[Senate Hearing 117-856]
[From the U.S. Government Publishing Office]




                                                            
                                                          S. Hrg. 117-856

                        CONFIRMATION HEARING ON
                          FEDERAL APPOINTMENTS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                           NOVEMBER 17, 2021

                               ----------                              

                           Serial No. J-117-8

                               ----------                              

         Printed for the use of the Committee on the Judiciary


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              CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
              
              
              
              
              
              
              



                                 ______



                                                        S. Hrg. 117-856
 
                        CONFIRMATION HEARING ON
                          FEDERAL APPOINTMENTS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 17, 2021

                               __________

                           Serial No. J-117-8

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
         
         


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                       COMMITTEE ON THE JUDICIARY

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

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page

Durbin, Hon. Richard J...........................................     2
Grassley, Hon. Charles E.........................................     1
Hirono, Hon. Mazie...............................................     1

                          VISITING INTRODUCERS

Brown, Hon. Sherrod, a U.S. Senator from Ohio....................     3
Portman, Hon. Rob, a U.S. Senator from Ohio......................     5
Murray, Hon. Patty, a U.S. Senator from Washington...............     6

                                NOMINEES

Brennan, Bridget Meehan..........................................     7
    Questionnaire................................................   226
    Responses to written questions...............................    22
    Additional materials.........................................   172
Chun, John H.....................................................     7
    Questionnaire................................................   272
    Responses to written questions...............................    57
    Additional materials.........................................   188
Fleming, Charles Esque...........................................     8
    Questionnaire................................................   327
    Responses to written questions...............................    96
    Additional materials.........................................   210
Ruiz, David Augustin.............................................     9
    Questionnaire................................................   349
    Responses to written questions...............................   133
    Additional materials.........................................   215



                        CONFIRMATION HEARING ON



                          FEDERAL APPOINTMENTS

                              ----------                              


                      WEDNESDAY, NOVEMBER 17, 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. Mazie Hirono, 
presiding.
    Present: Senators Hirono [presiding], Durbin, Booker, 
Ossoff, Grassley, Cruz, Hawley, Tillis, and Blackburn.
    Also present: Senators Brown, Portman, and Murray.

            OPENING STATEMENT OF HON. MAZIE HIRONO,

            A U.S. SENATOR FROM THE STATE OF HAWAII

    Senator Hirono. Hearing will come to order. Today, we will 
hear from four judicial nominees: Bridget Brennan, nominated to 
the Northern District of Ohio; Judge John Chun, nominated to 
the Western District of Washington; Charles Fleming, nominated 
to the Northern District of Ohio; and Judge David Ruiz, also 
nominated to the Northern District of Ohio.
    Welcome to all of you and your family and friends. In just 
a minute, we'll hear from several of our colleagues, who are 
here to formally introduce the nominees.
    Before we turn to our colleagues, I want to briefly comment 
on a significant announcement that took place earlier this 
week. On Monday, our colleague, Senator Leahy, announced that 
he will retire at the end of his term. From day one, back in 
1975, Senator Leahy has been a defender of human rights, a 
champion of the environment, and a fierce advocate of 
protecting our Nation's tradition of welcoming immigrants.
    I'm proud to call him a colleague and a friend. We all wish 
him well on his retirement, though, thankfully, we will have 
him here in the Senate for another year. Of course, Chairman 
Leahy was a--is a huge presence on this Committee.
    I'd like to ask Ranking Member Grassley for any opening 
remarks you may have.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. I have just one minute dealing with this 
hearing that we're having today, but I'd like to take about a 
minute and a half to discuss another issue that this Committee 
ought to be concerned about.
    This is in regard to a whistleblower making a decision 
yesterday. I want to point out that yesterday, we all learned 
about a very disturbing development at the FBI. A whistleblower 
there disclosed a directive from FBI Criminal Investigative 
Division and its Counterterrorism Division, creating a whole 
new threat tag about school boards, school officials that 
effectively targets concerned parents. That directive came out 
on October the 20th. Just a week later, Attorney General 
Garland testified to this Committee that his recent 
instructions to the FBI to get involved in local school board 
matters was not about targeting parents as domestic terrorists.
    We now see that the FBI's Counterterrorism Division is 
focused on school board matters. Attorney General Garland needs 
to come back and explain to us, and the American people whether 
he misled us or that he doesn't know what's going on in his own 
Department.
    In regard to today's hearing, these four judicial nominees 
today--for the Western District of Washington, and three for 
the Northern District of Ohio are very important positions that 
need to be filled. We have a longtime Federal prosecutor, a 
longtime Federal public defender, and two judges here today, 
and I hope that these nominations will be willing and able to 
answer questions from this Committee. Unfortunately, like 
you've heard from so many of the Republican Members of this 
Committee, we've seen a number of nominees who can't or won't 
answer questions that would have been answered by nominees of 
other administrations, and I hope today's conversations can be 
very productive.
    To all of the four nominees, I welcome you to your position 
and congratulate you. Thank you.
    Senator Hirono. Thank you, Ranking Member Grassley. We've 
been joined by Chairman Durbin. Would you like to say a few 
remarks?

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,

           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. Very briefly, I'd like to make two points, if 
I might.
    The first is the President signed the infrastructure bill 
this week and made a big show of the fact that it is truly a 
bipartisan undertaking. Democrats and Republicans wrote the 
bill. The President signed it into law. It's going to do good 
things for America, and many of the Republican Senators who 
were active in that were singled out for their participation, 
including Rob Portman, our colleague from Ohio, and Senator 
Brown's colleague.
    The good news this morning is that, of the nominees coming 
before us, both Senator Brown and Portman have reached an 
agreement in terms of who those nominees will be. A bipartisan 
agreement, which we strongly encourage. Because of the blue 
slip, any Senator from the State that the district court 
vacancy is being filled has the right to approve or disapprove 
the nominee. In this case, we have bipartisan agreement on 
moving forward.
    Second, on this issue of schools and safety in school board 
meetings and such, we have cases in Illinois where people have 
gotten out of hand and attacked teachers and board members and 
threatened their lives. This is serious business. We are all, I 
hope, opposed to violence and violent conduct and violent 
threats. That's what the Department of Justice is focusing on, 
and to say that this is just a matter of suppressing free 
speech ignores the obvious. People are showing more anger on 
airplanes and at school board meetings than we have ever seen, 
and this is a reality. I don't know about your State, but in my 
State, school board members aren't paid. This is a volunteer 
activity, and for them to have their families threatened is 
unforgiveable, and we shouldn't be mincing words about that. 
I'll join with Senator Grassley, saying let's get to the bottom 
of what the FBI is doing, but I hope we all start with the 
premise that violence is never acceptable in the name of the 
Constitution.
    Senator Hirono. Thank you, Chair Durbin. I share your 
sentiments regarding the totally unaccessible and illegal 
violence on anyone, in particular, I would say, at a time like 
this when we're trying to get our students back in school 
safely, against school board members.
    We have a number of our colleagues who are joining us this 
morning to formally introduce the nominees. I'll start with 
Senator Brown, who will be introducing the three Northern 
District of Ohio nominees. Senator Brown.

