[Senate Hearing 117-873]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 117-873

                        CONFIRMATION HEARING ON
                          FEDERAL APPOINTMENTS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                           DECEMBER 15, 2021

                               ----------                              

                           Serial No. J-117-8

                               ----------                              

         Printed for the use of the Committee on the Judiciary






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                 U.S. GOVERNMENT PUBLISHING OFFICE

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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

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                           OPENING STATEMENTS

                                                                   Page

Durbin, Hon. Richard J...........................................     1
Grassley, Hon. Charles E.........................................     2
Booker, Hon. Cory A..............................................     4
Padilla, Hon. Alex...............................................     5

                          VISITING INTRODUCERS

Schumer, Hon. Charles E., U.S. Senator from New York.............     6
Menendez, Hon. Robert, U.S. Senator from New Jersey..............     2
Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     3
Cortez Masto, Hon. Catherine, U.S. Senator from Nevada...........     7
Rosen, Hon. Jacky, U.S. Senator from Nevada......................     8

                                NOMINEES

Castner, Georgette...............................................    24
    Questionnaire................................................   470
    Responses to written questions...............................    36
    Additional materials.........................................   428
Montenegro, Hon. Ruth Bermudez...................................    24
    Questionnaire................................................   494
    Responses to written questions...............................    91
    Additional materials.........................................   429
Nathan, Hon. Alison J............................................    10
    Questionnaire................................................   574
    Responses to written questions...............................   136
    Additional materials.........................................   432
Rubin, Hon. Julie Rebecca........................................    25
    Questionnaire................................................   644
    Responses to written questions...............................   240
    Additional materials.........................................   448
Silva, Hon. Cristina D...........................................    26
    Questionnaire................................................   706
    Responses to written questions...............................   308
    Additional materials.........................................   450
Traum, Ann Rachel................................................    27
    Questionnaire................................................   753
    Responses to written questions...............................   372
    Additional materials.........................................   460









 
                        CONFIRMATION HEARING ON
                          FEDERAL APPOINTMENTS

                              ----------                              


                      WEDNESDAY, DECEMBER 15, 2021

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice at 10:01 a.m., in 
Room 226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Whitehouse, 
Blumenthal, Hirono, Booker, Padilla, Ossoff, Grassley, Lee, 
Cruz, Hawley, Kennedy, Tillis, and Blackburn.
    Also present: Senators Menendez, Cardin, Schumer, Cortez 
Masto, and Rosen.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,

            U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. The hearing will come to order. Today we hear 
from six nominees: Judge Alison Nathan, nominated to the Second 
Circuit; Georgette Castner, to the District Court of New 
Jersey; Judge Ruth Montenegro, to the Southern District of 
California; Judge Julie Rubin, to the District of Maryland; 
Judge Cristina Silva, District of Nevada; Anne Traum, District 
of Nevada.
    Several of our colleagues are here today to formally 
introduce the nominees, and I'll turn to them in just a moment. 
I'd like to offer a few thoughts about the nominees in general. 
I've noted many times that President Biden has made it a 
priority to nominate individuals with professional backgrounds 
that will diversify the Federal bench. Today's slate continues 
in that manner.
    We have before us a sitting district court judge, a sitting 
magistrate judge, two State court judges, two nominees who 
previously served as Federal prosecutors, one nominee from 
academia, one nominee served as a Federal Public Defender, 
multiple nominees with significant trial experience. When 
litigants walk into a courtroom in America, it's critical that 
they feel they are going to get a fair shot. That's why it's so 
important that our Federal courts reflect the communities they 
serve. This effort is not just about diversity for diversity's 
sake. This effort bolsters the legitimacy of our legal system.
    I anticipate there will be questions today about nominees' 
views on the role of a judge and approaches to judicial 
decision-making. These nominees have significant trial and 
appellate experience. They've dedicated time to serving those 
who are less fortunate, and they've proven they can approach 
the law with independence. I'm looking forward to hearing their 
answers. I should note for the record that all of these 
nominees have been judged ``qualified'' or ``well qualified,'' 
many of them unanimously ``well qualified,'' by the American 
Bar Association.
    With that, I'll turn to Ranking Member Grassley for any 
remarks.

             STATEMENT OF HON. CHARLES E. GRASSLEY,

              U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. I just have a very, very short statement. 
You've talked about the nominees, so I won't go into that. I'll 
simply say that I hope we can have a productive discussion 
about their judicial philosophies because we recently had 
nominees who've been very vague answers when asked about their 
philosophies, and that statement I just made has nothing to do 
with their qualifications. Because I know we're getting people 
that are well prepared, but that sometimes isn't the only basis 
on which we judge nominees. Thank you.
    Chair Durbin. Thanks, Senator Grassley. Of course, we're 
going to recognize Senator Schumer when he appears. As Majority 
Leader, he has quite a busy schedule. In the meantime, I'm 
going to recognize my colleagues who are in attendance, and I 
will start first with Senator Menendez.
    We warned you that pitching successive games without rest 
could have some damage to your pitching arm, but you've 
soldiered on nevertheless.
    Senator Menendez. Mr. Chairman, the other guy's not around 
to talk, so.
    [Laughter.]

               STATEMENT OF HON. ROBERT MENENDEZ,

           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Menendez. Mr. Chairman, distinguished Ranking 
Member, Members of the Committee, today I have the pleasure of 
introducing to you yet another highly qualified and exceptional 
nominee to the U.S. District Court for the District of New 
Jersey, Ms. Georgette Castner. As you know, and with our thanks 
to the Committee, we had judicial emergencies--one of the 
districts that were listed as judicial emergencies because we 
had multiple openings. Through the leadership of this 
Committee, we are moving to fill them with incredibly qualified 
people. I appreciate that.
    During her 15 years of experience in State and Federal 
litigation, Ms. Castner has earned a reputation of one of the 
brightest and most hardworking attorneys in the South Jersey 
legal community. With years of experience advocating in New 
Jersey courtrooms, Ms. Castner has been a champion for her 
small business clients. Her pro bono practice is also 
especially meaningful to her, and she speaks proudly of helping 
New Jersey families through her work for the New Jersey Fair 
Share Housing Center. I have no doubt that her husband, Bill, 
and their children, who are all here, are tremendously proud of 
her achievements. I believe that Ms. Castner's diverse 
experiences and unique perspective will make her an excellent 
Federal judge. Currently, Ms. Castner is a partner of the 
Cherry Hill law firm of Montgomery McCracken, where she focuses 
on government and white-collar investigations, commercial 
litigation, and the fast-growing field of cannabis law. Indeed, 
as co-chair of the Cannabis Law Practice Group, Ms. Castner 
regularly advises clients within this emergent industry and has 
written a number of articles about the complex landscape of 
disparate Federal, State, and local laws and regulations faced 
by these businesses.
    Outside of the workplace, Ms. Castner has contributed her 
expertise and time to the broader community, from serving on a 
local zoning board of her hometown of Moorestown to working pro 
bono on behalf of South Jersey Legal Services, where she 
successfully led an appeal against the U.S. Social Security 
Administration on behalf of a child who had been unjustly 
denied SSI benefits. Ms. Castner is also contributing to the 
integrity of our court system, serving on the New Jersey 
Supreme Court's Committee on Character.
    For Ms. Castner, her involvement in the community stems 
from a lifelong commitment to public service, as demonstrated 
during her early career as a law clerk on the New Jersey 
Appellate Court, and as a Chief of Staff in the New Jersey 
State Assembly. I'm convinced if confirmed, and confident that 
Ms. Castner's commitment to justice, her commitment to 
precedent, her intellectual curiosity, and her wide array of 
experiences in the field of law in the courtroom, as well as 
outside, will make her an invaluable asset to the U.S. District 
Court of New Jersey. I urge the Committee to support her 
nomination expeditiously. Thank you.
    Chair Durbin. Thanks, Senator Menendez. Senator Cardin will 
introduce Judge Rubin.

             STATEMENT OF HON. BENJAMIN L. CARDIN,

            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Thank you, Chairman Durbin and Ranking 
Member Grassley, and the Members of the Judiciary Committee. 
It's my pleasure to introduce Judge Julie Rubin to the 
Committee, President Biden's nominee to serve on the Maryland 
District Court. Judge Rubin is a Baltimore City Circuit Court 
judge. She was recommended by Senator Van Hollen and myself to 
President Biden for the vacancy created by Judge Ellen 
Hollander taking senior status. Judge--President Biden 
nominated her on November the third.
    Let me just briefly explain that Senator Van Hollen and 
myself have established a nonpartisan Judicial Selection 
Committee, to give us recommendations on who we should 
recommend to the President for nominations to the district 
court. It's an open process. We give public notice. Those that 
we've reached out for applications to from the State, local, 
and specialty bar associations, every interested applicant was 
interviewed by the nonpartisan Judicial Selection Committee. 
They recommend certain numbers for us to personally interview, 
and Senator Van Hollen and I interviewed several of the 
candidates, and quite frankly, Judge Rubin was at top of the 
class. She was the one that was recommended to us for this 
appointment and we're proud to submit her name to President 
Biden and to this Committee for confirmation.
    Judge Rubin has tremendous experience sitting on the 
Baltimore City Circuit Court for nearly a decade. I know the 
experience of the Circuit Court for Baltimore City, since my 
father served for many years on the Circuit Court for Baltimore 
City. The caseload in Baltimore City is heavy, substantial, and 
diverse. Judge Rubin served in the civil, family, and criminal 
divisions. She previously served as a supervisory judge of the 
Alternative Dispute Resolution. She presided over 1000 cases, 
both bench cases and jury cases.
    She has an outstanding reputation among the legal community 
as being fair, objective, professional, well-prepared, the 
highest standards of integrity, competency, and temperament. 
She recently earned the highest rating from the American Bar 
Association, by unanimous opinion, as being ``well qualified''. 
She combines her legal and judicial role with her activism 
within our community. She's an adjutant legal professor, and 
she's active on numerous educational and legal institutions in 
Baltimore, including being the chair on the board of trustees 
of the Bryn Mawr School in Baltimore.
    Mr. Chairman, I just want to take this time to thank Judge 
Rubin for her public service and her willingness to serve in 
this role, recognizing it's a family commitment, and thank her 
husband, James, for sharing her with our community. I recommend 
her for prompt approval by this Committee, and I thank you for 
this attention.
    Chair Durbin. Thank you, Senator Cardin. Of course, we 
acknowledge that our colleagues that have come before this 
Committee have a busy schedule as well. You can stay as long as 
you can, but we understand if you have to leave. We're going to 
call on Senator Booker now to follow-up on Senator Menendez's 
earlier statement.

               STATEMENT OF HON. CORY A. BOOKER,

           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Booker. I'm really grateful, Chair Durbin, thank 
you. I'm pleased today to also offer words of support and 
introduction for Georgette Castner, who is nominated, as you 
know, to be the U.S. District Court for the District of New 
Jersey. With 15 years of litigation experience, Ms. Castner is 
more than qualified to serve on the Federal bench. After 
attending The College of New Jersey--I think it's the best 
college in America, if I have it here correctly. She earned her 
JD at Rutgers Law School, which is tied for the best 
universities in America. Ms. Castner clerked for Judge Joseph 
Lisa on the Appellate Division of the Superior Court of New 
Jersey. Since then, she has worked at a truly well-respected 
law firm in South Jersey and has represented a wide range of 
litigants throughout her time in private practice, giving her 
an extraordinary range of experience and garnered wisdom.
    On top of her litigation experience, she has also mentored 
a number of junior attorneys and serves on her firm's diversity 
committee. As part of this role, she has helped associates gain 
experience, obtain promotions, and increased diversity at the 
partnership level.
    Her experience, her intellect, her sense of service, her 
commitment to others, demonstrate that she is ready to be a 
fair, an impartial, and an excellent Federal judge. Ms. Castner 
is a New Jerseyan through and through. If you cut her, she 
bleeds Jersey. I'm proud to introduce her today, along with my 
senior Senator, Bob Menendez, the tough and rumble guy that we 
see before us. Last, I know that she's going to make not only 
all of New Jersey proud, but that she will make our Nation 
proud with her distinguished service, should she be confirmed 
by this body. Thank you.
    Chair Durbin. Thank you, Senator Booker. We turn in this 
moment to the California Senators. Senator Feinstein is 
submitting a statement for the record on behalf of Judge 
Montenegro.
    [The information appears as a submission in the record.]
    I recognize Senator Padilla.

