[Senate Hearing 117-912]
[From the U.S. Government Publishing Office]
S. Hrg. 117-912
CONFIRMATION HEARING
ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
JULY 28, 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
58-688 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........................................... 4
Grassley, Hon. Charles E......................................... 3
Coons, Hon. Christopher.......................................... 8
Blumenthal, Hon. Richard......................................... 1
VISITING INTRODUCERS
Warner, Hon. Mark R., U.S. Senator from Virginia................. 5
Kaine, Hon. Tim, U.S. Senator from Virginia...................... 6
Murphy, Hon. Christopher, U.S. Senator from Connecticut.......... 7
NOMINEES
Dellinger, Hampton Y............................................. 19
Questionnaire................................................ 37
Responses to written questions............................... 323
Additional materials......................................... 547
Giles, Patricia Tolliver......................................... 16
Questionnaire................................................ 84
Responses to written questions............................... 358
Additional materials......................................... 562
Heytens, Toby.................................................... 9
Questionnaire................................................ 117
Responses to written questions............................... 386
Additional materials......................................... 566
Nachmanoff, Michael S............................................ 16
Questionnaire................................................ 172
Responses to written questions............................... 442
Additional materials......................................... 597
Nagala, Sarala Vidya............................................. 17
Questionnaire................................................ 243
Responses to written questions............................... 476
Additional materials......................................... 604
Williams, Omar Antonio........................................... 18
Questionnaire................................................ 279
Responses to written questions............................... 510
Additional materials......................................... 626
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
----------
WEDNESDAY, JULY 28, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard
Blumenthal presiding.
Present: Senators Blumenthal [presiding], Durbin,
Whitehouse, Klobuchar, Coons, Hirono, Booker, Ossoff, Grassley,
Hawley, Cotton, Kennedy, Tillis, and Blackburn.
Also present: Senators Warner, Kaine, and Murphy.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Chair Blumenthal [presiding]. The Judiciary Committee will
come to order.
I welcome my colleagues. I welcome the nominees and their
families and friends. I'm Richard Blumenthal acting as the
Chairman in the stead of Senator Durbin, who is the Chairman,
and I'm joined by Senator Grassley of Iowa, the Ranking Member.
Today we're going to hear from five judicial nominees and
one nominee to the Department of Justice. Toby Heytens has been
nominated to fourth circuit. Two nominees to the Eastern
District of Virginia, Patricia Giles and Judge Michael
Nachmanoff. Two nominees to the District of Connecticut,
particularly proud of them, Sarala Nagala and Judge Omar
Williams. And finally, Hampton Dellinger, who's been nominated
to serve as Assistant Attorney General for the Justice
Department's Office of Legal Policy.
I'm going to introduce the Connecticut nominees. We'll be
joined shortly by two more of our colleagues, Senator Murphy
and Senator Coons, who right now are in a Foreign Relations
Committee mark-up. But before I introduce Ms. Nagala and Judge
Williams, I have a few broad observations about the judicial
nominees before us today.
These nominees are superlative. They are spectacularly
qualified, and they represent a continued effort by the Biden
administration and Senate Democrats to elevate individuals with
impeccable credentials and experience, deep experience in the
courtroom and in our judicial system, to our Federal judiciary.
This slate of nominees also offers professional balance. We're
going to hear from sitting judges, former public defenders, the
Federal prosecutor, and a legal academic and appellate expert.
As someone who has spent his life, my life, in the
courtroom basically as a litigator, I'm particularly proud of
these nominees and really all the nominees we've seen so far
from President Biden. And they offer a varied perspective that
are too often missing from the bench. Our Federal courts and
courts of appeals are well served when they reflect the full
spectrum of professional legal experience as well as
individuals who look like America and represent the values of
diversity and inclusion that we all prize. And just as
important, these nominees have been selected because they have
the hallmarks of what makes a really good judge. Independence,
fidelity to the rule of law, and respect for every individual,
every individual who comes into their courtroom. Under the
Trump administration we encountered nominees who were selected
specifically because of outcome driven approaches to
jurisprudence, and I am very gratified and relieved that the
Biden administration's choosing nominees because of their
qualifications and open-mindedness.
