[Senate Hearing 117-909]
[From the U.S. Government Publishing Office]
S. Hrg. 117-909
CONFIRMATION HEARING
ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 6, 2021
__________
Serial No. J-117-8
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
58-562 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Grassley, Hon. Charles E......................................... 3
Feinstein, Hon. Dianne........................................... 5
Klobuchar, Hon. Amy.............................................. 8
Padilla, Hon. Alex............................................... 4
VISITING INTRODUCERS
Peters, Hon. Gary C., U.S. Senator from Michigan................. 6
Stabenow, Hon. Debbie, U.S. Senator from Michigan................ 7
NOMINEES
Beckering, Jane M................................................ 36
Questionnaire................................................ 156
Responses to written questions............................... 584
Bonilla, Armando O............................................... 38
Questionnaire................................................ 266
Responses to written questions............................... 725
Additional materials......................................... 860
Kanter, Jonathan................................................. 39
Questionnaire................................................ 346
Responses to written questions............................... 804
Additional materials......................................... 863
Koh, Lucy Haeran................................................. 9
Questionnaire................................................ 56
Responses to written questions............................... 372
Additional materials......................................... 837
Kumar, Shalina D................................................. 37
Questionnaire................................................ 214
Responses to written questions............................... 658
Lerner, Carolyn.................................................. 39
Questionnaire................................................ 299
Responses to written questions............................... 764
Additional materials......................................... 858
CONFIRMATION HEARING
ON FEDERAL APPOINTMENTS
----------
WEDNESDAY, OCTOBER 6, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Feinstein,
Whitehouse, Klobuchar, Blumenthal, Hirono, Booker, Padilla,
Ossoff, Grassley, Lee, Cruz, Hawley, Cotton, Kennedy, Tillis,
and Blackburn.
Also present: Senators Peters and Stabenow.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Good morning. This hearing will come to
order. Today we'll hear from five judicial nominees, and one
nominee to the Department of Justice: Judge Lucy Koh, nominated
to the ninth circuit; Judge Jane Beckering, nominated to the
Western District of Michigan; Judge Shalina Kumar, nominated to
the Eastern District of Michigan; Armando Bonilla, nominated to
the Court of Federal Claims; Carolyn Lerner, nominated to the
Court of Federal Claims; and Jonathan Kanter, nominated to
serve as Assistant Attorney General for the Justice
Department's Antitrust Division.
I have the privilege of introducing Mr. Bonilla and Ms.
Lerner, and we're also joined by a number of our colleagues who
will introduce the other four nominees.
Before I proceed to my introductions, I would like to make
a few brief comments.
First, the nominees before us are all, every one,
exceptionally well qualified. They include a sitting Federal
district court judge with 14 years of experience on the bench,
two State court judges with three decades of judicial
experience between them, a former Senate-confirmed Government
watchdog who saved taxpayers hundreds of millions of dollars by
investigating and rooting out waste, fraud, and abuse in the
Federal Government, a nominee who has litigated more than 100
cases before the Court of Federal Claims, the court to which
he's nominated, and one of the country's foremost experts on
antitrust law.
Second, these five judicial nominees will bring incredible
professional and demographic diversity to the justice--
administration of justice. Judge Koh, for instance, would be
the first Korean-American woman to sit on a Federal appeals
court. Judge Kumar, the first Federal judge of South Asian
descent to sit on a district court in Michigan. Mr. Bonilla,
the first ever Latino judge on the Court of Federal Claims.
Further, in addition to their judicial experience, the
nominees before us have worked as plaintiffs, attorneys, civil
litigators for the Government, criminal prosecutors, and
mediators. I want to commend the Biden administration and my
colleagues for continuing this important efforts to balance our
courts with outstanding nominees, nominees who understand the
role of a judge, whose credentials are second to none, and are
ready to hit the ground running.
Now, let me turn to my introductions. Armando Bonilla is
currently the vice president for ethics and investigations at
Capital One Financial Corporation. He's worked there since
2018. Before that, Mr. Bonilla served with the Justice
Department for 24 years, 1994 to 2018. From 2017 to 2018, he
served as Associate General Counsel of the United States
Marshals Service, giving advice on legal, ethical, contractual,
legislative, and policy issues. From 2010 to 2017, he served in
the Office of Deputy Attorney General. As an Associate Deputy
Attorney General, he advised the Office on a wide variety of
issues.
He also previously served as a trial attorney, both in the
Criminal and Civil Division of the Justice Department. While in
the Civil Division, Mr. Bonilla litigated over 100 cases before
the Court of Federal Claims. He handled over 50 appeals.
I will also note that Mr. Bonilla has been before this
Committee previously, nominated by President Obama to be a
judge on the Court of Federal Claims in 2014. This Committee
twice advanced his nomination by voice votes. That bipartisan
support for Mr. Bonilla was well deserved considering his
multiple decades of public service.
Also before the Committee today is Carolyn Lerner, likewise
nominated to serve on the Court of Federal Claims. She
graduated from the University of Michigan, I'm sure good news
to the two colleagues who have joined us at the table, and New
York University School of Law.
Ms. Lerner spent almost two decades in private practice,
representing employees in employment discrimination and civil
rights cases. While in private practice, she was appointed by a
DC district court judge to serve as Special Inspector for
Sexual Harassment and Retaliation at the D.C. Department of
Corrections.
In 2011, President Obama nominated her to head the Office
of Special Counsel, a position to which she was confirmed by
voice vote here in the Senate. In this position, Ms. Lerner
investigated allegations of waste, fraud, and abuse in the
Federal Government, and protected whistleblowers from reprisal.
When Ms. Lerner was nominated to serve a second term as Special
Counsel, she had the strong support of Ranking Member Grassley,
who wrote that she had, quote, ``Built trust and confidence on
both sides of the aisle in her ability to objectively and
diligently pursue the Office's mission.''
Since 2017, she has served as a chief circuit mediator of
the DC circuit, personally mediating approximately 10 cases
each year.
I'm going to ask that two statements be placed in the
record at this point: one is from Senator Warren relating to
the nomination of Mr. Kanter, who will be introduced formally
later. And the other is by Senator Cardin on behalf of one of
his constituents, Carolyn Lerner. Without objection, they will
be entered.
[The information appears as a submission for the record.]
Chair Durbin. Let me now turn to my Republican colleague,
Senator Grassley.
Senator Grassley. Are you ready for me?
Chair Durbin. I'm ready for you.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Judge Koh is well known for her opinions
and high-profile cases involving tech companies, antitrust, and
data privacy. She has also had major opinions bearing on
religious liberty and constitutional rights.
I want to discuss some of those more in depth today, and
also hear more about Judge Koh's judicial philosophy. Some of
this administration's nominees have been a bit cagey when it
comes to their views on constitutional and statutory
interpretations. Given her time on the bench, I think Judge Koh
will be able to speak about her judicial philosophy very fully.
The Michigan nominees are both sitting judges, which is
good, but their prior experiences are also pretty similar,
plaintiff's attorneys with long histories of donating to
Democrats. While there's nothing wrong with plaintiffs' lawyers
or anybody that wants to donate to any political party,
including the Democrats, we should make sure that these
nominees are willing to be even-handed on the Federal bench.
As to the claims nominees, Mr. Bonilla seems experienced
before this specialized court. Ms. Lerner is someone my staff
has worked with well over the years from her time as special
counsel in the Office of Special Counsel.
Mr. Kanter and I met last week, and we had a very good
discussion about my concerns about concentration and
consolidation in the agricultural industry. I hope that we'll
have a chance to continue that conversation today. Mr. Kanter
has been a forceful critic of Big Tech companies. So have I.
The market size and power of companies like Facebook and Google
enable them to exert substantial control over how Americans get
and share information. Evidence suggests that these technology
companies frequently censor conservative political viewpoints
or search results from their platforms. And, as we heard from
whistleblower testimony yesterday in another Committee, social
media companies like Facebook have prioritized profit and power
over even the well-being of our children. I look forward to
hearing Mr. Kanter's thoughts on how he plans to use antitrust
laws to protect the American people against these types of
unfair practices.
I welcome all of our guests.
Chair Durbin. Thanks, Senator Grassley. We have a number of
colleagues joining us this morning to introduce some of the
nominees, and I want to note that we will go a bit out of order
in these introductions so we can accommodate their conflicts in
scheduling.
I understand Senator Padilla will start with the
introduction of Judge Koh.
OPENING STATEMENT OF HON. ALEX PADILLA,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Padilla. Thank you, Mr. Chair, and Ranking Member
Grassley. It's my honor to introduce to the Committee, Judge
Lucy Koh from the great State of California, as President
Biden's nominee to serve on the U.S. Court of Appeals for the
Ninth Circuit.
Judge Koh is joined here today by her family. Her husband,
Tino Cuellar, daughter, Rhea, and son, Mateo. I think they're
proud of mom. So proud they took red-eye flights just to make
sure they were here today. She's also joined by her mother, her
brother, and several other members of her extended family, and
I had an opportunity to welcome each one of them and thank them
for sharing Judge Koh with us in public service.
In many ways, Judge Koh's story epitomizes the American
Dream. She is the daughter of Korean immigrants who fled
communism and dictatorship in search of a better life. Judge
Koh was born here in Washington, DC, and raised in Vicksburg,
Mississippi. Her experiences there in public schools,
challenged with poverty and discrimination, along with the
experiences of working in her father's small business,
surrounded by love and lessons of her immigrant family helped
shape this unique and necessary perspective that she now brings
to the Federal bench.
Judge Koh worked her way through Radcliffe College and
Harvard Law School and began her career--her legal career right
here on this Committee as a Women's Law and Public Policy
Fellow. Judge Koh went on to build a career as a trailblazing
public servant and an outstanding legal thinker. She spent 7
years as a lawyer for the United States Department of Justice,
earning numerous accolades for her work there, including an FBI
award for excellence in prosecuting major fraud.
Judge Koh then found her way to Silicon Valley, where she
made a name for herself as an expert litigator of intellectual
property cases. Her good work and reputation extended far and
wide. And in 2008, Governor Arnold Schwarzenegger, a
Republican, appointed her to the Superior Court in California.
Just 2 years later, President Barack Obama nominated Judge Koh
to the Federal district court bench. She was confirmed
unanimously, Mr. Chair, unanimously by 97 Members of this
Senate, including Members who serve on this Committee today. In
the decade since, Judge Koh has gone on to distinguish herself
as jurist, issuing over 3,200 opinions and presiding over more
than 270 trials.
She is well known not only in her district, but across the
country as talented, thoughtful, smart, and fair. In 2016, this
Committee, including Ranking Member Grassley and Senator
Graham, voted 13-to-7 in support of Judge Koh's nomination to
the ninth circuit. Unfortunately, Judge Koh's nomination never
received a floor vote in the Senate. So I hope that we seize
this opportunity to elevate Judge Koh to the ninth circuit and
do so once again with strong bipartisan support.
If confirmed, Judge Koh will become the first Korean
American to serve on a Federal circuit court. The historic
nature of this nomination reflects our commitment to rebuild
our Federal judiciary in a way that better reflects the America
that it serves. And it also is a representation of Judge Koh's
great talent, intellect, and skill that the President has
entrusted her with this milestone.
Judge Koh, I look forward to hearing from you today. I want
to thank you again for your willingness to continue to serve
our great Nation. And colleagues, I will be urging your support
of her confirmation.
Chair Durbin. Thank you, Senator Padilla. Before turning to
our visiting colleagues, I'll ask Senator Feinstein if she
would like to make a comment.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman. I would
like to add my words of support for Lucy Koh to serve as judge
of the United States Court of Appeals.
She has been a highly respected member of the Federal
judiciary, and she served California well throughout her
career. I recommended Judge Koh when she was first nominated to
the ninth circuit by President Obama in 2016, and I'm pleased
that President Biden chose her as one of his first nominees to
the appellate court.
She received her undergraduate degree from Harvard in 1990,
her law degree from Harvard Law in 1993, and she has served as
a Legal fellow of this Committee's Immigration Subcommittee,
and then served several years at the Justice Department. In
1997, she moved to California to serve as assistant U.S.
attorney in the central district. Among her achievements while
at Justice, Judge Koh received an award from the FBI for,
quote, ``Demonstrated excellence in prosecuting major fraud
cases,'' end quote.
After her time with Justice, Judge Koh spent nearly a
decade in private practice in Palo Alto. She became a
distinguished intellectual property lawyer, working on patent,
trade secrets, and commercial civil litigation. She was
appointed by a Republican Governor, Governor Schwarzenegger, to
serve as a judge of the California Superior Court for Santa
Clara County. That's quite a good achievement.
In 2010, the Senate voted unanimously, 90-to-0, to confirm
Judge Koh as a Federal District Court Judge for the Northern
District of California. And she has served on that court for
more than a decade. She issued more than 3,000 written
opinions, and her reversal rate is very low; it's 1.3 percent
on all those decisions. And it speaks to the care in her
research, analysis, and jurisprudence.
She was nominated in February for a seat on the ninth
circuit. Following a hearing of her nomination, Judge Koh
received the support of several of our Republican colleagues on
this Committee. But her nomination, for some reason, was not
considered by the full Senate. In the intervening 5 years,
Judge Koh has gained additional experience and built a
significant record as a Federal judge. And I hope that my
colleagues on both sides of the aisle will again support her
nomination to the ninth.
She has excelled in every position she has had. She has an
impeccable track record as a prosecutor, in private practice,
and as both a State and Federal judge. Judge Koh would be an
excellent addition to the ninth circuit.
So, I'm pleased, once again, to be able to say a few words
and introduce her to the Committee. And I thank the Chair for
holding this hearing today.
Chair Durbin. Thank you, Senator Feinstein. And now we'll
turn to the comments on the second panel. And first up will be
the two Senators from Michigan. It's my understanding that
Senator Peters has a Committee waiting for him. If Senator
Stabenow will defer to her colleague, I'll recognize Senator
Peters.
STATEMENT OF HON. GARY C. PETERS,
A U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Peters. Well, thank you, Chairman Durbin, for that.
And Senator Stabenow, thank you for the deferral for the markup
for the Committee for which I Chair, so thank you for letting
me go forward.
I certainly thank you for having this hearing, and Ranking
Member Grassley, thank you for bringing us all together today.
It is my pleasure to introduce two extemporary Michiganders and
nominees for the Federal bench. Judge Shalina Kumar for the
U.S. District Court for the Eastern District of Michigan, and
Judge Jane Beckering for the U.S. District Court of the Western
District of Michigan.
I want to take a moment to acknowledge their families and
friends who are here with us today. Judge Beckering is joined
by her husband, Raymond, and three children, Marley, Katie, and
Ray, as well as her parents, John and Sheila Buchanan, and her
older brother, Robert. Judge Kumar is joined also by her close
friends, Jason Turkish and Eve Hill. Thanks each of them to be
here with Judge Kumar.
It is critical that we have qualified, fair, and impartial
judges committed to upholding our laws and administering
justice in Michigan and across the country. Senator Stabenow
and I were proud to recommend both of these fine judges to
President Biden.
As a native of Southeast Michigan, I'll begin introducing
Judge Kumar, our nominee for the Eastern District. Judge Kumar
is highly qualified with nearly 25 years of legal experience
and private practice, and since 2007 on the Oakland County
Circuit Court. In 2018, she was appointed chief judge of the
court by the Michigan Supreme Court. And by all accounts, she
has shined in this role, demonstrating effective and thoughtful
public service, even amidst the challenges brought on by COVID.
She has presided over a robust docket of civil and criminal
cases while also leading the administration of the circuit,
which has 20 judges, 400-plus employees, and a $72 million
annual budget. She additionally serves as the presiding judge
of the adult treatment court, focusing on treatment for
Michiganders struggling with substance abuse and mental health
challenges.
Known as a trailblazer in my home State, Judge Kumar's
nomination helps reflect Michigan's rich diversity. If
confirmed, Judge Kumar would be the first Michigander of South
Asian descent to serve on the Federal bench in our State. And
I'm pleased and I'm proud to recognize Judge Kumar not only for
her experience, but for the diverse voice and perspective that
I know she will bring to the Federal bench.
Now moving to the western part of the State, Judge
Beckering is also a well-respected and eminently qualified
jurist. For the past 14 years, Judge Beckering has served on
the Michigan Court of Appeals, one of the highest volume
appellate courts in the Nation, where she serves as chief
judge. Through her service, Judge Beckering handles appeals
statewide as well as the regular and administrative motion
dockets for the court, which is based in Grand Rapids, and
encompasses 17 counties in Michigan.
With three generations of lawyers in her family, Judge
Beckering realized as an undergraduate at the University of
Michigan that she wanted to serve others and make a difference
in their lives. Following a law school graduation, Judge
Beckering was a trial lawyer in private practice for 17 years
and helped found the law firm of Buchanan and Beckering with
her father in Grand Rapids, Michigan.
Judge Beckering has helped lead the Hillman Advocacy
Program, a learn-by-doing 3-day trial skills workshop, and is
vice president of the Grand Rapids Bar Association.
She recently completed 10 years of service on the Michigan
Supreme Court Committee on Model Civil Jury Instruction and
helped craft the definitive textbook on Michigan Civil
Procedure Law.
I know that Judge Beckering and Judge Kumar will serve
Michigan and our country well. These two jurists are strong
legal minds who represent the best of their profession and
Michigan. I have every confidence that they will be confirmed
by the Senate and honorably represent Michigan and our country
on the Federal bench.