                STATEMENT OF HON. ALEX PADILLA,

           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Padilla. Thank you, Mr. Chair, Ranking Member 
Grassley. I'm proud to introduce Judge Ruth Montenegro as 
President Biden's nominee to serve as the U.S. District Court 
for the Southern District of California. Judge Montenegro is 
joined today by her husband, Joe, daughter, Miranda, sisters 
Eran and Nadia, brother-in-law Jason, and her law clerks. I 
welcome them all to the Committee and thank them for their 
support of this incredible nominee.
    Judge Montenegro has lifelong roots in Southern California. 
She's a proud daughter of Mexican immigrants, who came to this 
country with an elementary school education. I can relate. 
Judge Montenegro understood the value of education, community, 
and public service at an early age. She was born and raised in 
Brawley, California. Yes, I've been there, multiple times. Not 
every elected official in California can say that. She earned 
her associate's degree from Imperial Valley College. After a 
few brief years away to attend college at Clarion University in 
Pennsylvania, Judge Montenegro returned to California, where 
she attended and graduated from UCLA School of Law, 
establishing her law career in El Centro, so far from Brawley.
    [Laughter.]
    El Centro, California, in the Imperial Valley community, in 
which she was raised, Judge Montenegro achieved success as a 
litigator, advocate, and administrator. She focused on 
representing public agencies, ranging from the Imperial Valley 
Housing Authority to the El Centro Elementary School District.
    Recognizing her nearly 20 years of skillful legal work, 
Governor Brown appointed Judge Montenegro to a superior court--
as a superior court judge in 2012, where she served for a year 
before being appointed as a Family Court commissioner. In 2014, 
Judge Montenegro ran and won election to serve, once again, as 
a superior court judge in Imperial County. In 2018, Judge 
Montenegro's excellence was recognized, once again, and she was 
appointed to serve as magistrate judge in the Southern District 
of California. She has served with distinction on that court 
for the past three years.
    Judge Montenegro's extensive judicial experience and her 
long history of connection to the Southern District will 
strengthen our district court bench. She's been a balanced and 
a respected jurist and a fixture in the community. She's also a 
mentor, an educator for the young people, as I'm sure her 
clerks, who are here supporting her today, would tell you. 
She's volunteered to help students on their path to college and 
establish a civics education program at the Federal Courthouse, 
in El Centro. I'm proud to have recommended Judge Montenegro to 
the President, and strongly support her nomination. Colleagues, 
I urge you to support her as well. Thank you, Mr. Chair.
    Chair Durbin. Thank you, Senator Padilla. We want to 
acknowledge the patience of Senator Cortez Masto and recognize 
the Majority Leader to speak at this moment.

             STATEMENT OF HON. CHARLES E. SCHUMER,

            U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. I asked Senator Cortez Masto, and she 
graciously said, ``Go right ahead.'' Thank you, Chairman 
Durbin, and thank you, my colleagues on the Senate Judiciary 
Committee. Today I return to the Committee because this is an 
exciting day, where I get to introduce a truly exciting and 
really remarkable nominee to sit on the Federal bench.
    It's my honor to introduce Judge Ali Nathan, originally 
from Philadelphia but now from my hometown of New York, 
nominated by President Biden, to serve as Circuit Judge for the 
Second Circuit Court of Appeals. The most important thing to 
know about Judge Nathan, is that she is here today with some 
pretty important guests in the audience: her twin sons; her 
wife, Meg; and her wonderful parents. Please stand up, Nathan 
Family. What a nice family. What a nice family. What's the sign 
of a great upbringing? It's for having two parents who hail 
from Brooklyn, and in Ali's case, having a dad who graduated 
from my own Madison High School. Please stand up, Mister. Thank 
you. Okay, I'll leave it to others to say whether I'm biased or 
not. Kidding aside, I want to applaud Judge Nathan's wonderful 
family. The work of a judge is a dense, difficult, and often 
draining job. It's important to have a strong support system to 
put everything into perspective, and I offer my praise to Judge 
Nathan's family for being here.
    Members of the Committee, this is the second time I have 
recommended Judge Nathan for a role on the Federal bench. 
Roughly a decade ago, I made my case to President Obama that 
Ali Nathan, with her impressive career, unassailable 
credentials, and obvious skills as a lawyer, deserved 
consideration as a district court judge in the Southern 
District of New York. I'm glad President Obama listened, and a 
decade later, we all know it was the right decision.
    Judge Nathan's resume speaks for itself. She's a graduate 
of Cornell Law, served as editor-in-chief of The Law Review, 
and clerked for Judge Betty Fletcher in the Ninth Circuit, and 
Judge John Paul Stevens, on the U.S. Supreme Court. She has 
taught at Fordham Law, served in the White House Counsel's 
Office, and served as counselor to the New York State Solicitor 
General, prior to her appointment on the bench.
    Her time on the bench is equally commendable. During her 
tenure, she has presided over many high-profile and difficult 
cases, some of which have gained attention in the press. All 
the way, she's one praised for her brilliance, her skill as a 
fair and neutral arbiter, and her unbroken fidelity to the rule 
of law. She comes before the Committee with the endorsement of 
scores of professionals who have worked with her over her 
career, including her former fellow Supreme Court clerks, who 
have highlighted her kindness, her intellectual curiosity, her 
levelheadedness, and humility. If confirmed to the Second 
Circuit, Judge Nathan would be the only second LGBTQ woman to 
serve as a Federal appellate judge in the United States, 
another important step in tearing down the barriers in the 
halls of justice.
    Mr. Chairman, I believe that our courts are at their 
strongest when our judges mirror the richness and dynamism of 
our democracy. I've been proud to work with many of you this 
year in advancing nominees who are not only immensely qualified 
as potential jurists, but who shatter the mold of judicial 
nominees that we've grown accustomed to for so long. We hope 
the trailblazers of today can be closer to the norm of 
tomorrow. We want our courts to include more women, more 
diverse candidates, both demographically and professionally, 
and more judges who come from unique backgrounds. It's 
essential for our democracy and for Americans' faith in the 
solemn promise of equal justice under law, that all are 
entitled to, from the impoverished to the privileged. There's 
not a doubt in my mind that Judge Nathan would help advance 
that cause, nor do I question that she'll continue applying the 
law fairly and impartially, as she has done throughout her time 
as a district judge. For that reason, I am so very, very proud 
to support her nomination, and I thank the Committee for their 
time.
    Chair Durbin. Leader Schumer, thank you for your testimony. 
I know you're busy and will have to leave, but we'll always 
welcome you back to the Committee. Now, rewarding her 
patience----
    [Laughter.]
    Senator Cortez Masto. They say patience is a virtue.
    Chair Durbin. It certainly is in this Committee. Senator 
Catherine Cortez Masto.

           STATEMENT OF HON. CATHERINE CORTEZ MASTO,

             U.S. SENATOR FROM THE STATE OF NEVADA

    Senator Cortez Masto. Thank you. Chairman Durbin, Ranking 
Member Grassley, and Members of the Committee, I am honored to 
introduce two outstanding nominees to the U.S. District Court 
for the District of Nevada: Judge Cristina Silva and Professor 
Anne Traum. You know, Nevada's Federal bench has had vacancies 
since 2016 and 2018. Senator Rosen and I have worked closely 
with our bipartisan judicial commissions to review the records 
of each candidate for these seats, and I know the two nominees 
here today not only have the necessary qualifications, but also 
the skills, the dedication, and intelligence to serve the 
people of Nevada and the country, on the Federal bench.
    Judge Cristina Silva is here with her family. I'm going to 
ask her to stand up as well. Please. Judge Traum, excuse me, 
Anne Traum is here with her family. I'm going to ask her to 
stand up as well, just to show you that Nevada is in the house.
    [Laughter.]
    Not only do we have Nevadans in the house, Judge Traum has 
three boys with her, her sons, and two of them graduated from 
Clark High School, which is a fabulous high school that I went 
to. Clark Chargers are in the house as well.
    Let me just say that Judge Cristina Silva's experience and 
commitment to integrity in the justice system will serve her 
well as a Federal district judge. She held numerous leadership 
positions at the U.S. Attorney's Office in the District of 
Nevada, and she became the first woman and Latina to serve as 
Chief of the Criminal Division. During her time with the U.S. 
Attorney's Office, she supervised over 35 attorneys and was 
later recognized for her work in the investigation into the 
2017 Route 91 Harvest Music Festival shooting that we had in 
Las Vegas. Since 2019, she has handled both criminal and civil 
matters as a judge for the Eighth Judicial District Court in 
Las Vegas. Nevada has benefited immensely from Judge Silva's 
work and public service. I believe, and know, that she will 
carry her knowledge, temperament, and fair-minded approach to 
the Federal bench.
    Professor Anne Traum is an expert in criminal law and has 
been an active contributor to Nevada's legal community for 
years. She served as an Attorney for the Civil Division of the 
United States Attorney's Office in Nevada, where she engaged in 
litigation involving Federal lands and natural resources. She 
also served as an Assistant Federal Public Defender in Las 
Vegas. Over the course of her career, Professor Traum has 
argued more than 30 cases before the Ninth Circuit Court of 
Appeals.
    Professor Traum built a reputation as a thoughtful and 
diligent lawyer, before joining the faculty of UNLV's William 
S. Boyd School of Law, where she teaches a wide range of 
courses on Federal courts and criminal law. Students and 
colleagues alike, they praise her leadership and her expertise. 
She currently directs the law school's appellate clinic to 
represent individuals in civil and criminal cases before the 
Ninth Circuit and the Nevada Supreme Court. Professor Traum's 
record as both a practitioner and as an academic should prove a 
strong addition to the U.S. District Court for the District of 
Nevada.
    I know that Judge Cristina Silva and Professor Anne Traum 
have demonstrated their commitment to justice, the law, and 
their communities. As a member of the bar in Nevada for several 
years, I have seen this, and I am confident that they will 
represent the best of Nevada on the Federal bench. It is my 
honor to enthusiastically support their nominations to serve on 
the U.S. District Court from the District of Nevada. Thank you, 
again.
    Chair Durbin. Thank you, Senator. Senator Rosen, welcome to 
the Committee.

