if he's able to join us
later in today's hearing, we'll certainly make accommodation.
At this point, I want to thank the Senators for their
introductory remarks. We will now proceed to panel one. Judge
Thomas, thank you for being here. Let me ask you to stand and
be sworn in.
[Witness is sworn in.]
Senator Padilla. Thank you. You may be seated.
Judge Thomas, you may now proceed with your opening
statement.
STATEMENT OF HON. HOLLY A. THOMAS, NOMINEE TO SERVE
AS UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Judge Thomas. Thank you. I'd like to begin by thanking
Chairman Durbin, Ranking Member Grassley, and Members of the
Committee for considering my nomination today. Thank you as
well to Senators Feinstein and Padilla for your support, and
Senator Padilla for your kind introduction and for Chairing
this Committee this morning. Of course, I would like to thank
President Biden for the honor of this nomination.
Sitting here before you today, I feel the presence of so
many, who through their love and support have carried me into
this room: my grandmother Ida, born a sharecropper in North
Carolina, who stood proudly beside me at my law school
graduation; my father, Keith, the hardest working person I
know, a school custodian all my youth who worked as a chauffer
at night to help put me through Stanford; and my mother, Venus,
a retired bookkeeper.
Although my mother, like my father, had not gone to
college, and although she had no connection to the law, when I
told her at the age of five that I wanted to be a lawyer, she
started taking me to court so that I could begin to learn about
the legal system. My reverence for the Constitution, my
admiration for the judicial process, and my profound respect
for the rule of law, it all started there and beside her.
To my parents and my other family members, to my friends
and colleagues, both here and supporting me at home, thank you.
I would especially like to thank my sister Megan, who is here
today representing our parents and our family who were not able
to travel to Washington, DC. To my husband, Dagan, and our son,
Toren, who sit here behind me, words are not adequate to
express my love for them. I could not be here without their
support.
It is with an immense spirit of gratitude, and with a love
for this country where the granddaughter of a sharecropper can
sit before the Senate to have it consider her nomination, that
I look forward to your questions for me. Thank you. Thank you,
Senators.
[The prepared statement of Judge Thomas appears as a
submission for the record.]
Senator Padilla. Thank you, Judge Thomas. We will now turn
to questions from the Committee. Each Senator will have 5
minutes to question Judge Thomas, and I will begin.
Judge Thomas, prior to joining California Superior Court
Bench, you had an impressive career as an appellate civil
rights litigator, including time at the NAACP Legal Defense and
Education Fund, the Department of Justice Civil Rights Division
Appellate Section, and the New York Solicitor General's office.
I know you've authored briefs for, and advised on, countless
appellate matters and had a dozen arguments in appellate
courts. Since your appointment to the bench, you've served for
6 months as a pro tem judge of the California Court of Appeal,
publishing seven opinions already.
Would you mind sharing with the Committee how each of these
various experiences will contribute and inform your service on
the Ninth Circuit and make you ready to serve on day one?
Judge Thomas. Thank you, Senator Padilla. I was so
fortunate before being appointed to the Superior Court to have
a really broad background as an appellate advocate for over a
decade, and 14 years as an attorney. I have briefed nearly
three dozen appeals before the United States Courts of Appeals
or the Supreme Court, and a dozen cases before State Courts of
Appeal.
I've argued cases before the United States Courts of
Appeals for the First, Second, Fourth, Fifth, and Ninth
Circuits, and cases before the New York State Supreme Court
Appellate Division. I've handled a broad range of issues
ranging from criminal law and procedure to the employment
rights of our returning service members, to the Prison
Litigation Reform Act. Indeed, earlier this year, I had the
opportunity to sit as a pro tem judge on the California Court
of Appeal, where I sat on nearly two dozen panels and authored
seven unanimous opinions.
I'll bring all of this to bear--I'll bring all of this to
bear if confirmed. I've learned so much from colleagues, so
much from my work, and feel ready for the position to which
I've been nominated. Thank you very much.
Senator Padilla. Thank you. An additional question. Having
served as both an advocate and as a judge, can you speak to the
difference between the two roles and how you undertook the
transition from an advocacy role to jurist upon being appointed
to the bench?
Judge Thomas. Yes. There is a sharp difference between
being an advocate and being a judge. As an advocate, you are
zealously advocating for the views of your client as you're
ethically bound to do. Being a judge is a different task. I
know that as I've sat now as a judge for the past 3 years
including on the Court of Appeal. As a judge, you're looking at
the law. You're looking at the text. You're looking at
precedent, and that is what guides you. It's a very different
task. It's one that I willingly accepted when I was appointed
as a judge to the Superior Court.
Senator Padilla. Thank you. An additional question. Since
your 2018 appointment to the Superior Court, you spent the bulk
of your judicial service in the Family Law Division, an
assignment which I understand you requested. In that role,
you're responsible for managing at times 15 to 20 matters per
day, an immense workload for any judge. Considering your
breadth of legal experience, you certainly could have served in
many of the Los Angeles Superior Court's Divisions. Why'd you
request to go specifically to the Family Law Division?
Judge Thomas. Thank you for the question, Senator Padilla.
Throughout my 14 years and as an appellate advocate, one of the
things that I always enjoyed was taking on new and complex
issues and challenging myself. Family law offers all of that.
We deal with complex issues of property, financial issues,
civil law issues. That's something that I've enjoyed. Beyond
that, I saw, Senator Padilla, the importance of joining my
colleagues in the work of listening, the work of really hearing
the litigants who come before us, making sure that their claims
are understood, and that in decision after decision, case after
case, I'm offering litigants a clear statement of why the law
has commanded me to reach the result that I've reached.
It doesn't mean that everybody agrees. It doesn't mean that
everybody is happy. My goal is that everyone walks out of my
courtroom feeling respected and feeling that the work of
justice has been done.
Senator Padilla. Thank you. Senator Grassley.
Senator Grassley. Yes. Congratulations on your nomination.
As we usually do, you made some statements in the past that I
want to make some questions to you about.
Last week, we learned that the Loudoun County School Board
in Virginia covered up the fact that a male wearing a skirt had
sexually assaulted a 14-year-old girl in the girls' bathroom at
the school. The same boy allegedly later assaulted another girl
at a different school. In 2016, you argued in multiple briefs
that concern about the safety of young girls in school
bathrooms were unfounded. In one brief you argued this, quote,
``No data or tangible evidence in support of that claim that
allowing people to use bathrooms corresponding with their
gender identity will lead to increased violence or crime.''
In light of the troubling news about Loudoun County, do you
still believe that concerns about safety and privacy,
especially for young girls in school bathrooms, are valid?
Judge Thomas. Thank you for the question, Senator Grassley.
When I was an advocate and at the New York Solicitor General's
Office, in that case, I advocated the views of my clients. We
filed a brief, taking a certain position.
I'm not familiar with the case that you just mentioned.
What I will say is that as a judge, I know that my role is to
set aside whatever it is that I did as an advocate and be
guided only by the law. That, I promise you, is what I do now
and what I will continue to do if confirmed. I'll be guided by
the law. I'll be guided by precedent. I'll be guided by the
record before me, and nothing else.
Senator Grassley. Okay. You may give the same answer to my
next question, and if you want to not repeat it, you don't have
to if it's the same answer.
In a brief arguing against the North Carolina school
bathroom law, you suggested, quote, ``privacy curtains and
separate''--also quoting--``changing spaces would be sufficient
to protect school-age girls from predatory acts in a
bathroom.''
How would privacy curtains or changing spaces have
prevented the sexual assault in Loudoun County? I guess you
said you didn't know much about that. It's really hit the news
out here, so I'm going to go onto another question.
Does Federal law require private businesses to provide
access to restrooms and locker room facilities that align with
an individual gender identity and gender expression?
Judge Thomas. Thank you for the question, Senator Grassley.
That's an issue that I understand is one being debated. It's
one being litigated. As a sitting judge, and as a judicial
nominee bound by codes of conduct, I can't comment for you on
what I think or how I think the law would resolve those issues.