Two of the nominees before us today exemplify these
qualifications and qualities. Ms. Nagala received her B.A. from
Stanford University and her J.D. from the University of
California, Berkeley School of Law. After law school she
clerked for Judge Susan Graber on the ninth circuit and worked
for a well-known preeminent law firm, Munger, Tolles & Olson in
San Francisco for 3 years. For nearly a decade, Ms. Nagala
proudly served United States Attorney's Office for the District
of Connecticut, the office that I headed for 4\1/2\ years. She
served as an assistant United States attorney, and she worked
particularly in the office's human trafficking and hate crimes
section. She was the coordinator for that work. In this role
she was instrumental in the prosecution of Baitul Aman Mosque
shooter. Her years of experience as a Federal prosecutor will
be invaluable for the District of Connecticut as a judge.
I'd also like to add that Ms. Nagala, if confirmed, will be
the first person of Asian and South Asian descent to serve as
an Article III judge in the District of Connecticut, and I am
thrilled, just to repeat, can't repeat too many times, that
President Biden continues to nominate individuals who will
bring personal and professional diversity to the Federal bench.
And I might just add also Ms. Nagala has strong support
from the legal community in Connecticut and from around the
country. Former Federal prosecutors and criminal defense
attorneys have written to us that Ms. Nagala is a, quote,
``Fair and open-minded advocate who has effectively reached
just results as a prosecutor,'' and I can tell you as a former
United States attorney, there's no higher praise than to have
your adversaries, adversaries only in a courtroom, public
defenders say that you reach just results. Anti-trafficking
advocates in Connecticut wrote to this Committee that Ms.
Nagala is a, quote, ``professional diplomatic and respectful'',
end quote, advocate but also, quote, ``responsive and
collaborative,'' end quote, and that if confirmed she will be
ethical, fair, and just, and will work to ensure the rights of
all parties who come before her. The South Asian Bar
Association of North America noted that Ms. Nagala's
appointment will be profoundly meaningful, and I'm quoting
``profoundly meaningful,'' to the growing South Asian legal
community across North America and that her, quote,
``unwavering commitment to vulnerable populations ensure that
she will serve with fairness, compassion, and humility,'' end
quote. More than 40 of Ms. Nagala's former law firm colleagues
also wrote to this Committee to note that, quote, ``she adheres
to the highest ethical standards and is committed to follow the
law,'' end quote, and she will make a positive and long-
standing contribution to the judiciary and the legal system.
I'm pleased that her nomination has come before this Committee.
I also want to introduce Judge Omar Williams, who received
his B.A. in 1998 and his J.D. in 2002, both from the University
of Connecticut. He has served as a judge on the Hartford
Superior Court since 2016, but he first joined the bench in New
London in 2014, so he has very, very substantial experience on
the bench in State court already. But in the years between
graduating from law school and becoming a judge, Omar Williams
had an 11-year career as an assistant public defender in
Connecticut, where he built a reputation as an accomplished and
expert litigator and advocate. I know his experience as a
public defender will undoubtedly provide an under-represented
and much-needed perspective to the Federal judiciary, and
without any aspersions on prosecutors, they are more likely to
be represented on the Federal bench than public defenders, so
his nomination is particularly significant at this moment in
our history. Judge Williams also serves on Connecticut's
Sentence Review Division and Wire Tap Panel, a position to
which he was nominated by the chief justice of the Connecticut
Supreme Court. The chief justice also selected Judge Williams
to serve on a New England Region Opioid Initiative, given his
deep understanding of the challenges that the opioid epidemic
imposes on the judicial system.
Since taking the bench, Judge Williams has consistently,
and I mean consistently and constantly shown a level-handed,
balanced approach to deciding cases, fairly treating both
prosecutors and defense attorneys in cases before him. And you
don't need to take my word for it. Nineteen Connecticut
assistant State's attorneys or State prosecutors who have
worked with or appeared before Judge Williams wrote to this
Committee in unanimous and strong support for his nomination to
the District of Connecticut. They went on to say, quote, ``He
is clear, cogent, and decisive. His findings were thoughtful
and well received. His decisions reflect his own evaluations
and not those of the prosecution or defense. He is a highly
gifted jurist,'' end quote. I agree, and I know Judge Williams
measured and insightful, incisive approach combined with his
judicial experience will make him highly qualified to serve on
the District of Connecticut.