                STATEMENT OF HON. SHERROD BROWN,

             A U.S. SENATOR FROM THE STATE OF OHIO

    Senator Brown. Thank you, Madam Chair and Ranking Member 
Grassley and Chairman Durbin. Thank you for your comments about 
violence and the leadership that all three of you show.
    It's my honor today to introduce three highly qualified 
nominees to serve in the Northern District of Ohio. Each of 
these nominees brings with her, brings with him not only 
impressive legal credentials, but also life experiences, 
empathy, and a deep commitment to justice. That's why Senator 
Portman and I, who have worked together on judicial nominees 
for some years, both recommended these nominees to President 
Biden to serve our State.
    Bridget Brennan is the current acting U.S. attorney in the 
Northern District, an office which she has served in for over a 
decade. During her time as a U.S. attorney, Ms. Brennan has 
taken on complex and difficult cases. She played a lead role as 
the prosecutor who took down multiple sex trafficking 
operations, including serving as the lead prosecutor in the 
largest juvenile sex trafficking case in the history of the 
Northern District of Ohio. Horrific case that included victims 
as young as 12.
    She also achieved the country's first conviction for a sex 
trafficker's use of heroin to control his victims, convincing 
the court to recognize heroin withdrawal as, quote, ``a threat 
of serious bodily harm,'' unquote, for the purposes of proving 
coercion. A champion for religious liberty, Ms. Brennan 
successfully prosecuted 16 defendants in a single case under 
hate crime statutes for their role in religiously motivated 
assaults after they viciously attacked members of Ohio's 
longtime Amish community.
    She successfully prosecuted a man for arson in the 
destruction of a religious property after he drove hours just 
to set fire to a mosque in northern Ohio. Ms. Brennan received 
glowing--she received recommendations from those she's worked 
with and those whom she's worked against. In fact, people that 
she has placed in jail write to her seeking advice and 
guidance. Clearly, this is someone who's commitment to justice 
is obvious to all those who deal with her.
    Mr. Charles Fleming, assistant public defender of the 
Northern District of Ohio, serves as a trial team leader in the 
district's larges public defender branch. Career public 
servant, Mr. Fleming has extensive trial experience in Federal 
court, serving as a Federal public defender for 30 years. He 
has received uniformly enthusiastic reviews from judges 
before--whom he has appeared before, and from those he's tried 
cases against.
    As a lead public defender, Mr. Fleming often takes on what 
his supervisor described as, quote, ``the most difficult and 
challenging cases to which our office is appointed. In all his 
cases, Mr. Fleming has displayed exceptional empathy toward not 
only his clients, but also to victims of crime.'' I think of a 
story about Mr. Fleming. A person he represented was convicted 
of a brutal crime. According to the judge who sat on the case, 
when making his argument for what he believed was a fair 
sentence for his client, Mr. Fleming turned and faced the 
victim and her family. The judge did not--the judge said that 
Mr. Fleming did not alter his arguments. He just wanted to 
accord the victim and her family and dignity of hearing 
directly from him. His client did the same while making 
remarks, something the judge surmised would not have happened 
but for Mr. Fleming's urging. It's the kind of temperament we 
need on the Federal bench.
    Judge David Ruiz has served as a magistrate judge in the 
Northern District for five years. Before being a magistrate, 
Judge Ruiz served for 16 years as an assistant U.S. attorney in 
the Northern District, and as a private practitioner, the 
breadth and depth of Judge Ruiz's legal experience is 
extensive. As an AUSA and in private practice, he took on a 
wide spectrum of cases. Those he worked with praised his 
temperament and intellect, describing him as unflappable.
    However, perhaps his most powerful endorsement was that of 
the judges already seated in the Northern District, who 
selected him to serve as one of their magistrates. They 
selected Judge Ruiz to oversee groundbreaking multi-million-
dollar, multidistrict litigation against opioid manufacturers 
and distributers that have devastated families and communities 
across Ohio, issues that Senator Portman and I have worked 
together on.
    Finally, Judge Ruiz is poised to make history as the first 
Hispanic district court judge to sit in the Northern District. 
A descendant of migrant farm workers who worked picking fruit 
in the fields of Texas and Michigan to provide a better life 
for their family, his success represents the fulfillment of 
their wildest dreams and the embodiment of the American dream.
    Dr. King, as we know, said the arc of the moral universe 
bends toward justice. He also said in his letter from the 
Birmingham jail that progress never rolls in on wheels of 
inevitability. I believe that each of these nominees will be 
wheels of progress that bends the arc of our State and 
country's future toward justice. I proudly urge my colleagues 
to vote yes on each of these nominees. Thank you.
    Senator Hirono. Thank you, Senator Brown. Welcome Senator 
Portman for your introduction of the Ohio nominees. Please 
proceed.

                 STATEMENT OF HON. ROB PORTMAN,

             A U.S. SENATOR FROM THE STATE OF OHIO

    Senator Portman. Thank you, Madam Chair, and thank you to 
Chairman Durbin, Ranking Member Grassley, who was here at the 
outset. I'm appreciative of your allowing us to introduce these 
three distinguished Ohioans before the Committee. I appreciate 
their willingness to step forward at an important time to serve 
in these important new roles. Each of these nominees has 
pursued excellence throughout his or her legal career and 
dedicated much of their lives to public service. Each of them 
went through this bipartisan judicial commission process that 
Senator Brown mentioned that we established to ensure that we 
have the very best candidates coming before this body. I 
support their nominations to serve on U.S. District Court in 
the Northern District.
    David Ruiz is our first nominee. He has served as a 
magistrate judge of the Northern District of Ohio since 2016. 
He's a Buckeye through and through. Undergraduate from Ohio 
State and a J.D. from The Ohio State University, and he has 
demonstrated his commitment to working for the people of Ohio 
in public service in many ways. Before his current role, he 
served as the Northern District's assistant U.S. attorney from 
2010 to 2016, after seven years as a senior attorney for 
Calfee, Halter & Griswold in Cleveland, Ohio. I have every 
confidence he'll maintain the level of excellence he has 
demonstrated in his career in taking on this new role.
    Our second nominee is Bridget Brennan, currently serving, 
as Senator Brown said, as the acting U.S. attorney for the 
Northern District. I have worked very closely with her in this 
role and in her previous role. She now leads a team of almost 
200, working to represent the millions of Ohioans living in our 
northern--40 northernmost counties, including the cities of 
Cleveland, Akron, Toledo, and Youngstown.
    She's a graduate of John Carroll University and Case 
Western Reserve Law School. She has dedicated herself to 
serving the U.S. Attorney's Office for more than 14 years in a 
number of critical positions, including the Office's First 
Assistant, Chief of the Criminal Division, Chief of the Civil 
Rights Unit, and the Ethics Advisor.
    Our final nominee is Charles Fleming, another alumnus of 
Case Western Law. For three decades, he has advocated on behalf 
of countless individuals as the Assistant Federal Public 
Defender for the Northern District of Ohio. He has also served 
in a number of other roles, including as the investigative and 
paralegal staff supervisor from 2010 to 2016, and the Cleveland 
trial team supervisor from 2016 to 2021. Charles' long record 
of service to the Northern District Court means he's well 
qualified to join the bench.
    I'm pleased to support these nominations before the 
Committee, and I thank you for your consideration. As noted, 
the three district court nominees before us were recommended 
through this Ohio bipartisan judicial commission. I want to 
acknowledge their hard work. They committed untold number of 
hours. It's not an easy job to ensure that we found well 
qualified candidates to serve on the bench. I especially want 
to thank my representatives on the commission. I want to thank 
Senator Brown's, as well, but I'm going to mention mine, all 
highly respected members of the Bar in Ohio. Jonathan Adler, 
Julie Burn, Elizabeth Cowan, Art Hernandez, Pete Kirsenow, Leah 
Pappas Porner, Pete Patterson, Chris Walker, and Philip 
Williamson. I want to thank them for their service of time and 
effort, as well as the other members of that commission. And 
we're going to be calling on them again.
    I was pleased to work with Senator Brown and Members of our 
bipartisan commission to recommend these distinguished nominees 
to the President, and I'm glad they will have both of our 
support as we move forward. Thank you, Madam Chair.
    Senator Hirono. Thank you, Senator Portman, and I commend 
both of you for relying on a bipartisan commission to provide 
us with these excellent nominees. Finally, we have Senator 
Murray here to introduce Judge Chun. Senator Murray.