What I can commit to you again is that as a judge now and
as a judge on the Court of Appeals, if confirmed, what will
guide me is the Supreme Court precedent and the law. I take
each case as they come, one by one. I look at the record. I
look at the facts. That's how I make my decision on that, and
on nothing else. Thank you.
Senator Grassley. In Simmons v. Galvin, you argued that a
law banning felons from voting in election does not violate
Section 2 of the Voting Rights Act. Do you still believe that,
quote, ``neutrally designed and enforced'', end of quote,
voting laws are generally not subject to challenge under
Section 2?
Judge Thomas. Thank you, Senator Grassley. The United
States did take that position in Simmons v. Galvin, and I was
counsel on that brief. Section 2, as you're aware, requires
totality of the circumstances analysis. It's very case-
specific. The Supreme Court has made that clear.
Any issue regarding Section 2 that came before me I would
handle in that way, by taking a really case-specific look at
the totality of the circumstances guided by Brnovich, which the
court has set forth five factors for courts to consider. That's
how I would be led. I'd be looking at those--at those factors.
Senator Grassley. Okay. This will have to be my last
question. In 2019, you reversed a juvenile court's order
requiring substance abuse awareness and treatment as a
condition for a drug dealer to have custody of his children.
The man was found with large quantities of fentanyl and
methamphetamine. He was also found with medicine to treat
accidental overdose.
Despite this, you found that the juvenile court had abused
its discretion by requiring the awareness and treatment
programs. Can you explain why it is an abuse of discretion to
require drug dealers caught with large quantities of fentanyl
and other deadly drugs to undergo awareness and treatment
before being allowed to have custody of children?
Judge Thomas. Thank you for the question. As I wrote in
that opinion, and it was a unanimous opinion of our panel, what
the matter turned on was that there has to be, under California
law, a connection between the disposition and between the
actions that led to the dependency of the children.
In that case, I wrote that the father's actions could be
the basis for a great many orders by the juvenile court, but
that as substance abuse by the father was not a condition that
led to the dependency under controlling California law,
substance abuse treatment for the father was not appropriate,
but the decision left open to the juvenile court further
actions to address the issues that you mentioned. Thank you.
Senator Padilla. Thank you, Senator Grassley. Senator
Durbin.
Chair Durbin. Thank you, Mr. Chairman. Judge Thomas, thank
you for being with us today.
I understand that you don't want to give us any comments on
pending litigation or potentially pending litigation, so my
questions may be of more philosophical bent to address issues
before us.
Throughout our history in this country, we have struggled
with the issue of race. The Constitution, for all its wisdom,
was deficient, in my view, in that it perpetuated slavery in
the United States and recognized it, at least indirectly. We're
still struggling with that issue today. We hear that debate on
the--in the Judiciary Committee regularly in many different
guises.
You have been involved in the administration of justice and
law enforcement and law throughout your career in legal
services, judicial service, and the like. Tell me, if you will,
whether you think we're making progress in this area, and what
we need to do to make sure that every American, regardless of
their race, feels that they're going to be treated fairly under
our system.
Judge Thomas. Thank you for that question, Senator Durbin.
I think it's so important that our society is discussing these
issues. I think it's so important that policymakers discuss
these issues.
As a judge, what I fully feel duty bound to focus on are
the litigants who come before me and ensuring that in every
case that I hear every day, that the people who come into my
courtroom understand that it's the law that drives the outcome
of their cases, not personal viewpoints, not anything else but
the law. That I give them a clear explanation so that they have
confidence, whether they're happy or not, whether they agree or
not, that the process of justice has been done in their case.
I feel it's important to listen to the litigants, to truly
hear the litigants, to listen with an open mind to their
arguments, and to ensure that I am carrying out my duties to
make the process of justice actually fair, but also feel fair
to the litigants who come before me.
Chair Durbin. Thank you for that. I just want to add,
because it happens with great frequency on both sides of the
table here in the Judiciary Committee, that those who come
aspiring to judicial office are often reminded of their work as
attorneys before, as advocates before representing clients.
Sometimes those of us who have been in private practice
understand you may not agree personally with your client, but
you're duty bound professionally to do your best to represent
them short of misrepresentations of fact.
I recognize your earlier answers about specific cases
you've been involved in. It brings that again before this
Committee. I thank you for being here today. Thank you, Mr.
Chairman.
Senator Padilla. Thank you, Senator Durbin. Senator
Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Judge, congratulations. I'm not going to ask you to comment
on any Supreme Court precedent or how you're going to rule on
cases. I just want to try to, as Senator Durbin suggested, get
to know you a little bit.
You serve right now on the Los Angeles County Superior
Court, is that right?
Judge Thomas. Yes, it is. Thank you.
Senator Kennedy. Is the Los Angeles County Superior Court,
in your opinion, systemically racist?
Judge Thomas. Thank you for that question, Senator Kennedy.
I think that questions regarding racism, regarding systemic
racism, again are very important ones for policymakers to be
focused on.
I'm focused on my day-to-day work as a judge on the cases
that come before me, and I think that I best serve my duty as a
judge by keeping that rigorous focus.
Senator Kennedy. Yes, ma'am. I'm sorry to interrupt you,
but we have so little time and I've got several questions. Do
you consider the court to be systemically racist? You sit on it
right now. Or not?
Judge Thomas. Again, Senator Kennedy, I feel that I best
serve my duty as a judge by focusing on the individual cases
that come before me, individual questions----
Senator Kennedy. I know. The court as an institution. I
mean, I think it's a pretty straightforward question. Is it
systemically racist, or not, the Los Angeles County Superior
Court?
Judge Thomas. I understand your question, but I think that
those kinds of questions are best left to policymakers, and
that as a judge, that what I need to do is to focus on my
cases.
Senator Kennedy. Okay. I understand. You don't want to
answer it. I get it.
Explain the Erie Doctrine to me. You're going to see that a
lot on the Ninth Circuit.
Judge Thomas. Thank you for that question, Senator Kennedy.
In my 14 years as an attorney, as appellate advocate having
handled many different cases, I never had a case regarding the
Erie Doctrine. I'm sure I learned about it in law school. I
don't recall it sitting here before you now. I am certain that
I'd be able to look it up and find the answer for you.
Senator Kennedy. Are you familiar with Erie v. Tompkins?
Judge Thomas. I am familiar with the existence of the
decision. I'm sure that I read it in law school. I haven't read
it recently.
Senator Kennedy. Okay. All right. Name a public policy that
you think is a good idea but is unconstitutional.
Judge Thomas. Thank you for the question. Given that I am a
sitting judge and a judicial nominee bound by Codes of Conduct,
I don't think it would be appropriate for me to comment on
policies that I believe are constitutional or unconstitutional.
Senator Kennedy. No, I'm not asking you to do that. I'm
saying, tell me a policy that you like that has already been
declared by the courts that's unconstitutional.
Judge Thomas. Oh, thank you, Senator Kennedy. I, as a judge
now, and again if confirmed, am bound to follow Supreme Court
precedent. I'm bound to follow Ninth Circuit.
Senator Kennedy. I know that, and I'm running out of time.
If you don't want to answer, I get it. I've got other
questions. Can----
Judge Thomas. Well, it's not--I'm sorry.
Senator Kennedy. Can you name me a public policy--I'm not
debating the legality of it; I'll stipulate that it's
unconstitutional--that you think is a good public policy
regardless?
Judge Thomas. Thank you. In my view, I am not served, and
my oath is not served, by me commenting about my personal
views, because my personal views don't drive what I do as a
judge, which is to follow the law in every case without
reservation, whether I think something is a good or a bad
policy.
Senator Kennedy. Okay. I'm running out of time, Judge. I
still don't understand any of your answers. Let me try one
more.
Here's a hot topic. Tell me the legal basis for a universal
injunction.