                 STATEMENT OF HON. JACKY ROSEN,

             U.S. SENATOR FROM THE STATE OF NEVADA

    Senator Rosen. Thank you, Chair Durbin. Thank you, Ranking 
Member Grassley, and thank you, Senator Cortez Masto, for being 
my partner here and for enthusiastically supporting the two 
nominees before this Committee today. I really appreciate being 
had--allowing me the honor to introduce Cristina Silva and Anne 
Traum, the nominees to U.S. District Court for the District of 
Nevada. I can't do justice to the tremendous careers of these 
two Nevadans in just a few minutes.
    Judge Cristina Silva spent most of her legal career as a 
Federal prosecutor in Las Vegas, including as Chief of the 
Criminal Division, where she supervised all criminal 
investigations and prosecutions in the U.S. Attorney's Office 
in Nevada. She has vast experience with criminal cases in 
Federal court, including cases relating to violent crimes, 
child exploitation, civil rights violations, and cybercrime. 
And since 2019, she has served with distinction as a State 
court judge in Nevada, earning the respect and admiration of 
her colleagues on the bench, as well as the parties who have 
appeared before her.
    One former colleague who observed Judge Silva, both as a 
Federal prosecutor and on the bench, wrote that she is, quote, 
``intellectually gifted, extremely hardworking, and possessed a 
deep commitment to the rule of law,'' unquote. Importantly, he 
also wrote, and I'll quote again, ``Judge Silva is at all times 
patient, measured, and courteous in the performance of her 
judicial duties,'' unquote.
    Our second nominee, Professor Anne Traum, also has had a 
distinguished career of service to the people of Nevada. She 
litigated civil cases with the U.S. Attorney's Office, worked 
for six years on criminal cases as a Federal Public Defender, 
and since 2008, has taught the future lawyers of Nevada, at the 
University of Nevada's Las Vegas Boyd School of Law. In 
addition to being an admired teacher and scholar, Professor 
Traum has dedicated herself to serving the Federal courts and 
low-income parties, working to ensure that all individuals have 
adequate representation to defend their rights and have access, 
have access, to the justice system.
    One thing that stood out to me in the letter supporting 
Professor Traum's nomination, sent by 57 of her colleagues at 
the Boyd School of Law, and I'm going to quote again, is that, 
``Her students regularly credit her clinic courses as the most 
important in their law school careers,'' end of quote. I'll 
also note that two of the signers are the Federal Public 
Defender for the District of Nevada and the District Attorney 
for Clark County, the largest county in our State.
    Two final points I would like to make: the first is that 
both of these nominees were vetted by the bipartisan Judicial 
Selection Committee that Senator Cortez Masto and I formed. I 
thank the commission members who volunteered many hours 
reviewing applications and interviewing candidates to ensure 
that the individuals that we recommended to the White House for 
nomination were chosen for their intellect and qualifications 
and had the support of Nevada's legal community.
    Second, these district court seats have been vacant for 
more than three years for Judge Silva's nomination, and more 
than five years for Professor Traum's nomination. Both these 
vacancies are considered judicial emergencies by the 
Administrative Office of the U.S. Courts. With only seven 
district court judges in Nevada, our Federal district court has 
been under enormous strain, with civil litigation, in 
particular, delayed for months and even years in some cases. 
Even on relatively straightforward motions. These delays drive 
up costs to businesses and individuals pursuing their claims in 
court. I urge swift confirmation for these two highly qualified 
nominees, so that Nevadans have fair and reasonable access to 
Federal courts. Again, I want to congratulate both nominees and 
their families, and thank them for their willingness to serve. 
Thank you.
    Chair Durbin. Thanks, Senator Rosen. Thanks to both of you 
for being here this morning. I'd like to tell that those in 
attendance what the basic lay of the land will be. We have two 
panels. The first panel will be Judge Alison Nathan, as nominee 
for a circuit court position. The second panel will be the 
district court nominees. At 11:30, we have the beginning of two 
roll calls. You may see some movement of Members leaving and 
coming and others stepping in. It's normal for this Committee 
and no reflection on any of the nominees. So let me, at this 
point, invite Judge Nathan to please stand to be sworn.
    [Witness is sworn in.]
    Chair Durbin. Thank you, Judge Nathan. Let the record 
reflect that you answered in the affirmative, and now we invite 
you to make opening remarks.