                STATEMENT OF HON. PATTY MURRAY,

          A U.S. SENATOR FROM THE STATE OF WASHINGTON

    Senator Murray. Thank you very much, Chair Hirono, Chair 
Durbin. Good to see you both here today. Thank you. It is my 
honor today to introduce Judge John Chun for a district court 
vacancy in the Western District of Washington. As this 
Committee knows, Washington State had six vacancies open for a 
number of years, so I must begin by thanking President Biden 
and the Judiciary Committee for working so quickly to provide 
some long-awaited reinforcements to our bench in Seattle and 
Tacoma.
    In addition, I want to thank my nonpartisan judicial merit 
selection committee. It's comprised of ten Washington State 
lawyers who so ably guided us in selecting the highly qualified 
nominees that have appeared before us this year, including 
Judge Chun.
    Let me share a little bit about Judge Chun. He has served 
for seven years as a State court judge, both in his current 
role as the judge on the Washington State Court of Appeals, and 
on the King County Superior Court before that. As we work to 
fill out the many vacancies in the Western District, Judge 
Chun's experience as a State court judge will add important 
experiential background to our Federal bench.
    He will also bring experience as an attorney in private 
practice, where he focused on complex commercial and employment 
litigation, to his role on the bench. Judge Chun is a Pacific 
Northwest native, father, and son of South Korean immigrants. 
He would be the first Asian-American man to serve on Washington 
State's Federal bench. He embodies a deep commitment to 
ensuring underserved communities have access to justice, having 
served as a board member for the Washington Low-Income Housing 
Alliance, and executive board member for the Asian Pacific 
Islander Community Leadership Foundation, and having taken on 
other pro bono commitments throughout his many years as an 
attorney and judge.
    Judge Chun is thoughtful, patient, and embodies vital 
qualities to being a good jurist. His commitment to serving as 
a district court judge reflects a responsibility to preserving 
our democracy through faithfully upholding the rule of law and 
treating litigants and parties before him with grace and 
respect.
    Judge Chun's qualifications are superb. His temperament and 
record of service demonstrate a real commitment to fairness and 
impartiality, and his service as a judge would surely help 
rebuild faith in our judicial system. I respectfully urge my 
colleagues to support Judge Chun's nomination. Thank you very 
much for allowing me to be here today.
    Senator Hirono. Thank each of you for your coming forward 
like this. Before we turn to the nominees--so I know my 
colleagues are very busy, so I'll--thank you so much. Mahalo, 
as we say in Hawaii. We'll set up for the nominees.
    Will our nominees step forward.
    [Witnesses are sworn in.]
    Senator Hirono. We'll start with Mr. Brennan. I'm sorry. 
Ms. Brennan. Can you proceed with your opening?

              STATEMENT OF BRIDGET MEEHAN BRENNAN,

             NOMINATED TO BE UNITED STATES DISTRICT

            JUDGE FOR THE NORTHERN DISTRICT OF OHIO

    Ms. Brennan. Thank you. Good morning. First, I would like 
to thank Chair Durbin and Ranking Member Grassley for setting 
this hearing today. Thank you, Senator Hirono, for presiding 
today, and to all the Members of the Committee for considering 
my nomination. I would also like to express my sincere 
gratitude to President Biden for the honor of this nomination, 
and Senator Brown and his staff, along with Senator Portman and 
his staff for recommending me to the President. I am also 
greatly appreciative of the comments they both made here this 
morning.
    Joining me today are my wonderful parents, Robert and Celia 
Ellen Meehan, who raised me to believe that anything could be 
possible if I was willing to work for it. Also with me today is 
my extraordinarily supportive husband, Terry, and our two 
children, Maeve and Tommy. I am so exceptionally proud to be 
their mom.
    Watching from home are my brothers, who are a lifelong 
support line for me, and I'd like to thank my many other family 
members, in-laws, and friends for their steadfast encouragement 
and support. Finally, I would like to thank my colleagues at 
the U.S. Attorney's Office, the defense attorneys in the 
Northern District of Ohio and its legal community, all of the 
judges in the district, and the courthouse staff. I have 
learned so much from all of them, and I hope to continue 
learning from them going forward. Thank you, and I look forward 
to answering your questions.
    Senator Hirono. In fact, if your family could wave so we 
know where you are. Thank you. And for the other nominee's 
families and friends, feel free to wave when you are 
introduced.
    Judge Chun, please proceed with your opening.

              STATEMENT OF JOHN H. CHUN, NOMINATED

               TO BE UNITED STATES DISTRICT JUDGE

             FOR THE WESTERN DISTRICT OF WASHINGTON

    Judge Chun. Thank you and good morning. First, I'd like to 
thank Chairman Durbin, Ranking Member Grassley and Members of 
this Committee and its staff for holding this hearing and 
considering our nominations. Thank you, Senator Hirono, for 
chairing this hearing.
    Next, I'd like to thank my home State Senators, Senator 
Patty Murray and Senator Maria Cantwell, for recommending me 
for this nomination. Also, special thanks to Senator Murray for 
her very kind remarks just earlier.
    I'd like to thank the President for the tremendous honor of 
this nomination, and I'd like to thank the many family members, 
including members of the Chun and Baldwin families, friends, 
colleagues, including members of the Washington State 
Judiciary, and mentors who have supported me along the way.
    Finally, I'd like to introduce family members who are with 
me today. First, my parents, Peter and Helen Chun. They came to 
the U.S. from South Korea back in the 1960's. They worked 
incredibly hard to realize the American dream for our family. 
Today, I sit before you hoping to serve a nation that has given 
so much to our family.
    Next, my wife, Elizabeth Baldwin. She's my best friend, the 
love of my life, and I could not have made it here today 
without her.
    Finally, our children, Naomi and Hugo, who are missing 
school, music lessons, and sports practices to be here today. 
But they have been touring the Capitol this week and have been 
learning a lot from this experience.
    It is the honor of my life to be here today, and I welcome 
your questions.
    Senator Hirono. Thank you, Judge Chun. Now, Mr. Fleming. 
Everybody, don't forget to turn on your mics.