So, in conclusion, I urge all my Colleagues to support Ms.
Nagala and Judge Williams, and I look forward to their swift
confirmation. With that I will turn to the Ranking Member
Senator Grassley for his opening remark.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. I'm sure I'm going to shock my Democratic
colleagues when I speak very positively about each of these
nominees because often that's not the case.
I'm going to start with General Heytens. I think the word
mainstream is thrown around too often to describe judicial
nominees who clearly hold activist judicial philosophies. It's
a word that people use to cover up extremism. This is an
unusual hearing in that General Heytens I think I see as a
mainstream nominee. The best I can tell, he's exactly the kind
of circuit judge I'd expect to be nominated by a Democrat
president. He'd have been right at home under Obama or Clinton.
In fact, in many ways, General Heytens reminds me of a Trump
nominee. He graduated from a good law school, clerked on the
Supreme Court, has diverse experience ranging from private
practice to academia to public service. And as Virginia's
solicitor general, he's advocated zealously on behalf of his
clients, the Commonwealth of Virginia, to defend the laws that
the people of Virginia have enacted.
I'm sure I won't agree with every opinion of this nominee
as he writes--if he is confirmed as a judge. I bet I don't
agree with his politics, but I believe he could serve as a
moderating force on the fourth circuit which is an activist
court that's well outside the mainstream of Federal appeals
courts. With a Democrat president, in a State with two Democrat
colleagues who are here, I'm not sure that we could hope for
anything better than a smart experienced liberal with
misfortune of extensive experience before the increasingly
erratic fourth circuit.
Ms. Giles and Judge Nachmanoff also seem like well
qualified picks for their seats. Ms. Giles is a prosecutor of
considerable renown, while Judge Nachmanoff was previously the
Federal defender in his court. He has a judicial record that we
can evaluate as a magistrate judge. This will help us see if
he's a Bill of Rights judge like the dozens of public defenders
who recently came out in support of the Second Amendment before
the Supreme Court or a criminal defense judge like this
administration other picks.
The same can be said for Connecticut, where Judge Williams
is also a former public defender with a judicial record, and
Ms. Nagala is a well-known prosecutor. Ms. Nagala has argued
against some basic constitutional rights under the Second
Amendment, so I'll probably want to ask her about that.
Last, Mr. Dellinger, who's been nominated to run the Office
of Legal Counsel. We had a good conversation and--over the
phone, and I'm eager to learn more about his views of the
Justice Department.
Chair Blumenthal. Thanks, Senator Grassley. We're fortunate
to be joined by the real Chairman of the Committee, Senator
Durbin. Thank you for joining us, Senator. If you have any
opening remarks, we'll be glad to hear from you.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Very briefly, I'm glad to be here in what is
largely a Connecticut/Virginia day. And I'm not going to allow
the largely positive statements by Senator from Iowa deter me
from my support of these nominees. I think a good indication of
their quality, as are most of the--if not all of the nominees
from the Biden administration, and with your colleague waiting
for his turn and two former Governors of the Commonwealth of
Virginia, I'm going to close my remarks.
Chair Blumenthal. Thanks, Senator Durbin.
We are joined by two of our most esteemed colleagues and my
great friend and wonderful colleague from Connecticut, who has
worked with me in recommending nominees to the bench. I'm going
to call on them now, and just for everybody attending, we are
very, very grateful that they are joining us. It's a very, very
busy morning in the Senate, and each of them has taken time
from other obligations to be here, and we thank you very much.
I'll first call on Senator Warner, who will introduce three
of our nominees: Mr. Heytens, Ms. Giles, and Judge Nachmanoff.
STATEMENT OF HON. MARK R. WARNER,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Well, thank you. I was actually going to
call you Chair Blumenthal, but so much for that. But Senator
Blumenthal, thank you. Chair Durbin, Members of the Committee,
Ranking Member Grassley. I will say that to my friends who are
coming before the Committee, it is--those were great words of
praise from Ranking Member Grassley, so I appreciate his
comments.