                 STATEMENT OF ALISON J. NATHAN,

             NOMINATED TO BE UNITED STATES CIRCUIT

                  JUDGE FOR THE SECOND CIRCUIT

    Judge Nathan. Thank you, Chairman Durbin, and my thanks to 
you and Ranking Member Grassley for scheduling this hearing, 
and my thanks to all the Members of the Committee for the honor 
of your presence. I want to also thank Senator Schumer for that 
enormously generous introduction and also for recommending me 
to the President for this nomination. I thank Senator 
Gillibrand for her support as well. I thank President Biden for 
the honor of nominating me to the United States Court of 
Appeals for the Second Circuit.
    I would like to introduce my family. I'm here with my 
spouse, Meg Satterthwaite. I'm grateful every moment of every 
day for Meg's love, friendship, and unflinching support. Meg is 
sitting with our amazing twin sons, Nate and Oliver. The last 
time that Nate and Oliver were in this room, they were just 
under two years old, for my prior confirmation hearing, and my 
mom was feeding them a steady stream of gummy bears to keep 
them focused, shall we say. Ten years later, and they're here 
now as mature, smart, kind, and funny 12-year-old boys, and I'm 
so proud of them. Nate and Oliver, your love and encouragement 
is a source of pride and support for me today and every day, 
and I promise to get you some gummy bears after the hearing.
    Also, I'm here with my parents, Bill and Ellen Nathan. I 
know that they're enormously proud to be here today, and I'm 
grateful that they are, and for their lifetime of boundless 
support and love. We have many other family members and friends 
watching remotely. Meg and the boys and I are so grateful for 
the love that you surround us with every single day.
    Last, I want to thank my court family, many of whom are 
watching remotely: my courtroom deputy, Khalilah Williams, my 
current law clerks, all my former law clerks, and my judicial 
and administrative colleagues in the Southern District of New 
York. That court family makes my job as a district court judge 
both possible and a delight, and I'm enormously, enormously 
grateful.
    With that, Mr. Chairman, Ranking Member Grassley, I look 
forward to the Committee's questions.
    Chair Durbin. Thank you very much, Judge Nathan. I'm not 
going to dwell on the Madison High School connections, which 
we've heard over and over, but it's an amazing legacy at that 
high school. You're only one generation removed from it, and we 
thank you for coming today and representing that heritage.
    You have exercised your right as an American citizen to 
express yourself throughout your life, sometimes on issues of 
controversy, and I'm sure taking positions that are not shared 
by every Member of this Committee. You were fortunate, in my 
view, and I think in yours as well, to be clerk to Justice John 
Paul Stevens, a man whom I know and admire very, very much. You 
spoke at his memorial service and made a statement about what 
he meant to you and what he represented in terms of the image 
of a judge. Would you recount that to the Committee?
    Judge Nathan. Thank you, Chairman Durbin. He was a 
Chicagoan through and through, and I miss him very much. He 
died a few years ago. He meant a lot to me on many levels, but 
as a model of a judicial officer, he brought intelligence, 
integrity, impartiality, and an open mind to every case before 
him. I got to watch that upfront. I saw him learn from his 
colleagues. I saw him express his views on issues, with 
strength and courage, in his judicial writings and his approach 
to cases. He taught me something that I have tried to embody 
throughout my career, which is, you can disagree without being 
disagreeable, and you have to approach every case with an open 
mind.
    Chair Durbin. Some of the faces have changed, but you're 
familiar with the territory here in this Committee, as you've 
noted. Last time around, some of your critics said you were an 
activist, had an activist viewpoint. Would you like to respond 
to that?
    Judge Nathan. Thank you, Senator. I think what I would say 
is I've been a judge for 10 years. I've presided over more than 
3,000 cases. I've written more than 1,500 opinions. I hope that 
my record establishes the kind of judge that I am and, should I 
be confirmed to the circuit, the kind of judge that I would be.
    Chair Durbin. I'm going to suspend my questions because 
other Members have to rush to vote in a little while. Let me 
turn first to my colleague, Senator Grassley.
    Senator Grassley. Say, I'm going ask some of our criminal 
law. Maybe a couple of years ago, we wouldn't have asked these 
questions so much because we feel an increase in crime and, 
particularly, murders lately. You've granted several convicted 
criminals compassionate release during COVID-19 pandemic. In 
many cases, these inmates had violent criminal histories and 
were at very low risk of death or serious illness. I've been 
involved with Senator Durbin on some of the--being a little bit 
more liberal on criminal justice reform. I don't take offense 
to it, except how it may be administered. So, just to take one 
example, U.S. v. Tucker, an inmate had a violent history, had 
already contracted and recovered from a virus. He also had both 
doses of Moderna vaccine. You still reduced his sentence by a 
year. Just kind of asking what goes through your mind? What is 
the legal basis for granting compassionate release to a violent 
felon, who had been fully vaccinated against the virus, and/or 
are at low risk?
    Judge Nathan. Senator Grassley, thank you. I have had many 
cases, as all district judges did, I think, in the pandemic, 
raising under the First Step Act, motions for compassionate 
release. In all of them, I evaluated extraordinary conditions 
and then the 18 U.S.C. Sec.  3553(a) factors. In the vast 
majority of the cases, of petitions for compassionate release, 
I denied. I do have some instances of having granted relief, 
including in the case that you mentioned. I did not actually, I 
suppose to be more precise, grant release, but I did, in 
conducting the evaluation under the 18 U.S.C. Sec.  3553(a) 
factors, reduce Mr. Tucker's sentence by a year.
    Senator Grassley. Decisions to release convicted felons due 
to pandemic have sometimes had tragic consequences. You didn't 
have anything to do with this case, but let me tell you about 
one. A DC man convicted and imprisoned for threatening to kill 
a woman was granted compassionate release. Last week, he found 
and killed the woman that he had previously threatened. How did 
you assess the violent nature of crimes committed and the risk 
that releasing convicted felons would pose to the communities 
released to?
    Judge Nathan. Senator Grassley, I did evaluate, as I said, 
under the relevant statutory factors. I think if you look at 
the overall record where I denied compassionate release, it was 
because of an assessment of likelihood of dangerousness, which 
is a relevant consideration. In each of those cases, I listened 
carefully to the arguments that were being made by both sides, 
considered relevant precedent, and analyzed each instance 
individually, under the relevant statutory factors. 
Dangerousness is a significant factor in that calculus.
    Senator Grassley. Last year, you held that an undocumented 
immigrant could assert a State common law privilege against 
civil arrest in your courthouses. Kind of a general question, 
why is the Federal Government prohibited from enforcing 
immigration laws near courthouses? More specifically, can ICE 
enforce the law two blocks away from a courthouse, or five 
blocks away?
    Judge Nathan. Senator Grassley, I have to be a little bit 
cautious on this one because the matter is currently pending 
before me, but as you said, in the motion to dismiss posture, I 
denied a motion to dismiss. I concluded, along the lines of 
another judicial opinion that had been authored in advance of 
mine, that a claim had been stated for the longstanding--from 
the time of the founding--New York State common law privilege, 
prohibiting civil arrest at the courthouse. That case has not 
reached judgment yet. It's currently pending and on hold, 
pending the circuit's ultimate conclusion with respect to that 
other matter that I referenced, that is ahead of me.
    Senator Grassley. My last question. In a 2000 Law Review 
article, you summarized your understanding of Second Amendment 
law, as it existed way before Heller. You suggested that 
there's no individual right to bear arms and that firearm 
regulation should be reviewed under a rational basis standard. 
After Heller and McDonald, how would you review laws impinging 
upon the Second Amendment rights, individual right, to keep and 
bear arms.
    Judge Nathan. Senator Grassley, as you noted, that was well 
before that Heller decision. I did summarize the State of the 
law at that time. Since then, the Supreme Court held clearly in 
Heller that there is an individual right to bear arms, and the 
McDonald case held that that is a fundamental right. Should I 
have a Second Amendment case or case raising those issues in 
front of me, without hesitation, I would fully and completely 
implement the Supreme Court's Heller and McDonald decisions.
    Senator Grassley. Thank you.
    Chair Durbin. Thank you, Senator Grassley. Senator 
Blumenthal?
    Senator Blumenthal. Thanks, Mr. Chairman. Thank you, Judge 
Nathan, for your service, not only on the bench, but also 
previously in the White House, and your work on the Obama 
administration's policies on the Defense of Marriage Act and 
military's policy of Don't Ask, Don't Tell. I think your 
family, your two sons, and all of your family is rightly proud 
of you. Your service on the bench has really been 
extraordinary, and for that reason I'm going to support you and 
support you strongly.
    In January 2020, you contributed to a memoriam in honor of 
Justice Stevens, for whom you clerked. You said about his 
approach to cases and his approach to the courtroom, quote, 
``But perhaps the most important judicial lessons I learned 
from Justice Stevens involved his fundamental approach to 
cases. Focus first and foremost on the facts, faithfully apply 
precedent, be intellectually honest and analytically rigorous. 
Think through the practical consequences of a holding, and most 
importantly, decide cases independently and impartially,'' end 
of quote.
    I know that being a judge often looks easy. Those of us who 
have litigated know that's not so. In fact, those of us who 
have clerked, as you have, understand that there are difficult, 
often excruciatingly challenging judgments to be made. In 
applying that philosophy that you articulated about Justice 
Stevens, have you tried to be independent and impartial as you 
said you would? Even though there have been challenging times, 
have you felt that you've remained true to that approach?
    Judge Nathan. Thank you, Senator Blumenthal. I do, and I 
have Justice Stevens over my shoulder frequently when I face 
those hard calls. In every instance, every call I make in a 
case, every opinion that I write, I do my best to look at the 
relevant constitutional statutory provision, to look at the 
relevant Supreme Court and Second Circuit authority, to look to 
persuasive authority from other circuits and other districts, 
and then analyze as rigorously and intellectually honestly as I 
can. I thank Justice Stevens for having instilled those values 
in me as a legal thinker.
    Senator Blumenthal. Thank you. Mr. Chairman, taking your 
advice about being prompt in deference to our colleagues, I'm 
going to end my questioning there, and thank you.
    Chair Durbin. Let's hope that that is contagious. Senator 
Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. Judge, welcome. 
Congratulations.
    Judge Nathan. Thank you, Senator.
    Senator Kennedy. I'm not going to ask you about any Supreme 
Court--your comment on--ask you to comment on any Supreme Court 
cases, and I'm certainly not going to ask about a case in front 
of you, or how you would rule. I just want to try to understand 
how you think, if it's okay. Do you think America is mostly 
good or mostly bad?
    Judge Nathan. Senator, I took my boys for a walk yesterday 
around this neighborhood, and we stopped outside the Supreme 
Court. One of them pointed out to me that the pillars in front 
of the Supreme Court are Corinthian, and we looked at the 
pediment above it, and it said: Equal Justice Under the Law. I 
remember the first time I saw that building, when I walked 
inside to interview for clerkship with Justice Stevens. I carry 
that feeling of reverence for the rule of law with me in the 
responsibility I that I have as a district court judge. I'm 
proud of my service on the court, and I'm proud to be a part of 
this American judicial system.
    Senator Kennedy. Yes, ma'am, but do you think America is 
mostly good or mostly bad?
    Judge Nathan. America is mostly good, Senator.
    Senator Kennedy. Thank you. Do you think freedom and 
democracy are synonymous? Can you think of circumstances when 
they're not?
    Judge Nathan. They're not synonymous, but I do think 
freedom requires democracy, and democracy requires freedom.
    Senator Kennedy. A majority in a democracy could vote to 
put somebody out of business just because they don't like them. 
Majority rules. That wouldn't be right, would it? I mean, 
sometimes, all of the fools are on the same side. Do you 
understand what I'm saying?
    Judge Nathan. I think so.
    Senator Kennedy. I guess the point I'm trying to make, and 
we conflate the two all the time, is that we all believe in 
democracy, but inalienable rights vis-a-vis of the minority 
against the majority are important. Are they not?
    Judge Nathan. The rights enshrined in the Constitution are 
fundamentally and critically important.
    Senator Kennedy. Let me just shift gears here for a second. 
Do you think--I'm thinking in terms of newly created, 
unenumerated rights in the U.S. Constitution. Do you think they 
should be voted on or created by our judiciary?
    Judge Nathan. Senator, I do want to be cautious not to 
weigh into a political or policy question, but of course the 
Supreme Court in Washington v. Glucksberg laid out the test for 
the recognition or at least the pronouncement by the Supreme 
Court of unenumerated rights. Those are rights that are deeply 
rooted in our Nation's histories and traditions, and implicit 
in the concept of ordered liberty.
    Senator Kennedy. I'm just trying to understand your 
judicial philosophy. The right I'm talking about is 
unenumerated. If you read the Constitution, it wouldn't leap 
out at you. That's why we call it unenumerated, of course, a 
penumbra if you will, which I'm still trying to figure out. Do 
you think that those kind of rights should be voted on by the 
people or created by a judge, all things being equal?
    Judge Nathan. As a judge, I would have to consider the 
Supreme Court precedent, with the respect to the articulation 
of a right enumerated or unenumerated, and apply that to a 
particular case that came before me.
    Senator Kennedy. Right, but which of the two is, in your 
opinion, in a democracy, where we have minority rights, is the 
better approach? To have a new right created by--voted on by 
the people or the people's representatives, or created by a 
Federal judge?
    Judge Nathan. I suppose to the extent it's a constitutional 
right, it was voted by the people in the founding, so it's, at 
some level, a creature of democratic governance.
    Senator Kennedy. Okay. Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Kennedy. Senator, Hirono.
    Senator Hirono. Thank you, Mr. Chairman. I am very 
delighted to be on this Committee to listen to you, Judge. I 
ask the following two questions of every nominee who appears 
before any of the Committees on which I sit. I will ask you to 
start these two 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?
    Judge Nathan. No, Senator.
    Senator Hirono. Have you ever faced discipline or entered 
into a settlement related to this kind of conduct?
    Judge Nathan. No, Senator.
    Senator Hirono. Judge Nathan, I am very glad that you noted 
your reverence for the rule of law, because I think that is one 
of the major distinctions, if not the most important 
distinction, between a democracy and authoritarianism. In a 
democracy, we follow the rule of law, which applies to 
everyone, including the President of the United States.
    In addition to your 10 years as district court judge, you 
have regularly sat by designation on the Second Circuit. Why 
did you seek out these opportunities?
    Judge Nathan. Senator Hirono, I feel honored to have been 
asked by the circuit judge--Chief Judge of the Circuit at the 
time, and to have been able to sit by designation. It's been a 
remarkable learning opportunity to interface with Second 
Circuit colleagues, to hear oral argument, and to decide cases 
on a multi-judge panel. I've learned a lot. I'm happy to have 
been able to participate. Should I be confirmed, I think it's 
an experience that will help me hit the ground running.
    Senator Hirono. What do you expect will be the most helpful 
from those experiences sitting on the Second Circuit, should 
you be confirmed?
    Judge Nathan. I think it's given me a bit of a sense of the 
rhythm of a circuit sitting, the interplay, the colloquy 
between judicial colleagues in deciding cases, and the 
importance of the panel authoring decisions, opinions that give 
clear guidance to lower courts.
    Senator Hirono. As a member of the Obama administration, 
you played a key role in advancing LGBTQ rights. In a 2019 
speech, you discussed your work, particularly as it related to 
the administration's decision not to defend the Defense of 
Marriage Act. You said that in making the decision, the 
administration, quote, ``faced very difficult issues that go to 
the heart of the rule of law,'' unquote. What type of questions 
did you confront at that time, and how did you process, 
compared to what a judge faces when reaching a decision? How 
did that process compare?
    Judge Nathan. Senator Hirono, what I said in that talk, I 
believe deeply. Government lawyers have an obligation to ensure 
that Government action, whether it's at the executive or 
legislative level, have an obligation to ensure the legality 
and constitutionality of conduct. The executive has an 
obligation to defend acts of Congress and the like, and what I 
urged the Government lawyers I was speaking to at the time is 
to take that role seriously, to think about it not from a 
particular instance, but as an institutional commitment to 
analyze questions rigorously, and to the last part of your 
question, to ensure that one's personal views are not what 
resolves the question, but what the law requires.
    Senator Hirono. Generally speaking, when Congress enacts a 
law, the duty of the Department of Justice, or in fact the 
administration is to defend the law. In this case, that did not 
happen. That was not your recommendation. Believe me, I agree 
with that. I don't think Congress should have enacted that law 
to begin with. Thank you very much for your service, and I will 
be very honored to support you.
    Judge Nathan. Thank you, Senator.
    Senator Hirono. Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Hirono. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Thank you, Judge, for 
joining us. Judge Nathan, in 2000, you wrote a Law Review 
article, and in that Law Review article, you wrote, quote, 
``Nearly all Federal and State courts agree that the Second 
Amendment does not guarantee an individual private right to 
bear arms, unrelated to the state's right to maintain a 
militia.'' In light of the Supreme Court's ruling in Heller, do 
you want to recant that statement?
    Judge Nathan. Senator, that was well before Heller. The 
Supreme Court held in Heller that there's an individual right 
to bear arms. In the McDonald case, concluded it's a 
fundamental right incorporated into the States. If I have a 
Second Amendment case or any case that raises that question, I 
will fully implement those decisions.
    Senator Lee. Okay. At the time you wrote it in 2000, you 
said nearly all Federal and State courts agreed on that point. 
Was that the case? Was there consensus on it? Or was it that 
not many courts had ruled on it in the first place?
    Judge Nathan. Senator, so that was--that was my Law Review 
note that I wrote as a law student. I believe that was the 
consensus, but you're right, very little--and I think I noted. 
It's been a long time, Senator, since I looked at that article, 
but I believe I noted that there hadn't been much judicial 
attention to that question since the Supreme Court's decision 
in the Miller case. I also noted that academics and legal 
scholars were questioning that analysis, which ultimately, is 
what the Supreme Court held in Heller.
    Senator Lee. Okay. I want to talk to you a little bit about 
your 2019 Everytown decision, when you seemed to have 
disregarded the Supreme Court's decision in Tennessee Wine and 
Spirits Retailers Association v. Thomas. In that case, the 
Supreme Court had to, of course, establish the rule, but that a 
later-adopted provision takes precedence over an earlier, 
conflicting provision of equal stature. Do you regard yourself 
as having departed from that?
    Judge Nathan. Senator, the only issue raised by the ATF in 
that case, the Second Circuit said actually that I got right. 
What ATF had argued was that the prior provisions hadn't been 
impliedly repealed by complete revision. Second Circuit said I 
got that right. It says expressly, it exercises its discretion 
to hear an argument that ATF hadn't made below. It was on that 
basis that it reversed. I'd like to hope and think I would have 
gotten it right had it been raised before me, but it wasn't.
    Senator Lee. Judge Menashi, writing for the Second Circuit, 
reversed your grant of summary judgment in Everytown and did so 
based on clearly established precedent. Why didn't you rely on 
Supreme Court precedent in that case?
    Judge Nathan. Senator, I considered the argument that had 