Chair Durbin. Thank you, Senator Peters. Senator Stabenow.
STATEMENT OF HON. DEBBIE STABENOW,
A U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Stabenow. Well, good morning, and thank you, Mr.
Chairman, for holding this important hearing. And Senator
Grassley, it's wonderful to see you here as well. And I, too,
am extremely excited about the two excellent judicial nominees
from the great State of Michigan, and also want to welcome
their families and friends today to this very important
occasion, I know, for them.
These two women have a few things in common beyond being
outstanding nominees. They were both originally appointed to
the court by former Michigan Governor, Jennifer Granholm. They
have both since been elected by the people of Michigan to the
positions that they hold. And they both attended the University
of Michigan. And I say that as a Michigan State University grad
twice, and we're in great competition. But not today. Not
today.
Judge Shalina Kumar is nominated to be U.S. District Court
Judge for the Eastern District of Michigan. And Judge Jane
Beckering is nominated to be U.S. District Court Judge for the
Western District of Michigan.
Since 2007, Judge Kumar has served on the Oakland County
Sixth Circuit Court with great distinction. She was appointed
chief judge of the circuit court in January 2018.
Prior to joining the bench, Judge Kumar spent a decade in
private practice and has served continually, as my colleague,
Senator Peters, indicated with distinction at everything that
she has done. If confirmed, Judge Kumar would be the first
Federal judge of South Asian descent in Michigan.
Judge Beckering has more than three decades of legal
experience. Since 2007, she has served as a judge on the
Michigan Court of Appeals as the chief judge pro tempore of the
court. And before that, Judge Beckering was a trial lawyer in
Grand Rapids, serving with great distinction in that role as
well, and has been actively involved in West Michigan legal
community activities.
I am very excited for these two nominees, and I am
confident that they are ready and prepared to serve the people
of Michigan and serve our country on the Federal bench. And Mr.
Chairman, I look forward to supporting them on the floor of the
U.S. Senate so that they can begin their service. Thank you.
Chair Durbin. Thank you very much, Senator Stabenow. We
certainly appreciate your presence here today and the kind
words you had to say about the nominees.
The last introduction will come from Senator Klobuchar
relating to the second panel before we recognize Judge Koh for
her consideration.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you very much, Mr. Chairman. I
think this introduction couldn't be more timely with the
testimony over in Commerce Committee yesterday on Facebook with
the work that's going on all over the country with State
attorney generals. And that is that I have the honor of
introducing Jonathan Kanter as President Biden's nominee to be
Assistant Attorney General of the Antitrust Division of the
Department of Justice.
Jonathan is joined by his wife, Lisa, and his children,
Abigail--good name; that's my daughter's name--and Benjamin. We
are honored that you are all here with us today, and you must
be very proud of your dad and your husband.
Jonathan was born in New York City, but he now makes his
home in Maryland. Over the last two decades, he has represented
numerous clients across a wide range of interests and has
become one of our Nation's most distinguished antitrust
practitioners. Respected for his deep experience and expertise,
as well as his strong advocacy for vigorous antitrust
enforcement, we could not ask for a more qualified nominee to
lead the Antitrust Division.
Jonathan began his career as an attorney at the Federal
Trade Commission, where he was involved in investigating and
challenging anticompetitive mergers. He went on to private
practice and worked for a number of prominent law firms. Then
last year, he took the important step of starting his own firm,
the Kanter Law Group, an advocacy-focused antitrust firm where
he has continued to advocate on behalf of clients in favor of
vigorous enforcement of antitrust laws against dominant firms.
Over the course of more than 20 years, Jonathan has
represented clients, large and small, before the Antitrust
Division, the Federal Trade Commission, and State Attorney
General.
In addition to his expertise as a practicing attorney and
his knowledge of the antitrust laws, he has a deep
understanding of the major competition policy issues
confronting enforcers in the U.S. and around the world. That is
why Senator Lee and I, actually together, invited him to
testify before the Antitrust Subcommittee at a 2018 hearing
about taking on monopolies.
We are at a critical moment in antitrust. There is growing
bipartisan consensus that our country has a major monopoly
power problem, and I really, really appreciate the work of our
colleagues on both sides of the aisle on this issue. We need,
and we agree on this, antitrust enforcers to do more to protect
competition, stop the runaway consolidation of our markets, and
crack down what are actually today's robber barons. That
requires leadership--experienced leadership at the Antitrust
Division that requires legal skill as well as, and I think this
cannot be forgotten, the courage to take on some of the most
powerful companies the world has ever seen.
This doesn't mean destroying these companies, eliminating
these companies, it simply means allowing competition to
flourish so we can rejuvenate capitalism, and have the next
generation of successful companies. Jonathan Kanter possesses
the skills to do this. That is why nine former Assistant
Attorney Generals, Republicans and Democrats, wrote a letter,
urging the Senate to act favorably and as quickly as possibly
on his nomination.
Vigorous antitrust enforcement, as I said, is a bipartisan
priority. American consumers, workers, and businesses deserve
the benefits of free and fair competition. That's why we need
him, Jonathan Kanter, at the Antitrust Division. I urge my
Democratic and Republican colleagues to support the nomination.
And I want to especially thank Senator Grassley for the work
we're doing together on competition, as well as Senator Durbin
for quickly calling up this nomination hearing so we can get a
leader of the division in place.
Thank you.
Chair Durbin. Thanks, Senator Klobuchar. I want to thank
all of my colleagues for the introductions, and I'd ask the
staff--I see they already prepared the table.
Judge Koh, would you please approach the witness table and
stand if you would, for a moment?
[Witness is sworn in.]
Chair Durbin. Thank you very much. Let the record reflect
that the witness answered in the affirmative. Judge Koh, the
floor is yours.
STATEMENT OF LUCY HAERAN KOH,
NOMINEE TO SERVE AS UNITED STATES CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Judge Koh. Good morning. Thank you so much to Chairman
Durbin and Ranking Member Grassley for holding this hearing and
giving me the honor of being able to participate in this
hearing. I would like to thank President Biden for the honor of
this nomination. And to thank both Senators Feinstein and
Senator Padilla for their support for this nomination, and also
for their very generous and kind introductions.
I have with me today, and I'd like to introduce, my
husband, is Mariano-Florentino Cuellar. He is sitting behind me
with our daughter, Rhea, and our son, Mateo. My mother, Unsa
Koh, is here, as well as my brother. My father passed away, but
the two brothers he loved so much are here, Segun and Ugun Koh.
My aunt, Bangsho Koh is here. My cousin, Jenny, is here. And my
cousin-in-law, Diana San-Ortega is here. There are so many
other family members, friends, courtroom deputies, law clerks,
externs, who wanted to be here today, but they are joining us
online, and I'd like to thank them for their support.
So, thank you again for inviting me to participate today,
and I look forward to answering your questions.
Chair Durbin. Thank you very much, Judge Koh. You are no
stranger to the Committee. You've been here before and have
answered questions as asked. I will just remind my colleagues
that with 14 years' experience on the bench, you've issued more
than 3,250 written opinions, and presided over 271 total
trials. There will still be efforts made by the Members of the
Committee to ask you to be specific in your beliefs, and I know
that there are certain areas where you can be and others where
you cannot be. But I think the fact that you have so many
published opinions should give us some indication of your
judicial philosophy, as I've gleaned it from my review.
But I want you to speak to another topic, which I know is
very important in your life, and one of the major reasons for
your presence here today, and that is your family and their
experience in coming to the United States. We have had so many
inspiring immigrant stories. Yours is one of them, and I hope
you'll share it with us now. What does this moment mean to you
and your family?
Judge Koh. So, I am sad that my father is not able to be
here today because he is the first one to immigrate to the
United States, and he would have loved this moment. He loved
this country. He studied every single President of the United
States. He dragged us around every time to see every single
Presidential library. He stood in the rain to watch when
Presidents passed away to see their funeral processions. He
made us stand in the rain to do the same. He loved the United
States and was so grateful to be here.
My mother is kind of one of my heroes because she grew up
in North Korea. And in 1946, in the spring, she decided that
she wanted to go to South Korea where her father was working
for the South Korean government. And so, she and her uncles
basically escaped. It was illegal to leave North Korea. The
38th Parallel had been established in August the year before,
but it was porous. It was not enforced.
So she and her uncles--she was about 10 at the time--walked
for 2 weeks to come to South Korea, to freedom in South Korea.
And along the way, it was--they had to go through all these
military checkpoints, and the uncles would go through the check
point, but she had South Korean currency and all their papers
sewn into her undergarments. So she would just drop to the
floor, and she would start playing jacks so that no one would
suspect she was anything but a local kid.
And so then, once her uncles went through the checkpoint,
they would all meet up again. And they walked at night. They
rested during the day because they didn't want to be seen when
they were going through all the mountains. And she got yellow
fever during that time, but her uncle carried her on his back
for--well, they shared the load because they were all getting
tired at that point.
And the amazing thing is my mother never told us this story
until my family, when I was in college, we were at Colonial
Williamsburg, and we were walking around these fields. And my
mom, who had never mentioned this, all of a sudden says, ``Oh,
this reminds me of the time I escaped North Korea.'' And we
were all shocked, ``What are you talking about?''
And later, I actually gave the commencement address at
William and Mary Law School in Williamsburg, and in my address,
I said, ``I hope you don't take offense, but your town reminds
my mom of North Korea.''
[Laughter.]
So, I think this is a very special moment for my family,
and I'm so grateful for everyone for allowing us to be here.
Chair Durbin. Can you recount your family's experience
living in Mississippi?
Judge Koh. Yes. So, we moved to Mississippi in 1972, and we
first lived in Lorman, which is really a very small town. It
only has Alcorn State University, which is the first African-
American land grant college in the United States. And at that
time, I did kindergarten in Alcorn. I went to an all-African
American kindergarten, and there were no primary or secondary
schools there. So we took like a 45-minute bus ride up to Port
Gibson, and there we went to--my brother, sister, and I, went
to public schools there. My first, second, and third grades
were all African American. And I just remember at the time,
there was an immense amount of poverty.
And my mom actually was a nutrition professor. And so, she
was actually getting Federal grants to actually measure the
success on the war on poverty. So she actually did a lot of
studies about the poor--the poor rural population in
Mississippi to see were these nutrition programs working? Was
it enhancing their nutrition status and their health status?
There was just a tremendous amount of poverty.
Later, I moved to Vicksburg, Mississippi in third grade,
and I thought the school was integrated. It seemed integrated
to me, but later in law school, when I was an intern for the
NAACP Legal Defense Fund, I learned that there was actually a
consent decree for my school district in Mississippi.
I think the poverty that I did see growing up is something
that has always stayed with me. It's like an image that I can
remember sitting on the buses, and seeing some pretty
dilapidated homes, and little toddlers in front, crying. And
that's been a searing memory that stayed with me.
Chair Durbin. Thanks, Judge Koh. Senator Grassley.
Senator Grassley. Judge, welcome. What you said about your
Korean background reminds me a lot of what my daughter-in-law
of 45 years has said. And if I learned anything from Korean
people, it's the hard work ethic in how you can make a lot out
of nothing. So, I congratulate you and your people.
Judge Koh. Thank you.
Senator Grassley. I have asked a number of nominees about
judicial philosophy. Some nominees aren't prepared to talk
about their approach or won't admit that they have a judicial
philosophy. You've been a Federal judge since 2010, 11 long
years. So I'm hoping you can have a productive conversation
with me.
When it comes to describing your judicial philosophy today,
would you say that you are an originalist, or a textualist? Or
how would you want to describe your judicial philosophy?
Judge Koh. So I do look at the text first any time I'm
asked to interpret a statute or a constitution--constitutional
provision. I do look to precedent from the Supreme Court as to
what methods of interpretation they have used for that
particular question. So in some instances, like in Heller, like
in Crawford, the Supreme Court said, ``Yes. You look at the
original understanding. You look at original sources.''
So I follow the Supreme Court precedent when they have
analyzed something to see, how did they analyze it? What is the
method that they use? And then I try to use the exact same--
same method every time.
Senator Grassley. You were a district judge handling Tandon
v. Newsom. This was a case where two Californians wanted to
hold Bible studies and prayer meetings in their home. The COVID
rules in California prevented them holding indoor gatherings,
even though California made exceptions for other gatherings
like, just as an example, an in-home filming.
When you ruled against these plaintiffs, you wrote that
they had, quote, ``Little caselaw to support them,'' end of
quote, in their argument that they were treated differently and
unfairly.
When the Supreme Court reviewed this case, the Court
reversed it. The Court called it unsurprising, that's their
word, that the plaintiffs were entitled to host Bible studies
at home because California's COVID law, quote, ``Contained a
myriad exceptions and accommodations for comparable
activities,'' end of quote. The Court concluded by saying,
quote, ``That strict scrutiny is not watered down. It really
means what it says,'' end of quote.
So, my question has to do with the standard of review. You
applied Smith's rational basis review to the free exercise
issues in this case. Now the Supreme Court has decided a lot of
free exercise cases in the last 20 years. Can you name any
Supreme Court case decided in the last 20 years where Smith
controlled the outcome of the case?
Judge Koh. I actually used both rational basis and strict
scrutiny in Tandon. And I relied on the precedent of the ninth
circuit and the Supreme Court that existed at the time. And at
that time, the precedent concerned houses of worship, and
whether the capacity limits of the houses of worship were
actually considered. And there wasn't any precedent at that
time of having gatherings inside at the home.
And at that time, I relied on the precedent, and the sixth
circuit had a decision that had the same rationale that I
adopted that said, ``If there is a rule that doesn't call out
religion,'' because all of the other cases to that point had
called out houses of worship specifically. And this one was a,
what I thought, I understand that the Supreme Court disagreed,
and that is the law of the land, and I understand. I do my
best, but I don't always get it right.
Senator Grassley. Okay.
Judge Koh. But they had said in the sixth circuit, and the
Supreme Court did not enjoin the sixth circuit's decision, that
if there is a neutral and generally applicable rule that
applies to all schools. It does not call out religious schools.
It does not call out public schools. All schools. That is a
neutral and generally applicable rule that can withstand
scrutiny.
And so, at that time that I made my decision, that was the
law, and I did my best to follow it.
Senator Grassley. Okay. I think maybe you've spoken to this
a little bit. But describe the standard that the Supreme Court
currently applies to the free exercise cases and explain the
legal standard in some detail.
Judge Koh. Sure. Let me do that. So, I'm actually--I'd like
to start, if it's okay, with just what the holding in Tandon is
from the Supreme Court, which is the law of the land, which I
will follow faithfully, fully, fairly, in every future case.
Actually, if I may back up a minute. So, my understanding
of how you analyze a free exercise case is you first look at is
this a generally, pardon me, a neutral and generally applicable
rule. And you first look at the text. But even if the text is
neutral, if the Government, when implementing that rule had
some kind of religious animus, it can still be invalid. So
that's sort of the first step on neutrality. And then the
second step you go to is the generally applicable.
So the Supreme Court has said, ``If there are exemptions
that require the Government to sort of look into, you know,
what your basis is for trying to not be governed by this rule,
that that's not going to be generally applicable if you've got
exemptions.''
Then the second thing that we look at is whether it's
underinclusive and overbroad. For example, in the Lukumi case,
you know, there were laws that on their face looked neutral,
rightly applied, but it turns out that they really were just
applying to Santeria practices and disposal of dead animals
that way, and weren't looking at fishing, weren't looking at
carcasses from hunting.
And so, in Tandon, what I understand the Supreme Court has
now clarified as the law of the land, which I will faithfully,
fully, fairly, implement in any future case before me, is they
said basically four things:
They said, first of all, it is not neutral or generally
applicable if any secular activity is treated better than
religious exercise. It does not matter whether there is a
secular activity that's treated equally or worse than religious
exercise. There cannot be any secular activity that is treated
more favorably. So that was number one.
Number two, they said when you're looking at
comparability--so comparability comes in when you're looking
underinclusive overbroad, that second prong of the generally
applicable test. They said, ``Look, you don't look at the
reason why people gather. You look at what is the Government's
asserted interest in imposing this restriction.'' You look at
the asserted Government interests, not at the reasons why
people are gathering.
And then the third thing they said is, ``For the narrow
tailoring under the strict-scrutiny analysis, you have to look
at religious exercise with the same precautions that you would
any secular activity.'' So they've explicitly said, ``You
cannot assume the worst of people when they go to worship and
assume the best when they go to work.''
The last thing the Supreme Court decided was on the issue
of mootness that it doesn't matter whether the Government
modifies or withdraws a restriction if there is the possibility
that the Government official would reimpose that heightened
restriction at a later time, the case is not moot.
And so, those are the holdings of Tandon, I believe, and
that's how I believe it further clarified the existing
framework--existing analytical framework. And again, that is
what I will faithfully, fully, and fairly apply going forward.
Chair Durbin. Thank you, Senator Grassley. Senator
Feinstein.
Senator Feinstein. Judge Koh, you've been a judge for more
than a decade now, first in the California State courts, where
you were appointed by a Republican Governor, and now in the
Federal District Court of California, where you were nominated
by a Democratic President.
How do you think your experience, serving as both a Federal
and State court judge will shape your service as a Federal
appellate judge if you were confirmed to the ninth circuit?