Judge Thomas. Thank you. Injunctions are governed by
Federal Rule of Civil Procedure 65. The court has said that
injunctions are an extraordinary remedy, and I understand that
they are.
The legal basis for a universal injunction or a nationwide
injunction is whether it is necessary to give the plaintiffs
complete relief, but without imposing an undue burden on the--
--
Senator Kennedy. Is that caselaw or constitutional law?
Judge Thomas. That's caselaw.
Senator Kennedy. What's the cases? What are the cases?
Judge Thomas. I can't cite for you the specific case, but
I've reviewed cases about universal injunctions, and understand
again that that's an extraordinary remedy, very fact-bound
determination about whether those should be issued.
Senator Kennedy. Okay. Thank you, Mr. Chairman.
Judge Thomas. Thank you.
Senator Padilla. Thank you, Senator Kennedy. Before
recognizing Senator Blumenthal, let me just observe there's no
additional Republican Senators in the Committee room at this
time. After Senator Blumenthal, if one does arrive, obviously a
Republican Senator would be next to ask questions. If not, we
will wait briefly before moving on to the second panel. If the
staff would please keep us advised, it'd be helpful and
appreciated. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
your service, Judge Thomas, and thank you for being here today.
Congratulations to you and your family.
I think we left open the question of what the Erie Doctrine
is. You and I, as graduates of the Yale Law School, probably
took the same procedure course, maybe not taught by the same
professor. The Erie Doctrine actually is the principle from
Erie v. Tompkins that Federal courts apply to Federal Rules of
Civil Procedure, but State substantive law including State
common law. Just for the record, I had to look it up, too.
Congratulations to Senator Kennedy for educating us all.
I'd like to know from you what impact your going to court
as a child had on your perspective about your own career
choices and whether you'd recommend it for other parents to do,
given its impact on you.
Judge Thomas. Thank you for that question. The opportunity
to go and sit in courtrooms beside my mom, it changed my life.
I wouldn't be sitting here today without having had those
experiences. You get to see firsthand that promise that's
written on the front of the Supreme Court, ``Equal justice
under law.'' You see judges doing the hard work, day after day
of listening to people with heavy case volumes, but of making
sure they understand people's claims, and making sure that the
folks who come into the courtroom understand where--what the
law commands the judge to do.
I just think that it is, for young children as it was for
me, a beautiful representation of what our democracy is about,
and I absolutely recommend it.
Senator Blumenthal. Let me ask you also about your advocacy
as an appellate lawyer, for example, for the NAACP Legal
Defense Fund. We tend to emphasize here how important it is to
put aside your personal beliefs and your past as an advocate,
but I think also we should encourage people to be advocates,
particularly for public interest groups, regardless of the
public interest cause.
Could you talk a little bit about how that experience
shaped your views of the law, knowing that you're going to put
aside your personal views as a--as a member of the Ninth
Circuit Court of Appeals?
Judge Thomas. Thank you, Senator Blumenthal. The most
important lessons that I derived from my career was how much
the people who come to court just want a chance to be heard.
Folks don't know what to expect often times when they walk into
a courtroom, whether that be a trial or into a court of appeal.
I think people walk in with fear, with a lot of trepidation,
and I think people just want an opportunity to really have the
judge hear their story.
I'll also say this, that for me, one of the richest aspects
of both my personal life and my professional life has been the
diversity of the professional backgrounds of the colleagues
with whom I work. I work now with public defenders, with folks
who were prosecutors, people who spent their careers in law
firms, people who worked in nonprofits. Each of us bring a
professional perspective that makes the discussion so rich in
the court, and I think it's so important to have that. It's
been important to me personally.
Senator Blumenthal. Thank you very much. Thank you, Mr.
Chairman. Thank you for your service, and congratulations on
your nomination.
Senator Padilla. Thank you, Senator Blumenthal. Next for
questions is Senator Hawley. He's returned. If no other
additional Senators join us, it'll be Senator Blackburn after
him.
Senator Hawley. Thank you very much, Mr. Chairman. Judge,
congratulations on your nomination. Thanks for being here.
I want to come back to an issue that Senator Grassley
raised, and I just want to be sure I understand your position.
I'm thinking about these briefs that you've signed in two
different cases, one in North Carolina, one in Texas. Let me
ask you about the North Carolina case first.
You argued there that Title 7 prohibits disadvantaging
someone because of gender nonconformity, regardless of the
birth-assigned gender or current gender identity. The brief
also suggests that the privacy and safety concerns underly
North Carolina's proposed bathroom separation of boys and girls
are unfounded, and that the State had not demonstrated any
public safety risk.
In the Texas litigation, you said there was no data or
tangible evidence in support of the claim that allowing people
to use bathrooms corresponding with their gender identity will
lead to crime in restrooms.
I have to ask you, in light of what we are seeing in
Loudoun County--there are reports about this in other places,
but it's particularly troubling in light of the recent events
in Loudoun County--where a boy, in late May, who had sexually
assaulted a ninth grade girl in her school's restroom after
identifying as--he identified as being genderfluid. He was
transferred to another school, where a second assault occurred
just earlier this year.
Do you stand by your comments in these briefs that there is
no evidence of violence or crime in restrooms by allowing
biological males to use biological females' restrooms?
Judge Thomas. Thank you for the question, Senator Hawley.
As I explained to Senator Grassley, in every case that I had as
an advocate, it was my duty to represent the views of my
clients. That's what I did in those briefs, which were filed
when I worked for the New York State Solicitor General's
Office.
I was not familiar before this morning with the Loudoun
County incident. Again, what I would say is this: that I
understand well, being a judge now, the difference between
being an advocate, advocating for your clients, and being a
judge who is duty bound, who takes an oath, and one that I take
very seriously, to apply the law to the facts and the record
and to review each matter individually as it comes before you,
and that's what I would do were that issue to come before me if
confirmed.
Senator Hawley. Yes, thank you for that. I understand that,
and I appreciate your role as an advocate. I'm just curious if
you stand by these comments. Do you agree still today that
there is no data or evidence in support of the claim that
allowing people to use bathrooms corresponding with their
gender identity will lead to increased violence or crime in
restrooms? I mean, do you think that that's accurate? You
signed those statements. You filed that brief. Do you think
that that's right?
Judge Thomas. Thank you for that question, Senator Hawley.
Again, at the time that I filed the briefs, I was representing
clients zealously, as I was ethically bound to do. In a new
case, on new facts, I would have to analyze it based upon what
was presented to me, or if sitting on appeal, based on the
record.
Senator Hawley. Well, and I'm asking you to do that now. I
mean, I think this is important. You were actually counsel of
record in the North Carolina case. You signed the brief in the
Texas case. I understand you're representing clients, but of
course, I also understand you have a duty not to sign briefs
that you think are unethical or that misrepresent facts, so I
assume you think that the arguments made in these briefs were
correct and accurate, or you wouldn't have signed them.
Certainly, you wouldn't have been counsel of record.
These are quite dramatic claims that you made in both of
these cases. Now, we have reports in various parts of the
country, but Loudoun County most immediately and most publicly,
about assault by a biological male in a--of a ninth grade girl,
and then a second assault happening. It's exactly what you said
in these briefs wouldn't happen. I just wonder, what would you
say to the parents of this girl who was assaulted in a restroom
at school? She's in ninth grade. I mean, would you maintain to
them that their concerns are unfounded and that they shouldn't
be concerned about what happened? I mean, is that the message?
Judge Thomas. Thank you, Senator Hawley. Sitting here as a
judge, my duty is to review the cases that come before me on
the evidence that comes before me. I can't comment on a case
that's pending, on a case that might come into my courtroom.
Senator Hawley. This case isn't pending before you.
Judge Thomas. I can't comment on a case that's pending
anywhere per the California Code of Judicial Ethics. The only
thing that I can tell you is, again, that I understand that----
Senator Hawley. You know my time is expired, and I don't
mean to interrupt you, Judge. I've got to let somebody else ask
questions. I just want to be clear. You stand by these
comments. You don't think that--you stand by what you filed in
these multiple different cases. You don't think you were wrong
about that. You haven't changed your view. You wouldn't change
anything that you've said and that you've filed, you put your
name to.