              STATEMENT OF CHARLES ESQUE FLEMING,

             NOMINATED TO BE UNITED STATES DISTRICT

            JUDGE FOR THE NORTHERN DISTRICT OF OHIO

    Mr. Fleming. Thank you, Chair Hirono, Chairman Durbin, 
Ranking Member Grassley, and all the Members of this Committee 
for having me here today. It's an honor and a privilege to be 
here. Thank you to Senators Brown and Portman for their kind 
comments this morning, and for their recommendation for this 
nomination. Thank you, of course, to President Biden for having 
the faith in me, my background, and experience to nominate me 
for United States district judge.
    I wouldn't be where I am today without my family, and I 
love them dearly. My mother, my sister, Pat, my brother, 
Reggie, and my niece, Whitney, could not be here today, but 
they are here with me in spirit and watching as we speak. My 
baby brother, Carlos is here, and I greatly appreciate him 
flying in from Florida and taking time out of his busy schedule 
to be here to support his big brother. My very best friend in 
the world, Retired Army Colonel Victor Tull is here. Victor and 
I have been best friends since time immemorial, and I'm so glad 
that he was able to take time out of his schedule to be here.
    I'd like to thank the Chief Defender in my district, Steve 
Newman, and First Assistant Jacqueline Johnson, and all of my 
defender family for all of their support throughout the years 
and throughout this process. It is more appreciated than they 
will ever know. I'd like to thank my fraternity, Alpha Phi 
Alpha Fraternity, Inc., for their support, kinship, and 
brotherhood throughout the years.
    I'd like to thank my better half, Ms. Sara Brown, for her 
love and support throughout this process. My mother, Norma E. 
Fleming and my father, the late Judge Charles W. Fleming, were 
longtime public servants. They instilled in us certain core 
values. The value of hard work, treating people the way you 
want to be treated, honesty, integrity, and giving back to the 
community, and I hold those ideals close to this day. If I'm so 
fortunate to be confirmed, I look forward to continuing their 
legacy. Thank you.
    Senator Hirono. Thank you, Mr. Fleming. Finally, Judge 
Ruiz.