Today it is my distinct honor to introduce three fellow
Virginians, and they are all outstanding public servants: Mr.
Toby Heytens, nominated to serve on U.S. Court of Appeals for
the Fourth Circuit; Ms. Patricia Tolliver Giles, nominated to
serve as a U.S. District Court Judge for the Eastern District
of Virginia; and Judge Michael Nachmanoff, also nominated to
serve as a U.S. District Court Judge for the Eastern District.
All three of these nominees, I think, have exemplary
credentials. They have all demonstrated a commitment to public
service and have a strong and broad-base support from the legal
community.
Toby is joined today by his spouse, Sarah, his sister, and
his parents, Bill and Sally, and his sister Heidi. Toby
currently serves, as Senator Grassley indicated, as solicitor
general for the Commonwealth of Virginia. He earned his
bachelor's degree from Macalester College and went on to
receive his J.D. from the University of Virginia School of Law.
Toby began his legal career serving as a clerk for Chief Judge
Edward Becker in the U.S. Court of Appeals for the Third
Circuit. He then clerked for the late Justice Ruth Bader
Ginsburg. Toby is dedicated to developing skills in young
lawyers through both his extensive teaching and mentoring at
UVA and has demonstrated an abiding commitment to diversity.
Next, I'm pleased to introduce Patricia Tolliver Giles,
nominated by President Biden to serve as U.S. District Court
Judge for the judge--for the Eastern District of Virginia. I'd
like to welcome Patricia's son, Pierce, her mother, Ollie,
siblings Felicia, Johnny, and Jonathan, and her niece Lauren,
who are both here and in the second row. Patricia is a native
of the Commonwealth and a two-time graduate of UVA. Patricia
began her legal career as a clerk for Hon. Gerald Bruce Lee,
both on the Nineteenth Judicial Circuit of Virginia and in the
U.S. District Court for the EDVA. Patricia has served almost
two decades in the Alexandria office of the U.S. Attorney for
the Eastern District of Virginia and is currently the managing
AUSA for the Alexandria office. She has also been active in
Kamp Kappa Street Law program, a week-long camp for at risk
boys ages 10 to 16. It features a street law program designed
to introduce the boys to a judge--to law through a mock trial.
Finally, I'm pleased to introduce Judge Michael Nachmanoff,
who currently serves as a magistrate judge in the Eastern
District. The judge is joined by his wife, Kiki, and two of his
three daughters, Anna and Charlotte, and I understand his
eldest daughter, Clara, is actually in California but has
promised to get up and at least be watching this online. So I
know she hopefully is tuning in.
The judge earned his bachelor's degree from Wesleyan
University and attended law school at the University of
Virginia. He clerked for Hon. Leonie Brinkema in the Eastern
District of Virginia. For 13 years, Judge Nachmanoff served as
a Federal Public Defender for the Eastern District. Since his
appointment to the bench in 2015, the judge has heard a wide
range of cases on civil litigation matters and criminal
matters, all while presiding over the Alexandria Reentry and
Recovery Program, a weekly drug court program that provides
treatment support for defendants suffering from chronic
substance abuse.
I will echo what, Senator Blumenthal, you have said, the
distinguished Ranking Member said, these are three nominees
that Senator Kaine and I wholeheartedly endorse. We think they
bring the right experience, the right life experiences, and
clearly broad-based support from the legal community, and I
urge the Committee's rapid consideration of all three. Thank
you.
Chair Blumenthal. Thanks, Senator Warner. We'll now turn to
Senator Kaine, also Virginia, for his remarks.
STATEMENT OF HON. TIM KAINE,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Kaine. Thank you to the Committee for having the
hearing and pulling these great Virginian nominees together.
It's great to be together with my colleague, Senator Warner. He
and I were in law school together, and he always famously says,
``Tim became a lawyer, and I became a client.''
And I'm here to recommend heartily these three individuals
because I practiced law heavily before these courts in the 17
years that I was in private practice. And they are excellent
matches for these very unique courts. Since Mark has done such
a good job in describing the qualities of these nominees, let
me just tell you a bit about the two courts, Eastern District
of Virginia and fourth circuit, and why they fit so well.