Judge Thomas. Again, I as an advocate represented my
clients. I didn't represent my personal views about issues, in
the same way that my personal views don't come into what I do
as a judge. I understand the difference between that advocacy
role that I had then and the judicial role that I hold now.
Senator Padilla. Thank you. Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. Judge Thomas,
congratulations on your nomination. Welcome to your family. I
know this is an arduous and intrusive process, and I'm grateful
for your willingness to serve.
You have extensive appellate litigation experience;
principal clients over the past decade have included the U.S.
Government, the states of New York and California. Can you
please characterize for the Committee that experience and its
relevance to your qualifications for this judgeship?
Judge Thomas. Thank you, Senator Ossoff. I was so fortunate
as an appellate advocate to get to work on a broad range of
issues. I worked on criminal law, criminal procedure, on voting
rights, on the employment rights of returning military service
members and the Prison Litigation Reform Act, on disability
issues. Just a really broad swath of appellate litigation
issues.
I filed briefs, nearly three dozen, in the Courts of Appeal
or before the Supreme Court, argued eight cases in Federal
Courts of Appeals. I bring all of that experience to bear now
in my role as a Superior Court Judge and would bring it to bear
on the Ninth Circuit if confirmed.
I was so fortunate to have the opportunity in case after
case to be able to come up to speed on issues, present argument
sometimes against advocates who had spent their entire careers
in an area of law, and to do so in zealous advocacy for my
clients in each case. Thank you.
Senator Ossoff. Thank you, Judge Thomas. Will you commit to
the Committee that, if confirmed, you will apply and uphold the
law, regardless of your personal policy preferences, with
impartiality and objectivity to the best of your ability?
Judge Thomas. Absolutely. It is the oath that I took when I
joined the court that I am on now. It's the oath that I uphold
every day in my work.
Senator Ossoff. Thank you, Judge Thomas. Could you please
share with the Committee the lessons that you've learned that
you'll apply to a Federal judgeship based upon your experience
as a judge on the Los Angeles Superior Court? How will you
apply that experience to a judgeship on the Ninth Circuit?
Judge Thomas. Thank you for that question, Senator. Most--
some of the most important aspects of what I do now are just
ensuring that every person in every case knows that I have
listened to their claims, made an effort to really understand
their claims with an open mind, and am rendering a decision
that is driven by the law and driven by precedent. That is true
whether I am in my trial courtroom, or whether I'm sitting on
the Court of Appeal as I was earlier this year. That is what
the public wants. It's what they have a right to have from the
court, is a true, fair hearing and a clear statement about why
the law commands the outcome that I've reached.
Senator Ossoff. Thank you, Judge Thomas. I want to drill
down a little bit on a specific case when you were with the
Department of Justice in 2013.
A service member who had deployed to Iraq, when returning
to civilian life, learned that his position had been
eliminated, his employment here in the United States, and that
he'd been effectively demoted at his job due to his deployment.
You filed a brief in support of this service member. The
service member had sued alleging violations of the
antidiscrimination provisions of the Uniformed Services
Employment and Reemployment Rights Act.
Can you tell us a little bit more about that case and about
your work to protect the rights of service members and others
from employment discrimination?
Judge Thomas. Thank you for the question. It was an honor
to be assigned to work on that case where we argued--argued on
behalf of the United States that the Uniformed Services
Employment and Reemployment Rights Act applied to a
discretionary promotion that the service member in question had
missed while he was away on military service. I presented
argument before the First Circuit. I presented a brief to the
First Circuit, and ultimately, that court agreed with the
United States and established a precedent that now applies to
the rights of service members throughout that circuit. Thank
you.
Senator Ossoff. Thank you, Judge Thomas. Thank you for your
testimony. I yield back, Mr. Chairman.
Senator Padilla. Thank you, Ossoff. Senator Lee has
returned. He's next for questions. What a gentleman. Senator
Blackburn will be next for the questions----
Senator Blackburn. All right. Thank you.
Senator Padilla [continuing]. Followed by Senator
Whitehouse, then Senator Lee.
Senator Blackburn. Okay. I thank Senator Lee for that. We
have a Tennessee colleague whose portrait is being unveiled
over on the House side, and I need to run, make some remarks.
Judge Thomas, returning to Senator Hawley's question, I
think that it should not be lost on you how unsettled the
Tennesseans that I represent are by your nomination because of
what you have said about the transgender rights and the assault
that happened in Loudoun County, but there's also been others.
These are things that have been reported.
People want to know that their children are going to be
safe. They want to make certain that you are not going to be an
activist judge. I want you to talk to me for just a minute
about your judicial philosophy, and about activism on the bench
and how you will set that aside, just 20 or 30 seconds on that.
Judge Thomas. Thank you, Senator Blackburn. The oath that
you take when you become a judge, the promise that you make to
the litigants who come before you, is that your personal views
have no role in your decisions. I have been a judge.
Senator Blackburn. You're not going focus on outcome-based
law.
Judge Thomas. Absolutely not. What drives your decisions--
--
Senator Blackburn. Okay.
Judge Thomas [continuing]. Is the text and the law and
precedent.
Senator Blackburn. Okay. Let me ask you about voting
rights, because I had a Tennessean call me early this morning,
and they are very upset about what they hear about Federalizing
of election and doing away with voter ID and stripping States
of responsibility. Because States do have a constitutional
authority, and thereby, they also have the responsibility to
administer their elections in a way that is going to promote
security, is going to promote election integrity. Citizens
expect them to do that, and you have taken the position that a
State does not have the right to reject an application for
voter registration for failure to show proof of U.S.
citizenship, to prove who they are.
This Tennessean this morning was talking to me about how
they have to prove who they are when they pick up a
prescription, when they go to rent a car, when they get on a
plane, sometimes even when they're trying to get to the In-N-
Out Burger to eat inside. They have to prove who they are.
Let me ask you this. We feel like it's an essential part of
the duty to establishing qualifications of voters that they be
a citizen and we know who they are. Why shouldn't States be
permitted to require proof of U.S. citizenship in order for
someone to vote in an election?
Judge Thomas. Thank you for that question, Senator
Blackburn. In Crawford v. Marion County, the Supreme Court
upheld law requiring voter identification. That would certainly
be applicable precedent in any case on that issue that came
before me. The court has also held, however, that Section 2 of
the Voting Rights Act--and that was what was at issue in the
case that you mentioned that I'd litigated on behalf of the
United States, requires a totality of the circumstances
analysis.
In Brnovich, the court held that you have to look, among
other factors, at the size of disparity, the strength of the
State's interest, and----
Senator Blackburn. What you're telling me is you do not
believe someone has to be a U.S. citizen in order to vote.
Judge Thomas. Thank you for that question, Senator
Blackburn. That's not at all what I'm telling you.
What I'm telling you is that in a case that comes before me
regarding voter ID or any other sort of regulation regarding
voting, that I'll apply the Supreme Court precedents in that
area without any hesitation or any reservation whatsoever.
Senator Blackburn. Okay. I've got a couple of other
questions pertaining to your work as an advocate and some of
the issues that you've taken on voting rights and race-based
college admissions. I'm going to submit those to you for
writing, as well as a question that comes from your work as a
registered lobbyist. Thank you so much. Thank you, Mr. Chair.
[The information appears as a submission for the record.]
Senator Padilla. Thank you, Senator Blackburn. Senator
Whitehouse.
Senator Whitehouse. Thank you very much, Chairman. Thank
you so much for being here, Ms. Thomas. Could you tell us about
the John Marshall Award? It's an award that you received at the
Department of Justice during your time in the Civil Rights
Division. What is that award and for what did you receive it?
Judge Thomas. Thank you very much for that question,
Senator Whitehouse.