               STATEMENT OF DAVID AUGUSTIN RUIZ,

             NOMINATED TO BE UNITED STATES DISTRICT

            JUDGE FOR THE NORTHERN DISTRICT OF OHIO

    Judge Ruiz. Thank you and good morning. Thank you, Senator 
Hirono, for Chairing today's hearing. Thank you, Chairman 
Durbin and Ranking Member Grassley, for scheduling this hearing 
and allowing me to be here today. I'd also like to thank 
Senators Brown and Senator Portman for the bipartisan support 
and humbling me with recommending me to the President. I'd also 
like to thank all the Members of the Judiciary Committee, as 
well as all of their staff for considering my nomination.
    I'd like to thank President Biden for having the confidence 
in me to recommend me to the Senate for this nomination.
    There are many friends, families, colleagues, and members 
of the bench in the Northern District of Ohio, as well as court 
family, who are not able to be here today, as well as members 
from the Northern District of Ohio legal community who support 
me and whose well wishes have come with me from afar, and I 
know they're supporting me from afar.
    Unable to be here today is my sister, Deborah, who's 
watching with her family in South Carolina, as well as my 
grandparents, Lucas and Paula Ruiz and John and Eleanor Rangle, 
who are no longer with us, but I know who are watching with 
pride that their grandson sits here today before you.
    With me today are my parents, Augustin and Rebecca Ruiz; as 
well as my sister, Veronica; my amazing wife, Julie 
Fenstermaker; as well as my wonderful children, Gabriel, Lucas, 
and Isabella.
    My parents raised my sisters and I with the core value of 
respecting others, treating others the way that we want to be 
treated, with a strong belief in work ethic and hard work pays 
off, as well as a confidence to pursue our dreams. In pursuing 
one of those dreams, I was fortunate enough to meet my to-be 
wife, Julie, the first day of law school. I've been blessed to 
have her a part of my life ever since. With her unconditional 
love and her true partnership, I'm able to be here today.
    Senators, I appreciate the opportunity to be here. I am 
truly humbled by this opportunity, and I look forward to 
answering all of your questions to the best of my ability. 
Thank you.
    Senator Hirono [Presiding.] Thank you very much, Judge 
Ruiz. We'll start with questions from the Senators here, and 
five minutes. We'll start with Chair Durbin.
    Chair Durbin. Thank you very much, Senator Hirono. What a 
great panel. I've just been reading your backgrounds, staff 
before me, and their comments to me are very positive for each 
and every one of you. What an extraordinary experience you've 
had, and what more you will bring to the Federal court.
    First, I'd like to ask nominee Brennan, it was mentioned in 
your introduction by Senators Brown and Portman that you had 
been involved in a religious case that actually came to be the 
first instance where prosecutors used the Hate Crime Prevention 
Act to target religiously motivated violence. The wrinkle in 
that case is worth noting. This was not discrimination against 
Amish people by non-Amish people, but discrimination within the 
religion. Could you describe the situation to us?
    Ms. Brennan. Yes, Senator. Thank you for that question. The 
particular set of facts in that case were one Amish community 
believed that others were Amish hypocrites, were not performing 
or recognizing the religion in the way that they should. The--
that community, referred to as the Bergholz community, set out, 
through the leadership of one individual, to enforce what they 
believed were religious practices on other Amish communities. 
What resulted were multiple violent attacks on individuals, who 
were pulled from their homes, or pulled from their beds and 
violently assaulted simply because of the way they chose to 
practice their religion.
    Chair Durbin. This was Amish on Amish situations?
    Ms. Brennan. Correct, Senator.
    Chair Durbin. As I read it, I thought, that is unique. I've 
never quite run into that circumstance.
    Mr. Ruiz, as a magistrate in the court, you have important 
responsibilities, but I am struck by the fact that most of us 
in Washington were paying pretty close attention to your work 
and we didn't even know it. That, of course, relates to the 
opiate complex litigation, which was before the Federal court, 
in which you participated in some aspects. Can you describe 
your involvement in that case?
    Judge Ruiz. Thank you for the question, Chairman Durbin. My 
role in the opiate multidistrict litigation has been to assist 
Judge Polster in presiding over those proceedings. Early on in 
the litigation, Judge Polster established a litigation track in 
which he referred a number of bellwether cases to me to 
consider motions to dismiss that were filed by groups of 
defendants in the case: manufacturers, distributors, and so 
forth.
    During that time, I considered all of the motions that were 
filed, as well as the copious responses and filings in the 
case, and issued reports and recommendations to Judge Polster 
as to how I recommended he consider the motions to dismiss, as 
well as my recommendation to him as to how they should be ruled 
upon.
    Chair Durbin. I'm going to try to describe what was going 
on in the courtroom. I'll probably miss it and you can correct 
me. Feel free to. This was civil litigation brought against the 
drug manufacturers when it came to opiates to determine their 
civil liability, and they were joined as a group in that court 
case. Is that pretty close to a description of what happened?
    Judge Ruiz. Yes, Senator. There were thousands of cases 
that were filed around the country that had consolidated in the 
Northern District of Ohio to be handled as a group in 
multidistrict litigation before Judge Polster.
    Chair Durbin. What is the current situation or state of 
that lawsuit?
    Judge Ruiz. Many of the cases and groups of defendants have 
settled. There currently is a trial that Judge Polster was 
presiding over that was filed by two counties in the Northern 
District of Ohio against a group of pharmacies, and it's my 
understanding the jury is currently deliberating.
    Chair Durbin. I'm sure everybody is anxious for that 
outcome.
    Mr. Fleming, President Biden has nominated a number of 
Federal Public Defenders, and some of their critics have said 
they cannot be fair in a courtroom. They're going to judge 
people not guilty in case after case because of their 
background as defenders. What is your answer to that?
    Mr. Fleming. Thank you for the question, Senator. Senator, 
I have--I was one of those kids on the playground that, when I 
saw another child being bullied, I would intervene because of 
my desire not to see them treated unfairly. It's that passion 
that motivated me to become an advocate. It's that passion that 
motivated me to become a public defender, and it's that passion 
that motivates me to become judge. Now, after 30 plus years as 
an advocate, I'd like to believe that I understand what it 
means to be fair and impartial in a particular proceeding, and 
I can say to the Senate and to you that if I'm so fortunate to 
be confirmed as U.S. district judge, I will bring that passion 
for fairness and impartiality to the position of U.S. district 
judge.
    Chair Durbin. Thank you. Judge Chun, I'm sorry we don't 
have time. My time is concluded here, and we're on a roll call 
vote, which I'm going to race to do and then try to return 
quickly if Senator Hirono needs me to give her a break at that 
time. Thank you very much, as well, for being here today. Thank 
you, Madam Chair.
    Senator Hirono. Thank you, Mr. Chairman. I'll proceed with 
my questions and await the return of Ranking Member Grassley.
    I ask the following two initial questions of all nominees 
who have appeared before any of the committees on which I sit, 
so I will ask all of you these questions. Since you became a 
legal adult, have you ever made unwanted requests for sexual 
favors or committed any verbal or physical harassment or 
assault of a sexual nature? Please respond, each of you.
    Mr. Fleming. No, I have not.
    Judge Ruiz. No, Senator.
    Judge Chun. No.
    Ms. Brennan. No, Senator.
    Senator Hirono. Have you ever faced discipline or entered 
into a settlement related to this kind of conduct?
    Mr. Fleming. No, Senator, I have not.
    Judge Ruiz. No, Senator.
    Judge Chun. No, Senator.
    Ms. Brennan. No, Senator.
    Senator Hirono. Thank you. For all of the nominees, I'd 
like to highlight the range of professional experiences that we 
have on this panel. We have a prosecutor, a State court judge, 
a public defender, and a Federal magistrate judge, and that is 
only each nominee's most recent job. Would you each tell us a 
bit about what you learned in your career that will be a 
particular asset as a district judge? We can start with you.
    Ms. Brennan. Thank you, Senator. Professional diversity, in 
my own personal experience, has been incredibly rewarding in 
the sense that I have been a plaintiff's civil attorney, a 
civil attorney on the defensive side, a criminal defense 
attorney, and most recently, for the last 14 years, as a 
Federal prosecutor. Even in those 14 years, I have done both 
civil and criminal work.
    Having had the opportunity to view the judicial system from 
all of those different perspectives, and to represent clients 
with such varied backgrounds themselves, I think has given me 
an insight into the judicial process that would inform my 
ability as a judge, should I be confirmed, to ensure equal 
justice under the law. Thank you.
    Senator Hirono. Judge Chun.
    Judge Chun. Thank for the question, Senator. Before I was a 
judge, I served for over 18 years in private practice, 
litigating all sorts of civil cases in the complex commercial 
and employment areas. A substantial part of my practice was in 
Federal court, so I bring that substantial litigation 
experience to the Federal court position if I am so lucky as to 
be confirmed.
    In addition to that, I have had the great privilege and 
honor of serving on our State court bench, first as a trial 