The Eastern District of Virginia's an unusual court. Some
of you know this because of your service on this Committee.
It's called the rocket docket in the Eastern District of
Virginia. It has traditionally now, for decades, have one of
the fastest dockets of any court, from the filing of the case
to the end of a case. And it is a tough thing to do for the
judges and for the lawyers, but the reason the EDVA has stuck
with the rocket docket is it's the right thing to do for the
parties who appear before the court. The court has had an
understanding that it's a painful thing to be a party in a
criminal or civil matter, and one thing we ought to do is try
to deliver you a decision in a reasonable period of time. EDVA
also is unusual because it has a very high percentage of
national security related cases because of the presence of both
the Pentagon and the CIA and other agencies in the geographic
jurisdiction. So these two district court nominees, Patricia
Giles, who's been kind of a pillar of the U.S. Attorney's
Office in the EDVA, and Judge Michael Nachmanoff, first as a
public defender and as a magistrate judge, they understand the
importance of this court, the unique traditions of it. They're
well regarded by the judges and litigants who practice before
the EDVA, and their backgrounds speak for themselves, as
Senator Warner indicated.
The fourth circuit is also unusual. I practiced before the
fourth circuit, and they have a tradition that I don't know
that any other circuit follows, and that is at the end of every
argument, the fourth circuit judges come down off the bench and
they file in front of the counsel table to shake the hands of
every attorney that argues before it. And that's a tradition
that also goes back a very long while, and it's an effort by
the fourth circuit, whatever the composition, whoever nominated
the judges, to be a place of civility.
Toby Heytens has a tremendous track record as an appellate
advocate and an academic, but I think anyone who meets with
Toby or sees him do his work will understand that he really
exemplifies a standard of civility which we should all aspire
to but certainly we need in our judicial nominees.
And so I recommend all three without hesitation. I'm
pleased to be here with my senior Senator to say these are some
great Virginians and they'll be superb additions to the Federal
judiciary.
Chair Blumenthal. Thanks, Senator Kaine. I now turn to my
colleague from Connecticut, Senator Murphy.
STATEMENT OF HON. CHRISTOPHER MURPHY,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Murphy. Thank you very much, Mr. Chairman, to the
Ranking Member, to Chairman Durbin. Thank you for allowing the
three of us to appear before you. Senator Blumenthal did a very
adequate job of explaining the merits of both of the candidates
who are before this Committee today, and so I will just offer
brief additional remarks.
These are two nominees that have had very difficult jobs in
their respective roles in the State's criminal justice system.
Judge Williams is relatively new to the superior court. He was
nominated by our Governor in 2014, but in one of his
recommendations, a colleague described his meteoric rise
because only 2 years after his appointment to the State bench
he was named the presiding judge over the criminal docket in
Hartford. And while I don't know the Connecticut court system
as well as Senator Kaine knows Virginia's Federal court system,
what I do know is that that's one of the busiest dockets in the
entire State. He has handled it admirably, thus he is
recommended today both by those who appear on the prosecutor's
side and the defense side. But in his application, he talks a
lot about the professional diversity that he believes, that
Judge Williams believes, makes him a better judge. We have
highlighted the fact that he spent time as a public defender
before coming to the bench, but he notes in his application
that he also spent time as a service technician for a telephone
company, a house painter, a waiter, and a TV rental agent, and
all of those experiences, in his mind and in our mind, made him
and make him a better judge.
Sarala Nagala is impressive in her own right. A very
difficult job as the deputy chief of the major crimes unit. She
has this very specific focus on hate crimes and crimes relating
to human trafficking and child exploitation. Difficult job to
get up and do and then come home at night with. But what I
really think is important about her application is that she, in
her role as a prosecutor, has understood that in order to make
the criminal justice system more effective, she had an
obligation to extend herself beyond the prosecutor's office.
And so she led this incredibly innovative partnership whereby
she trained, with a team, 1,200 police officers in Connecticut
on cultural competency. She went on and worked with the Anti-
Defamation League to train Connecticut educators on anti-Muslim
and anti-Sikh bias and bullying. She obviously has risen very
quickly as a young prosecutor to the deputy chief of the major
crimes unit.