been raised before me. I did my best to analyze that. Second 
Circuit said I got that right, but it did, as Judge Menashi 
said in the decision, exercise the circuit's discretion to 
consider the issue that hadn't been raised before me and 
decided on that.
    Senator Lee. Right. Discretion meaning there was an 
obligation to follow Supreme Court precedent.
    Judge Nathan. Absolutely, and that is my obligation, of 
course.
    Senator Lee. Tell me about your approach to reading 
statutes. How do you go about the task of statutory 
construction?
    Judge Nathan. Senator Lee, start with the text of the 
statutory provision. You see if it's clear and unambiguous. If 
it is, that's the end of the matter. You apply that clear and 
unambiguous language. Of course, you look to Supreme Court and 
Second Circuit precedent for any precedent that guides 
interpretation of the provision. If there is ambiguity, you 
look to the canons of construction, as indicated by the Second 
Circuit and the Supreme Court. You apply those canons of 
construction and the like.
    Senator Lee. Do States have a legitimate interest in 
ensuring the integrity of their voter registration rules?
    Judge Nathan. Yes.
    Senator Lee. Should illegal immigrants be allowed to cast 
votes in State and local elections?
    Judge Nathan. Senator, that first question I can answer 
because the Supreme Court has said that the State does have 
that interest. On the next question, that is an issue--that's a 
policy question that would be inappropriate for me as a sitting 
court judge or nominee to the Second Circuit to weigh in on. I 
can assure you, if I have litigation that raises that question, 
I will consider carefully any Supreme Court or Second Circuit 
precedent and apply it faithfully.
    Senator Lee. Does a State or a local government have a 
constitutional--a source of authority, upon which to decide to 
either--does a State have constitutional authority to decide to 
limit the voting franchise to legal citizens? Alternatively, is 
there a constitutional right of one who is not a citizen to 
vote in an election of the United States?
    Judge Nathan. Senator, those are not questions I've ever 
had analysis for in any litigation that I've considered. If it 
were to come before me, I can assure you I would follow the 
Constitution, Supreme Court and Second Circuit precedent, and 
reach a conclusion, as mandated by that authority.
    Senator Lee. I see my time has expired. Thank you.
    Judge Nathan. Thank you, Senator.
    Chair Durbin. Thanks, Senator Lee. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman, and Judge, 
thank you for your time. Senator Grassley asked you about the 
Second Amendment and you said that you agreed it was a 
fundamental right. Correct?
    Judge Nathan. Yes, the Supreme Court held that it is a 
fundamental right.
    Senator Blackburn. Okay, so in that light, do you believe 
that the Second Amendment should be held with the same 
seriousness as the First Amendment?
    Judge Nathan. Yes, Senator. Constitutional rights must all 
be respected and implemented in accordance with Supreme Court 
and, in my case, Second Circuit precedent.
    Senator Blackburn. Okay, so you have no concerns about 
Second Amendment rights for the individual?
    Judge Nathan. Senator, I have no concerns about applying 
Supreme Court and Second Circuit precedent in this area or any 
other.
    Senator Blackburn. Okay, and I have to tell you, there are 
a lot of Tennesseans who are very concerned about some of the 
judges and the nominees that are being brought forward by this 
administration. Because there seems to be a tendency to pick 
and choose what rights you want to say I agree in the text for 
this one, but not for that one. It's important to Tennesseans. 
Let me ask you about your judicial philosophy, both in terms of 
statutory interpretation and constitutional interpretation on 
that. How would you define judicial activism when it comes to 
some of these decisions, and how would you address the concerns 
that Tennesseans have about this subjectiveness that some of 
the nominees are bringing forward in their comments to us?
    Judge Nathan. Senator Blackburn, on the question of the 
meaning of judicial activism, I think, of course that could 
mean different things to different people, but I think the 
pejorative meaning, the meaning that people are concerned 
about, would be some notion of a judge substituting his or her 
own policy or personal views in, in the course of the function 
of judicial decision-making, whether it's interpreting the 
Constitution or statutory provisions or otherwise. If that's 
the meaning that folks are concerned about, and I suspect it 
is, there's no role for that.
    Senator Blackburn. Let me move on to political activism, 
because you've been very politically active in your career. In 
2004, you served as Associate National Counsel to Presidential 
candidate John Kerry. You served on the Obama administration 
DOJ Transition Team, the Obama-Biden Campaign for Change. You 
served as a volunteer lawyer for the Maryland Democratic Party. 
All of those are correct, right? Also for the Democrat National 
Committee.
    Judge. Nathan. The Maryland Democratic Party--I'm not----
    Senator Blackburn. Yes, you served as a volunteer lawyer 
for the Maryland Democratic Party, and the DNC. Let me ask you 
this. When litigants appear before you, how do they know that 
you are not going to exercise some of your political activism 
as you look at their case?
    Judge Nathan. Senator Blackburn, I've been a judge for 
about a decade now. I gave up my prior role as a Government 
lawyer, as an academic, as a private--lawyer in private 
practice, and my volunteer work that I had done on a variety of 
campaigns. Like a lot of judges who come before me, that was 
part of my prior career. I gave that up.
    Senator Blackburn. Okay. Your release of some felons during 
the COVID-19 pandemic--and I've been watching the hearing up in 
my office. I don't think anyone has asked you about this, but 
several of those that you exercised compassionate release for, 
they were violent criminals with violent histories. In some of 
the cases, the criminals had already been vaccinated or had 
already contracted and recovered from the virus, or their 
prisons had no confirmed cases of COVID. Recently, there has 
been an increase in violent crime and highly visible smash-and-
grab robberies that are just plaguing so many of our cities. 
Releasing violent criminals will only further endanger our 
communities, and so I would like to hear your justification for 
this decision to release violent criminals and to say this is a 
compassionate release. Because I know retailers don't see this 
as compassion, and communities, a lot of security moms, don't 
see this as compassion.
    Judge Nathan. Senator Blackburn, I had, like many judges 
during the pandemic, many, many petitions request for 
compassionate release. By and large, I denied those, and where 
I did deny them, it was largely on the fact that I, under the 
relevant statutory factors, determined that the individual was 
likely to be a future danger. In the instances in which I 
didn't, I evaluated the factors under 18 U.S.C. Sec.  3553 and 
in conjunction with the compassionate release statute.
    Senator Blackburn. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Blackburn. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. Judge, welcome.
    Judge Nathan. Thank you.
    Senator Cruz. I have to say, the past year we've seen a 
pattern of judicial nominees from President Biden, where over 
and over nominees are--have records of being partisan and 
ideological extremists, rather than men and women committed to 
following the rule of law. Looking at your record, I'm 
concerned that this nomination follows that pattern. You have 
had predictably knee-jerk, left-wing views on the Second 
Amendment, on immigration, on the death penalty, on crime. I 
want to start with the latter. On the death penalty, you oppose 
the death penalty.
    Judge Nathan. Senator, I have never had--well, let me say 
this. Before I became a judge, I never indicated any view 
regarding the constitutionality of the death penalty. As a 
sitting judge, I have had capital-eligible cases. They were not 
seeks of death in those cases. I was fully prepared to apply 
the law in those cases. The death penalty is constitutional. I 
would apply any Supreme Court and Second Circuit precedent.
    Senator Cruz. You've spent, what, 10 years as a Federal 
judge? Have you imposed the death penalty in any case?
    Judge Nathan. I have never had--I've had cases that were 
death eligible. You know the process involves the local office 
and Main Justice determining whether or not to seek the death 
penalty. The death penalty has never been sought in any of the 
cases over which I've presided. That process takes time, so I 
have presided over cases that were death eligible----
    Senator Cruz. We've got limited time, so you have not 
imposed the death penalty in any case you've presided on, 
correct?
    Judge Nathan. It would have been unlawful for me to do so. 
That's correct. No case sought----
    Senator Cruz. Let me start with my initial question. You 
oppose the death penalty?
    Judge Nathan. Senator, I don't have a view that could be 
expressed, and I----
    Senator Cruz. You don't have a view. You spent years 
litigating. Let's say you led an amicus brief in Baze v. Rees, 
trying to challenge the death penalty. You participated in a 
Supreme Court panel in 2007, discussing Baze, and you also 
discussed Kennedy v. Louisiana. That happens to be a case I 
know well. I argued Kennedy v. Louisiana. It dealt with a truly 
horrific crime of a 300-pound man who brutally raped his eight-
year-old stepdaughter, so much so that it left permanent, 
serious injuries to that young girl. Your notes for the panel 
at that time said that the actual question at issue had nothing 
to do with innocence. You have consistently litigated against 
the death penalty prior to your time as a judge, and yet you're 
not going to answer whether you oppose the death penalty or 
not?
    Judge Nathan. Senator, my personal views have nothing to do 
with my application of the law.
    Senator Cruz. You said you didn't have a view. You may 
disagree that your personal views are relevant, but that's not 
the same thing as not having one.
    Judge Nathan. I----
    Senator Cruz. We're adults here. You oppose the death 
penalty.
    Judge Nathan. Senator----
    Senator Cruz. That's okay. That is a view people can have.
    Judge Nathan. Senator, I can assure you, in any death case 
before me, I will----
    Senator Cruz. You're not going to answer the question, but 
there's a difference--you can argue that your personal views 
are irrelevant, but you're just refusing to tell them that. 
Let's shift to criminal justice generally.
    The Biden administration keeps nominating radicals when it 
comes to criminal justice. Two of the senior officials of the 
Department of Justice are among the leading advocates for 
abolishing the police. The U.S. Attorney now in the District of 
Massachusetts, as a prosecutor, put out a list of 15 crimes she 
would not prosecute. As I look at your record, you have a 
pattern on so-called compassionate release of releasing violent 
criminals. For example, in United States v. Steven, the 
defendant had been indicted in part of what the Department of 
Justice called, quote, ``the largest gang takedown in New York 
City history.'' The defendant was one of 120 members of rival 
street gangs that were busted for racketeering, narcotics, 
firearms offenses. He was later arrested for violating the 
terms of his supervised release. Last year you set him free. 
That was bad judgment. What's remarkable is that you released 
this criminal, without even waiting to hear from the Government 
whether he was a threat to society. In fact, the Government 
planned to present you with substantial evidence, from video 
surveillance footage and testimony from two law enforcement 
officers, that he was unlawfully carrying a firearm, and so was 
a threat to society. Why did you release a violent criminal 
without even waiting to hear from the prosecution about whether 
he was a risk to the community?
    Judge Nathan. Senator Cruz, I have had many cases during 
the pandemic, as all judges have, regarding compassionate 
release. In each of them--and actually, I think that was not a 
compassionate release case if I recall correctly. Forgive me, 
I'm not sure. In each of those cases, I have analyzed the 
factors under First Step Act and 18 U.S.C. Sec.  3553(a). By 
and large, the majority of cases, compassionate release was 
denied----
    Senator Cruz. Okay, let me try again, because my time has 
expired. If you would answer the question I asked you, which is 
why did you release this violent criminal, without even waiting 
to hear what the prosecution had to say about whether he was a 
threat to the community?
    Judge Nathan. Senator, I don't--I don't have a memory of 
that procedural posture. I have to say, my practice, of course, 
is to hear from both sides, before issuing decisions, either in 
writing or orally. As I sit here, I don't know what you are 
referencing.
    Senator Cruz. Thank you.
    Chair Durbin. Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman, and Judge, 
congratulations on your nomination. I have to say I'm confused 
by your exchange just a moment ago with Senator Cruz on the 
death penalty. You're in favor of the death penalty, 
personally?
    Judge Nathan. I can't indicate a view as a sitting judge 
and a nominee to the Second Circuit. What I can indicate is 
that if I have a death case, as either a sitting district 
judge, or should I be confirmed to the Second Circuit, I will 
fully and completely apply the relevant statutory law.
    Senator Hawley. You have indicated a view in the past. 
That's why I'm confused by what you just said to Senator Cruz. 
You've filed numerous amicus briefs, you've written a chapter 
in a book, the story of Roper v. Simmons, where you praised the 
Supreme Court's decision there on the death penalty, which 
forbade the death penalty for crimes that were committed when 
the criminal was under the age of 18. I'm just trying to figure 
out, have you changed your view, or what's the story here? You 
used to be opposed to the death penalty and now you're for it, 
or now you don't want to talk about it, or what's the deal?
    Judge Nathan. The articles that you're writing, I wrote in 
the context as an academic, or litigation as an advocate. As a 
judge, 10 years I've been on the bench, as I've said, I have 
had death-eligible cases. I'm fully and completely prepared to 
implement and apply----
    Senator Hawley. I understand all that, Judge. I got that. I 
heard that. I'm trying to figure out here what your view is on 
the death penalty. You've talked about the death penalty. 
You've written about it. You've advocated that. That doesn't 
magically disappear when you get nominated for the Second 
Circuit, and I think it's pretty fair game to talk about your 
past writings and statements and positions you've taken. What 
caught my attention was, you wouldn't say to Senator Cruz--you 
made it sound as if you're for the death penalty. I'm trying to 
figure out if you've changed your position, or if you're just 
not willing to talk about your past articles. Let me just come 
back to it. Are you still against the death penalty?
    Judge Nathan. Senator, my writings in the past, or advocacy 
on behalf of clients, made legal arguments. I actually don't 
think I've ever indicated in writing that the death penalty was 
unconstitutional or the like. I made specific legal arguments, 
and in the case of the chapter on Roper, I analyzed the Supreme 
Court's decision in that case. What I can tell you, Senator, is 
in this area, as a sitting judge, I have had death-eligible 
cases. I am fully prepared to implement congressional law 
consistent with the death penalty.
    Senator Hawley. Let me ask you this. In your book chapter 
on Roper v. Simmons, you praised the fact that Supreme Court 
relied on international law to cut back on the application of 
the death penalty. Do you think that judges should rely on 
international law in other areas, as well? Is it fair, if 
they're going to rely on it in death penalty context, is it 
fair to look to international law in other areas of the law?
    Judge Nathan. As a judge interpreting and implementing U.S. 
law, the U.S. Constitution, U.S. Congressional statutory 
provisions, you look to U.S. law, not foreign or international 
law.
    Senator Hawley. You're the one who praised looking to 
international law. Have you changed your view on that also?
    Judge Nathan. I wrote an article, back before I was a 
judge, as an academic, about looking at what the Supreme Court 
was doing in invoking international and foreign law, and I 
analyzed it in that context and as an academic. As a----
    Senator Hawley. I don't understand how the truth or falsity 
of these things changes based on where you sit. Either it's 
true or it's not true. Either you praised it or didn't praise 
it. It doesn't change because you have a--it doesn't change 
because now you want a new job, with all due respect, Judge. 
You praised the application of international law. You've 
particularly singled out the fact that a Chinese delegation was 
present in the Supreme Court chamber the day that Roper v. 
Simmons was handed down. You've spent an entire article 
praising the Court's use of international law. Please don't 
suggest to me now that you didn't do that, or that somehow 
being a judge now and wanting a spot on the Second Circuit 
makes that irrelevant. Frankly, I think it's a little 
irritating that you're fencing with me this way. Let me ask you 
this, if the Supreme Court is going to look to international 
law in the death penalty context, why not the abortion context? 
Do you think it's relevant that we are one of only seven 
nations that allows abortion past the stage of fetal pain, for 
instance? Do you think that's something that the court should 
consider?
    Judge Nathan. Senator, I would consider what the Supreme 
Court and the Second Circuit says is relevant to those 
considerations. I think if you look at my record over 10 years, 
as a sitting judge, the thousands of cases I've decided, I've 
looked to American law in interpreting the American 
Constitution.
    Senator Hawley. Let me ask you one final set of questions 
here in the brief time I've got remaining. Let's talk about one 
of these cases, these COVID cases, United States v. Tucker. 
This is where you reduced the sentence of a person that you 
said, ``had committed a very serious crime.'' That's your word. 
His criminal record was 30 years long. The most recent reason 
he was in prison was he had been a gunman, used a gun in a 
violent crime in a planned robbery. You said that it was 
important to reduce his sentence because of the extraordinary 
and unprecedented threat caused by COVID. He'd already had 
COVID and recovered. He was also fully vaccinated. You didn't 
release him, however, but you reduced his sentence. I'm curious 
about that. Why would you not, if it was an extraordinary 
threat, COVID was, despite the fact that he'd had COVID, 
recovered, and was vaccinated, why would you just reduce his 
sentence? Why wouldn't you release him? Walk me through that 
logic.
    Judge Nathan. Sure. I denied the request for release, in 
part, for the factors that you've indicated. Under the relevant 
statutory provision, you do have to go through and engage in 
the analysis, under the 18 U.S.C. Sec.  3553(a)factors. I did 
that, taking into account the arguments made by both sides, the 
record that was in front of me, and concluded that a one-year 
sentence reduction was what was appropriate. I've sentenced 
over 270 people in my decade on the bench. I've imposed 
substantial sentences, and I've done that, taking into account 
the factors that Congress has indicated I'm required to take 
into account in exercising that judgment.
    Chair Durbin. Thank you very much, Senator Hawley. Judge 
Nathan, frustration which you may have noted on the Republican 
side, you could find on the Democratic side when the tables 
were turned and we were dealing with Republican nominees. The 
reality is that nominees are bound by the canons of judicial 
conduct that prohibit you from expressing personal views, 
especially on a matters that could come before the court, such 
as death penalty or applicability of international law. That is 
a standard that has been applied, whether the President was one 
party or the other, to the frustration of Members of this 
Committee, who have often asked questions which cannot be 
answered because of that canon.
    I might also add, ask everyone's consent to introduce into 
record letter we received from a large number of clerks from 
the Supreme Court, who were there when you were. They were 
clerks for other Justices, Rehnquist and O'Conner and Scalia 
and Breyer, and so many of them had very positive things to 
say, and without objection, I will enter that letter into the 
record.
    [The information appears as a submission for the record.]
    At this point, we concluded this first panel, and thank you 
and your family for attending. I don't think there were any 
gummy bears distributed, but both of your sons were under the 
best behavior. Thank you and to your parents for being here 
today. I appreciate that.
    Judge Nathan. Thank you, Senator Durbin.
    Chair Durbin. We're now going to move to the second panel. 
As we change the name tags, I will remind the audience that we 
may have some shifting about here with the roll call that's to 
start, 10 minutes for two different measures on the floor.
    If the five nominees would please come forward, and remain 
standing for just a moment, while I administer the oath. Please 
raise your right hand.
    [Witnesses are sworn in.]
    Let the record showed that all five answered in the 
affirmative, which means we can proceed.
    We'll start in alphabetical order. Ms. Castner, you may 
proceed with your opening statement.