Judge Koh. So in State court, I had about 500 cases every
week. I did criminal and civil. I also did drug court, domestic
violence court, and just saw a full range of subject matter, of
types of cases, of types of litigants. Similarly in the Federal
court, I've had an average of about 719 cases per year. In
2017, I had 941 cases. It's a very high volume. We work very
hard to try to get it right because if we don't and we get
reversed, then it comes back and we have to do it all over
again, and that is just a daunting situation. Similarly in the
Federal system, I've done civil cases, I've done criminal
cases, and I've seen the full range of subject matter.
I will say as a trial judge, what I really appreciate is
clear guidance from the appellate courts. We really are just
trying to apply the law to the facts before us in the case
before us. So clear guidance is really helpful.
I would say that when I sat by designation on the ninth
circuit, it gave me a new perspective on my own cases on how to
make a record, on what I should make sure to address in my own
rulings. And I'm hoping, since that experience gave me new
eyes, I'm hoping that my experience as a trial judge, if
confirmed, would give me just a really good perspective as an
appellate judge.
Senator Feinstein. I noted in reviewing your background
that during your time as a judge, you have issued approximately
3,250 opinions, and you were reversed in only 43 of these
decisions. By calculation, that's a reversal rate of about 1.3
percent, which is extremely low. What factors in your approach
to deciding cases do you believe contributed to your low
reversal rate?
Judge Koh. Well, I couldn't speak for how any appellate
court reviewed my work, but I can just say that when I make any
ruling, I really try to consider every single argument that the
parties are making and try to be as clear as possible as to why
I'm making any ruling that I'm making. So I will try to state
as comprehensively as possible my reasoning.
And I will say that, you know, every reversal I try to
learn from it. I try to glean, you know, what did I view
differently that I need to view differently going forward? And
so, with every reversal, I learn from it, and I try very hard,
and I do incorporate it into my work going forward.
Senator Feinstein. Thank you. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Feinstein. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thank you, Judge Koh,
for being here. In your decision in Tandon v. Newsom----
Judge Koh. Yes.
Senator Lee [continuing]. You stated a couple of things
that I find troubling. I want to go over a couple of them with
you. First, you stated that the right to earn a living is not a
fundamental liberty interest that is traditionally and
protected by the substantive component of the due process
clause. And then you went on to conclude, therefore, that small
business owners could be restricted from operating during the
initial COVID-19 period of lockdown.
But in this case, also at issue, was the First Amendment
right, the free exercise of religion. While hair salons, and
grocery stores, and gyms, and private suites at sporting
events, and movie theaters, just to name a few, were allowed to
accommodate more than three households at a time. In your
opinion, you denied a group of individuals the ability to
gather in someone's home for the purpose of religious worship.
Now, last I checked, there isn't a constitutionally
protected right, neither an enumerated right nor a right that's
simply implied to get a haircut, or to go to the gym, or to the
movies, or to attend a sporting event inside of a private
suite, or to buy groceries. It doesn't mean that those aren't
great things. It doesn't mean that those aren't things that
should be free, and that people should be able to do at their
leisure and will. But those things don't have their own
separate constitutional provision protecting them.
So help me understand, Judge Koh, why it was that in this
case, these religious plaintiffs were not given the same level
of deference as those other people involved in other commercial
activities, not religious activities?
Judge Koh. So, the aesthetician, who gave facials, and I
think it was a gym owner, the plaintiffs who were bringing the
right to make a living claim were not raising a free exercise
claim. And at the time I issued that ruling, and I believe so
even today, there is no precedent supporting their claim, so it
was denied.
Now, as far as the free exercise claim, I will say the
restrictions at the time did allow anyone to have religious
services outside their home for up to three households. So it
did allow it outside. The real question was inside the home.
And at that time, I relied on the ninth circuit precedent which
said, ``Look at the factors of risk transmission, of
ventilation, of the duration of how long are people speaking,
are they singing.'' And I looked at those factors----
Senator Lee. I----
Judge Koh [continuing]. And the precedent that existed at
the time.
Senator Lee. I get that.
Judge Koh. But I understand that the Supreme Court in
Tandon has clarified this, and that is what I will follow.
Senator Lee. Right. And the Supreme Court did clarify it,
and the Supreme Court did rectify the problem, using
established precedent. And that's what confuses me here. That's
what I'm not quite grasping is why it wasn't more clear? I
don't think anything could be clearer that there are rights
that someone has with respect to their free exercise of
religion that are different than one's interest in attending a
gym or whatever.
Now, in the Supreme Court's opinion granting injunctive
relief to the--to the free exercise claims, the Supreme Court,
of course, took issue with the ninth circuit's failure to put
the burden on California to explain why it couldn't allow one
set of activities, but not another.
Now, you take a similar approach to what the ninth circuit
did, and in so doing, you named six specific reasons why at-
home religious services were, quote, unquote, ``more risky.''
And I'll quote them here, quote, ``People are together for a
longer time to singing, changing, shouting, loud talking, and
sustained conversations are more likely to occur. Three,
ventilation is poorer. Four, masking and social distancing are
less likely. Five, private gatherings are not required to
implement safety measures mandated by health, and safety codes,
and industry regulations. And six, large numbers of people may
be in the same place at the same time.''
Now, did it ever occur to you that religious people might
agree to the same safety precautions as are found in other
events? Perhaps more importantly, did it ever occur to you that
there are a number of features in the constitution, including
not only the free exercise of religion, but also the freedom of
assembly and whatever you could make of the hybrid right that
exists there to say nothing of the understanding of the
establishment clause that's been interpreted to also preclude
the prescribing, by Government, of means by which religious
observances will be held?
What troubles me is that you apparently didn't see that
here. I think that's fairly plain from precedent, and it
shouldn't have had to go all the way to Supreme Court of the
United States to implement not only established Supreme Court
precedent, but also pretty clear mandates of the Constitution.
Can you help me understand? What I'm saying here, is that
it appears you seemed almost to be suggesting that people
needed permission of Government and Government supervision in
order to carry out these activities that are protected by
multiple provisions of the Constitution.
Judge Koh. So, the factual findings that I made were
uncontroverted. The plaintiffs did not dispute the risk of
transmission from gatherings at the home. Now, I did that
multiple-factor analysis because that's what the precedent was
at the time. The precedent of the ninth circuit at the time was
you tick through these seven factors to determine whether the
risk of transmission is greater.
And at the time, there really--there was no precedent that
addressed private gatherings at the home. All the precedent at
that point concerned houses of worship. And even, you know,
multiple decisions had said that houses of worship restrictions
that just said--in New York, they said 10 to 25 people in
churches that had capacities of 500, 700, 1,000 people. And the
precedent said, ``You must consider the capacity limits. You
can't just make--and found that that particular restriction was
severe and far greater than any other comparable Government
restriction.
So I understand what the ruling is in Tandon. That is what
I will faithfully, fully, and fairly follow going forward. But
at the time, I was relying on the precedent of my circuit,
which I am required to do, which said, ``You tick through these
factors of ventilation, risk,'' all the risk of transmission.
Are there people who are going to be there longer? What is the
ability to enforce any masking or any social distancing inside
the home versus in a commercial enterprise? And I did what the
ninth circuit basically told me to do in its decision.
But I understand. I--I agree with you that the right to
religious liberty is one of the most fundamental foundational
rights in our country. And I will faithfully follow Tandon. But
I was just doing my job at the time, which was to follow the
precedent that existed in my circuit.
Now, I recognize that that was reversed by the Supreme
Court after I issued my decision. I recognize that. But at the
time, that's the precedent that existed, and I felt I had to
follow it as a trial judge.
Senator Lee. Of course, that was precedent that had never
been applied to this specific set of facts, but I see my time
is expired. Thank you.
Chair Durbin. Thanks, Senator Lee. Senator Whitehouse.
Senator Whitehouse. Judge Koh, was this decision of yours
that has attracted so much attention from Senator Lee appealed?
Judge Koh. It was appealed to the ninth circuit.
Senator Whitehouse. And it was appealed on the ninth
circuit. At the ninth circuit, where their circuit judges who
upheld----
Judge Koh. Yes.
Senator Whitehouse [continuing]. Voted to uphold the
decision?
Judge Koh. Yes. It was affirmed by Judge Milan Smith----
Senator Whitehouse. It was actually affirmed.
Judge Koh [continuing]. And Judge Bridget Bade.
Senator Whitehouse. And among the panel judges that
affirmed it, were there Republican appointees who voted to
affirm?
Judge Koh. Yes. There were.
Senator Whitehouse. And ultimately it was upheld by the
ninth circuit, as correctly decided within the rules of the
ninth circuit. Correct?
Judge Koh. That's correct.
Senator Whitehouse. And then it went up to the Supreme
Court, which is obviously where these things to get the
ultimate review. And were there Supreme Court Justices who
upheld or voted to uphold the ninth circuit's decision
upholding yours?
Judge Koh. There was a dissenting opinion, saying, yes,
they would have affirmed the ninth circuit.
Senator Whitehouse. And was Chief Justice Roberts among the
Justices?
Judge Koh. He said he would not have enjoined the ninth
circuit ruling.
Senator Whitehouse. Okay. Just wanted to make sure we are
all talking about the same set of facts here. Thank you. Wish
you well. Can't wait to see you on the court.
Judge Koh. Thank you.
Chair Durbin. Senator Cotton.
Senator Cotton. We're going to keep talking about the same
set of facts.
Judge Koh. Okay.
Senator Cotton. I mean, Ms. Koh, you make it sound like the
Supreme Court, that it was clarifying unclear law. But that's
not what the Supreme Court said in Tandon, which again is about
people worshiping in their home, having Bible studies, and
Gavin Newsom prohibiting that when restaurants, and casinos,
and bars, and strip clubs, and movie studios were allowed to
continue functioning.
You wrote that, quote, ``With little caselaw to support
them, the plaintiff's last argue that their in-home gatherings
are being treated more harshly than other activities such as
filming or going to laundromats or visiting hotels.'' The
Supreme Court, as we've heard, disagreed. Not only that they
disagreed, they said that, ``Far from little caselaw to support
them, we're overturning your ruling for the fifth time that the
Court had rejected ninth circuit cases on California's pandemic
restrictions.'' The Court noted that not only did you get it
wrong in your decision, but that it is unsurprising--
unsurprising that the litigants are entitled to relief. They
said, ``Not only do these kinds of restrictions require strict
scrutiny,'' which you did not apply. You applied in the
alternative, but you also said that it would pass strict
scrutiny. The Supreme Court also felt the need to say that
their precedent, quote, ``Really means what it says.''
So, I know we keep coming back to this, but we keep coming
back to it because I feel like your decision was plainly
contrary to the law at the time. And you keep portraying it as
if it was just clarifying what was a very obscure and difficult
area of the law. Is it really that obscure to say that if
California wants to allow casinos, and bars, and strip clubs,
and movie studios to stay open, they also have to allow
Christians to have a Bible study in their home.
Judge Koh. The factual evidence that was before me was
uncontroverted by the plaintiffs that the risk of transmission
of COVID is greater when you're in a home versus in commercial
entities that are actually regulated and can be subject to
misdemeanor criminal prosecutions for not complying with the
restrictions. That was the evidence before me.
Now having--having said that, I was following the precedent
of the ninth circuit, which I'm required to do. I'm in the
lowest level position in the Federal system as a trial judge.
And they said, ``You look at the risk of the transmission. You
look at these seven factors,'' and that's what I did.
Senator Cotton. Well, what do you do when that ninth
circuit precedent, as is often the case, is plainly contrary to
the Supreme Court since the ninth circuit is the most reversed
court in America?
Judge Koh. I don't think it's my role as a district court
judge to just do what I want and ignore the higher court. I
think it's my obligation to follow my circuit precedent.
Senator Cotton. Okay. So let's leave Tandon v. Newsom, the
religious liberty case, then, since you say it's not your role
to do what you want. Let's turn to a case involving the FTC and
Qualcomm. FTC, at Apple's urging sued Qualcomm because Apple
didn't like that Qualcomm's pricing structure meant that
royalties on Qualcomm's chips were more expensive if the phone
they powered was more expensive.
So the FTC was doing Apple's bidding. You ruled against
Qualcomm. You didn't just rule in the case of Apple
specifically. You tried to force Qualcomm to renegotiate all of
its chip contracts worldwide--worldwide. And then the ninth
circuit overruled you, finding that your understanding of
antitrust law was not just incorrect, but they ruled that you
were trying to implement, and this is a quote, ``A trailblazing
application of antitrust laws,'' and that this trailblazing
was, again, this is a quote from the ninth circuit, ``An
improper excursion beyond the outer limits of the Sherman
Act.''
So, if you're confirmed as a circuit court judge, how are
we to be certain that you're not going to continue to go on
such trailblazing, improper incursions beyond statutory texts
and precedent, not just in the antitrust domain, on something
as important as semi-conductor chips, but in every other area
of law?
Judge Koh. In the FTC v. Qualcomm case, I was actually
relying on two precedents of the ninth circuit. Microsoft v.
Motorola. The first case was decided in 2012. The second case
was decided in 2015. They held that if you are a patent owner,
and you go to a standard setting body, and you tell that body,
``If you adopt my patents into the standard that everyone
worldwide will practice, I will give anyone a fair, reasonable,
and nondiscriminatory license.'' And the court held that that
obligation requires you, then, to give that fair, reasonable,
nondiscriminatory license to all comers. That is what my
Microsoft v. Motorola says. And that was even the understanding
of Qualcomm. That is what they told the IRS in a recorded
conversation in 2012. When Motorola wasn't giving a license to
Qualcomm, Qualcomm made the same demand to Motorola saying,
``You have a FRAND obligation, a fair, reasonable, and
nondiscriminatory obligation to license us your standard
essential patents because that is the commitment you made.''
And so, repeatedly throughout the documents, we had a long,
lengthy trial, and all of this was based on the record. My
opinion was 233 pages. I made credibility determinations. I
made factual findings. And that was Qualcomm's understanding,
as well throughout all the documents that they knew they had an
obligation.
So, I understand that the decision that I entered is
completely vacated and is completely, legally just invalid. So
I will follow the precedent of the ninth circuit. But I just
wanted to let you know by defending my decision, I'm in no way
saying that it's still good law. It's not. But I did just want
to let you know at the time what was in my mind. I really did
think that I was following the law. And I really, sincerely,
was trying to do my job.
Senator Cotton. I understand. My time is expired. I just
want to say that you say that you're following ninth circuit
precedent. It's the ninth circuit that reversed you and didn't
say it was a close call. It said it was a trailblazing
application of antitrust laws and an improper excursion beyond
the outer limits of those laws.
Chair Durbin. Thank you, Senator Cotton. The order of
Senators asking are Blumenthal, Kennedy, Hirono, Tillis.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
your service, Judge Koh. And thank you for not only your
service on the bench, but your service as a practicing
litigator for your family supporting you here today and
throughout your career.
I'd like to enter into the record a letter that has been
sent to the Committee by Father Paul O'Dell of the Saint Denis
and Our Lady of the Wayside Churches.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Blumenthal. I was interested in this letter because
it depicts a little bit about what your family does in the
community. Maybe you can describe what you and your children do
at the church, and perhaps a little bit about how you've
assisted Father Paul O'Dell.
Judge Koh. So, for both my husband and I, our faith is very
important to us. We are still friends with the priest who
married us. We have promised him on our 20th anniversary, we're
going to take him on a Hawaii trip to celebrate. He is also the
one who baptized our daughter, Rhea, who is here today.
Unfortunately, he got reassigned to another--another universe,
and he was not able to baptize--a different priest baptized our
son, Mateo.
But our faith is very important to us. And we love our
community at Saint Denis. And both of my children went through
their 2-year confirmation process, which, as you imagine for a
teenager, is quite a task to ask. It's a big ask to make a
teenager to do that for 2 years.
Senator Blumenthal. Probably kept them off Instagram a
little bit.
Judge Koh. But both of my children completed that program.
They both received the Sacrament of Confirmation. We have, for
many years, worked at the Maple Street Homeless Shelter, which
is the homeless shelter that is just about 15 minutes, 20
minutes, from our house. And the second Sunday of every month,
we prepare food. And pre-COVID, we actually got to serve it.
And the kids actually also ran a bingo where we gave cash
prizes to the bingo winner. And we've continued to do that
during COVID, although we can't serve any more. But we have
also have served--provided breakfast in addition to dinner, as
well.
And we really want to support our priest, who, as he
mentioned had a health issue. And we've all been praying for
him and trying to provide him everything he needs to be
comfortable. And he's been really wonderful to our family.
Senator Blumenthal. Thank you. And thank you for your
service to the community. I assume that you would have no
trouble separating your faith from your performance in the
capacity as a judge on the ninth circuit and implementing the
law as you see it.
Judge Koh. Absolutely not.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Chair Durbin. Senator Kennedy.
Senator Kennedy. Congratulations, Judge.
Judge Koh. Thank you.
Senator Kennedy. I enjoyed meeting your family. As I
understand the case, the religious liberty case, you ruled that
government in California could prohibit a small group of people
from worshiping their God at home because of the risk of COVID.
Did I speak correct?
Judge Koh. Inside the home. Outside the home, three
households could gather----
Senator Kennedy. Inside the home?
Judge Koh. Yes.
Senator Kennedy. This was in--what--this was in California?
Judge Koh. Yes. The restrictions were specifically, that
were challenged, were Santa Clara County----
Senator Kennedy. Yes, ma'am. I don't want--I've only got
a----
Judge Koh [continuing]. California.
Senator Kennedy [continuing]. Limited amount of time.
Judge Koh. Sure.
Senator Kennedy. It was in California?
Judge Koh. That's correct.