Just like Judge Williams, she has had a meteoric rise, but
she has also found time to understand the importance of living
in her community and building out a support system for
prosecutors in police departments and in our educational
system. So I'm just thrilled to be able to associate myself
with these two nominees as well as the Virginia nominees.
Thank you for allowing us to say a few words today. Thank
you, Mr. Chairman.
Chair Blumenthal. Thanks, Senator Murphy. I'd like to turn
to Senator Coons to introduce Mr. Dellinger.
STATEMENT OF HON. CHRISTOPHER COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Senator Blumenthal. It's my
pleasure to introduce President Biden's nominee to be the
Assistant Attorney General of the United States for the Office
of Legal Policy, the Department of Justice.
Mr. Hampton Dellinger's been a friend since we got to know
each other in law school, and I think he will serve our Nation
excellently in this position. As a Committee we are responsible
for crafting policy, empowering the Department of Justice to
enforce the law, to ensure public safety and a secure equal
justice for all Americans. We also work to protect and maintain
our judicial branch. Inside the Department of Justice, the
Office of Legal Policy covers similar ground. The Office of
Legal Policy develops and implements the department's strategic
policy initiatives, coordinates between different elements of
the Department and other Federal agencies, and advises the
Attorney General on policy matters and candidates for judicial
nominations.
Hampton--Mr. Dellinger, forgive me, is an outstanding
choice to lead the Office of Legal Policy in its mission. He
has sterling qualifications, broad experience in legal practice
in government, and is a fiercely dedicated advocate for equal
justice and civil rights.
Mr. Dellinger's roots are in North Carolina. He grew up
there, and after graduating college from the University of
Michigan and attending the Yale Law School, Mr. Dellinger
clerked for Judge J. Dickson Phillips Jr. on the fourth
circuit, although he did briefly sojourn in a large Washington
DC, firm, Hampton decided to build his legal career in his home
State of North Carolina. He returned there and dove into public
service. He worked for the North Carolina Attorney General's
Office as special counsel, ultimately rising to deputy attorney
general. He later became chief legal counsel for the North
Carolina government. There Mr. Dellinger oversaw judicial
nominations and helped identify talented diverse candidates for
the bench and helped markedly increase the number of women
trial judges in the State. Made gains in the number of Black
judges on the State bench and appointed--help support the
appointment of the first Hispanic judge of the State's history,
then Judge Albert Diaz, later appointed to the fourth circuit
by former President Obama.
After his work in State government, Mr. Dellinger moved to
private practice, and for the last 18 years, he's advised
clients on complex issues and litigating cases in State and
Federal court. After nearly two decades as a partner with
distinguished law firms, Mr. Dellinger recently opened his own
law practice, and he has had, in my view, a broad and balanced
private practice career and made a significant dedication of
his time to pro bono representations.
Hampton has a professional reputation as an inclusive
bridge-builder. I know him to be a humble and generous person
with a great heart, a loving father to his two children,
husband to his wife Jolynn, and a good friend.
In his public service and as a practicing attorney, Hampton
Dellinger has a demonstrated track record of advocating for
social justice and racial and gender equality, and the
Committee has received many letters in support of his
nomination from business owners, faith leaders, current and
former Federal and State law enforcement officials, the Eastern
Band of Cherokee Indians and attorneys supporting Tribal
sovereignty, and others, including the North Carolina State
conference for the NAACP.
I urge my colleagues to support his nomination and his
swift confirmation. Thank you, Mr. Chairman. I appreciate the
opportunity to offer this introduction.
Chair Blumenthal. Thanks, Senator Coons. Our custom is to
begin with the appellate court nominee, and that is Mr. Heytens
and then we'll have the second panel with the district court
nominees and Mr. Dellinger, so if Mr. Heytens would please come
forward.
And our custom is also to swear in all the witnesses. So
let me administer the oath to you.
[Witnesses are sworn in.]
You may proceed with any opening remarks that you may have,
Mr. Heytens.