                STATEMENT OF GEORGETTE CASTNER,

             NOMINATED TO BE UNITED STATES DISTRICT

              JUDGE FOR THE DISTRICT OF NEW JERSEY

    Ms. Castner. Good morning, Chairman Durbin, Ranking Member 
Grassley. Thank you for scheduling this hearing today and 
giving me an opportunity to appear here. Thank you to all the 
Members of the Committee for considering my nomination.
    I would like to begin by first thanking President Biden for 
this incredible and extraordinary honor. I would like to thank 
Senator Menendez for his very kind words this morning and for 
having the confidence in me to recommend me for this position. 
I'd also like to thank Senator Booker for his very generous and 
kind words, and for his support throughout this process.
    I'd like to take a minute just to introduce my family, who 
is here with me today: my sister, Aimee Alonso, who, without 
fail, has always been there to support me; my stepson Billy, 
who is 19 and just finished his first semester at Drexel 
University; my son, Braden Castner, who is 10 and in the fifth 
grade; and my daughter, Kennedy, who is seven and in the second 
grade. I am so proud of each of you and thankful that you 
missed school today to be here, and it's an honor to be your 
mom and your stepmom. To my husband, Bill Castner, whose love, 
loyalty, and endless support makes it possible for me to be 
here today, thank you for always encouraging me, and I'm so 
thankful to have you as a partner on this journey.
    I'd like to thank my parents, Diane and Joseph Labenz, who 
are watching from home today. Thank you for instilling in me 
the importance of an education and hard work. To my mother- and 
father-in-law, Diane and Bill Castner, thank you for supporting 
me and for your endless hours of babysitting.
    To all my family, friends, colleagues, former colleagues 
who are watching from home, you all have played an important 
role in my life, and I would not be here today without your 
love and support.
    Again, I thank all the Members of the Committee for 
considering my nomination.
    Chair Durbin. Thank you. Judge Montenegro.

             STATEMENT OF RUTH BERMUDEZ MONTENEGRO,

             NOMINATED TO BE UNITED STATES DISTRICT

         JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA

    Judge Montenegro. Chair Durbin and Ranking Member Grassley, 
thank you for scheduling this hearing. Senator Durbin, thank 
you for presiding today. To each Committee Member, I appreciate 
your presence here today in considering my nomination. I am so 
humbled and honored to be nominated by President Biden. Thank 
you, Senators Padilla and Feinstein, for your support, and 
Senator Padilla, for your kind words.
    My parents, Salvador and Elvia Bermudez, who are watching 
from El Centro, California, are here today in spirit. They 
immigrated to this country 60 years ago. Of all the values they 
instilled in me, the most important value was to serve our 
community. Serving the public as a judicial officer has been 
one of the greatest honors of my life, and one that I do not 
take for granted. I am so thankful to my parents, who gave us 
an opportunity to pursue the American dream.
    Joining me today, is my husband, Joe Montenegro, my biggest 
cheerleader and my best friend; our wonderful daughter, 
Miranda, a USC graduate student; my two younger sisters, both 
of whom have achieved much success as attorneys, Nadia Bermudez 
and Hon. Eran Bermudez, a superior court judge; my brother-in-
law, Jason Gundel, who is also an attorney; my two law clerks, 
Dakota Hickingbottom and Belen Verdugo Granados. Also watching 
from home are my two brothers, Sal and Cesar Bermudez; my 
brother-in-law, attorney Sergio Feria; my career law clerk, 
Mary Cile Glover-Rogers; and many other family members and 
friends.
    I would not be here today without the support of all these 
individuals, my wonderful Imperial Valley community, and my 
court family in the Southern District of California. Thank you, 
and I look forward to answering your questions.
    Chair Durbin. Thank you very much, Judge Montenegro. Judge 
Rubin.

               STATEMENT OF JULIE REBECCA RUBIN,

             NOMINATED TO BE UNITED STATES DISTRICT

               JUDGE FOR THE DISTRICT OF MARYLAND

    Judge Rubin. Good morning and thank you, Chairman Durbin 
and Ranking Member Grassley, for the courtesy of this hearing 
and for your consideration of my nomination to serve as an 
Article III judge. I thank President Biden for the profound 
honor of his nomination and for his faith in my competence to 
extend my service as a State judge to the Federal court system, 
where if confirmed, I will fill the vacancy of Judge Ellen 
Lipton Hollander, whose legendary work ethic and legal acumen 
have been a gift to all who have come before her.
    I wish to extend my gratitude to my home State Senators, 
Senator Benjamin Cardin and Senator Christopher Van Hollen, for 
their service, for their support of my desire to serve, and for 
Senator Cardin's kind introduction here this morning.
    I would like to introduce my loved ones who are with me 
here today: my husband and former law partner, Jim Astrachan, 
whose love, friendship, and support of my love of the law have 
been a constant for which I am grateful beyond measure; my 
sister, Mara Rubin; friends, Jennifer Keyser, Pamela Winthrop, 
and Dr. Niko Graff; my mentor and friend, Judge Gale Rasin; and 
my dear friend and stalwart administrative assistant, Michelle 
Chavis.
    I would also like to recognize my parents, both of whom 
have passed away. My mother, Carol, who began law school when I 
was in fifth grade, was a bold original and continues to 
inspire me. My father, Jack, who enjoyed more than 50 years as 
a storied trial lawyer in the court in which I now serve and in 
which I have been nominated to serve, is sorely missed.
    I have been blessed with spectacular mentors, including 
Judge Gale Rasin, Judge Yvette Bryant, and Judge Michael 
Pearson, as well as the unyielding support of other loved ones 
who are not here today. I do also wish to mention that I've had 
the great fortune to practice law and serve as a judge in my 
hometown, Baltimore, Maryland. The support of my local legal 
community and my courthouse family has genuinely lifted and 
warmed my heart.
    I thank the esteemed Members of this venerable Committee, 
and I appreciate the opportunity to address your questions.
    Chair Durbin. Thank you, Judge Rubin. Judge Silva.