Senator Kennedy. Sorry to interrupt you. Is there something
about COVID in California that makes it more likely for a
handful of people in their home who are worshiping Allah, or
the Dalai Lama, to get COVID than a handful of people in a
strip club?
Judge Koh. California, and particularly my county, where my
courthouse is based, had the first confirmed death of COVID in
February 5th of 2020.
Senator Kennedy. Yes. Was it in a strip club?
Judge Koh. No. You were just asking me what were the
situations in----
Senator Kennedy. Yes. This is what I'm getting at.
Judge Koh. Yes, sir. Go ahead please, sir.
Senator Kennedy. In this case, didn't you want to just kind
of step back and say, ``This is craziness?'' You know, ``My
government here in California is prohibiting a handful of
people from worshiping their God because of the risk of COVID.
But the same people, if they want to, can go to a strip club.''
Does that make sense to you?
Judge Koh. The evidence that was before me----
Senator Kennedy. I understand that. But it doesn't make
sense----
Judge Koh [continuing]. Had uncontradicted----
Senator Kennedy [continuing]. For the American people. I
don't want to beat this to death. Let me ask you a couple more.
Did you enjoy mostly in Mississippi?
Judge Koh. I'm sorry?
Senator Kennedy. Did you enjoy living in Mississippi?
Judge Koh. Yes. I did.
Senator Kennedy. Yes. Good. You talked about the poverty in
Mississippi. Where do you live now?
Judge Koh. I live in Menlo Park, California.
Senator Kennedy. Okay. Is there poverty in Menlo Park?
Judge Koh. Yes. There are parts of--yes. That's correct.
Senator Kennedy. Is it--is it a deep poverty?
Judge Koh. I couldn't give you a----
Senator Kennedy. That's okay.
Judge Koh [continuing]. Exact answer to that question.
Senator Kennedy. I understand. I just want to make sure
California--I'm not happy about either circumstance, but you
zeroed in on Mississippi, and I just wanted to make sure you
weren't picking on Mississippi.
Judge Koh. No. I was just asked about it. Chairman Durbin
specifically asked me to talk about Mississippi. That's----
Senator Kennedy. Right. Are we getting----
Judge Koh [continuing]. The only reason why it came up.
Yes.
Senator Kennedy. All right.
Judge Koh. I originally didn't mention it in my family
story.
Senator Kennedy. I'm just curious, do you know the name of
the person who cleans your office?
Judge Koh. Yes. Steve is the one who takes out the garbage
every day. He comes by at 3 o'clock. And Eva is the one who
cleans in the morning----
Senator Kennedy. Good for you.
Judge Koh [continuing]. About 7 a.m.
Senator Kennedy. Good for you.
Judge Koh. Yes.
Senator Kennedy. Look, I'm not real big on holding people
too accountable for crazy things they said when they were
young, because I've said a few myself. I've even done a few
things. But I got to read you this from an article you wrote
when you were at Harvard Law.
I'm going to quote, if that's okay. I'm not going to
paraphrase. Here's what you wrote, ``Minority judges still need
to maintain the disguise of objectivity or face challenges to
their decisions. Yes. A minority judge is going to identify
with a minority party's experience--experiences, but she can't
admit this. We've got to get more clever in saying, `Look,
we're just as neutral as any 60-year-old white man.' '' Do you
still believe that?
Judge Koh. Not at all. I disagree with that 100 percent. It
is something I said 31 years ago. My 1L, fall semester year,
fall of 1990, and that is completely wrong. Our rule of law
absolutely depends on impartiality, fairness, and I completely
disagree with that statement.
Senator Kennedy. Yes. Could I just ask you, did you make
that statement based on--well, why did you make that statement?
What were you thinking then?
Judge Koh. I was having a conversation with three 1L
classmates in a room, and I think that statement shows a lack
of maturity.
Senator Kennedy. Yes.
Judge Koh. It shows a lack of experience in the world.
Shows a lack of knowledge about the law. And I completely
disagree with it.
Senator Kennedy. Okay. Fair enough. Congratulations.
Judge Koh. Thank you.
Senator Kennedy. I'm done, Mr. Chairman.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you very much, Mr. Chairman. Ms. Koh,
I think it's really wonderful that your entire family is here,
and I am sure your father would be very proud of you and thank
you for sharing your mother's story because it says a lot about
you, I'd say.
I do start all of my questions of nominees to any of the
Committees on which I sit the following 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 Koh. No.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Judge Koh. No.
Senator Hirono. Judge Koh, I want to thank you for the
extensive discussion we had regarding the Tandon decision,
which was a recent Supreme Court decision, wasn't it? This
year?
Judge Koh. Yes. It was this year.
Senator Hirono. So it's very clear that when you made your
decision in that case, you were following precedent at that
time, which is why the ninth circuit sustained your decision,
even if one of the judges on the ninth circuit was a Trump
nominee, a Trump judge, I'd say. And then why Chief Justice
Roberts and his dissent supported the ninth circuit's
sustainment of your decision. You've made that very clear.
As far as I can tell, the Tandon decision of the Supreme
Court says to me that it opens the door for the argument that
any time somebody doesn't like a governmental restriction, they
can argue that it interferes with their religious free--what is
it--free assembly because the standard that the Court set up
for overcoming that kind of argument is extremely high, and I
don't even know how anyone can meet that kind of burden, but
I'll set that aside.
In National Urban League v. Ross, you enjoined the Commerce
Department and Census Bureau from implementing the 2020 Census
Replan, a plan adopted on August 3, 2020, that shortened key
census data collection and processing dates. And it makes a
really big difference when the time of the taking of the census
is shortened in this way. And you specifically mentioned the
paucity of the administrative record and found defendants had
failed to consider important aspects of the problem, consider
alternatives, articulate satisfactory explanations, or consider
reliance interests. Ultimately, the Supreme Court decided to
stay your order, granting a preliminary injunction.
The Supreme Court's decision of this ruling was issued as a
shadow docket ruling. So we don't know what they may have
disagreed within your decision. And in fact, we really have no
idea what their legal rationale was for granting a stay. Isn't
that correct?
Judge Koh. Well, there was only one dissenting opinion.
There was no opinion granting the----
Senator Hirono. Yes, so that's what happens in a shadow
docket ruling. So although the stay was granted while
litigation continued, what was the effect of the ruling? So,
the State allowed the government to end the census count
immediately, a decision that probably could not have been
undone, given the tight deadlines and practical difficulties.
So what was the effect of this ruling? Can you discuss that a
little bit?
Judge Koh. Well, I don't know what the effect of the ruling
was, but I can tell you what happened in the case is that
originally the Census Bureau took almost 10 years to come up
with a plan to do data collection, data processing. They did
about eight surveys. They consulted with statisticians,
demographers, economists, to try to get the best plan together.
They put one together, but because of COVID, they had to
stop field operations. And one of the big issues was the
reliance interests of all the Census Bureau partners. And they
went out and they advertised at food banks, on bus station
shelters, ``This is the deadline to get your information, your
census questionnaire in.'' And so, if you keep changing the
date, it's impossible for these partners of the Census Bureau
to continue to keep telling people, you know, ``October 31st is
the new date. No. September 30th is the due date. No. October
5th is the due date. No. October 15th is a due date.''
It takes a lot of time and money for the Bureau partners to
get that information out. And the constant shifting of the
deadline makes it just harder for people to know when the
deadline is and to be counted.
Senator Hirono. And I say, therefore, it makes it much
harder for us to obtain an accurate census count if people are
confused and all of that. And this is only one example of the
Trump administration trying to really shorten or influence the
kind of people who would participate in the census because they
also tried to put in a citizenship question. Thank you, Mr.
Chairman.
Chair Durbin. Thank you, Senator Hirono. We have Senators
Hawley, Booker, and Tillis.
Senator Hawley. Thank you, Mr. Chairman. Ms. Koh,
congratulations on your nomination. Let me just ask you a
baseline question about the free exercise clause in the United
States Constitution. Is it limited to houses of worship? Is it
limited to physical space of a house of worship?
Judge Koh. No. It is not.
Senator Hawley. So, I'm struggling to understand your
opinion in the Tandon case. I don't understand why you would
think that businesses should be able to abide or should be able
to be open, and people should not be able to gather to worship
in their own homes. Why would you assume that people gathering
in their own homes wouldn't follow the guidelines, wouldn't
obey the restrictions, and therefore couldn't be trusted? Help
me understand that assumption. I just don't quite get it.
Judge Koh. On my part, it wasn't an assumption. That was
the scientific evidence and the only evidence on that issue
that was presented in the record.
Senator Hawley. Wait. It was scientific evidence that
people of faith don't follow rules?
Judge Koh. No. But that the risk of transmission is greater
inside a private home than in a commercial entity that is
regulated, that can be subject to criminal penalties. I
recognize----
Senator Hawley. Wait a minute. Wait a minute.
Judge Koh. Yes.
Senator Hawley. I'm sorry, but your opinion says, ``Under
the State's restrictions, commercial environments require
masking and social distancing, a requirement that can be
enforced by commercial workers. On the other hand, at
plaintiff's gatherings, it is uncertain whether participants in
these gatherings would maintain social distancing.''
Judge Koh. My order also mentioned that there are criminal
penalties for not complying with the restrictions on commercial
entities.
Senator Hawley. Right. So you assumed that because of
those, that commercial businesses will comply, but you assumed
religious believers would not comply. I'm just trying to
understand why you disfavor religious believers in this way
that seems very personal.
Judge Koh. As I--all I can say, Senator Hawley, is that I
certainly have no animus toward any person of faith. I myself--
--
Senator Hawley. Do you think we have a----
Judge Koh [continuing]. Am a person of faith.
Senator Hawley [continuing]. Implicit bias? Let me ask you
this.
Judge Koh. No. But----
Senator Hawley. In the 2020 Women's Collective Summit, you
said last year that, ``stereotypes are deeply embedded in many
people,'' I'm quoting you now, ``and they may not even be aware
that they're there.'' Do you think maybe that describes your
view toward people of faith? I mean has the Supreme Court's
reversal of you maybe prompted you to confront some implicit
biases you may have against people of faith?
Judge Koh. I'm a person of faith, so I would have to be
having a bias against my own self and myself and my----
Senator Hawley. So you're telling me no? The answer is no?
Judge Koh. I do not believe that I am biased against people
of faith. I'm a person of faith. My whole family is a family of
faith. But----
Senator Hawley. Let me read to you what the Supreme Court
said about your reasoning. They said, ``You cannot assume the
worst when people go to worship but assume the best when people
go to work.'' Why did you assume the worst when people go to
worship?
Judge Koh. I did not assume the worst.
Senator Hawley. So they're wrong about that.
Judge Koh. No. I'm just saying that, at the time, I looked
at the evidence before me, and I looked at the ninth circuit
precedent at the time, which was--you're supposed to look
through these seven factors about increased risk of
transmission. And that's the precedent I followed.
I completely will fully, faithfully, fairly, in every case
going forward, adopt all four of the holdings that the Supreme
Court made and clarified in Tandon. And I understand you cannot
assume the worst of people as they go to worship from when they
go to work.
Senator Hawley. But you think the Supreme Court mis-
described your opinion in this regard when they said, ``The
State cannot assume the worst when people go to worship but
assume the best when people go to work''? Do you think that's a
misdescription?
Judge Koh. I understand that's the law, and that is what I
am going to follow. I certainly had no intent to--I certainly
had not intent to do that. At the time, I was following
existing ninth circuit precedent at looking at risk of
transmission, and making findings based on the record, which is
what I understand to be my job. I understand now that
comparability has to be assessed in a different way. I
understand that what the rule is on the narrow tailoring for
strict scrutiny analysis. I understand how you look at what is
neutral and generally applicable. All of that clarification I
really appreciate. I did not have it at the time when I issued
that ruling. But I will fully, faithfully, and fairly follow
that going forward.
Senator Hawley. Well, all I can say is that I'm concerned
about the tone of your opinion. I'm concerned about the
assumptions that underly it. I think the Supreme Court's
reversal of it was quite significant. And I think the
assumptions that people of faith can't be trusted, that people
who go to strip clubs, as Senator Kennedy said, can be is
frankly pernicious and something that's worth further
examination.
And for those reasons, among others, I can't support your
nomination. Thank you, Mr. Chairman.
Chair Durbin. Senator Booker.
Senator Booker. Thank you very much. I appreciate the line
of questioning, but I'm concerned that in some way it casts a
shadow over how precious you hold ideals of faith and the
freedom of religion in our country. And especially as someone
who is religious and has such strongly held religious
principles, and I imagine they guide a lot of your life, I
think that an implication is being made that just is not true.
So I want to ask you very bluntly, I love Star Trek. I am
truly a devotee of that series. In this case, if I was having a
Star Trek gathering in a house, according to the data and the
science that was put before you, that would be very dangerous.
Yes?
Judge Koh. Yes. And under this restriction, you wouldn't be
allowed to have a Star Trek gathering in your home.
Senator Booker. Right. And so really, whether the gathering
in the home was for a religious purpose, and some people--a
great book about the religions of Star Trek, you should
probably read it at least somewhere on your reading list.
Whether it was a religious purpose, or a club, or a grouping,
the science was what was compelling in this. It was the safety
and the security of individuals, whether the Supreme Court
overruled you or not, that seems in this case what was driving
your decision. Correct?
Judge Koh. That is. And it was uncontroverted in the
record. And also, you could have a Star Trek party outside your
home with three households.
Senator Booker. I really appreciate that, and I'm going to
think about that when I go back this weekend about the New
Jersey Star Trek Association. I failed to become President of
the United States, but I am the President of the Northeastern
Star Trek Association. So you can refer to me as Mr. President,
not Senator. Thank you very much.
I want you to know that the religious organizations, you
have a lot of support from organizations of faith. I mean, it's
pretty extraordinary. And if I can read this, this is from
Saint Thomas More Society of Santa Clara, and I'll submit the
letter for the record, but I just want to say the end, because
these are such sacrosanct, American ideals to respect the
freedom of religion. And I know you believe strongly in that.
And I just want to say that the last sentence, which I'll read,
is, ``We know Judge Koh to be a person of deep-seated faith. We
believe her faith will serve her well as an impartial appellate
judge. We ask God's blessings on you as you consider her
nomination.'' And that was sent to Senator Durbin and Senator
Grassley. So Senator Durbin and Grassley, you have been prayed
for. They ask God's blessings on the two of you.
I want to say to you one last question if I can, and then I
have an issue of personal importance to me, and I apologize for
doing it in a public forum. But the last question is, why is
having someone, you would be the first Korean woman to serve as
a Federal judge, why is different lived experiences important
for the bench when judges are supposed to be objective on the
law? Are those conflicting ideals that's an urgency that I feel
to have a Federal judiciary with diversity on it with different
lived experiences, yet we all, I think both sides, want our
judges to be objective interpreters of fact and abide by the
law. Can you explain that to me?
Judge Koh. I think diversity on the bench serves two really
important functions. One is to just enhance confidence in the
justice system. And the second is just to reaffirm the American
dream. Anyone can become a judge. That is a very powerful
message to send the world and to send our own communities. So I
think the role modeling function that a diverse bench serves to
students, to law students, to young lawyers, is really
valuable.
Senator Booker. Okay. And then forgive me the matter of
personal issue that I have. Did you introduce your husband
before here? I came late to the hearing.
Judge Koh. I did. I did.
Senator Booker. What is his name again?
Judge Koh. Mariano-Florentino Cuellar.
Senator Booker. Are you aware that I know your husband?
Judge Koh. I am aware.
Senator Booker. Okay. So I want to submit this for the
record. So generations of your family will come back and read
this truth. Your husband married up. Thank you very much.
[Laughter.]
Senator Booker. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Spock, Senator Booker.
[Laughter.]
Chair Durbin. Senator Tillis.
Senator Tillis. I was going to say Captain Kirk, but----
Senator Booker. Jean-Luc Picard. The haircut. The Jean-Luc
Picard.
Senator Tillis. Senator Booker, I have an affinity for Star
Trek, as well. Maybe we should start a Star Trek caucus.
Senator Booker. I agree.
Senator Tillis. Judge Koh, thank you for being here.
Congratulations on your nomination, and congratulations to your
family. I know they're probably all proud.
I just want to go back briefly. I'm not going to read the
statement that Senator Kennedy read. When I asked you about
this in 2016, you said you completely disagree with that.
I think one of the reasons why we go back 31 years and
longer is the standard keeps moving here. We've gone back to
high school yearbooks for what some teenager said or wrote in
their yearbook as a basis for judging someone's qualifications
as judge. I tend to disagree with it, but I do want to ask you
a question that really, in abstract. Because when you read the
statement, it does say that you need to disguise it. So when
you answered me back in 2016 that you completely disagreed, can
I be absolutely certain that you're still not disguising that
bias? And maybe one way that you could put me at ease is maybe
describe some case in abstract, I know you probably won't want
to get into details, where you may have had a certain sympathy,
but you had a hold--to make a decision in the other direction.
Have you ever had an experience like that as a judge?
Judge Koh. When I preside over any case, my personal
feelings are irrelevant. That's not my job. And I appreciate
that you're taking your advice and consent role very seriously.
And I understand. That statement is disturbing. It's disturbing
to me.
Senator Tillis. I think so.
Judge Koh. So, I think it's completely a fair question. But
I completely disagree with it. And I think if you look at 3,250
written opinions and the thousands of issued rulings I made on
the State court, having 500 cases a week, you can see that I
have been fair and impartial. I--my judicial oath is so
important to me, and I completely do my level best to be fair
and impartial in every case and to try to get it right by
limiting my decisions to the facts before me, limiting my
rulings to the issues before me, and following precedent.