I am--was very honored to receive from the Department of
Justice, in 2015, a John Marshall Award, which is for providing
legal advice to the Department of Justice. Along with
colleagues at the Department of Justice, I provided advice
about the application of Title 7 to claims of discrimination on
the basis of gender identity, gender transition, or transgender
status.
That's what I was awarded for. The Supreme Court, of
course, held in Clayton v. Bostock County that Title 7 does
cover such claims. I was honored that the Department recognized
my work on that issue. Thank you.
Senator Whitehouse. A little personal history from me.
There were years in my boyhood when I was unusually small
compared to my age group, and that created fairly considerable
difficulties as a boy. Those years I still remember as being
difficult and isolated. All is well, so there's nothing more to
the story than that except that had I had anxieties and
concerns and felt ill at ease about my gender identity, I would
expect that that would be a very difficult thing, as well. When
we talk about these gender identity issues, we often forget
that they arise when people are children, and when they're
still fighting all the difficulties of being a child and being
a teenager, probably even worse.
What is your human advice as to the sentiment with which we
should engage children who are trying to sort their way through
that rather challenging difficulty?
Judge Thomas. Thank you for the question. As a parent
myself, it's hard to think of what words you'd give to another
parent going through challenging times with their child. What I
will say is that as a judge, I think that what our duty is to
all litigants, no matter what views they have, what claims they
are arguing, is to treat them with respect. That is what I
endeavor to do, day after day.
Senator Whitehouse. As a parent and adult, kindness would
make a pretty good watch word too, wouldn't it?
Judge Thomas. I think that it's important, at least in my
courtroom, that I be kind to litigants. I'm not--you can't make
people happy as a judge. That's not the task. You're not
endeavoring that everyone agrees with you. There's nothing
wrong with people coming to court and feeling like they've been
respected by the judge who is hearing their case.
Senator Whitehouse. I'll close by observing that even in a
libel case, truth is a defense. My personal feeling is that
there is nothing you said about now-Justice Kavanaugh that
doesn't stand firmly on a pillar of truth. That's just my
opinion, but I want you to know that I have no hesitancy about
supporting you based on what you've said regarding that sorry
episode.
I yield back my time. Thank you.
Senator Padilla. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thank you, Judge
Thomas, for being here. I agree with a number of things that
you've said, including the fact that you're not there as a
judge to make everybody happy. It should be the case that
litigants who come before your court should feel that you're
going to do your very best to decide a case correctly.
Wanted to ask you a few questions, one of them that I don't
think anyone's covered yet. You worked for the NAACP I think
for the Legal Defense and Education Fund for about 5 years,
roughly 2005 to 2010, is that right?
Judge Thomas. Yes, that's correct.
Senator Lee. I think you were also a registered lobbyist
for them at the time.
Judge Thomas. Yes. I apparently was a registered lobbyist.
I didn't recall ever having done any lobbying for them, but I
was registered as a lobbyist.
Senator Lee. Right. You did other work for NAACP at the
time that wasn't part of your work as a registered lobbyist?
Judge Thomas. Any work that I did as a registered lobbyist,
it had to be an extremely minor portion of my work there,
because I didn't recall that I had done that.
Senator Lee. Okay. Okay. But you did other work that was
nonlobbying for the NAACP during that time period?
Judge Thomas. Yes, I did.
Senator Lee. In your Senate Judiciary Questionnaire, you
said you didn't recall the nature of those activities. Were you
referring specifically to the lobbying activities, or to your
employment as a whole for NAACP?
Judge Thomas. To the lobbying activities.
Senator Lee. Okay. Okay. What was--just briefly, what was
the nature of the rest of your work that you did that wasn't
lobby?
Judge Thomas. Sure. I came on to the NAACP Legal Defense
Fund initially on a fellowship to study the issue of juvenile
life without parole sentencing and do policy work around that
issue. I did that for a number of years, and then I also worked
on criminal cases, and I worked on education matters, both
policy and litigation.
Senator Lee. Okay. Okay. Your work as a lobbyist would have
been incidental to that, and you don't recall any specific
lobbying activities?
Judge Thomas. That's correct.
Senator Lee. Right. That makes sense. Just want to make
sure I understood that correctly.
Want to get back briefly to what Senator Hawley was talking
to you about, the brief that you submitted in Texas v. United
States. This obviously involves an area that's fraught with a
lot of difficulty, obviously that transgender people have
rights, and they need to be protected, and certainly need to be
able to use a restroom without fear. This can sometimes present
difficulties for school districts and people who are trying to
make sure that everyone is safe, make sure that no one is
likely to abuse a policy for nefarious purposes. That one of
the things that I found concerning in the brief that you
submitted was that you said that quote, ``In states where
nondiscrimination protections are already law, Texas' predicted
safety harm has never materialized.'' It then went on to
classify Texas' concerns as, quote, ``Anxiety about possible
future bathroom crime is nothing more than unsupported
speculation.''
I totally understand you were writing that on behalf of a
client in that case, and that you had an argument to make. How
could you know or how would anyone know in that circumstance
that you knew that no harm could ever materialize? I mean, do
you dispute today the fact that harm could materialize by
someone manipulating a policy, perhaps crafted with the best of
intentions, in order to subject people to harm?
Judge Thomas. Thank you for that question, Senator Lee.
Stepping outside of that case and that context, I don't
dispute the proposition that you mentioned. When you're working
on a case, as you know, you're working on that case on behalf
of your clients on the facts that you have. Similarly as a
judge, you're ruling on cases one by one as they come before
you based upon the facts, based upon the record. That is what I
do now and what I would continue to do.
Senator Lee. You're aware of the recent incident that's
come to light in the Loudoun County School District.
Judge Thomas. I wasn't before this morning, but I've heard
it mentioned.
Senator Lee. No, I understand that. You understand that
there have been allegations of rape made by female prison
inmates against biologically male inmates who are
transgendered, who have been transferred into female prisons in
Washington State and in Illinois. I mean, you wouldn't call
concerns like those unsupported hyperbole, would you?
Judge Thomas. You know, I don't want to comment on the
concerns because those issues are ones that are coming before
courts, and that I might be called to rule upon----
Senator Lee. Sure.
Judge Thomas [continuing]. I don't want to characterize the
concerns. What I do want to tell you is that when I became a
judge, I set aside my role as an advocate, and I committed
myself to letting the law be my guide, precedent be my guide,
in case after case. That is what I do now, and it is certainly
what I would continue to do if confirmed.
Senator Lee. Okay. I see my time has expired. Yes, I hope
you'll take that to heart and take that for what it's worth.
There are legitimate concerns. There are legitimate concerns on
both sides of this issue, and I think it's important that we
not denigrate legitimate--legitimate desire to protect people,
particularly girls and women in the context of restrooms,
shelters, prisons, and so forth from abuse that could occur as
a result of opportunistic predators.
There are always going to be--when laws and policies are
adopted, there always those who will look for opportunities to
exploit them. I hope you'll realize that there is a legitimate
set of concerns on both sides that need to be respected. Thank
you.
Senator Padilla. Thank you, Senator Lee. Before recognizing
Senator Cruz, in absence of any of my Democratic colleagues
being present at the moment, I did want to ask just one follow-
up question to an item that Senator Kennedy raised earlier.
Senator Kennedy asked you about the Erie doctrine, a
complicated area of law, understandably. Can you speak
generally to the process by which you learn and analyze new
areas of the law?
Judge Thomas. Yes. Thank you very much, Senator Padilla.
Again, throughout my career as an appellate advocate, there
were many times where issues were presented to me in which I
had no experience. Same thing happens as a judge where I sit
handling cases about some of the most important, most intimate
issues in people's lives, and had no experience really in
family law before I came to the bench.
My approach in every case is to start by listening to the
arguments, reviewing the briefs, reviewing the text of the law,
reviewing precedent, looking to any canons of construction,
having discussions with colleagues, and really delving into it
that way.
I enjoy being a judge. I enjoy wrestling with complex
issues. I strive in every case every time to get it right.
Thank you.