                STATEMENT OF CRISTINA D. SILVA,

             NOMINATED TO BE UNITED STATES DISTRICT

                JUDGE FOR THE DISTRICT OF NEVADA

    Judge Silva. Thank you and good morning. My thanks to 
Chairman Durbin, as well as Ranking Member Grassley, Members of 
this Committee, for holding this hearing. My sincere thanks to 
Senator Cortez Masto, as well as Senator Rosen, for their 
support of my nomination and their incredibly kind words this 
morning. Of course, my thanks to President Biden for his 
confidence in me. It will be the honor of my lifetime--excuse 
me--to serve as a United States District Court for the District 
of Nevada, if I am so lucky to be confirmed.
    I'd like to introduce my family and friends who are here to 
support me today. First, my parents, Martin and Jo Anne, who 
traveled here from El Paso, Texas. They're set to celebrate 50 
years of marriage next year. Without a doubt, they are a huge 
part of the reason why I sit before you today. Thank you for 
instilling the importance of hard work and humility.
    Also present is my incredibly kindhearted big brother, 
Martin James Silva, who is present from San Antonio, Texas. 
Missing is his beautiful wife, Tricia, and my niece and nephew, 
Victoria and Christian. Christmas play obligations prevented 
them from joining us today, but they are cheering me on from 
afar.
    I'm lucky that two of my dearest friends are present, Ethel 
Badawi and Jaye Beltran. Ethel and I have been best friends 
since we were randomly placed together as roommates our first 
year in college. Jaye and I became friends when I worked at the 
U.S. Attorney's Office. She left that office to join me in 
chambers, and she now works as my right-hand woman.
    Last, but not least, I have to recognize my husband, Chris 
McPeak, and my stepson, who I like to call my bonus son, Colin 
McPeak. Chris is a true partner and epitomizes unconditional 
love. I'm proud of Colin for so many reasons, but I have to 
note he was elected as student council president this year and 
was sworn into that position last month by former U.S. Senator 
Richard H. Bryan.
    I want to recognize those who cannot be here today. That's 
my extended network of family, friends, colleagues, mentors, 
and others who have not only--to include my chamber staff--who 
have not only supported me through this process, but I know who 
are streaming this from wherever they are and supporting me. I 
am thankful for all of them. Thank you again and I look forward 
to answering your questions.
    Chair Durbin. Thank you, Judge Silva. Ms. Traum.