Now, as I've said, I may not----
Senator Tillis. That's sufficient for me. I'm not going to
cover more----
Judge Koh [continuing]. Get it right all of the time, but
that's what I'm trying to do.
Senator Tillis [continuing]. Into that. I want to get back
to I'm the Ranking Member, previously the Chair, of the
Intellectual Property Subcommittee. So I do have to get back to
Qualcomm. And as Senator Cotton said, it was characterized as a
trailblazing application of antitrust laws and an improper
excursion beyond the outer limits of the Sherman Act. So, I
think you said that you wrote a more than 200-page opinion with
that one.
Judge Koh. I did, 233 pages of factual findings and
credibility findings.
Senator Tillis. It was largely, or at least that it was
substantially influenced by the prior Motorola case?
Judge Koh. That's correct.
Senator Tillis. And that was a ninth circuit precedent. Do
you--so looking back at their assessment of what is now a
vacated opinion, do you agree with the ninth circuit's
interpretation in the context of the Motorola case, and in the
context of your finding?
Judge Koh. The ninth circuit decision is the controlling
law, and that is what I am going to apply.
Senator Tillis. Yes. But I mean it's more a matter of--and
I'm not an attorney, so I don't know if I get you into a
position where you can't answer the question based on other
cases that may come before the court. But I'm looking more at
more of a ``I didn't think about it that way when I was writing
my opinion,'' because they looked at the same thing. They
looked at binding precedent. Right? And then they looked at
your ruling.
And so, I'm just trying to get a sense, did you learn from
that and say, ``If I really viewed it from that perspective, I
would have ruled differently?''
Judge Koh. I had, you know--personally, for me, antitrust
is a really complex area of the law, and I certainly can see
that there are different viewpoints.
Senator Tillis. Yes.
Judge Koh. The ninth circuit did not address this standard-
setting body FRAND obligation directly. They just said the
remedy----
Senator Tillis. That's actually----
Judge Koh [continuing]. Should be in contract or it should
be patent and shouldn't be an antitrust law. So they didn't
actually address Microsoft v. Motorola head-on.
Senator Tillis. All right.
Judge Koh. They just said, ``You need to go to other areas
of law for remedy.''
Senator Tillis. Let me just get back to in my remaining
time. Do you think worldwide injunctions on issues involving
patents and patent license issues are appropriate?
Judge Koh. I--the Supreme Court says that injunctions at
any point, preliminary or permanent, are an extraordinary
remedy. But the standard is without undue burden on the
defendant, you need to provide complete relief to the parties.
And in antitrust law, there are a lot of--you know, once the
Government shows liability on an antitrust case, all of the
presumptions go in favor of the Government for the remedy.
And an antitrust law for injunctions, you've got to
basically disgorge the profits. You got to stop the monopoly.
You've got to prevent the monopoly from going forward. There
are really very high bars to antitrust injunctions.
Senator Tillis. I'm going to submit some questions for the
record in the patent space. But I think that in the ninth
circuit ruling, they said--and I think this is important for
our innovation economy. There's a difference between being
anti-competitive and hyper-competitive. And I want to make sure
that we're very clear on that distinction because hyper-
competitive in an increasingly threatening world, particularly
with respect to nations like China, is exactly what we need to
do to maintain our innovation edge today.
But I will submit some other questions for the record.
Thank you, and congratulations again to your family.
Judge Koh. Thank you.
Chair Durbin. I'd just like to announce, since we have a
second panel, that there are four Senators, two Democrats and
two Republicans, who said they still are going to try and make
it. Some have conflicts with other Committees, and I want to
give them the latitude and flexibility for that purpose. One of
the four is here now. Senator Cruz, you're recognized.
Senator Cruz. Thank you, Mr. Chairman. Judge Koh, welcome.
As I look at your record, your record is concerning from the
perspective of a judge who will faithfully apply the law. As I
look at your record, I see the record of someone who's been an
activist her entire adult life.
When you were a law student at Harvard Law School, you
participated in a 25-hour sit-in in the dean's office, pressing
for racial quotas and hiring at law school. At the time, you
described your views of judges, where you said, ``The problem
of the American legal system was the homogeneity of the
bench,'' and your proposed solution was, quote, ``minority
judges still need to maintain the disguise of objectivity or
else face challenges to their decisions.'' You went on to say,
``Yes, that minority judge is going to identify with their own
experiences, but she can't admit this. We've got to get more
clever and say, `Look, we're just as neutral as any 60-year-old
white man.' '' What's more pragmatic, ``To pretend we're
objective or to deconstruct objectivity itself.''
Now you've tried to back away from that statement since
then. But what on earth did that mean?
Judge Koh. Let me first say I have never advocated for
quotas. Quotas are unconstitutional. As I said, I do disagree
with that statement completely. That was 31 years ago. Since
then, I have been a Federal criminal prosecutor, I have been a
judge on the State court, hearing 500 cases a week, I've been a
Federal district judge for almost 12 years, hearing 719 cases a
year, and I have 3,200 opinions----
Senator Cruz. So my question was, what does that mean, not
how many decisions have you heard as a judge. What did that you
mean when you said that?
Judge Koh. No. I'm just saying that there is a record, a
record to determine----
Senator Cruz. Judge, you're familiar with asking questions
and answering questions. What did you mean when you said that?
Judge Koh. I--it was 31 years ago. I don't recall
specifically, but I'm sure I said--you know, what I said is
what I meant at the time. I think it's completely wrong. I
disagree with it. That's not how I've lived my life, how I
served the government----
Senator Cruz. So, I guess the challenge is what you said is
that, at the time, when you were in law school, you weren't a
child. You were a student at Harvard Law School. You said that
``Judges need to maintain the disguise of objectivity and get
more clever and pretend to be objective.'' And a difficulty for
this Committee is if you were following that instruction, you'd
say the exact same thing right now, wouldn't you?
Judge Koh. I am under oath, and I am telling you that I
completely disagree with that statement. And you can look at
the 271 trials----
Senator Cruz. Then let's go to your judicial record.
Judge Koh. Yes.
Senator Cruz. Because I look at your judicial record, I am
concerned, as well. Recently, you determined that a State
regulation that banned Bible study that banned collective
prayer that banned worship in an individual's home, while at
the same time allowing activities like in-home commercial
filming was neutral and generally applicable. According to you,
according to the decision, apparently people who attend Bible
study are a greater threat under COVID than movie stars when it
comes to health and responsibility.
Now that decision, of course, went up to the U.S. Supreme
Court, and 6-to-3, the Supreme Court said, ``No. You're
wrong.'' What did you get wrong?
Judge Koh. The Supreme Court in Tandon has held that when
you're looking at comparable activity, you look at the
government interest that's asserted, and not the reasons why
people are gathering. That clarification has been very
important. That is what I will fully, faithfully, and fairly
apply going forward. They also said you can't assume----
Senator Cruz. Why did you think that movie stars somehow
are held to a different standard than people who are coming to
a Bible study?
Judge Koh. I was following the ninth circuit precedent.
They looked at all the restrictions on the movie industry and
said that the risk--transmission risk was lower because of all
the restrictions. They had mandatory multiple testings per
week, and they had a lot of restrictions that said that they
had scientific evidence that the risk was lower.
Senator Cruz. Your opinion applied rational scrutiny to
this restriction of religious freedom. The Supreme Court
reversed that and applied strict scrutiny. There's a world of
difference between rational basis and strict scrutiny. Again,
why did you get it so wrong? And how can the American people
have comfort that if you're a court appeals judge, you will
faithfully protect their rights to religious liberty?
Judge Koh. I applied strict scrutiny as well, and I was
following ninth circuit precedent at the time, which said you
look at the risks of transmission, and you go through seven
factors to consider it. And at the time, the sixth circuit
decision, which was not enjoined by the Supreme Court said,
``If you have a neutral, generally applicable rule that applies
to both religious schools, and public schools, and other
private schools, that that survives strict scrutiny.'' And so,
the precedent that existed at the time is what I followed in
issuing my decision. But I fully----
Senator Cruz. Can you answer my second question?
Judge Koh. But I fully understand that Tandon is the law of
the land. That is absolutely what I will follow, that you
cannot assume the worst when people go to worship and assume
the best when they go to work; and that you have to look at the
government interest at stake. And that you--all of the rulings
and holdings in Tandon, that's the law of the land. That's what
I will apply going forward in any case that raises these
issues.
Chair Durbin. Thank you, Senator Cruz. Senator Ossoff,
Senator Blackburn, and Senator Padilla.
Senator Ossoff. Judge Koh, congratulations on your
nomination, and thank you for enduring this process. Thanks to
you and your family for your commitment to service.
If confirmed, Judge Koh, you will become the first Korean-
American woman to serve as a Federal appellate judge. When you
became a district judge in 2010, you became the first Korean-
American woman in the Nation to serve as a Federal judge. Could
you share with the Committee a little bit about your family's
story, the barriers you've broken, and the importance of
diversity on the Federal courts?
Judge Koh. Let me start with the importance of diversity on
the Federal courts. I think it is so important to reaffirm the
American dream that anybody can become a judge in the United
States. I think, also, it's important to just enhance the
confidence that everyone has, the community has, in our justice
system.
I would just say that my family has lived in Mississippi,
in Maryland, in Oklahoma, and California, and so many other
parts of this incredible country, and we really appreciate all
of the opportunities that we've been given.
And my father was an immigrant from South Korea. My mom had
escaped North Korea as a child. And I think that they wanted to
make sure that we had every opportunity as children here, and
we made the most of it, as much as we could. I find my mother's
story of escaping North Korea and being a professor at the
first African American land grant college in the United States,
which is Alcorn, which is in Lorman, Mississippi, has been
really inspiring for me. And she's been my role model.
Senator Ossoff. Thank you, Judge Koh. And you have a
significant record as a jurist, spanning nearly 14 years, and
more than 3,000 written opinions. What are some of the lessons
you've learned during your time on the bench, both State and
Federal? And how will those lessons inform your service on the
ninth circuit?
Judge Koh. So, I have just had a lot of exposure to so many
different areas of the law and so many different types of
cases, so many types of litigants. In State court, I also did
drug court and domestic violence court in addition to civil and
criminal cases. I was hearing about 500 cases a week. And on
the Federal system, I've pretty much had everything, civil and
criminal as well, and it's been just eye-opening for me of how
important it is to have clarity from the appellate courts.
Because, at the trial level, we're sort of on the ground floor,
and we're trying to apply precedent and apply guidance from the
circuit. And it is so much of an easier task when the appellate
courts are clear. And I hope, if confirmed, that I could add
that perspective to the appellate bench.
Senator Ossoff. Thank you, Judge Koh. And final question,
will you commit to this Committee that you will uphold the rule
of law, apply the law fairly, regardless of your personal
opinions and ensure that the will of the Federal legislature is
made real across the country and in your area of
responsibility?
Judge Koh. Absolutely.
Senator Ossoff. Thank you, Judge Koh. Thank you, Mr.
Chairman. I yield back.
Chair Durbin. Thanks, Senator Ossoff. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. And Judge Koh,
welcome.
Judge Koh. Thank you.
Senator Blackburn. We appreciate your being here. Do you
believe it is the role of a judge to be impartial and
objective?
Judge Koh. Absolutely.
Senator Blackburn. Thank you. Let me ask you about
something that you wrote as you were a law student. And you
wrote it for Harvard Women's Law Journal, and I'm quoting you,
``Minority judges still need to maintain the disguise of
objectivity or else face challenges to their decisions. Yes, a
minority judge is going to identify with a minority party's
experiences, but she can't admit this. We've got to get more
clever and say, `Look, we're just as neutral as any 60-year-old
white man.' Tactically, what's more pragmatic, to pretend we're
objective or to deconstruct objectivity itself?''
When you sit here today and tell us that you're going to be
objective and impartial, is that a disguise?
Judge Koh. Absolutely not. And I have 14 years of a record
that you can see from 3,250-plus opinions on the Federal court,
thousands of opinions on the State court, 271 trials, I have
been fair, and I have been impartial. And I have taken my
judicial oath extremely seriously to impartially discharge my
duties.
Senator Blackburn. Do you still hold that opinion?
Judge Koh. Absolutely not. Absolutely not.
Senator Blackburn. You do not hold that opinion that you
wrote----
Judge Koh. No.
Senator Blackburn [continuing]. In the Harvard Women's Law
Review?
Ms. Koh. It was--it was 31 years ago. I was a 1L. It was
the fall semester of my first year of law school. I completely
disagree with that statement.
Senator Blackburn. Okay.
Judge Koh. The rule of law requires, demands, the parties
are entitled to impartiality.
Senator Blackburn. So, you think, your statement today
would be that you do not think there is any time or occasion
where a minority judge should conceal their feelings and
disguise their feelings or their approaches--that they should
be impartial?
Judge Koh. Absolutely. Every--every judge must be
impartial. I completely agree with that. And personal--I
completely agree with that.
Senator Blackburn. It's of concern to us when we read
statements and then someone goes to the bench, and they make
decisions that are counter to statements that they have made in
front of us. And I'm sure you can identify with what that
frustration is. So as I read those statements that you had
given when you were there at Harvard Law, that, that was an
issue of concern for me. And I'm sure you can understand why it
would be.
Judge Koh. I completely understand.
Senator Blackburn. Or why it would cause question for
individuals that were coming before you.
Judge Koh. I completely understand.
Senator Blackburn. Okay.
Judge Koh. I disagree with that statement, and I think my
record has shown that I disagree with that statement.
Senator Blackburn. And what would you say is your judicial
philosophy? Are you an originalist? How would you classify
yourself?
Judge Koh. So, I look at the text first. I look for any
Supreme Court precedent. I look for any ninth circuit
precedent. And I look at those opinions to see what methods of
interpretation did they use. And in cases like Heller, cases
like Crawford, they use originalism. And I follow the higher
courts in what either cannons of construction or what methods
of interpretation to use.
Senator Blackburn. Okay. And do you think it is ever proper
for a judge, someone in your position, to indulge their policy
preferences in determining what the law means?
Judge Koh. No. No.
Senator Blackburn. Okay. Thank you. Looks like I'm about
out, Mr. Chairman. I will yield back the balance of my time.
And just for the record, my clock doesn't work.
Chair Durbin. Senator, you have 19 seconds left, and we'll
credit it to you on the next witness. Okay?
Senator Blackburn. That works.
Chair Durbin. Thank you. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. Is that with
interest accrued, or no interest?
[Laughter.]
Senator Padilla. Before I ask my questions, I want to take
a moment to push back against some of the ridiculous claims
that we've heard from the other side this morning, particularly
that Judge Koh's decision in the Tandon case was either somehow
hostile to people of faith, or a radical departure from the
law.
Colleagues, I invite you to read Judge Koh's well-reasoned
and detailed opinion in the Tandon case. If you read it, you'll
see that Judge Koh considered and cited precedent from the
Supreme Court, the sixth circuit, and the ninth circuit,
consistent with the response she just made to questions from
Senator Blackburn.
Fact, when her decision was appealed to the ninth circuit,
two judges, including a Bush-appointee and a Trump-appointee
agreed with her. And fact, the Supreme Court--at the Supreme
Court, Chief Justice Roberts agreed that the Supreme Court did
not need to displace Judge Koh and the ninth circuit's
decisions.
So, this idea that Judge Koh's opinion was somehow outside
of the mainstream is just plain wrong. Likewise, the idea that
Judge Koh, a person of faith herself, she shared that with us
today, that she is hostile to people of faith is simply
ridiculous.
Now with that said, Judge Koh, is there anything else? I
know there's been a lot of discussion about your decision in
the Tandon case. Is there anything else that you'd like to
share with the Committee and anything you would like to explain
further about your decision here?
Judge Koh. Well, just that at the time, I was basing my
decision on the facts in the record and the precedent that
existed at the time. And I was following the ninth circuit's
analysis of looking at risk transmission evidence, and looking
at the sixth circuit decision, which was the only one that
existed at the time that was not calling out houses of worship
and calling out religious exercise specifically. And the
Supreme Court did not enjoin that decision that said it's a
neutral and generally applicable rule if it applies to public
schools, private schools, religious schools. It doesn't matter
because it's generally applicable and it's neutral. And that's
the precedent that existed at the time. I was following ninth
circuit precedent.
I understand that subsequent to my decision--and my
decision was affirmed by the ninth circuit. Subsequent to my
decision that I relied on in the ninth circuit, the Supreme
Court ultimately reversed that decision. But at the time, I was
following the law.
Senator Padilla. Thank you. And as you shared, you are a
person of faith yourself. So can you just clarify for the
record, are you hostile to the constitutional rights of people
of faith, as some of my colleagues on the other side seem to be
implying?
Judge Koh. Not at all. I understand that the right to
religious liberty is one of the most important and fundamental
rights. It's one of the foundations upon which this Nation was
built.
Senator Padilla. Thank you. And in the time remaining, I do
want to sort of take a step back away from this case in
particular, and acknowledge what several of my colleagues have
acknowledged, and that's your remarkably low reversal rate. I
know several have mentioned it today. Just remind us of the
numbers, over the course of more than 3,200 opinions, at 270-
plus trials, you've had to rule on everything from mundane
discovery requests to blockbuster questions regarding
intellectual property. Is there a particular approach or
philosophy you take to ruling on such a wide array of cases?