judge and also as an appellate judge. As a trial court judge at 
the State court, I learned how to be a trial judge, and so I 
take that with me to the trial court position in Federal court 
if I am so fortunate as to be confirmed.
    Also, as an appellate court judge, I worked a lot on 
researching, analyzing legal issues and writing opinions, and 
my understanding is that Federal district court positions 
involve a lot of that type of work, so I bring that, as well. 
Thank you.
    Senator Hirono. Thank you. Mr. Fleming.
    Mr. Fleming. Thank you for the question, Senator. Senator, 
I've been a Federal litigator now for 30 plus years. I started 
out in civil practice, doing primarily employment 
discrimination and wrongful discharge type work, but a host of 
different issues during that practice. I then was offered a job 
with the Federal Defender's Office, where I've been for the 
last just about 30 years and have had significant trial 
experience. I believe the better part of 20 trials, quite a few 
appeals, and some briefing before the U.S. Supreme Court.
    I think in the totality of that experience, I have garnered 
quite a bit of knowledge with regard to issues that come up in 
Federal court, the way to handle those issues, the idea of 
being fair-minded with regard to dealing with people and the 
issues before the court, and, of course, just the experience 
that goes along with being a trial attorney in Federal court. 
I'd like to believe that would benefit me and the court if I am 
so fortunate to be confirmed as U.S. district judge. Thank you.
    Senator Hirono. Judge Ruiz.
    Judge Ruiz. Thank for the question, Senator. Over the 
course of a 21-year plus legal career, I've had the opportunity 
to serve as a commercial and corporate litigator in private 
practice for a decade, serve as an Assistant United States 
Attorney, handling both civil and criminal cases for six years, 
as well as for the last four years, I've had the honor and 
privilege of serving as a United States magistrate judge.
    During that time, I had the opportunity to handle many--a 
vast variety of cases in both civil and criminal side, and the 
most important lessons that I've learned from the depth and 
breadth of my experience and professional diversity that I 
bring are the core values of treating all persons with respect 
and dignity, of considering all parties' positions with an open 
mind, and working hard to assess the legal issues in the case 
to render correct decisions that are fair and impartial and 
dispassionate in every case. Thank you, Senator.
    Senator Hirono. Thank you. Clearly, the diversity of 
professional experience that you all exemplify will stand you 
in good stead. I'd like to call on Senator Hawley.
    Senator Hawley. Thank you, Madam Chair. Thanks to all of 
the nominees for being here. Congratulations on your 
nominations. Mr. Fleming, if I could start with you. I want to 
ask you about a case of United States v. Brown, which was 
decided by the 6th Circuit, and which you petitioned the 
Supreme Court to review. Do you remember that case? It's been a 
few years ago.
    Mr. Fleming. I do, Senator. Thank you.
    Senator Hawley. This is a case, as I understand it, that 
involves a grandfather who used his two minor step-
granddaughters as subjects in a child pornography film while he 
was their legal guardian. You represented him for several 
years. You made a number of arguments on his behalf that I want 
to ask you about because I find them a little concerning.
    In 2006, you challenged the facial and, as applied, 
constitutionality of 18 U.S.C. Sec.  2255--2251(b). That's the 
statute that deals with parents or guardians of children who 
are involved and complicit in the production of child 
pornography. You argued, and I'm going to quote now from the 
court's opinion. Quote, ``That private production of a sexually 
explicit picture does not substantially affect interstate 
commerce,'' end quote, and therefore this statute should be 
struck down. The district court and the court of appeals both 
rejected that argument out of hand, and the 6th Circuit drew an 
analogy between the production of child pornography and drug 
production, that both illegal goods feed the national market 
and stimulate demand. At the time that he entered his plea 
agreement, the defendant, whom you represented, admitted to 
having uploaded this child pornography involving his 
granddaughters to the internet.
    I just want to be clear here on your arguments. Do you 
still believe that the production of child pornography is 
outside of Congress' power to punish?
    Mr. Fleming. Thank you for the question, Senator. Pardon my 
hoarse voice. At that time, the arguments that we made on 
behalf--or I made on behalf of Mr. Brown, I did not intend to 
put forth the argument that Congress cannot--or that the 
statute cannot reach child pornography generally. What we were 
saying was that the statute--because they were applying the 
statute to Mr. Brown and that, arguably, his conduct was 
intrastate, that the statute reached too broad for purposes of 
the commerce clause.
    Having said that, the 6th Circuit ruled against me on that, 
and if I were so fortunate to be confirmed as United States 
district judge, I'm duty-bound to follow the precedent of the 
6th Circuit, and I would follow that.
    Senator Hawley. Why would it not affect interstate commerce 
when he uploaded the pornography to the internet?
    Mr. Fleming. There was no--excuse me--there was no 
allegation, as I understand it, and it's been--that's been the 
better part of 20 years since, since I litigated that case, so 
if I don't remember all of the nuances, I apologize, but there 
was no allegation that--at least in the charges, as I recall, 
that he had distributed it. It was simply that he possessed 
those pictures, and so we were making the argument that--on his 
behalf--that reached too far since it was simply his intrastate 
putting on the internet, but not actually distributing the, the 
alleged pornography to others.
    Senator Hawley. Is it your view that if a defendant merely, 
quote, unquote, ``merely'' uploads child pornography, in this 
case involving his own granddaughters, to the internet, doesn't 
actively distribute it in any other way, whatever that would 
mean? That Federal law doesn't apply?
    Mr. Fleming. No, Senator. If, if I were so fortunate to be 
confirmed, I would follow whatever the precedent of the Circuit 
and the Supreme Court is at that time and apply it to the case 
before me fairly and impartially.
    Senator Hawley. Let me ask you about drug laws because the 
6th Circuit, in this case, specifically drew the analogy with 
our drug laws and said that this argument had been addressed in 
the drug context. Indeed, the U.S. Supreme Court has repeatedly 
held that intrastate drug production, of necessity, affects the 
interstate market and therefore can be regulated. Let me just 
ask you whether you think Congress has the power to punish 
intrastate drug production.
    Mr. Fleming. Thank you, Senator. Not only do I understand 
the law to contemplate that Congress can regulate intrastate 
drug production, but Congress does regulate it, and it does so 
through 21 U.S.C. Sec.  841 and like statutes, and it does so 
through its commerce clause power, as you indicated, because it 
does affect the industry with regard to drug marketing. Yes, I 
believe that the statutory law and precedent supports the idea 
of regulating intrastate drug production.
    Senator Hawley. Very good. I may have another question or 
two for you about this case, and we'll give it to you for the 
record, which will give you time to refresh your memory. I have 
a few questions for the other nominees, as well, which we'll 
give to you for the record because my time's expired. Thank you 
all, and thank you, Madam Chair.
    Senator Hirono. Ranking Member Grassley.
    Senator Grassley. First of all, I apologize for the vote 
and for a phone conversation I had to have at a certain hour 
that I didn't hear your presentations, and like Senator Hawley, 
I'll probably have some questions to submit in writing when my 
time runs out.
    I'm going to start with Judge Chun. In law school, you 
wrote an article praising the 1960's as a time, quote, unquote, 
``of revolutionary courts.'' You also said those courts, quote, 
``drew from sense of social justice to establish strict 
liability in tort as a standard of defective products,'' end 
quote. Will you follow that approach and draw from your sense 
of social justice if you're confirmed to serve as a Federal 
judge? I hope you consider that a friendly question. I just 
want to know where you're coming from.
    Judge Chun. Thank you for the question, Ranking Member 
Grassley. I appreciate it. The rest of that article, as I 
recall--it's been a long time since I wrote it. The rest of 
that article I believe supports the risk-utility test, and so 
it talks about the history of the development of product 
liability law back in the 1960's and then talks about its 
development into the modern age. It supports the risk-utility 
test. That's my recollection.
    I can assure you, Senator Grassley, that when I have a case 
before me, including a product liability case, I would apply 
the law to the specific facts in the case before me.
    Senator Grassley. Okay. Then another question for you. You 
were trustee for the King County Bar Association in 2013. That 
year, this Bar Association proposed changes to the Washington 
Bar's Rule of Conduct. The proposal specifically created safe 
harbor for cases where lawyers solely violate Federal law. The 
change was prompted by a State law. That State law was on 
marijuana, but the proposal was much broader than just that. 
Three simple questions, I think they are: Did you support the 
proposed rule change?
    Judge Chun. I----
    Senator Grassley. If you can't remember, I'll ask you to 
answer in writing.
    Judge Chun. I cannot recall. I was relatively new to that 
particular board, so it had already been being discussed when I 
joined it.
    Senator Grassley. Okay. Since you didn't know, then maybe I 