Senator Padilla. Thank you. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Judge Thomas,
welcome.
As I look at your record, it continues a pattern of the
Biden Administration of nominating individuals to the bench who
have long careers as activists. Throughout the course of this
hearing, you have explained some of your prior positions as
simply representing a client. When I look at your career, I
don't see that.
I see that you are passionately committed to a particular
vision of the law. It has ranged from filing briefs in
litigation in the State of Texas, defending race-based
discriminations in university admissions, to most consistently
transgender activism, and, I would submit, extremism.
This hasn't been one client you had in one case. This has
rather been a consistent pattern that extended when you were a
lawyer for the State of California, that extended when you were
a lawyer for the U.S. Department of Justice, that extended when
you were a lawyer for the State of New York. In three different
jurisdictions, you have been involved in litigation on the
extremes of transgender issues.
In particular, you've carved out an expertise for yourself
using litigation to force institutions to allow biological
males to use restroom facilities and locker facilities that are
also used by girls, young girls, that are used by women. This
has been a pattern.
When you were a lawyer for the State of California, you
filed a lawsuit against Crunch Fitness, a gym, for not moving
quickly enough to allow a biological male to use the women's
locker room. When you were a lawyer for the State of New York,
you filed briefs against the State of Texas, against the State
of North Carolina, again, advocating for biological males to
use girls' and women's restrooms.
You know, the thing I find troubling about these arguments
is it seems the women and girls never have any rights, that the
girls that would like to shower next to someone who is not a
biological male, who would like some privacy, their rights
never seem to matter. Your pattern, it's not a single case. It
is across three jurisdictions over and over again.
In the Texas case, the brief you filed said, quote, ``There
is no data or tangible evidence in support of the claim that
allowing people to use bathrooms corresponding with their
gender identity will lead to increased violence or crime in
restrooms.'' Do you stand by that statement?
Judge Thomas. Thank you for the question, Senator Cruz.
Again, as an advocate, you advocate for the positions of your
client. I haven't been an advocate for 3 years. I've been a
judge. When I----
Senator Cruz. Three years is not very long. My question is
simple. Do you stand by that statement?
Judge Thomas. Senator Cruz, I--it would not be appropriate
or consistent with my ethical duties to my former clients to
comment on my personal views about any case that I worked on.
What my duty was, was to advocate zealously for my clients. I
have set aside the advocacy role, and I now occupy a judicial
role where what you're guided by----
Senator Cruz. But Judge, your brief also contended, quote,
``In states where antidiscrimination protections are already
the law, the predicted safety harm has never materialized.''
You made a bold, aggressive, factual statement, by the way. In
North Carolina you said safety concerns were, quote,
``unfounded.'' You were an aggressive advocate, an activist
advocate.
I believe the statements that you represented to the
court--and those are statements that you're making as an
officer of the court--I believe they were false, and they are
extreme.
You heard--you've testified to this Committee that you were
not aware of what happened in Loudoun County until this
morning. I find that remarkable for someone who has spent years
as one of the leading activists for allowing transgender
biological men to use girls' restrooms and women's restrooms.
In Loudoun County, Scott Smith, who is the parent of a 14-
year-old girl, alleged the Loudoun County School Board covered
up the sexual assault by a genderfluid individual against his
ninth grade daughter who entered the girls' bathroom in a
skirt. This individual was charged with two counts of forcible
sodomy, one count of anal sodomy, and one count of forcible
fellatio. The school district covered it up. They released this
sexual predator, and the predator committed sexual assault
again, twice.
Why did you represent to the court that concerns about
violent sexual predators committing violent crimes against
young girls are unfounded and speculative? Why did you
represent that to the court?
Judge Thomas. Thank you for the question. I advocated on
behalf of my clients based upon the data that we had at the
time, and I zealously did so in those cases and in every other
case that I handled.
Senator Cruz. Were you right?
Judge Thomas. Senator Cruz, it would not be appropriate for
me to comment on the merits of any personal views regarding
litigation that I handled on behalf of my clients. But I
can't----
Senator Cruz. These little girls that were sexually
assaulted----
Senator Padilla. Senator Cruz, let her respond.
Senator Cruz [continuing]. Will have a very different
assessment.
Senator Padilla. Your time is up. Let's let Ms. Thomas
respond. Senator Cruz, let Ms. Thomas respond to you.
Senator Cruz. These little girls were assaulted.
Senator Padilla. Your time is up.
Senator Cruz. Thank you for your views, but I'm----
Senator Padilla. You're past time. Let's afford Ms. Thomas
an opportunity to respond to question.
Senator Cruz. She is perfectly welcome to respond. As I
said, the little girls who were raped----
Senator Padilla. Ms. Thomas.
Senator Cruz [continuing]. In Loudoun County would have a
very different assessment of whether this threat and danger is
speculative or not, and you're more than welcome to respond.
Judge Thomas. Thank you. I will just conclude by saying
again that I understand the difference between being an
advocate and being a judge. I am a judge now. What I'm guided
by is the record before me and the law. That is what I do now.
It is what I'll continue to do if confirmed. Thank you.
Senator Padilla. Thank you, Ms. Thomas. For the record, I'd
just like to acknowledge that assaults from Loudoun County that
our Republican colleagues are pointing to happened earlier this
year. Of course, we share sympathies with the victims. Let me
note that, as a matter of chronology, Judge Thomas worked in
the New York Solicitor General's Office in the year 2015, 6
years ago. Asking her repeatedly to comment 6 years later, as a
sitting judge, about new facts in matters that continue to come
before the courts is unfair. With no other Members present or
expected----
Senator Cruz. Although she was also speaking predictively
about what would have.
Senator Padilla. With no other Members expected for
questions, let me thank Judge Thomas for appearing before us
today. Congratulations again to you and to your family.
Please be mindful that Senators may submit written
questions following the hearing, and we'd ask that you work
diligently to respond to those.
With that, we'll begin to proceed to our second panel. As
we do so, let me acknowledge two things. Senator Hickenlooper
is now with us in person to make his introduction of Ms.
Sweeney, so I invite him to do so now, after which we will
briefly recess subject to the call of the Chair. As we continue
to set up the second panel, Members who have not voted in
Senate Chambers, including myself, will go vote and return, and
then we will continue with the second panel. Senator
Hickenlooper.
STATEMENT OF HON. JOHN W. HICKENLOOPER,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Hickenlooper. Thank you, Mr. Chair. I apologize for
having--we had to be at three places at once. Ranking Member
Grassley, I appreciate you both allowing me to share a few
words about Charlotte Sweeney, President Biden's nominee for
the U.S. District Court for the District of Colorado.
Charlotte Sweeney comes to this Committee with 25 years of
experience. Great, great legal experience, and great, great
accomplishment. Throughout her career, she has gained extensive
experience representing clients, both in the private and
government sectors of employment law, often specializing in
discrimination and cases involving civil rights.
Charlotte has dedicated her career to the people of
Colorado, fighting for equality and equal justice under the
law. Colorado Super Lawyers has repeatedly named her one of the
top 50 women attorneys in the State, and that's one reason why
she has received a rating of well qualified from the American
Bar Association.
Her nomination is also historic. She would be the first
openly LGBT Federal Judge in Colorado, bringing much needed
diversity to the bench.
It's also important to note how opposing counsels who have
worked with and against Charlotte over the years view her
character and credentials. In supporting her nomination they
quote, and I quote, ``Have each found Charlotte to demonstrate
the highest qualities of integrity, courtesy, and curiosity,
the very cornerstones of the legal profession.''
I wholeheartedly agree. Charlotte has my full support. We
went through many, many remarkably talented lawyers before
settling on pushing her nomination forward. I encourage the
Committee to support her nomination, and we look forward to the
Senate acting swiftly to confirm her. I thank her again for her
public service.
Thank you, Mr. Chair and Ranking Member Grassley and every
Member of the Committee, for your consideration of this
remarkable and outstanding nominee. And congratulations to Ms.