Judge Koh. I try to do my best to look at the record that
is before me, to decide only the limited issues that are before
me, and to apply the law fairly, and to issue opinions that lay
out in full, in full comprehensive fashion what my ruling is,
what my reasoning is, why I'm coming out this way so the
parties understand how I've reached that decision, so the
appellate courts can see how I've come to a conclusion.
Senator Padilla. Thank you. And if I may, Mr. Chair, just
to, in closing, a question more on the personal side. By all
accounts, you've already had a tremendously successful judicial
career. You're one of the most respected judges in the Northern
District of California and have the opportunity to preside over
consequential and challenging cases in this capacity. On
account of your prior confirmation to be a district court
judge, you already have life tenure on the Federal court. So
put another way, you really don't have to be here today. So let
me ask you, why are you here? Why do you choose to be here? Why
did you choose to subject yourself to yet another confirmation
hearing for this opportunity to serve on the ninth circuit?
Judge Koh. Let me just say that the job I currently have is
an amazing job, and I have nothing but the utmost respect for
my colleagues. Trial court judges have frankly the least
resources in the system and have very large volumes with tight
time constraints. So this is a job that I love. But if
confirmed, I would love to contribute to providing clear
guidance to trial courts. I think the perspective of someone
who's been sort of on the ground, trying to apply it in vary
quick trials and very short timeframe compressed time periods
is helpful. And I think that I would really love, also, to
serve a role modeling function beyond my district, beyond my
State, and to go meet law students, go meet young lawyers all
over the ninth circuit. That is something that I really look
forward to.
Senator Padilla. Thank you very much. Thank you, Mr. Chair.
Chair Durbin. Thanks, Senator Padilla. Judge Koh, thank you
very much. It would be an interesting exercise to ask all of
the young people in the room that have witnessed this hearing
for their impressions, but we have some other things we have to
do. But there is a lesson here. Something that you may write
today, or text today, you may have to answer to before the
Senate Judiciary Committee 31 years from now, so be careful.
But thank you for your patience in this hearing and for your
remarkable career in the law. You've done an outstanding job.
And I salute your family, including the future quarterback
for the Los Angeles Chargers----
Judge Koh. 49ers, excuse me.
Chair Durbin. 49ers, Mateo. I wish you well. And Rhea,
thank you so much for your patience. And to your husband as
well. So thank you.
If you would please give us a chance to set up now for the
second panel. I appreciate it.
Judge Koh. Thank you so much. Thank you to everyone.
[Pause.]
Senator Klobuchar [presiding]. Okay. Maybe the second panel
wants to sit down quick, and then we'll swear you in. I know,
okay. I was just watching Mr. Kanter do the secret handshake
with his kids. Maybe when that's done, we can all learn it.
I want to welcome the nominees to the second panel, which
include Judge Beckering, Judge Kumar, Mr. Bonilla, Ms. Lerner,
and Mr. Kanter. It is truly a pleasure to welcome you today. We
have a long day of hearings. You're somehow sandwiched in the
middle over lunch. But we're very glad for your patience and
thank you.
If the witnesses now could please stand and raise your
right hand?
[Witnesses are sworn in.]
Senator Klobuchar. Thank you. I'll now recognize the
witnesses for 5 minutes. The nominees for 5 minutes of
testimony each. We start with Judge Beckering.
STATEMENT OF JANE M. BECKERING,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN
Judge Beckering. Well, if the clock on the wall is
accurate, I would like to say good afternoon. I would like to
begin by thanking Senator Klobuchar for presiding today. I'd
like to thank Senators Durbin and Ranking Member Grassley for
scheduling this hearing. And I'd like to thank the other
Senators for participating in this advice and consent process.
I am grateful to my home State Senators, Senators Stabenow and
Peters, for recommending me to the President. And I am deeply
humbled by their kind words this morning. I am also thankful to
President Biden for the tremendous honor of this nomination.
I have several family members here today who I would like
to introduce, who are sitting behind me. First and foremost, my
husband, Ray Beckering. He is an assistant United States
attorney. He has been my biggest cheerleader and source of
unwavering support for the past 30 years of our marriage. We
have three adult children: Marley has come from Chicago,
Illinois; Katie, from Charlotte, North Carolina; and Ray, from
Ann Arbor, Michigan. I could not ask for three kinder, more
considerate, or more loving children. They are my greatest
accomplishment, hands down.
My parents are also here: John C. and Sheila Buchanan. They
are both wonderful parents, and impeccable role models. And my
father is the reason that I became a lawyer. And finally, my
brother and best friend, Rob Buchanan, who also caught the bug
and became a lawyer, is here as well, having just come off a
year of service to the State of Michigan as bar president.
Rob and I became lawyers because we were mentored from a
very young age by two of the world's finest trial lawyers, my
father, John C. Buchanan, and my late grandfather, William B.
Buchanan. They believe that America's system of justice is the
finest in the world, and that to uphold it tenants as a lawyer
or a judge is among the highest of callings. They taught us
that civility, integrity, and respect for others are the
hallmark trademarks of our profession. I am deeply humbled to
appear before you today by honoring for this potential
opportunity to carry on my family's commitment to the
stewardship of our justice system.
Thank you, and I look forward to answering your questions.
Senator Klobuchar. Thank you so much. Next up, Judge Kumar.
STATEMENT OF SHALINA D. KUMAR, NOMINEE
TO SERVE AS UNITED STATES DISTRICT
JUDGE OF THE EASTERN DISTRICT OF MICHIGAN
Judge Kumar. Good afternoon. I'd like to thank Chairman
Durbin and Ranking Member Grassley for scheduling this hearing
today. And thank you, Senator Klobuchar for agreeing to preside
over this hearing. I'd like to thank President Biden for
nominating me to this position. It is truly a great honor, and
I am deeply humbled by the faith he has placed in me. I would
like to thank Senator Stabenow and Senator Peters for
recommending me to the President, and for their lovely words of
support today.
I would like to acknowledge my mother, Margaret Kumar, who
I unfortunately lost last year. She was my greatest champion,
and I know today she would be very proud. I have zero doubt she
is here with me today, and knowing my mother, probably
orchestrating the whole thing.
I'd like to thank my father, Dr. Krishna Kumar, who came to
this country from India to pursue his own American Dream. He
always taught us to believe in ourselves and know that we could
be whatever we wanted to be in life.
I'd like to acknowledge my sister, Kala Kumar, and brother-
in-law, Ken Shepherd, and thank them for their love and
support. And all my aunts, uncles, and cousins in Michigan,
Maryland, Missouri, and India. I know they are all very excited
about this nomination.
I would also like to acknowledge my high school government
teacher, Paul Dane, who is responsible for my initial interest
in government and the law, and he has continued to support me
in my career throughout my life.
I would be remiss if I did not thank and acknowledge my
staff, Amanda, Bridget, Lindsey, and James. Without their hard
work, I could never do my job. I would like to thank all my
friends and colleagues for their love and support throughout
this process, including those here with me today, Jason Turkish
and Eve Hill.
I thank all the Senators here today, and I'm happy to
answer any questions.
Senator Klobuchar. Thank you. And before we go over to Mr.
Bonilla, I will tell you that both your Michigan Senators have
approached me about this hearing several times, and if I mess
this up, I don't know what's going to happen to me. I'm never
going to be able to go in your State. So, congratulations to
both of you. Mr. Bonilla.
STATEMENT OF ARMANDO O. BONILLA,
NOMINEE TO SERVE AS JUDGE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS
Mr. Bonilla. Thank you, Senator Klobuchar. Thank you,
Chairman Durbin, for your kind introduction. And Ranking Member
Grassley, for your kind words earlier this morning, and in
2014, when I was initially nominated. I'd like to thank the
Chairman and the Ranking Member for scheduling this hearing.
And to Members of the Committee for considering our
nominations. I would also like to thank President Biden for the
honor of renominating me to serve as a judge on the court where
I learned to practice law and tried my first case 25 years ago.
With me today are my wife of 17 years. We celebrated our
wedding anniversary this past weekend, Dr. Jacqueline Wright
Bonilla. Our daughter, Bryson, and our son, Armond, who goes by
AJ. It is with their unconditional love and support that I
continue chasing this improbable professional dream.
Seated with my family are our dearest friends and the
godparents to our children, Colleen Conroy, and her spouse,
Karen Fisher, who had the honor of serving on Senator Wyden's
staff, and Amy Brown Dolittle.
Watching from home, after I asked and then begged them not
to travel during these extraordinary times, are my mother,
Alena Bonilla, my sister, Barbara, and her partner, Bob
Feldman. And my in-laws, Joy Adams and Paul and Lenora Wright.
Sadly, my father passed away 25 years ago, almost to the
day and can only be here in spirit. He was a man who quit high
school to join the Marines to support his mother and spent his
life working two and three jobs to make sure that my dreams and
my sister's dreams were not limited by our state in life. He
and my mother worked tirelessly and raised me to truly believe
that a kid who grows up cleaning law offices at night with his
parents could someday be nominated by the President and
considered for the Federal bench. It is because of their
sacrifices and their example that I am living the American
Dream.
Finally, I would like to thank my former colleagues at the
Department of Justice for their service to their Nation, this
Nation, and my colleagues at Capital One. Throughout my career,
I have been honored and privileged to be surrounded by very
kind people, generous with their time, and their support, and
their many talents.
I'd like to thank the Committee, again, for considering our
nominations, and I look forward to answering your questions.
Senator Klobuchar. Thank you very much. Next up, Ms.
Lerner.
STATEMENT OF CAROLYN LERNER, NOMINEE
TO SERVE AS JUDGE OF THE UNITED
STATES COURT OF FEDERAL CLAIMS
Ms. Lerner. Thank you, Senator Klobuchar. Thank you for
presiding over this hearing. I'd also like to thank Chairman
Durbin, Ranking Member Grassley, and the other Members of this
Committee, and the staff for scheduling this hearing. I had the
privilege of working closely with several Members of this
Committee during my prior role as head of the U.S. Office of
Special Counsel. Senator Grassley, you were one of them. And
it's an honor to appear before you again today. I also want to
thank President Biden for nominating me. I'm truly grateful and
humbled.
With me is my husband of 30 years, Dwight Bostwick, and our
son, Ben. Our daughter, Anna, is a student at Stanford Law
School, so unfortunately, she couldn't be here, but I know
she's watching by video. I am so grateful to each of them for
their love and their support. Many other family members and
friends are watching by video, as well, and I want to thank and
acknowledge them as well.
I would not be here but for the two people whose influence
led me to pursue a career in the law. My mother and father
would have treasured this day. They were the children of
immigrants who came to this country to escape anti-Semitism and
depression. My grandfather had been jailed in his country for
speaking out against the government. My parents taught me to
appreciate the freedoms we enjoy in the United States, and to
give back through public service.
I began my career in Michigan, where I grew up, as a law
clerk to Chief U.S. District Court Judge Julian Able Cook, Jr.
Judge Cook treated all those who appeared before him with
kindness, dignity, and respect. He encouraged me to try and
become a judge, and I so wish he could have lived to see this
day. It will be his example that emulate if I am fortunate
enough to be confirmed to a seat on the Court of Federal
Claims.
Thank you, and I look forward to your questions.
Senator Klobuchar. Thank you very much. Mr. Kanter.
STATEMENT OF JONATHAN KANTER,
NOMINEE TO SERVE AS ASSISTANT
ATTORNEY GENERAL, ANTITRUST DIVISION
Mr. Kanter. Thank you, Senator Klobuchar, for Chairing
today's hearing. Thank you to Chair Durbin, Ranking Member
Grassley, Members of the Judiciary Committee for giving me the
opportunity to be here today. I'd like to thank Senator
Klobuchar for that warm introduction and for her inspirational
and transformative leadership, promoting sound competition
policy and effective antitrust enforcement.
Senator Klobuchar. Hopefully you didn't lose some votes
over that one. Thank you.
Mr. Kanter. So many family, friends, and colleagues,
mentors have provided so much support and encourage throughout
this process, and my entire career, and I'm just so grateful to
all of them.
I'm particularly thankful for my family here today. I love
them so much. My wife, Lisa, my daughter, Abigail, my son,
Ben--Benjamin, my mother and father, Leslie and Allen Kanter,
my sister, Beth Kanter, and all of my family who are watching
at home. I am so grateful.
In 1996, following my first year of law school, I took a
long drive from Saint Louis, Missouri, to Washington, DC, to
begin a summer internship at the Federal Trade Commission's
Bureau of Competition. At the time, I could never hardly
imagine spending the next 25 years steeped in antitrust law,
let alone sitting before you today. But I'm here precisely
because others did imagine a moment like this was possible.
I think about my grandfather, Myer Kanter. As just a baby,
he came to this country with his family in 1938. They came here
in pursuit of a better life and opportunity not just for
themselves, but for future generations. At first, life was hard
for my grandfather. He had to drop out of school at a young age
to work and support his family. He would eventually become a
plumber, where he would work long and hard hours, but with an
unbounded sense of optimism and a deep love of his country.
Sitting here today, I can think about it driving with my
grandfather in his powder blue Chevy. I was sitting in the back
seat, and he would beam with pride as we passed by a school
where he was responsible for installing the plumbing. I
remember vividly my grandfather telling my sister and me about
the proudest day of his life, April 26, 1938, the day he became
a U.S. citizen.
He not only believed in the American Dream, but he lived
it. He provided a whole range of opportunities that he never
had to my father. My father had the opportunity to attend
college, study music, eventually become an elementary school
music teacher, where he married my mother, who devoted her
career after similar upbringing to be an elementary school
teacher. And my parents, in turn, provided me with a whole
range of opportunities that they never had as I grew up in
Queens, New York. I attended law school and eventually had the
opportunity to build a successful career in the law.
So many of us have a similar story. We've heard
inspirational stories like this already today. The American
Dream is real, without a doubt, but we can't take it for
granted. Liberty depends on opportunity, and opportunity
depends on free, fair, competitive markets. And the antitrust
laws play a vital role in preserving these opportunities.
I have here with me today my grandfather's original
certificate of citizenship. It's my way of him being here with
me for this important milestone in my life. If confirmed, I
plan to take inspiration from my grandfather, and keep this
certificate at my desk at the Department of Justice as a
reminder of his optimism and the importance of fighting to
preserve opportunity, not just for current generations, but for
future generations.
I'm truly humbled to be here today. If confirmed, it would
be an honor of a lifetime to work with Attorney General
Garland, the leadership at the Department of Justice, and the
so many talented, hardworking, exceptional people at the
Antitrust Division, many of whom I've had the privilege of
knowing for two decades.
I am humbled and grateful that President Biden has
nominated me--nominated me to serve as Assistant Attorney
General for the United States Department of Justice. I'm
honored to be with you today, and I look forward to answering
your questions.
Senator Klobuchar. Very good. I'm going to defer here to
the Ranking Member and allow him to go first. So go ahead.
Thank you.
Senator Grassley. Thank you. Mr. Bonilla, your family has
an impressive story. Your mother, a Cuban immigrant, fled the
Communist Revolution as a young woman. And like many Cubans,
came here to build a new, better life. Your Uncle Mario,
apparently disappeared, trying to help other Cuban exiles. This
summer, we've seen the Cuban people bravely protesting against
the communist dictatorship.
Tell me a little bit more about the oppression that your
family faced in Cuba, and the opportunities they were able to
find with other Cuban exiles in America.
Mr. Bonilla. Thank you, Senator Grassley. As you pointed
out, my mother, when she was 21 years old, left Havana with a
suitcase and a dream. She came to a country where the land was
foreign, as was the language. She, and her mother, and her
sister moved to New York, and had to leave her brother, Mario,
behind in Cuba. Eventually, he did come to this country and
settled in Miami. And every year, my family would drive our
Chevy Nova down 95 with our trailer to visit them in Hialeah,
where we would spend a week with our extended family.
My Uncle Mario was a private pilot, and my grandmother
saved her money and bought him a plane. And he would fly back
and forth, trying to rescue other Cubans out of that country,
who were suffering.
Senator Grassley. Can I interrupt you?
Mr. Bonilla. Yes, sir.
Senator Grassley. Did they ever refer to the oppression
they had in Cuba?
Mr. Bonilla. My mother tried to paint a good life. My
sister and I have pulled the pieces apart and realized that she
had a very hard life. My father--grandfather, my mother's
father, left home in search of a better life and abandoned the
family. And so, they had to struggle on their own.
And so, it was things like you couldn't paint your house
because then the communist government would know that you had
money--extra money. So it was things like that. She doesn't
like to talk about it because she wants us to appreciate what
we could have and what she endured.
Senator Grassley. Okay. Mr. Kanter, when we met last week,
I mentioned my concern about concentration in anti-competitive
practices in farming, especially corporate consolidation in the
agriculture industry, harmful to the family farmers.
Recently, I've been particularly concerned about
competition problems and lack of transparency in the cattle
pricing. Earlier this year, I wrote a letter, urging the
Justice Department to investigate the control that large meat
packers have over the meat processing market, and whether this
control violates antitrust laws. So as head of the Justice
Department's Antitrust Division, what action would you take to
combat anticompetitive marketing behavior that hurts farmers
and raises consumer prices at the grocery store?
Mr. Kanter. Thank you, Senator, and thank you for raising
awareness to this critically important issue. Our food supply,
our agriculture, our farmers are critical to the health of our
economy and to a healthy Nation. And so, this has to be a high
priority when enforcing the antitrust laws. Its vigorous
antitrust enforcement in the area of agriculture is absolutely
essential in my view to any effective antitrust enforcement
program.