ought to ask you to answer these other two questions in 
writing.
    Judge Chun. I'd be happy to do so.
    Senator Grassley. If you did, why should it be okay for an 
attorney to violate Federal law? That would be one, and third, 
why did you think it was acceptable for an attorney to advise a 
client? But if you can't remember, then I'll take your answer 
in writing.
    Judge Chun. Thank you.
    Senator Grassley. Then, for Mr. Fleming. Maybe you've 
gotten so many questions, you don't want another one. Anyway, 
you have had extensive experience working as a Federal public 
defender, but as a Federal district judge, you will need to 
handle both civil and criminal cases. If you're confirmed, how 
would you plan to get up to speed on civil cases?
    Mr. Fleming. Thank you for the question, Senator. First, I 
would note that my practice over these 30 years initiated as a 
civil practitioner, and at that time, when I was offered the 
job with the Federal Defender's Office, I had to make a very 
complex and relatively quick transition from the civil world to 
now understanding Federal criminal law, Federal mandatory 
minimum sentencing and the U.S. sentencing guidelines as they 
were then. As you know, in 1991, the guidelines were new and 
were mandatory. I had a lot of learning to do in a relatively 
short period of time. I'd like to believe, now 30 years later, 
that I had some success with doing that, and I also am 
confident that if now called upon to transition back to a 
situation where I am now handling civil work or civil-related 
matters again, that I can make that transition easily and well.
    To further answer the question with regard to how I would 
do it, I would just note that I don't intend to be an island. I 
will have a staff that will assist me, clerks, law clerks who 
will assist me, and to the extent that my background may not be 
as extensive in civil as it is in criminal, I think it's going 
to be important for me to have law clerks who have a strong 
civil background so that we can balance out that knowledge and 
that skill set and be prepared to handle any of the matters 
that come before me if I'm so fortunate to be confirmed.
    Senator Grassley. Since I only have six seconds left, I'm 
going to submit to the other two nominees questions for 
response in writing, so I hope you'll answer them as soon as 
you can.
    Senator Hirono. Turning to Senator Blumenthal.
    Senator Blumenthal. Thank you. Thank you, Senator Hirono. 
I'd like to focus on an issue that's commonly raised for us, 
which is how your past experience informs what you will do on 
the bench, and I would like to ask each of the nominees to 
describe briefly what they think in their background is the 
most critical incident or experience--not just broadly, but 
specifically, a life experience that will impact your decision-
making on the bench. Ms. Brennan.
    Ms. Brennan. Thank you very much, Senator, for that 
question. My background involves plaintiff side civil work, 
civil work on the defense side, representing individuals and 
corporations, criminal defense work, again representing 
individuals and entities, and for the last 14 years, I've been 
a Federal prosecutor in the U.S. Attorney's Office. In that 
role, I have, while mostly doing criminal work, I have done 
civil work, as well. I think that that broad opportunity--or 
those broad opportunities to represent so many has afforded me 
an opportunity to see the judicial system from so many 
different vantage points.
    I think a specific incident would be hard to capture. I 
think a role that I have played--an opportunity I have been 
given at the U.S. Attorney's Office could be most informing to 
you. For a number of years, I was the ethics advisor in our 
district, and in that role, I was asked, often, by colleagues, 
to weigh in on what we should and shouldn't do in a neutral and 
dispassionate way. In that role, I was very careful to assess 
what people wanted, what people hoped to achieve, but then to 
balance that and to give priority to what the rules were. I 
think that that role would serve me well if I were to be 
confirmed. Thank you.
    Senator Blumenthal. Judge.
    Judge Chun. Thank you so much for the question, Senator. I 
think for me it does just come down to a breadth of experience. 
When I was in private practice, for over 18 years I worked on a 
broad range of civil issues, complex commercial issues, and 
employment law issues. The most significant experience, I would 
have to say, would be my experience as a judge. I've been a 
judge for over seven years, a State trial court judge as well 
as an appellate judge, and I'd bring with me to the Federal 
court if I am so fortunate as to be confirmed, a wealth of 
experience in trial judging. As a trial judge, I tried over--or 
around 90 cases. I think over half of them were jury trials. As 
a court of appeals judge, I've had a lot of experience 
researching, analyzing deeply legal issues and writing about 
them. I've issued over--or hundreds of opinions. Thank you.
    Senator Blumenthal. Thank you. Mr. Fleming.
    Mr. Fleming. Thank you for the question, Senator. My answer 
I think would just come generally from the nature of my 
experience. As an Assistant Federal Defender for the last 30 
years, the one thing that comes home to roost all of the time 
is how important it is for people to feel as though the justice 
system is treating them fairly, and that they are fairly 
represented, and that they and their positions are respected. I 
think it's important for advocates to understand that, as I try 
to do as an Assistant Federal Defender, and I think it's 
important for courts and judges to understand that. I think 
that's why judicial temperament and judicial disposition are so 
important, and I would bring that knowledge if I'm so fortunate 
to be confirmed as U.S. district judge. Thank you.
    Senator Blumenthal. Thank you. Mr. Ruiz.
    Judge Ruiz. Thank you for the question, Senator. I think 
the best example of the judge that I would be if fortunately 
confirmed follows from the lessons that I've learned over the 
past five years sitting as a magistrate judge in the Northern 
District of Ohio, which builds upon over 16 years of commercial 
and corporate litigation experience, as well as six years of 
experience as an Assistant United States Attorney.
    During my time serving as United States magistrate judge, 
I've worked hard to consider each party's positions with an 
open mind, to work hard to render fair and impartial 
determinations, to be well prepared in every case because the 
role of a district court judge or a magistrate judge in Federal 
court is extremely important. The judge directly touches the 
lives of all who come before the court, and to each litigant, 
the case that they have before the court is the most important 
case in the country to them.
    It's important that a judge, as I have tried very hard to 
do over the last five years, reflect the seriousness and the 
importance of that case to all the litigants and all the 
parties. Thank you.
    Senator Blumenthal. Thank you.
    Chair Durbin [Presiding.] Thank you, Senator Blumenthal. 
Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman, and thank you 
all for coming before us. I represent Tennessee, and 
Tennesseeans talk regularly about the importance of a fair 
judiciary, something that is equal treatment under the law. 
Having these hearings is important to us.
    Mr. Ruiz, I want to start with you. Very similar to what 
Senator Blumenthal was asking each of you. Most of your 
background is in civil proceedings, and you have very limited 
experience in criminal proceedings, and you have not written 
significant opinions on Federal or State constitutional issues 
in your role as a magistrate judge. Even though you say you've 
learned quite a bit from that position, the majority of your 
writings and your decisions are unpublished.
    Could you tell us what in your judicial experience would 
give you the qualifications to sit as a district judge? I'll 
give you about 30 seconds on that one.
    Judge Ruiz. Thank you for the question, Senator. During the 
past five years sitting as a magistrate judge, I've had the 
opportunity to preside over an extensive number of civil and 
criminal cases. During that time as a magistrate judge, I am 
responsible for approving and reviewing search warrants, pen 
traps traces, criminal complaints, and other matters in the 
criminal world.
    Senator Blackburn. Do you feel that the limited criminal 
and the civil work that you've had is a qualifier?
    Judge Ruiz. Thank you for the question, Senator. Not only 
the experience that I've had presiding over criminal cases and 
criminal hearings as a magistrate judge. I have also had the 
opportunity to prosecute a criminal case when I was in the 
United States Attorney's Office.
    Senator Blackburn. All right, let me end it with that 
because I want to go to Mr. Chun and talk with you about the 
amicus brief that the King County Bar Association submitted for 
Grutter v. Bollinger. The brief argued that promoting diversity 
in the legal profession is a compelling Governmental interest, 
and that this compelling interest requires race-sensitive 
admissions. I want to know if you still hold that view, and do 
you believe discrimination on the basis of race is permissible 
in college admissions?
    Judge Chun. Thank you for the question, Senator. I believe 
that brief was written almost 20 years ago when I was on a team 
of lawyers that put that brief together. When I played that 
role in putting that brief together, I was serving in the role 
of the advocate, and our client was the King County Bar 
Association, and so I was trying to advance their position as 
best as I could.
    Senator Blackburn. Do you hold that view? If you want to 
submit this in writing, that's fine with me. I would like to 
know if you hold that view that a compelling interest requires 
race-sensitive admissions, and if that would apply to college 
admissions? In what circumstances would you apply that 
criteria, and is it okay to discriminate on the basis of race 
in hiring? We will send this to you so that you can give us a 