Thomas, as well.
Senator Padilla. Thank you, Senator Hickenlooper. Thank you
all again for your patience during this brief recess while we
vote and return. In the meantime, we will be setting up for the
next round of nominees. Ms. Thomas, thank you again.
[Whereupon the Committee was recessed and reconvened.]
Senator Padilla. The Senate Judiciary Committee is back in
session. Thank you all again for your patience during our brief
recess.
We will now hear from our next five nominees today. Before
asking each of you to make your opening statements, would you
please stand to be sworn in?
[Witnesses are sworn in.]
Senator Padilla. Thank you. Let the record reflect they
have all answered in the affirmative including Ms. Sweeney, who
has joined us virtually.
We'll now proceed with witness statements in alphabetical
order, to be fair. Judge Dimke, you may proceed.
STATEMENT OF MARY KATHERINE DIMKE,
NOMINEE TO SERVE AS UNITED STATES DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF WASHINGTON
Judge Dimke. Good afternoon. Thank you to Chairman Durbin,
Ranking Member Grassley, this Committee, and its staff for
holding this hearing today to consider our nominations. Senator
Padilla, thank you for Chairing the hearing today. I would like
to thank the President for the honor of this nomination, and my
home State Senators for the faith and confidence they have
placed in me by recommending me for this position, and
especially to Senator Murray for her kind remarks this morning.
I'd like to introduce my family that's here today. First is
my mother, Janice Dimke, joining us from Clarkston, Washington.
My father passed away in 2008 from cancer, so he is with us
here today in spirit, in my heart, and I have no doubt is
thrilled about today's events.
I do credit my being here today to the lessons instilled in
me by my parents. Having grown up in an agricultural family in
Eastern Washington, I learned the value of a strong work ethic
and the gift of service at a very young age. I attribute my
having chosen a career path in public service to the guidance
given to me by my parents.
Representing the remainder of my family, my siblings and
their families, is my sister, Monica DeWitt. My husband, Jerod
Shelby is here today, who has been my biggest fan and unfailing
source of support for the last 9 years. Through my marriage to
Jerod, I gained an amazing family, which has grown to include
my three stepchildren, their spouses, significant others, and
our three grandchildren, Courtney and Lance, Colton and
Jessica, Cooper and Bella, and little ones Carter, Ellie, and
Xander. My oldest stepson, Colton Shelby, is here as a
representative of my family today.
Last but not least is Kasey Reisman, a very dear friend of
mine. We met on our first day of law school at Vanderbilt over
20 years ago.
Joining us today watching by video are so many friends and
family and people who have supported me over the years,
including my mentors, Judge Johnson and Judge Tallman, the many
court families I've had the privilege of being a part of over
the years, colleagues past and present, and most importantly,
my incredible chambers team. To them I say thank you. They made
me a better lawyer. They make me a better judge.
It is the honor of my career to be here today, and I
welcome your questions.
Senator Padilla. Thank you. Judge Frimpong.
STATEMENT OF MAAME EWUSI-MENSAH FRIMPONG,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Frimpong. Thank you, Senator. I wish to thank
Chairman Durbin and Ranking Member Grassley for holding this
hearing; you, Senator Padilla, for Chairing this hearing; and
all of the Senators participating. I am profoundly grateful to
President Biden for the honor of this nomination, and to you
and Senator Feinstein for your support.
I also wish to thank all of my family, friends, and
colleagues in both the United States and abroad for their
support throughout my career.
The judicial officers, staff, and bailiffs of the Los
Angeles Superior Court inspire and teach me every day. I am
grateful to them all, but I owe a particular debt of gratitude
to my judicial assistant of 5 years, Jennifer Medina.
It fills me with great pride to introduce my parents to
you, Doctors Kweku and Theodora Ewusi-Mensah. As was mentioned,
my parents and husband are immigrants from the West African
nation of Ghana. My mother often says to me in Fante, ``Okoto
nwo anoma.'' A crab does not give birth to a bird.
In keeping with that, it is my hope that every person who
enters my courtroom sees some resemblance in me to my parents,
their relentless work ethic, insatiable intellectual curiosity,
and unshakable moral courage.
Also, with me today are my husband, Yaw, who is my best
friend; my sister Ewurama; my father-in-law, Professor Kwame
Frimpong; my mother-in-law, Mrs. Agnes Frimpong; my sister-in-
law, Naana Frimpong; and my dear friend, Serena Mayeri.
Thank you for the opportunity to honor all of them publicly
here today. I look forward to answering your questions.
Senator Padilla. Thank you. Next, we'll hear from Ms.
Sweeney.
STATEMENT OF CHARLOTTE N. SWEENEY,
NOMINATED TO BE A UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO
Ms. Sweeney. Thank you. I would like to thank Chair Durbin,
Ranking Member Grassley, and all the Members of the Committee
for considering my nomination here today. I would also like to
thank Chair Durbin for accommodating me and allowing me to
appear remotely. Thank you, Chair Padilla, for Chairing this
Committee today. Thank you also to Senator Bennet and Senator
Hickenlooper for the lovely introduction, and for forwarding my
name to President Biden for consideration. I thank President
Biden for this wonderful opportunity, and really the highlight
of my professional career.
I wouldn't be here today but for the love of my two
daughters, Jordan and Addison Sweeney. I am amazed every day
that I have been blessed with such two amazing, wonderful young
women in my life.
I must give thanks to my mother, Gregg Ann Sweeney. She has
taught me the power and the healing love of family throughout
my entire lifetime.
I would also like to thank my two sisters, Lynn and
Michelle, and my brother Patrick, and all of their family. We
have a giant family watching by video today, and I would like
to thank my nieces and nephews, my grand nieces and nephews,
aunts and uncles, and all of my family who has gathered here to
support me and thank them for their love today and every other
day.
We are missing today two very important people in my life,
my father, Shepard Sweeney, who passed away years ago. My
father gave me the gift of faith and the gift of a very strong
work ethic, and I thank him for that.
I would also like to honor my grandmother, Nora Gregory
Tucker. She gave me the gift of unconditional love and the
healing power of love, and for that I will be eternally
grateful. I know both of them are looking down with a little
sparkle in each of their eyes.
I would like to thank my many mentors, colleagues, and good
friends, including the travel team, who have been with me on
this journey over this last 26 years of my career, and even
before that. I would not be here without all of you. I honor
and recognize your support and love, and I thank you.
With that, Senators, I welcome your questions.
Senator Padilla. Thank you, Ms. Sweeney. Let's hear from
Judge Thurston.
STATEMENT OF JENNIFER L. THURSTON,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA
Judge Thurston. Thanks to Chairman Durbin and Ranking
Member Grassley for holding this hearing today, and to you,
Senator Padilla, for Chairing this hearing. Thanks also to
Senator Feinstein and again to you, Senator Padilla, for your
support. But of course, most of all, I do thank President Biden
for the honor of this nomination.
With me here today is my husband Marc Thurston, who's been
my best friend for more than three decades. Also, here is our
daughter, Paige, who has taught us everything we need to know
about life and laughter, and about unconditional love. I am
here today to teach her that in this country, she can be
anything she wants, and that this country allows her to be the
very best version of herself.
I also thank my friends, some of whom I've known since
kindergarten, who are watching today. I'm very grateful also
for the support of my court family, including those who have
left our bench.
I know that I'm being cheered on by my sisters, Debra
Cootware and Cherami Daniel, and their husbands, Greg and Dan,
and their families. I'm also--I know I'm also being cheered on
by my mother-in-law, Virginia Thurston. I know that my dad,
Cliff Calderwood, is bursting with pride, as would have been my
mother, Judy, and my father-in-law, Charles Thurston, had they
lived to see it.
I also want to mention my magistrate judge colleagues in
the Eastern District of California, and though spread
throughout this Federal system, I am so proud of this
incredible group of Federal judges who work so hard every day
to bring justice to those appearing before them, often without
recognition or thanks, and without whom the Federal judicial
system would screech to a halt.