Senator Grassley. I hope you'll work with the--this isn't a
question. I hope you'll work with the Department of Agriculture
to make sure that the Packers and Stockyards Act is fully used,
and even encourage that using if you have to.
I'll get on to the next question, the rising cost of
prescription drugs. That concerns my Iowans all the time at my
county meetings. The Justice Department plays a critical role
in ensuring that drug companies don't engage in anticompetitive
practices or monopolistic behavior. What steps would you take
if you're confirmed to enforce the antitrust laws in this space
and ensure that both brand name and generic drug companies play
by the rules?
Mr. Kanter. These are critical issues that affect Americans
every day. Access to affordable medicine, healthcare, cannot be
more important. And so, the antitrust laws play an important
role in keeping prices down, allowing for access to important
care so that people can be healthy and live. And so antitrust
enforcement here, as well, is absolutely critical. And if
confirmed, I intend to work with the Department of Justice to
ensure that we have vigorous and responsive antitrust inform in
this area.
Senator Grassley. Congratulations to all of you.
Mr. Kanter. Thank you.
Senator Klobuchar. Very good. Thank you so much, Senator
Grassley. In fact, I'll focus a bit, I say, to the other
panelists, antitrust is my Subcommittee and a number of other
Senators here have been working on it as well. Senator
Blumenthal, Senator Whitehouse, and we also have, of course,
Ranking Member Grassley, who has been such a leader.
Picking up where he left off, Mr. Kanter. Senator Grassley
and I have a bipartisan bill, of course, the Merger Filing Fee
Modernization Act, which would update the merger fees, raising
$135 million in additional revenue. We've worked this out
together so that the money would come off the biggest mergers
and not off of small companies. In fact, we've reduced those
fees. Maybe some small companies in Iowa, for instance, that
might want to merge. So we've worked that out. It's actually
passed the Senate. It's passed the U.S. Senate. I think it
would help both Agencies to, given that they're a shadow of
their former selves, even from during the Reagan
administration, and yet they're being expected to take on the
biggest companies the world has ever known.
I know that you voiced support for the Agency funding when
you testified before the Antitrust Subcommittee when Senator
Lee, who's just arrived, and I invited you to testify. As
Assistant Attorney General, what would you do with the
additional funding?
Mr. Kanter. Thank you, Senator. Adequate funding is
essential for effective antitrust enforcement. I know the
Department of Justice has weighed in favorably in support of
the legislation, and I certainly support any effort to provide
the appropriate level of funding to the Department of Justice
Antitrust Division.
I think there's a great deal to do. We've heard about some
of the issues today in agriculture and in healthcare. And there
a wide range of other areas where the Antitrust Division needs
to be the cop on the beat in terms of ensuring that companies
are complying with the antitrust laws. And so, I think some of
the things that I would recommend, and that are important to
me, include more trial attorneys and more substantive expertise
to complement the already tremendously talented people in the
Antitrust Division.
Senator Klobuchar. Okay. Very good. Yesterday, we had
incredible testimony, thanks to Senator Blumenthal, Senator
Blackburn, and others on the Committee from a whistleblower at
Facebook. And as a former law enforcer, I know that effective
enforcement often depends on the courage of ordinary people who
provide relevant information to enable the Government to build
a case.
This week, as I said, we can see what happens when we have
someone coming forward. This is something Senator Grassley
cares very much about. Given that whistleblowers who assist the
Government in civil antitrust cases may face threats of
retaliation, could there be benefits to extending the
protections offered to whistleblowers assisting in criminal
cases to whistleblowers assisting in civil cases, Mr. Kanter?
Mr. Kanter. It is extremely important that antitrust
enforcement authorities have access to individuals with
relevant information. And monopolies have the ability to
intimidate even other big companies, let alone individuals. And
so, as a general matter, I am very supportive of any effort to
ensure that the enforcement authorities have access to the
relevant information and the relevant witnesses.
Senator Klobuchar. Very good. Some mergers are just too
anti-competitive to fix. In my mind, that was the T-Mobile/
Sprint merger, which unfortunately got settled over significant
objections. I'm not going to ask you to comment on individual
mergers that may be coming before you, but could you describe
the approach you plan to take in assessing whether the
Antitrust Division should accept settlements in merger cases?
And what will you do to ensure that the Division does settle a
merger case that the merged company actually complies with
whatever consent decree that you reach?
Mr. Kanter. I look forward to working with my colleagues--
future, hopefully, colleagues at the Department of Justice to
enforce the law vigorously. And that means adhering to the text
of Section VII of the Clayton Act regarding mergers. And to the
extent that remedies are on the table, the guiding principle is
they have to work. If the remedies don't work, then you still
have a violation of the law. And so, each case should be
evaluated on a case-by-case basis. But it's important to make
sure that we're addressing anti-competitive mergers.
Senator Klobuchar. Okay. Very good. I may come back with
some other questions of everyone. So Senator Lee, if you don't
mind, I'm going to go to Senator Whitehouse because I had
allowed Senator Grassley to go first, and then you'll be next.
Senator Whitehouse.
Senator Whitehouse. Thanks, Senator Klobuchar. Mr. Kanter,
welcome back to the Committee.
Mr. Kanter. Thank you.
Senator Whitehouse. It is--as you know, we have been making
inquiries from the Committee on the conduct of your
predecessor, Mr. Delrahim, regarding the investigative letter
that was sent to the auto companies, which appears to have been
undertaken without the proper procedural steps dictated by the
Department of Justice internal guidelines and without proper
substantive support in the law. I'm going to ask you to confirm
that you will help support our inquiry, and specifically if an
antitrust investigation were announced without the proper
procedural steps having been undertaken, and without proper
substantive legal support, and perhaps for the purpose of
applying a political punishment, would that be a proper area
for this Committee to make inquiries?
Mr. Kanter. First and foremost, Senator, I think there is--
I have tremendous respect for the oversight function of this
Committee and Congress, and I look forward, with the calling of
my colleagues, working cooperatively.
Senator Whitehouse. That set of facts would be an
appropriate justification or predicate for Committee inquiry,
would it not?
Mr. Kanter. I think Congress has the right to ask
questions, absolutely. And--
Senator Whitehouse. What if a White House political
pressure were the motive, would that also be an appropriate
area for congressional inquiry?
Mr. Kanter. Questions--enforcement decisions and
investigations should be based on the facts and the law,
period, full stop.
Senator Whitehouse. So I'm taking a--I believe the
Inspector General is investigating this matter. And I
understand that we don't want to interfere with an Inspector
General inquiry, whatever it is that's going on. But at the
same time, the Inspector General's scope can be viewed as
limited to what takes place in the Department.
And I offer for you the example that we all lived through,
the investigation into the U.S. attorney firings in which OPR
and the Office of Inspector General joined together to try to
get to the bottom of what took place there. And when their
investigation led to the White House, the White House dropped
the door, slammed it shut, and said, ``No info. No interviews.
No nothing.''
Unfortunately, Attorney General Mukasey tolerated that, but
that is the precedent, really, that the Department has
displayed when an internal investigation by the Inspector
General leads to the White House. That it stops as soon as the
White House says that it stops. So that means, that to me, that
the Inspector General's investigation may be very complete
within its bounds, but it does have bounds. And this Committee
can look beyond those bounds and can try to figure out what
happened. And I want your commitment that you will support us
in that effort, and not just say, ``Oh, well, the Inspector
General is looking into that. That's all we need to do. The
Committee is not--I'm not going to support the Committee's
inquiries.''
Mr. Kanter. I have tremendous respect and deference to
Congress' role in its oversight function. And if confirmed, I
certainly commit to working alongside colleagues at the
Department of Justice, including the Office of Legislative
Affairs to ensure that we are providing Congress with the
information it needs, as appropriate.
Senator Whitehouse. The last piece here is that there are
rules that exist for contacts between the White House and the
Department of Justice. Those rules have been the subject of
Committee inquiries before. I suspect they will probably be the
subject of Committee inquiries into the future as well. It's
been a relatively long-standing policy with a few very
embarrassing hiccups in it that have caused the Department of
Justice to revert to the long-standing policy. But clearly, if
there were violations of the Department of Justice and White
House Counsel policy regarding contacts between the White House
and the Department of Justice, that would be a proper subject
for this Committee's oversight inquiries. Correct?
Mr. Kanter. Certainly, Senator. I think the operation of
the Antitrust Division and Department of Justice--I only can
speak to antitrust, but I'm certain Congress has an important
oversight function.
Senator Whitehouse. Great. Well, we look forward to getting
to the bottom of what took place in this unfortunate episode at
the Department. Thank you, Chairman.
Senator Klobuchar. Very good. Thank you, Senator
Whitehouse. We now turn to Senator Lee, who is going to ask the
four judicial nominees a series of difficult antitrust
questions. Is that correct?
Senator Lee. Thank you, Madam Chair. Mr. Kanter, I would
like to start with you, if that's all right. In the first 9
months of this administration, we've seen some disturbing
trends in antitrust law. And some of those trends were the
focus of a letter that I sent recently, along with Senator
Grassley, and Representatives Jordan and Buck to both the
Antitrust Division at the Department of Justice, and to the
FTC, noting several recent developments that seem to reflect
kind of divergence between these two antitrust enforcement
bodies. Divergences that I can't trace or justify based on any
provision of sound public policy or statute.
For example, we've seen the FTC withdraw its approval for
the 2020 vertical merger guidelines while the Department of
Justice has retained that same scheme. We've also seen reports
indicating that the FTC is asking merging parties about their
environmental, social, and governance, or ESG policies.
Tell me, do you, if you're confirmed to this position to
run the Antitrust Division at the Department of Justice, do you
intend to ask the subject of antitrust investigations about
their ESG policies?
Mr. Kanter. The purpose of antitrust laws is to protect
competition. And so, in my experience and my view, questions
that are relevant to protecting competition are the kinds of
questions that antitrust enforcement authorities should ask.
Senator Lee. And should they be asked where ESG policies
pose no competition-related implications to the merger?
Mr. Kanter. I don't see situations where ESG policies that
are unrelated to competitive issues are relevant to antitrust,
unfortunately.
Senator Lee. As to the existence of these divergences,
don't they just further underscore the problem that we have
created with having two enforcement agencies charged with
enforcing the same set of antitrust laws?
Mr. Kanter. I defer to Congress with respect to the
creation of agencies. If confirmed, my focus will be to work
with the Department of Justice to enforce the laws as Congress
has written them, and to make sure that we're protecting
competition in the competitive process.
Senator Lee. Okay. Let's talk about the Consumer Welfare
Standard for a moment. You've criticized the standard in the
past. There was a speech you gave, I believe, in 2017, at a
Federalist Society Conference in which you indicated that
economists, quote, ``bring values and ideas that are often very
subjective.'' And you compared employing the Consumer Welfare
Standard to judicial activism.
Do you agree that the Consumer Welfare Standard could
encompass many factors beyond price, factors that we both agree
are important, including things like quality, and innovation,
and consumer choice?
Mr. Kanter. Yes. I do.
Senator Lee. It sounds like the problem may not be with the
Consumer Welfare Standard itself, but rather with how it's
used. And it sounds like your problem, in particular, that you
were highlighting in your 2017 speech might be in reference to
the way judges might have used it in order to--in such a way
that involves entertaining speculative economic analysis. Would
you agree with that?
Mr. Kanter. That's a fair characterization. Yes.
Senator Lee. Now, you've advocated for greater
consideration of political values in the application of our
antitrust laws. How would you define political values in that
context? And how would you employ those here?
Mr. Kanter. Let me start by saying political influence
should not be a relevant in determining whether to initiate or
bring in antitrust enforcement actions. The kinds of values,
you know, are around protecting competition. And competition
can yield a wide range of benefits, including protecting the
free flow of information in a democratic society, which is
critical to our political discourse.
Senator Lee. Those value judgments, insofar as you're
basically talking about policy choices. Is it proper for
individuals who aren't elected to be making those policy
choices----
Mr. Kanter. Yes. So I----
Senator Lee [continuing]. Either in the case of a
regulator, an enforcer, or a judge?
Mr. Kanter. Right. So I think, when it comes to antitrust,
which is the area I know and love, the focus is on preserving
competition. And individual decisions regarding enforcement
actions should be based on whether there are violations of the
law, as written by Congress and interpreted by courts. And
individual enforcement actions are assessed on a case-by-case
basis.
Senator Lee. Madam Chair, I've got one other question
that's really tiny. I promise.
Senator Klobuchar. Sure. Okay.
Senator Lee. On the Consumer Welfare Standard, would you
agree that once we separate out the concern that we discussed a
minute ago, you can separate out, the Consumer Welfare Standard
can be and often has been used in such a way as to focus the
antitrust inquiry so as to keep it attentive to what matters
which is competition--protecting competition rather than
competitors or some other social policy?
Mr. Kanter. My view is that the antitrust laws exist to
protect competition. I believe that's how Congress has written
the law, and I think the mandate of antitrust enforcement
authorities is to enforce the law and protect competition and
the competitive process.
Senator Lee. Thank you, Mr. Kanter. Thanks, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Lee. Next
up, Senator Blumenthal.
Senator Blumenthal. Thanks, Madam Chair. And thanks for
your leadership of the Antitrust Committee, along with the
Ranking Member, Senator Lee, which I know will be very active,
and hope for your cooperation with us, Mr. Kanter.
I'd like to congratulate and thank all of the nominees here
today. Your personal stories are impressive and inspiring, and
your commitment to the rule of law and justice is so important
to our democracy, as you well know. And as a Member of this
Committee, I've said countless times that our judiciary is
often the face and voice of justice for many Americans. It's
what they see and hear when they think of justice. So, your
position of trust is immensely important not only to those of
us who have spent a lot of time in the courts, but also to
ordinary Americans. So thank you.
Mr. Kanter, I want to talk a little about interoperability.
As you well know, Google and Facebook have tremendous
dominance, and they maintain it through moated castles, which
in effect, trap their users and reinforce their powerful
network of facts. They trap their users, in effect, on their
platforms, and for startups, if you can't reach those users and
their friends, you're doomed, no matter how much better your
product is. So they are barriers to competition.
Congress has used interoperability and nondiscrimination as
a tool to foster competition again, and again, and again for
nearly a century. It's one of the most proconsumer and
promarket steps that can be taken. It is now hard for us to
imagine or to think back to the day when you were unable to
port your telephone number to a competitive carrier. And I
think there's a consensus that we need interoperability and
portability requirements for the Big Tech platforms to break
down these walls. There's a ton of conversation about breaking
up these companies, which in some instances I do support, but a
more modest and potentially hugely effective step would be to
enforce interoperability and portability.
Senator Warner and I introduced the Access Act, which would
require companies like Facebook and Google to offer
interoperable access for competition and consumers. This bill
would empower companies that want to compete with Big Tech, for
example to offer better privacy, safer environments for
children, and other proconsumer benefits. They would actually
be competition about who can better protect children, which is
lacking now in part because of the lack of interoperability.
So, I would like your commitment that, if confirmed, you
will be working with my office to advance the Access Act.
Mr. Kanter. It would be--I don't want to get out ahead of
the Department of Justice by weighing in on specific
legislation. But if confirmed, I look forward to working with
you, your staff, and the Committee, as appropriate, along with
others at the Department of Justice to ensure that we have
effective antitrust enforcement and providing the appropriate
input with respect to sound competition policy.
Senator Blumenthal. Do you consider interoperability an
important principle and potentially effective in protecting
competition?
Mr. Kanter. Yes. I do. I think the facts depend--the
remedy--as I was saying earlier, first and foremost, remedies
have to work. And so, I think it should be assessed on a case-
by-case basis. But interoperability is obviously a critical
principle.
Senator Blumenthal. Are you familiar with the effects of
lack of interoperability in Big Tech?
Mr. Kanter. Without speaking regarding any specific company
or case that might be pending, yes. I am very familiar with
the--with interoperability issues, with interfaces, and extent
to which they can, contribute to the kinds of competitive moats
that you were referring to earlier.
Senator Blumenthal. Let me ask on a different topic, if you
could give a brief answer, because I only have 30 seconds left.
It's a big topic, and if you want to supplement your answer in
writing, that's fine.
Could you talk a little bit about the impact of protecting
competition on communities of color and ensuring that
communities of color are able to earn a fair wage and enter
businesses?
Mr. Kanter. Yes, Senator. So antitrust is about promoting
competition, which is essential to preserving a healthy economy
that works for everybody. And dominant companies have the
ability to exploit their monopoly power to the detriment of
Americans in so many different ways, whether it's farmers, it's
wage workers, or others. And I do think a critical mission of
the antitrust law is to protect competition for people in the
workplace, to ensure that thriving competitive markets leads to
adequate compensation.
Senator Blumenthal. Thank you. Thank you, all, for your
service. Thanks, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Blumenthal.
Next up, Senator Tillis.
Senator Tillis. Thank you, Madam Chair. Congratulations to
all of you on your nominations. Thank you for being here. And
you all should probably thank Mr. Kanter, because I understand
he's getting the majority of the questions. And I'm going to
keep the streak alive.
Mr. Kanter, I also--I want to thank you. You and my staff
were very complimentary of the time that you spent with them on
a variety of questions, preceding the hearing.