written follow-up because I think it's important if you were to 
be confirmed as a U.S. district judge. You would take part in 
appointing the magistrate judges. We would want to know if you 
would be using race as a basis for that criteria, if you would 
use it for law clerks, so let's get that to you in writing.
    Judge Chun. Okay, thank you.
    Senator Blackburn. Let's see. Mr. Fleming, do you believe 
that a 14-year-old can consent to sex with an adult?
    Mr. Fleming. Thank you for the question, Senator. I know 
that different States, like the State of Ohio, have an age of 
consent, and in the State of Ohio, the age of consent is 16. I 
would be guided by the law and the precedent.
    Senator Blackburn. Well let's talk specifically about U.S. 
v. Evans.
    Mr. Fleming. Okay.
    Senator Blackburn. You filed a sentencing memorandum in 
U.S. v. Evans for a defendant who was found guilty of cocaine 
possession and distribution. What you did was to move forward 
with this that had convictions--one of the convictions was 
corruption of a minor, which involved the statutory rape of a 
14-year-old girl that resulted in the birth of the defendant's 
son. You argued that this rape should not be used as a 
predicate for career offender status because the victim had a 
son by the defendant and maintained a romantic and parental 
relationship with him, so.
    I understand that as an attorney, you need to zealously 
represent your client, but I need to clarify your views for me. 
Do you believe that if a rapist impregnates his victim, it is 
no longer a crime of violence?
    Mr. Fleming. Senator, at that time, I was not espousing my 
particular belief. At that time, what I was asserting to the 
judge was that, based on the state of the law, the state of the 
sentencing guidelines, that the court should consider the 
circumstances surrounding that conviction.
    Senator Blackburn. Mr. Fleming, my time has expired.
    Mr. Fleming. Okay.
    Senator Blackburn. I hope you understand that when an adult 
rapes a child, and that child stays with her abuser, that that 
is not a relationship. That is abuse, and that is called 
grooming. Thank you, Madam Chairman, I yield.
    Chair Durbin. Thank you. Thank you, Senator Blackburn. 
Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. Welcome to each of 
the nominees. Congratulations on your nominations. Mr. Fleming, 
let's start with you. You've had a number of questions today. I 
want to revisit the case of the United States v. Brown. In that 
case, you represented a defendant who was charged with child 
pornography involving his two minor granddaughters. You argued 
that Congress did not mean to regulate child pornography when 
it outlawed producing visual depictions of minors engaging in 
sexually explicit conduct. The Supreme Court did not accept 
your argument. Explain that argument to this Committee.
    Mr. Fleming. Thank you, Senator, and in doing so, I hope 
you'll allow me to clarify what I said earlier. There were two 
different aspects to Mr. Brown's case. One was the--there was 
child pornography, or alleged child pornography that had been 
uploaded to the internet. Then there was alleged child 
pornography that he had produced, as you indicated, of his 
step-granddaughters.
    The child pornography alleged with regard to his step-
granddaughters simply related to pictures that he took of his 
step-granddaughters, and the reason the Government was 
prosecuting him for that was because he had taken them with 
items that had traveled in interstate commerce, like a camera, 
you know, that was made by Yoshiba or someone like that. What I 
was arguing, as to the pornography alleged regarding his step-
granddaughters, that because he simply took pictures and did 
not distribute that, it was simply intrastate conduct, we 
thought that that created a constitutional question under the 
commerce clause as to whether it reached that intrastate 
conduct. We did not allege----
    Senator Cruz. Thank you. You also, after the Supreme Court 
didn't accept your petition, you then subsequently argued that 
the client did not produce ``lascivious visual depictions,'' 
even though the videos had pornographic content of the two 
granddaughters. Can you explain that?
    Mr. Fleming. Yes, thank you, Senator. Under precedent, when 
we talk about lascivious display of the genitals, precedent has 
indicated that's when the focus of the picture is on the 
genitalia, as opposed to just a general, garden-variety picture 
of a child who may not have clothes on. People often take 
pictures of children who are less than well-dressed. The 
question was whether or not this was a lascivious display of 
the genitals, and we simply raised a factual question at the 
district court level for the court to decide whether or not 
this was in fact a lascivious display of the genitals, as 
opposed to just a picture of children who may not be dressed.
    Senator Cruz. I'm thankful I don't know the specifics of 
the facts of this case, but I suppose I'm obliged to ask, how 
graphic are we talking about? There's one thing if someone has 
pictures of some kids playing in a bathtub. There's something 
else entirely if they're engaged in or simulating sexual 
conduct.
    Mr. Fleming. Thank you. Thank you, Senator. These pictures 
did not in any way engage in sexual conduct. As a matter of 
fact, funny you should mention, one of the pictures was them 
taking a picture of a kid playing in a bathtub. That is one of 
the reasons why we asked the judge to make a call at the trial 
level and sentencing level as to whether or not these are, in 
fact, lascivious, and we thought that there was----
    Senator Cruz. What did the judge conclude?
    Mr. Fleming. The judge concluded that they were, but we 
thought because of the nature of the pictures, and bathtub 
picture like you indicated, that there was an open question as 
to whether or not they should be considered lascivious, and we 
wanted the court to weigh in.
    Senator Cruz. Let me shift to Ms. Brennan. Ms. Brennan, you 
defended a law professor, Ayesha Bell Hardaway, who was 
supposed to objectively evaluate whether the Cleveland Police 
Department complied with a consent decree concerning excessive 
force. While Professor Hardaway was on the monitoring team, she 
made statements disparaging police officers and suggesting that 
they were, quote, ``trigger happy.'' They were, quote, ``brutal 
in interactions with Black people.'' She also said that it was, 
quote, ``disingenuously obtuse,'' for people to, quote, 
``profess that all police officers aren't that bad.'' Do you 
share the views of Professor Hardaway?
    Ms. Brennan. Thank you for the question, Senator. I do not 
take a position on another person's views. In that context, I 
think much more was being said. Ms. Hardaway was a 
representative of the court.
    Senator Cruz. I'm sorry. What is, ``I don't take a position 
on another person's views?'' Do you agree with what she said 
there? I'm asking what your views are.
    Ms. Brennan. I don't exactly remember the full statement 
that was made, so I can't--I can't put it all together. I know 
that that was part of a longer segment on a radio show, but 
Your Honor, much conversation was had with the court about 
statements made by Ms. Hardaway. Her full context as a member 
of the monitoring team was assessed, and the judge and the 
monitor in charge of that monitorship determined that Ms. 
Hardaway should remain as a member of the team.
    Senator Cruz. She resigned after public outcry, and you 
expressed disappointment that she was no longer ostensibly, 
objectively evaluating the Cleveland Police Department. Is that 
right?
    Ms. Brennan. I--I guess I don't understand where that 
question's coming from, Senator. I don't remember what I said 
that was in defense of Ms. Hardaway.
    Senator Cruz. You said that she was, quote, ``an integral 
part of the police reform process,'' and you expressed 
disappointment to lose someone of her caliber after she 
resigned following her condemnation of the police. Is that 
accurate?
    Ms. Brennan. I don't think that's a full--I don't remember 
saying anything about condemnation----
    Senator Cruz. No, that's not in the quote.
    Ms. Brennan. Okay, thank you. Look, her viewpoints, her 
participation as a member of the monitoring team had been 
important, and the monitor believed they were important, and 
the judge believed they were important----
    Senator Cruz. Madam Chair, I would ask unanimous consent to 
enter into the record the formal statement from Acting U.S. 
Attorney, Bridget Brennan, which reads, ``The importance of 
diversity in thought and experiences to the police reform 
process cannot be overstated. Professor Ayesha Bell Hardaway 
was an integral part of this dialog, bringing a unique 
combination of local knowledge and legal expertise. Her 
presence in the monitoring team facilitated the process and 
success as we have seen to date, and we were disappointed to 
learn of her resignation.'' Thank you.
    Senator Hirono. [Presiding.] Without objection. Before I 
close this hearing, I would like to note that the many times 
that we have sat her listening to my Republican colleagues 
talking about how lawyers represent their clients, not 
necessarily sharing the views or the behavior of their client, 
and so I have a lot of quotes here to that effect from a number 
of my colleagues, and perhaps I'll enter these into the record. 
I won't object to myself doing that.
    [The information appears as a submission for the record.]
    Senator Hirono. Thank you very much. Before I adjourn 
today's hearing, I note that the questions for the record will 
be due to the nominees by 5 p.m. on Wednesday, November 24th, 
and the record will likewise remain open until that time to 
submit letters and similar materials. We ask that the nominees 
work diligently to respond to those questions.
    Thank you to all of our nominees and to your families who 
have joined us and your friends. Congratulations once again. 
With this, the hearing is adjourned.
    [Whereupon, at 11:15 a.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]
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