If I'm appointed to the position of district judge, I
assure you that I will work as hard as I have done for the last
12 years on the bench to serve my community and to uphold the
rule of law. Thank you very much.
[The prepared statement of Judge Thurston appears as a
submission for the record.]
Senator Padilla. Thank you. Last but not least, Judge Vera.
STATEMENT OF HERNAN D. VERA, NOMINEE TO
SERVE AS UNITED STATES DISTRICT JUDGE OF
THE CENTRAL DISTRICT OF CALIFORNIA
Judge Vera. Thank you, Senator. Good morning. I too want to
start by thanking Chairman Durbin and Ranking Member Grassley
and all the other Senators of this Committee for considering my
nomination. Special thank you to my two home State Senators,
Senators Padilla and Feinstein, for the gracious introduction,
for your dedication to the people of California, and for
supporting my nomination. Of course, thank you to President
Biden. It is a deep, deep personal honor and privilege to be
here as your nominee.
I'd like to introduce, acknowledge, and thank the members
of my family who are here with me today. My wife and best
friend, Barbara, without whose support and daily encouragement,
I would not be able to do this work that I love. She is my
inspiration every day.
To my mother, Elvira, and my brother Leandro who flew out
from San Jose and who have not missed an important event in my
life in 51 years.
I'd also like to thank my two incredible daughters, LiMei
and AnLing. They are both in college and couldn't be here, but
I always want them to know that they are the greatest joy in my
life. To my late father, Guillermo, who is with me today in
spirit,
[speaking in Spanish].
Finally, I'd like to thank and acknowledge my judicial
colleagues in the Juvenile Division of the Los Angeles Superior
Court, bench officers who work incredibly hard every day
serving the children and families of Los Angeles County. With
that, I welcome your questions.
Senator Padilla. Thank you, Judge Vera.
As we begin with questions for each of you, want to observe
that I actually don't have colleagues from either side of the
aisle here at the moment. I will begin of course with questions
for about 5 minutes. Upon conclusion for my questions, if there
are no other Members present, we may be moving to quickly
adjourn the hearing thereafter. If I can have staff on both
sides communicate with their Senators and encourage them to
make their way to this hearing room. Certainly want to afford
all of my colleagues an opportunity to ask questions, but we
want to be respectful of everybody's time, as well.
With that, let me begin with Judge Frimpong. Judge, you
have now served on the Superior Court bench for 5 years. In
that time, you've heard hundreds of cases ranging from traffic
offenses to criminal matters. You've also taken on leadership
roles for the court, including serving as an assistant
supervising judge of the Criminal Divisions, Infractions, and
Limited Jurisdictions Courts. By all accounts, and as confirmed
by the letters of endorsements submitted to this Committee by
12 of your colleagues in support of your nomination, your
service on the Superior Court has been exemplary.
As a trial court judge, you serve as the court of first
impression for litigants and criminal defendants. Some may
never have stepped into a courtroom before, and some may be
confused by the process and the system. What role can a judge
play in helping litigants and defendants navigate and
understand a complicated legal system?
Judge Frimpong. Thank you for the question, Senator. I have
been fortunate to serve on the Los Angeles Superior Court for
the last five and a half years, and it has been a true honor.
I--What I'm guided by every day in my courtroom are three
things. First of all, the fact that every person who enters my
courtroom is entitled to be treated with dignity and respect. I
think that sets a tone in my courtroom that is important for
all the litigants to know, that this is a court where their
rights and their interests will be respected in accordance with
the law and the Constitution.
Second, because I am in a criminal and assignment, liberty
and justice are at the forefront of my mind every day, and I
want to convey that to all the parties that are before me.
Finally, that the role of the courts is limited. I take
care in every case to ensure that the parties understand that I
am doing what I'm doing based upon the law and the law alone.
Senator Padilla. Okay. Thank you for that answer. Also, ask
a question. We can anticipate given the theme of questions you
heard earlier today, but we'd love to hear from you. What role
should a judge's personal policy preferences play in their
evaluation of the merits of a case before you?
Judge Frimpong. They should play no role. I have been an
attorney. I'm now a judge. I well understand the difference
between the two roles. One of the things that I take extremely
seriously is the oath that I took when I became a judge to
uphold the Constitution of the State of California, as well as
the Constitution of the United States, and to well and
truthfully carry out my duties. My first duty as a judge is to
limit myself to the cases before me, set aside any personal
views, and decide them only based upon the facts and the law.
Senator Padilla. Okay. Thank you. My next question is for
Judge Vera.
In your 27 years of legal practice, you've had a diverse
and wide-ranging legal career. You've represented corporate
clients as a law firm lawyer. You've advocated on behalf of
consumers, veterans, and the underserved as a public interest
lawyer. Now, you adjudicate dependency cases as a judge. You've
also managed a large public interest organization, served on
advisory commissions, and been an active member of the legal
and local community.
How will your diverse practice and professional experience
contribute to and inform your service as a Federal judge?
Judge Vera. Thank you very much, Senator Padilla. I think
that my diversity of experience gives me different perspectives
or angles from which to view the law. I spent about, as you
said, a dozen years working for different litigation firms
where I honed my courtroom skills working on intellectual
property, on class actions, on securities, antitrust, and
complex torts.
Then I spent 13 years at Public Counsel doing both impact
litigation, and also the one-on-one representation in community
clinics around the county representing one client at a time in
matters relating to housing and education and civil rights and
consumer.
I think, finally as a judge, being able to put aside that
role and put on the robe and view the law from that different
role. I think that those three perspectives, as a defense
lawyer, as a public interest lawyer, and as a judge, give me
that different diversity of experience that I hope well, if
confirmed, allow me to hit the ground running. Thank you.
Senator Padilla. Thank you. As I proceed to my final
question, let this serve as a 2-minute warning once again to my
colleagues.
Judge Thurston, as the Chief Magistrate Judge for the
Eastern District of California, you've already had the
opportunity to perform many of the functions of an Article 3
Judge. The Eastern District of California, as you well know,
has an extraordinarily impacted caseload, and your level of
work and responsibility will dramatically increase if you are
confirmed.
Considering your clear insight into the demanding job
assignment that you would be taking on in the Eastern District,
why do you want to serve there as an Article 3 Judge in this
district at this time?
Judge Thurston. As you've pointed out, I've been on the
bench there in the Eastern District of California for just
about 12 years. In that time, I have learned all of the
difficulties that we face due to the judicial crisis that we're
in. I think that's one of the reasons that makes me well
qualified for this position is because I can step in on the
first day and start deciding cases.
I appreciate the extraordinary burden that that will place
on me and my family, but I do have this second family, this
court family that I feel I want to step up and help, even more
than I have already. It will be my pleasure if I'm confirmed to
take that role on.
Senator Padilla. Thank you. Judge Dimke and Ms. Sweeney,
question for each of you. No, I don't have any additional
questions for each of you, but I want to thank you for
appearing before us. Obviously, you come well recommended by my
colleagues from your respective states, so we do appreciate
your time and look forward to supporting each of your
nominations in Committee and in the full Senate when we get to
that step of the process.
Short and sweet. Congratulations to each of you once again
for your nominations. With no additional Senators present or
wishing to ask questions, I'll begin to bring this hearing to a
close.
Before we adjourn today's hearing, I do want to make two
announcements. Number one, a special thank you to the Judicial
Advisory Committee of mine in California that has worked
tremendously to not just outreach to potential candidates, but
to provide some of the initial vetting and recommending to my
office, and obviously names to the White House for
consideration. They have produced a tremendously qualified and
a tremendously diverse slate that we are considering here
today.
I also want to make a quick logistical note. Questions for
the record will be due to the nominees by 5 p.m. on Wednesday,
October 27th. The record will likewise remain open until that
time to submit letters and similar materials.
A big thank you again to all of our nominees, and once
again, congratulations to you and your families. With that,
this hearing is adjourned.
[Whereupon, at 12:12 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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