I want to get to a couple of things, and I'll submit the
rest for the record if time does not allow. But the Antitrust
Division under the previous administration really took a view
that the policy of patent laws and antitrust laws were aligned
with the mutual aim of fostering dynamic competition in keeping
our lead in innovation, economy moving. But in June of this
year, the Acting Assistant Attorney General, Richard Powell,
stated that the Antitrust Division is thinking--rethinking its
approach to the intersection of antitrust and intellectual
property.
Do you agree that a reliable, predictable, quality patent
rights promote vigorous, dynamic competition for the benefit of
consumers? And that the Antitrust Division should continue to
support patent rights as a key driver of innovation in a
competitive American economy?
Mr. Kanter. I was not at the Antitrust Division, still not.
And so, I can't weigh in on what decision was made and why.
It's something that I look forward to examining, if I have the
opportunity to work at the Antitrust Division in the Department
of Justice. I have tremendous respect for intellectual property
rights and the important role it plays. And my view as
antitrust enforcement authorities should enforce the law and
address conduct that has an anticompetitive effect.
Senator Tillis. Actually, maybe drill down a little bit on
a couple of questions for the record, but not too many. I
intend to support your nomination. I should say that up front.
I don't know if my staff know that, but you do.
I do have a question about 2019 Joint U.S. PTO/NIST/DOJ
policy statement on remedies for standards of central patents,
subject to voluntary FRAND commitments. In particular, do you
intend--do you intend to withdraw or revise that 2019 joint
policy statement? And do you intend to change the Antitrust
Division's policy as reflected in that policy statement that
antitrust laws should not normally play a role in FRAND
licensing disputes between subholders and potential licensees?
Mr. Kanter. Senator, this is something I look forward to
examining, if I'm confirmed, and I wouldn't want to prejudge
any outcome.
Senator Tillis. Last year, the Justice Department
determined, after its review, that it would maintain consent
decrees with ASCAP and BMI to remedy the competitive concerns
that arise from the exclusive collective and blanket licensing
of copyrights. What are your thoughts on whether and when it
should be appropriate to lift the consent decrees?
Mr. Kanter. I have had the opportunity to work on behalf of
some companies who are involved in that matter, and so I'll
refrain on weighing in, given that I'm a pending nominee.
Senator Tillis. Well, we'll do some follow-ups. I think
finally, what's your opinion about whether certainly large
market players like Google and YouTube have an obligation under
antitrust law to make tools like content ID available on equal
terms for all creators?
Mr. Kanter. Without commenting on specific companies or
issues that might be pending before the Agencies or the court,
I've been a strong proponent of vigorous antitrust enforcement
in the technology area, among others.
Senator Tillis. Thank you. Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Tillis.
Next up, Senator Padilla.
Senator Padilla. Thank you, Madam Chair. I have a question
for Mr. Kanter. Thank you. I have a few questions for Mr.
Kanter specifically. I appreciate the opportunity to have had a
conversation yesterday, so I'm going to follow-up on some of
the items that we discussed then, particularly in regards to
competition in our labor markets.
Mr. Kanter, as a nominee to be the Assistant Attorney
General of the Antitrust Division, you'll play a key role in
enforcing antitrust laws and ensuring that the American people
benefit from open and competitive marketplaces, not just as
consumers, but also, critically, in the labor market. We need
an economy that works for workers, full stop. And I hope that
you will approach--you will approach the antitrust
responsibilities with a keen eye toward ensuring there is
sufficient competition to prevent worker exploitation.
For example, tens of millions of workers in America are
required to sign overly broad non-compete agreements as a
condition of getting a job, which by extension, limits their
ability to switch to better paying jobs if they come across
that option or opportunity. These restrictions are found
throughout our economy, ranging from the tech sector, to quick-
serve restaurants, and a whole lot of industries in between.
Even in California, where the State has banned the use of non-
compete agreements, employers continue to try to use these
restrictions to scare employees away from leaving for a better
opportunity.
Thankfully, labor exploitation has not escaped President
Biden's attention, and I applaud him for his attention to this
issue. He's encouraged the FTC and the Department of Justice to
use their antitrust authorities to ensure workers have access
to high-quality jobs with good pay, benefits, and terms of
employment.
So, Mr. Kanter, how will you address concerns about labor
exploitation in your role as head of the Antitrust Division.
Mr. Kanter. I whole-heartedly agree with the sentiments
that you just expressed, Senator. If the antitrust laws are not
working to protect competition to the benefit of workers, then
the antitrust laws are not working. And without a doubt, the
antitrust laws apply to protecting competition to benefit
workers. This is something the Supreme Court has recently
reaffirmed in a decision involving the NCAA.
So if confirmed, I am eager to work with hopefully future
collages at the Department of Justice to ensure we are having a
vigorous and comprehensive antitrust program that protects
workers from anticompetitive abuses.
Senator Padilla. Thank you. And not just working with your
future colleagues, if confirmed, but this very Congress, this
very Senate, this very Committee.
And on that note, I want to raise a related, but additional
issue. Congress has exempted labor organizations from Federal
antitrust laws in order to ensure that workers could not be
easily exploited by powerful employers. However, this
protection does not explicitly extend to a major new sector of
our labor force, gig economy workers, who are currently
classified as independent contractors. More than 10 percent of
workers rely on independent work for their primary source of
income. And more than 25 percent of workers participate in the
gig economy in some capacity. These gig economy workers who
perform oftentimes critical services throughout the pandemic--
food delivery for example--are precluded from benefiting from
the wide range of social benefits and legal protections
afforded to employees, including their ability to collectively
organize and bargain for better terms of employment without
fear of persecution. This is an affront to fair employment, and
it's also an issue of equity. Gig workers are more likely to be
Black or Latino workers, more likely to be low income,
certainly more low income than wage and salary workers. I'm
currently exploring opportunities to ensure antitrust laws
aren't a roadblock to gig workers who deserve to be able to
advocate for their rights.
You know, last week, the Federal Trade Commission Chair,
Lina Khan, highlighted this very problem as one demanding the
FTC's attention and action, the Department of Justice's
attention and action, and she also highlighted it as a place
where Congress could step into provide workers with more
protections under our antitrust laws.
So, Mr. Kanter, do you commit to working with me to better
protect our gig economy workers from labor exploitation? And if
there's some thoughts in that regard you'd like to offer, I'd
welcome them.
Mr. Kanter. I look forward to working with all actors,
including Congress, as appropriate, to make sure that the
competitive process is working for everybody, including workers
and workers of all characterizations. And so, I also look
forward to examining the issue that you mentioned regarding the
FTC and speaking with the Federal Trade Commission, if I'm
fortunate to be confirmed.
Senator Padilla. Thank you. Thank you, Madam Chair.
Senator Klobuchar. Okay. Very good. Senator Blackburn.
Senator Blackburn. Thank you, Madam Chair. Ms. Beckering,
I'd like to come to you. 2006, there's an article where you
were quoted as saying that the role of the courts is to remain
nonpartisan, your term. However, you also went to say that the
courts also have a role in protecting the minority against the
majority when they have overstepped their bounds on civil
rights and on constitutional rights. So, what did you mean by
that? And how do you decide who the minority is in a situation?
Isn't that really a stone's throw away from politicizing and
putting partisanship on the bench?
Judge Beckering. Senator, the comments that I was directing
at the time that I ran for the Michigan Supreme Court was a
campaign of the requirement that the judiciary always remain
fair and impartial. The comment that I made about the
protecting the minority from the majority was an effort to talk
about the Constitution, and that is the job of judges to uphold
the law, and the only time they overturn the law is when it
conflicts, for example, with other precedent that his higher,
and that includes the Constitution. That is the design of our
Constitution in America.
Senator Blackburn. Okay. The same article, you said you
wanted to apply commonsense interpretation of the language of
the statute or law if you were elected to the Supreme Court.
However, you criticized that then sitting Supreme Court in
Michigan for taking a very liberal interpretation of the
language. So how would you describe your judicial philosophy
now? How has that evolved for you?
Judge Beckering. At the time I made those comments, I was
speaking from my view as an advocate, and I was analyzing it
from that perspective. The goal that I wanted is that this----
Senator Blackburn. Did you intend to take that advocacy to
the bench?
Judge Beckering. No. I've been a sitting judge for the past
14 years, so I would apply the law and the----
Senator Blackburn. Okay. Would you describe yourself as an
originalist or a textualist? What is your philosophy?
Judge Beckering. I would describe myself as someone who
very seriously takes my oath to fairly and impartially apply
the law. And as Chief Justice John Roberts has said to have the
same strike zone for every party that comes before me to make
the court a level playing field.
Senator Blackburn. Now you have a history of donating to
Democratic candidates exclusively. You were a max-out doner to
President Biden's Presidential campaign. You were also the
Michigan Democratic Party's nominee for the Michigan Supreme
Court. So as a judge, it is your responsibility to fairly
administer the law, regardless of your own political or social
views.
So how are the American people to be assured that you are
going to separate your political and your judicial views?
Judge Beckering. Senator, I am bound by the Michigan Code
of Judicial Conduct. And Canon VII explicitly provides the
ability for judges to make contributions to political
campaigns, admit advisory opinions----
Senator Blackburn. So you see no conflict.
Judge Beckering. Advisory Opinion 60 from the Judicial
Tenure Commission has expressly stated that it is not an
appearance of impropriety.
Senator Blackburn. Okay. Let me----
Judge Beckering. And if I were nominated, I would follow
the law.
Senator Blackburn [continuing]. Move on to Mr. Kanter.
First of all, thank you for your time. I appreciate that, and
we talked about where the DOJ starts, the FTC starts, the
separation, the responsibilities that are there when it comes
to the antitrust space. But I've got a couple of questions for
you on that. My time's going to run out.
Talk to me. You have criticized the Consumer Welfare
Standard. And I want you to briefly walk through that. Describe
your thoughts on that standard and how it is applied to
technology platforms. And as you know, the Chairman and I each
are working on issues of accountability in the tech space.
Mr. Kanter. Thank you, Senator. So, the antitrust laws have
to address market realities, and market realities have shifted
in dramatic ways just over the last 20 or 30 years. And the
kinds of harm that can be inflicted on society as a result of
concentrations of power has also changed, and those harms can
embody privacy, can involve the marketplace of ideas, and the
distribution of information, political discourse. And so, to be
effective, the antitrust laws, in my view, should be enforced a
manner that adapts to those market realities.
Senator Blackburn. Okay. I've got a couple of more
questions. I will submit those to you for a written response.
And thank you, all, for being here today. Thanks, Madam
Chairman.
Senator Klobuchar. Thank you very much, Senator Blackburn.
And when you were gone, I mentioned your leadership with the
hearing yesterday in Commerce, which we really appreciated your
work on the Op Star Bill and other things. So thank you very
much.
I thought I would just ask a few of you who haven't been
able to talk one question each, or talked very briefly.
Judge Kumar, since 2015, you've served as the presiding
judge--mostly for your family. Right? We must ask one question.
You served as the presiding judge of the Oakland County Circuit
Court's Adult Treatment Center. Is that right?
Judge Kumar. Adult Treatment Court. Yes.
Senator Klobuchar. Adult Treatment Court. And I've long
been an advocate of alternatives to incarceration and I've
been--when I was a prosecutor, and then also here in this
place, I've pushed to increase funding for drug treatment
courts, and in Hennepin County, we actually had one of the
first major drug treatment courts even before I got there. And
can you talk a bit about the Adult Treatment Court, why these
kinds of programs are so important, and why these alternative--
we now have some Federal drug courts, as you know. But why
don't you talk a little bit about this?
Judge Kumar. Thank you, Senator, for that question. That is
a program that I am immensely proud of. I did serve as the
presiding judge of our treatment court for over 5 years. It's
amazing to see the transformation of these people who might
have mental health issues. I actually handled both a mental
health docket and a substance abuse docket.
Providing them treatment, helping them get employment,
helping them get education. We actually had a graduation
yesterday. I was unable to attend because I was here. I did
send them a video, though, so I'm thinking of my participants
today. The most amazing part is at graduation, the participants
come up and their booking shots are shown, and then we see them
stand before us. And that is amazing. It's amazing to see the
transformation. And I know that they derive so much benefit
from that program. It is so much more important that
incarceration, particularly the treatment. And I know they are
always grateful. And it's wonderful to watch their
transformation and see them grow and be productive citizens.
Senator Klobuchar. Thank you. I, too, have gone to these
graduations. And one of the most incredible things that I've
seen in some of our more mid-sized communities--yours is a
little bigger--but the people that graduate get to be friends
through the program, and they stay friends in even some larger
towns they do this, and it really helps give them support when
they get out.
Judge Kumar. Yes.
Senator Klobuchar. Thank you for your work in that area.
Judge Kumar. Thank you, Senator.
Senator Klobuchar. Ms. Lerner, during your time heading the
office of Special Counsel, you received support from both
Democrats and Republicans. As was noted, my colleague, Senator
Grassley, sent a letter to the White House Counsel in 2017 in
support of your nomination to serve a second term, writing that
you had built trust and confidence on both sides of the aisle
in your ability to objectively and diligently pursue the
office's mission.
In your view, how has your approach to the law lead you to
have broad support from people across the political spectrum?
And how will that experience leading the Special Counsel impact
your approach to serving on the Court of Federal Claims?
Ms. Lerner. Thank you for that question, Senator. I am
really proud of my service at the Office of Special Counsel and
of the non-partisan approach that I took to enforcing the law,
and making sure the Government operated fairly, and
efficiently, and effectively. And I had an even handed, fair
approach, I believe, that resulted in bipartisan support for my
renomination.
And as a mediator now, with the court, I have taken some of
those same skills, and I think it's really important to be
neutral and give everyone who appears before you the feeling
that they are going to be heard and that you don't have an
agenda. And so, that same approach that I took when I was
Special Counsel, that I take now as a mediator, I would bring
with me if I am confirmed to a seat on the Court of Federal
Claims.
Senator Klobuchar. Excellent. Thank you. Ms. Beckering, I
want to talk briefly about the importance of precedent, and
U.S. district judges are bound to follow the precedent of their
corresponding circuit courts, the Supreme Court. In your role
as appellate judge on the Michigan Court of Appeals, your case
records indicate you strongly adhere to relevant precedent when
presiding over both civil and criminal cases. How do you view
the role of precedent in our legal system, even binding
precedent that you may think is wrongly decided?
Judge Beckering. I believe that precedent is very important
because it contributes to the even-handed, predictable
stability of the law, and the consistent development of legal
principles. And therefore, I think that it contributes to the
actual and appearance of the integrity of the court. It is not
an unactionable command, but in my role, sitting as a court of
appeals judge, it is what I do. I follow precedent. And if I
were to become a Federal district judge, I would follow
precedent.
Senator Klobuchar. Very good. And I noted one of your
quotes where you said, ``My judicial philosophy is that judges
should take off their partisan hats when they sit on the bench
and treat all comers fairly and impartially. They should treat
individuals and corporations alike, and they should make their
rulings based on the rule of law, not on a political agenda.''
I assume you still hold that view. Do you want to add anything
to that?
Judge Beckering. Thank you for that question. I ran for the
Supreme Court because I felt very strongly that while I enjoyed
being an advocate and representing my clients, and I felt the
advocacy process is so valuable, I wanted to serve the State at
a greater level. And so, I took my philosophy with me to the
bench, which is to be fair and impartial always, and I take
that into account in every single case.
Senator Klobuchar. Okay. Very good. Last but not least, Mr.
Bonilla. On the side of the Court of Federal Courts claim house
is a quote from Lincoln that says, ``It is much the duty of
Government to render prompt justice against itself in favor of
citizens as it is to administer the same between private
individuals.'' Can you discuss the importance of the role of
Court of Federal Claims? And if confirmed, how you intend to
apply the sentiment expressed by Lincoln?
Mr. Bonilla. Thank you for that question, Senator. Having
spent the better part of decade practicing before that court, I
understand the importance to the American citizens that the
Government hold itself accountable for its actions. And as far
as my handling of my docket, I will follow the guidance and
example of the judge I had the privilege of clerking for, Judge
Garrett Brown on the District of New Jersey, who was the most
prepared in the courtroom of all the parties, knew the record
better than any party, knew the law better than anyone else,
and decided all cases promptly, and made sure that everyone who
walked out of his courtroom understood that the judge was well
prepared and would rule based upon the facts and the law, and
nothing else.
Senator Klobuchar. Very, very good. And I do want the
record to note here that, if confirmed, you will be the first
Latino to serve as a judge on the Court of Federal Claims,
which is a pretty cool thing.
Mr. Bonilla. Thank you, Senator.
Senator Klobuchar. Okay. Very good. Well, this has been a
really good hearing. We had good attendance, despite the
strange hour. I have a feeling all of your families are really
hungry and want to have lunch. Is that true of you, Kanter
children? Well good. I'm glad. Maybe you want more questions on
antitrust we could ask you. That's all right.
Okay. Good. We're okay. You're good. All right. Very good.
Well, thank you. And are we leaving the record open here,
guys. Let's see. Questions for the record will be due by the
nominees by 5 p.m. on Wednesday, October 13th. And the record
will likewise remain open until that time to submit letters and
similar materials.
Have these letters also been included yet? They have.
Because I want to talk about Arnold Schwarzenegger's letter,
but I guess that's already gotten done. Okay. It wasn't for
you, Mr. Kanter. I'm sorry. It was for the previous nominee,
Judge Koh.
But in any case, I wish you good luck. I think you all did
really well in the hearing, and the hearing is adjourned. Thank
you.
[Whereupon, at 1:08 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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