                STATEMENT OF ANNE RACHEL TRAUM,

             NOMINATED TO BE UNITED STATES DISTRICT

                JUDGE FOR THE DISTRICT OF NEVADA

    Professor Traum. Good morning. Thank you, Chairman Durbin 
and Ranking Member Grassley, for convening this hearing. I am 
deeply grateful to my home State Senator, Senator Cortez Masto 
and Senator Rosen, for their extremely kind introductions and 
for recommending my name to the President. I am profoundly 
grateful to President Biden for nominating me to serve the 
District of Nevada.
    Words cannot express how honored and humbled I am to be 
here. No one gets to this seat on their own, and I certainly 
would not have without my family, friends, many dear 
colleagues, and students from over the years, who have inspired 
me, mentored me, supported me, and taught me so much. I hope 
that I can give back, through my service to Nevada and to the 
country, all that they have given me.
    I want to introduce members of my family today. I am joined 
by my sister, Amy Traum; my brother, Jeff Traum; and his wife, 
Cindy Traum. I am so grateful for their love and support. I am 
also joined by my wonderful husband, Bret Birdsong, who's my 
true partner in life, and our three sons, Jacob, Sacha, and 
Theo. They are my greatest joy and my proudest accomplishment.
    I want to thank my parents, Arthur and Loretta Traum, who 
are watching in California. Their love and partnership has been 
a gift to me. They have taught me, by example, what it means to 
be a mensch, to value humanity and learning, to navigate 
challenges in life with humor and generosity, and to live a 
life of purpose and meaning, through service to others.
    Thank you for this opportunity, and I welcome your 
questions.
    Chair Durbin. Thank you very much, Ms. Traum. Senator 
Padilla tells me that he's off to another hearing momentarily 
and asked for an exception to be allowed to ask a question out 
of turn. Without objection, I'll give you that, and then turn 
to Senator Grassley next.
    Senator Padilla. Thank you very much, Mr. Chair. I owe you 
another one, but a pleasure to be here. I welcome Judge 
Montenegro, as I mentioned in my opening statement. Just to tee 
up a question I think all Members of the Committee are 
interested in, given everybody's unique background and 
trajectory to be here at this moment, Judge Montenegro, you've 
had a fairly nontraditional pathway to the bench, and your 
experiences are ones that are not well-represented, shall we 
say, in the Federal judiciary. Before law school, you graduated 
from a community college, and since becoming a lawyer, you 
spent considerable time working in and with educational 
institutions, including as an assistant superintendent for a 
school district. You've also run in, and won, a contested 
election to be a State court judge, where you served with 
distinction for almost half a decade before becoming a Federal 
magistrate judge. Just share with the Committee what this 
nontraditional trajectory--how it's shaped you and your service 
as a judge.
    Judge Montenegro. Thank you for that question, Senator. 
I've spent about 28 years of my life, serving as a judicial 
officer in my community for almost a decade. Then before that, 
serving 18 years or so, all in Imperial County as a practicing 
attorney, representing numerous public agencies. It was my way 
of giving back to a community that gave so much to me and my 
family. It's been a source of pride for me and my family, and 
this nomination by President Biden is the greatest honor of my 
life.
    Senator Padilla. Thank you. Mr. Chair, I just want to 
observe, for all the nominees before us today, diverse 
professional and personal experiences and high credentials and 
qualifications are not mutually exclusive. In fact, the 
diversity of professional and personal experience makes their 
credentials that much stronger. Thank you, Mr. Chair.
    Chair Durbin. Thank you, Senator Padilla. Senator Grassley?
    Senator Grassley. Very few Senators want to be asking the 
question, ``Why'd you say some stupid thing back in 1985?'' We 
violate this rule all the time by asking you what you did a 
long time ago. I'm going to start with Judge Rubin, not so long 
ago though.
    You co-hosted radio show, Midday on the Law. Your show 
discussed current events. In 2012, your show talked about 
Baltimore City ordinance. This ordinance required pregnancy 
centers to post signs saying that they didn't provide abortions 
and they didn't provide birth control. In your radio show, you 
suggest the pregnancy center was engaged in commercial speech, 
and you suggested that the center's speech could be regulated 
because it was commercial speech. The Fourth Circuit concluded 
that the pregnancy clinic was not engaged in commercial speech. 
The circuit court wrote, quote, ``A morally and religiously 
motivated offering of free services cannot be described as bare 
commercial transaction,'' end of quote. Please explain for us 
why you thought that the pregnancy center's giving free 
services based on moral and religious convictions were engaged 
in commercial speech.
    Judge Rubin. Thank you, Ranking Member Grassley, for that 
question. For the last nine years, almost a decade, I have 
committed myself to one thing and one thing only, and that is 
the rule of law. My job as a circuit court judge in the busiest 
docket in the State of Maryland is to consider, very closely, 
the evidence in the record, and to apply the law to that 
evidence, in whatever case is before me.
    My participation in public radio for legal, educational, 
and discourse purposes, in some instances, more than a decade 
ago, was in my capacity as a private citizen, as a private 
attorney, and I have left that at the door, some time ago. On 
candor, I don't recall making the comments that you've recited, 
but I trust that your recitation is accurate. However, my job 
at this point is solely to deal with the case in front of me, 
and not to issue public discourse.
    Senator Grassley. Thank you, now I'm going to go to 
Professor Traum. You've written and spoken a lot about criminal 
justice reform. That's something that Senator Durbin and I are 
very interested in. I want to ask you about an article you 
published 2013, ``Mass Incarceration and Sentencing.'' Your 
article argued that Federal judges should address mass 
incarceration and sentencing. The article also argues that 
district judges should, quote, ``individualize punishment in 
light of broad systemic concerns,'' end of quote, at the 
sentencing phase. Do you plan to implement your article's ideas 
when you become a district judge, and how do you see this 
playing out in an individual case?
    Professor Traum. Thank you for that question, Ranking 
Member Grassley. The article you reference, I wrote as a law 
professor, as you mentioned, some time ago. As a law professor, 
my job is to study the law and share and publish articles of 
various proposals and descriptions about the law. I understand 
that the role of a judge is different, and the role of a judge 
at sentencing is very specific because it is framed by the 
statute, the statute that Congress created, 18 U.S.C. Sec.  
3553(a). If confirmed, I would be following the statute, 
working my way through the enumerated factors that the statute 
lists that a judge is supposed to consider at sentencing. It is 
a highly individualized determination, based on the individual 
who is being sentenced and the relevant facts pertaining to 
that individual. That is what I would do, if confirmed.
    Senator Grassley. Okay, Judge Silva, before law school you 
worked for a Planned Parenthood affiliate that was known as 
Association for Reproductive Health Professionals. After law 
school, you spent your legal career as a prosecutor. I have two 
questions for you. First, can you please describe your role at 
that organization, and second, could you explain what caused 
you to change your career plans? What I didn't read, ahead of 
your question, was that you said as a very young person--I 
should have started out this way--you said as a teenager you'd 
never be a prosecutor.
    Judge Silva. I don't remember making that statement, though 
I didn't think I would be a prosecutor. I'll start with the 
first question. I did work for the Association of Reproductive 
Health Professionals. It was my first job out of undergrad. I 
worked there for approximately a year doing fundraising work 
for them. I knew, however, that I wanted to go to law school. I 
transitioned to becoming a litigator in law school. I had a 
professor that told me during the course of a civil practice 
clinic that I was good on my feet, and I should consider 
becoming a litigator. That really opened the door to me 
exploring that as a career path. I'm truly grateful for that 
advice and the path that it led me on to be here today.
    Senator Grassley. I'll probably have written questions for 
all of you, as well, but my time's up. Thank you.
    Chair Durbin. Thanks, Senator Grassley. I may be mistaken, 
but I think this is a unique moment in constitutional law, in 
that we are talking about lifetime appointments. I don't know 
that there is another provision in our Constitution which gives 
any branch of Government the authority to appoint someone to a 
lifetime appointment. That's what we're considering with your 
nominations today. I assume the wisdom of the Founding Fathers 
would suggest that it was so you would be independent from the 
ebb and flow of politics and have longevity in a job and not 
worry about whether you're going to have your head chopped off 
if you ruled the wrong way. Of course, those of us who've 
practiced before judges, and that probably includes every 
single one of you, know that for some judges that is a humbling 
assignment, and for others, it is not. They become somewhat 
dictatorial in their courtrooms, feeling they don't have to 
answer to anybody at any time, and they're going to be there as 
long as they can draw a breath.
    I'd like to ask you, since I did spend some time in some 
courtrooms, many years ago, on this question of judicial 
temperament, if you could think of an illustration of a judge 
who you think did it the right way, and perhaps one very brief 
example of what--how that was illustrated in their practice. 
Ms. Castner, would you like to be first?
    Ms. Castner. Sure, thank you, Chairman Durbin. I feel very 
fortunate to have had the experience of appearing before the 
judges in the District of New Jersey, who are very talented and 
smart and hardworking. In every case I've ever appeared before 
the court, the judges have always been even tempered. They 
treat litigants and attorneys with respect and dignity. They 
are always prepared, and they always issue opinions that are 
clear and reasoned. Those would be the characteristics that I 
would strive to emulate, if I were fortunate enough to be 
confirmed.
    Chair Durbin. I'm going to ask each of you the same 
question, and if you could give me a concise answer, too, I'd 
appreciate that.
    Judge Montenegro. Thank you for your question, Senator. I 
have had the privilege of working with wonderful judges, as 
well as appeared before wonderful judges, who--all who showed 
excellent temperament. As you all know, the judges set the tone 
for the expectations in the courtroom. When you have judges 
that treat all the litigants, everybody there in the courtroom, 
with dignity and respect, it ensures to all that they will have 
a fair process. Thank you.
    Chair Durbin. Thank you. Judge Rubin.
    Judge Rubin. Thank you very much. I will echo Judge 
Montenegro's sentiments. I do believe that the issue of 
temperament is the core feature from which all other desirable 
judicial characteristics flow. It allows people to know that 
they are being heard and listened to, and that there will be a 
measured and fair outcome.
    As an example, I would cite Judge Stuart Berger, who sat on 
my court in the circuit court, and now sits on the Court of 
Special Appeals in Maryland. His temperament is legendarily 
smooth and courteous and kind.
    Chair Durbin. Thank you. Judge Silva.
    Judge Silva. I echo many of the comments of my fellow 
nominees. I feel fortunate that I've appeared in front of a 
number of very patient and calm judges, and that is the type of 
judge I want to be. In my opinion, temperament equals patience 
and patience equals temperament. That's what I try to emulate 
every day.
    Chair Durbin. Ms. Traum.
    Professor Traum. Thank you, Chairman Grassley. I also join 
and echo so many of the comments of my fellow nominees. I would 
just add that the judge, particularly a district court judge, 
is the face of justice in our system for so many people who 
interact either as a party or participant in that process. What 
the--how the judge behaves must embody all of the values that 
we hold so dear: that the judge is neutral and fair minded, as 
my fellow nominees have said; that people want to be heard and 
the judge is there to listen; and to run a fair process, so 
that people understand what is happening and come away knowing 
that the process was fair. That is exactly what we value in our 
system, so it has to happen in every courtroom, for every judge 
to have that interaction with people.
    Chair Durbin. I would just add my own personal note is 
taking the time to explain to people in the courtroom what's 
happening is an important part of the system of justice because 
most of it appears to be a mystery to many of the people who 
are witnessing it.
    I have a question for each of you based on your background, 
but I'm going to only have time to ask one. That's Judge Silva. 
When you were an Assistant U.S. Attorney in Nevada, you helped 
lead the Office's investigation of the horrific October 1st, 
2017, mass shooting in Las Vegas, which took the lives of 60 
victims. Can you tell us, in your own words, what that 
investigation taught you?
    Judge Silva. I believe that investigation really 
demonstrated how important it is that local, State, and Federal 
law enforcement work together to overcome what--I don't even 
know if we can say overcome--but, deal with the crisis that our 
city was facing. I saw individuals, both State and Federal 
level, as law enforcement, as well as the prosecution level, 
work together to do our best to make sure that we understood 
what had happened, if there were any other assailants that 
needed to be tracked down, and to make sure that we were 
utilizing all resources to address the crisis that our city was 
facing and truly is still recovering from.
    Chair Durbin. Thank you very much. Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. Professor Traum, 
do you think we should forgive criminal misbehavior in the name 
of social justice?
    Professor Traum. Senator, thank you for that question. I 
recognize that all issues of crime and all responses to crime 
are fundamentally policy issues. Those are important issues. 
They're important for our community and our Nation. I leave 
those policy issues to policymakers. If confirmed as a judge, I 
would not be a policymaker. I would be----
    Senator Kennedy. I'm not asking your opinion as a judge. 
I'm asking your opinion as a person, as a law professor. I'll 
stipulate with all of you that you're all going to be fair and 
unbiased. Okay? Do you think that criminal misbehavior and 
illegal action be forgiven in the name of social justice?
    Professor Traum. Senator, I do believe that all criminal 
policy is fundamentally a policy issue, that those----
    Senator Kennedy. Yes, ma'am, but do you think as a person, 
as a professor, that an illegal act should be forgiven in the 
name of social justice?
    Professor Traum. Senator, that is not a view that I have 
taken in my work, and what I would say----
    Senator Kennedy. So that's no? Is your answer no?
    Professor Traum. Senator, in my work, I have not taken that 
view, and in my view----
    Senator Kennedy. I'm asking, Professor, what you believe. I 
think this is really straightforward. You're a professor. Do 
you believe that a criminal, an illegal act should be forgiven 
in the name of social justice? It's pretty simple.
    Professor Traum. Senator, I believe that we have criminal 
laws, criminal laws that are created by policymaking bodies 
like this one.
    Senator Kennedy. I got all that. Do you believe that a 
criminal act should be forgiven in the name of social justice?
    Professor Traum. Senator, we have not only criminal laws 
but we have a criminal process, by which people come before the 
court to be held accountable if they are charged with a crime, 
and I have enormous respect for that process.
    Senator Kennedy. I do, too. Do you believe that a criminal 
act should be forgiven in the name of social justice?
    Professor Traum. Senator, when people come before the 
court, if they are charged with a crime, that is a highly 
individualized and fact-specific process----
    Senator Kennedy. I agree with that.
    Professor Traum [continuing]. For all who are involved, and 
I respect that process----
    Senator Kennedy. I respect the heck out of it. Do you 
believe that a criminal act should be forgiven in the name of 
social justice?
    Professor Traum. Senator, I don't think that I could say, 
with respect to any particular case, or as a generality, with 
respect to any category of cases, what should----
    Senator Kennedy. Do you not have an opinion?
    Professor Traum. I don't have a view to share on how any 
particular kind of case should be handled----
    Senator Kennedy. Do you have a view on my question?
    Professor Traum. I do not have a viewpoint to share on how 
any particular case should be handled.
    Senator Kennedy. No, I didn't ask that. I can tell you 
don't want to share it. I got that part. Do you have a view? I 
don't understand why you won't answer my question. If you're 
confirmed, you're going to be a Federal judge, and I join my 
good friend Senator Durbin in saying the judicial temperament 
is important. I think being unbiased is even more important. I 
find it incredible that you won't answer my question. I'm going 
to ask it again. Maybe it's me. Do you believe that we should 
forgive a criminal act in the name of social justice?
    Professor Traum. Senator, I share the view that we should 
be unbiased, but I also share the view that our criminal 
justice system and our process is very individualized. What 
should happen in any particular case is a matter of the process 
and the very specific facts in that case.
    Senator Kennedy. Do you believe that a criminal act should 
be forgiven in the name of social justice?
    Professor Traum. The outcome of any case is always highly 
individualized, based on the process and the facts of that 
case.
    Senator Kennedy. What's your favorite color?
    Professor Traum. Blue.
    Senator Kennedy. Thank you. I got one. I'm one for about 
20. I can't vote for you. Not if you're not going to answer 
questions. I mean, that was embarrassing.
    Chair Durbin. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman, and 
congratulations to you all on your nominations. I know that you 
were in the room during our first series of hearings, and I'm 
sure that you were aware of my conversation with Judge Nathan 
and how it is something--and I just saw it with you, Professor, 
trying to skirt the issue and not giving an opinion and not 
having a judicial philosophy and feeling that laws apply in one 
place, but not in others, and to pick and choose. That's 
frustrating to Tennesseans, and they really are not 
appreciative of that type of subjectiveness that they are 
seeing from some of the judicial nominees that are being put 
forward by this administration. We hear a good bit about that.
    Ms. Castner, let me come to you. Does the Second Amendment 
protect an individual's right to keep and bear arms? Yes or no?
    Ms. Castner. Thank you, Senator. Our Supreme Court has 
recognized that right.
    Senator Blackburn. Okay, do you agree with the Supreme 
Court, that the Second Amendment is a fundamental right?
    Ms. Castner. Thank you, Senator. If I am fortunate enough 
to be confirmed, I would be duty bound to apply the Heller 
decision.
    Senator Blackburn. Okay. Did you attend a March for Our 
Lives event in March 2018?
    Ms. Castner. I'm not sure if I attended. I believe so, 
Senator.
    Senator Blackburn. Yes. I think you attended. I'm certain 
you attended. Do you support that organization's position 
opposing the Supreme Court's decision in District of Columbia 
v. Heller?
    Ms. Castner. Senator that was an event I attended as a 
private citizen. If I were fortunate----
    Senator Blackburn. That's not what I'm asking you. You 
attended the event, so do you support the organization, and 
thereby do you support their opposition to District of Columbia 
v. Heller?
    Ms. Castner. Senator, again, if I'm fortunate enough to be 
confirmed, I would be duty bound to apply Heller, McDonald, and 
I would do so fully and faithfully.
    Senator Blackburn. Okay. Then you're saying your opinions 
in your private life have absolutely no reflection on what you 
would do as a judge?
    Ms. Castner. Senator, as an attorney for the last 14 years, 
my personal views play no role in my job as an advocate on 
behalf of my clients. It would play no role in my courtroom if 
I were fortunate enough to be confirmed.
    Senator Blackburn. What's your opinion on judicial 
activism?
    Ms. Castner. Senator, I know that term has a number of 
different meanings for people. For me, it would be a judge who 
goes beyond the issues in a case or considers their personal 
views----
    Senator Blackburn. Let's say it like this, and let's say 
that you were to get confirmed and a case involving the Second 
Amendment were to come before you. Then how should the 
litigants feel about you hearing their case, when they know of 
your political activism?
    Ms. Castner. Senator, I would hope that litigants would be 
able to take a look at my record, and that I have--and that I 
would apply the law and the facts of the case and an open 
mind----
    Senator Blackburn. Okay. Let's move on. Ms. Rubin, Judge 
Rubin, let me come to you. Voter ID laws. In Tennessee, we have 
a voter ID law. We have worked hard and have been successful as 
being a State that, at the State and local level, we've 
reformed elections. We've cleaned photo rolls. We've required 
ID to vote. We've restored accountability. You've expressed 
opposition to voter IDs and said that you were, and I'm quoting 
you, ``highly suspicious of the motivations behind those 
laws.'' What did you mean? Give me just a couple of seconds on 
that.
    Judge Rubin. Thank you very much, Senator Blackburn. I have 
served for almost a decade as a circuit court trial judge in 
Baltimore City. In that capacity, my North Star is what are the 
facts, what is the evidence, and what is the law that I apply 
to the case. I appreciate the question that you've asked. It 
does pertain to my participation on public radio to provide 
discourse on matters of legal public interest, approximately a 
decade ago, in some instances longer than that. Any discussion 
that I may have participated in on that program was in my 
capacity as a private citizen and as a private lawyer.
    Senator Blackburn. No. I didn't ask you about that. I have 
all of that information and where it came from. I'm asking you, 
specifically, what did you mean by using the term that voter ID 
laws were highly suspicious? You're going to be working in a 
courthouse. A courthouse requires an ID to enter that 
courthouse. Are you going to be highly suspicious of having to 
show that ID? When I go to my grandchildren's school, I have to 
show an ID. Are you highly suspicious of schools that require 
visitors to show an ID? If you want to go over on the House 
side and go see Speaker Pelosi, or you want to go in the 
Capitol, you've got to show an ID. Are you highly suspicious of 
those?
    Judge Rubin. Thank you, Senator. I have not had a matter 
that's come before me involving the sort of facts that you've 
explained here----
    Senator Blackburn. Okay, I'm out of time, so I would like a 
written response of your definition of the term highly 
suspicious. Thank you, Mr. Chairman.
    Judge Rubin. Yes, Senator.
    Chair Durbin. Thank you very much, Senator Blackburn. When 
I came in here this morning in the Committee room, there was a 
group of cameras and reporters outside, asking me to express my 
views. On this side of the table, that is an ordinary 
experience. Many times we express our views and think we're 
pretty proud of those, and when we're nervous about them, we 
dance around and don't really answer the question. We face 
that, every minute of every day.
    On that side of the table, you play by different rules, if 
you're going to be a judge, when it comes to your personal 
views. As I mentioned earlier, you're actually told, by the 
basic rules of the road, the legal tenets, the Canons of 
Judicial Conduct, that you cannot express your personal views. 
You are going to be there to decide a case based on the facts 
and the law. You heard questions coming from the Republican 
side to Democratic-sponsored nominees--they used to come from 
the Democratic side to Republican-sponsored nominees--because 
that is a different thing than we're ever used to as elected 
politicians. We're asked to express our views every moment of 
every day and usually do, be quite proud of it. Even though it 
may have seemed painful in some respects, Ms. Traum and others, 
this is a natural occurrence in a Committee that I have served 
on for more than 20 years and is no reflection on you 
personally. It is a reflection of the tension between one 
branch of Government to a respective group of nominees, to 
another branch of Government. I hope it wasn't too painful, and 
I hope that you're ready, if we send you some written 
questions, in a timely manner to respond to them as quickly as 
possible.
    We have a good record on this Committee of moving nominees 
forward. We are about to face the change of one year to the 
next, which seems like it shouldn't amount to much, but it does 
in terms of nominations. We'll keep you posted as to what that 
may mean. I thank you all for being here, and especially thank 
your families for their loyalty and friendship and patience as 
well. And this meeting of the Senate Judiciary Committee will 
stand adjourned.
    [Whereupon, at 11:59 a.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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