STATEMENT OF TOBY HEYTENS, NOMINEE
TO SERVE AS UNITED STATES CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT
Mr. Heytens. Good morning and thank you. I'd like to begin
by thanking Chairman Durbin and Ranking Member Grassley for
scheduling this hearing, to Senator Blumenthal for chairing it,
and to the President for nominating me. I'd also like to
particularly thank my home State's Senators, Senators Warner
and Kaine, first for recommending me to the President and for
their warm introductions this morning.
I'd like to take a chance to introduce the members of my
family who are here with me today and to acknowledge just a few
people who could not be. My parents, Bill and Sally, and my
sister, Heidi, all traveled here from their and my hometown of
Superior, Wisconsin, and I'm very grateful to them for that.
My brother, Troy, and his family I know are watching from
their home in Metairie, Louisiana, and I'm looking forward to
seeing them in just a few days in our mutual hometown of
Superior, Wisconsin. Last, but not least, I need to thank my
spouse, Sarah Sawtelle, for more things than I could possibly
go into in the short time I have this morning.
I'd like to close by acknowledging two extraordinary people
who I very much wish could have been here today, the late
Edward R. Becker and the late Justice Ruth Bader Ginsburg. They
were the first two Federal judges that I ever knew personally,
and they were two of the finest human beings that I have ever
met.
I am honored and humbled by this nomination, and I look
forward very much to answering your questions. Thank you.
Chair Blumenthal. Thanks very much. We'll now have a round
of 5-minute questions, and I'll begin.
Let me start where you just finished with the two judges,
particularly Judge Ruth Bader Ginsburg. You have an
extraordinary background, very, very impressive, not only
clerking but obviously as a distinguished academic and
accomplished litigator, having argued 10 cases before the U.S.
Supreme Court and having served most recently as Virginia's
solicitor general.
What lessons do you take from your knowledge, your personal
knowledge and your experience with Federal judges, the ones
you've known and the ones before whom you have litigated?
Mr. Heytens. Thank you for that question, Senator
Blumenthal. I have learned an extraordinary amount pretty much
from every Federal judge that I've had the extraordinary
fortune to have ever gotten to know. And I actually think that
the biggest things I would take away from the two judges for
whom I clerked, who were appointed by Presidents of different
political parties, but I think the things that I learned, the
biggest things I learned from the two where the same.
You know, the first is to take, and the importance of
taking, every case at a time and very seriously. You know, when
I clerked for them, Judge Becker had been a judge longer than I
had been alive and Justice Ginsburg was getting very close to
having been a judge for longer than I had been alive, and they
both worked extraordinarily hard on every single case, because
I think they recognized that for the parties, that case is
their one case perhaps before the courts and it is vitally
important that judges treat every case and every litigant with
respect.
I think another thing I learned from both of them is the
importance of separating people and ideas or separating legal
disagreements with personal dislike, I guess I'd say. Much has
rightly been made of Justice Ginsburg's decade-long close
personal friendship with her great friend, the late Antonin
Scalia. And Judge Becker as far as I can tell knew every single
person in the city of Philadelphia which was a city that he had
grown up in and spent his entire career both before and after
becoming a judge.
And so I think judges have a very important job and a very
important role, but they're people, and it's vitally important
to remember that and to treat everyone you encounter with
civility and respect.
Chair Blumenthal. One other question. As frequency happens
here, many of our nominees have past associations, they've
belonged to various groups over the course of their careers,
and I think another one of the lessons from both of those
judges' careers is that they put aside their personal views,
their political perspectives. Would you anticipate doing the
same?
Mr. Heytens. Absolutely, Senator Blumenthal. As you
mentioned and some others have mentioned, the very first job I
had out of law school was as a law clerk to a Federal judge.
And the second job I had was while working at the Department of
Justice, so my very first two jobs out of law school were one
as an assistant to a person whose job was to apply the law, and
the other was as an advocate on behalf of people who were
advocating on behalf of their client. That was the Federal
Government.
The role of advocate and the role of judge are incredibly
important, but they are different roles. In fact, our system
depends on the notion they are different roles. The job of an
advocate is to make the best case he or she can on behalf of
their client, and the job of a judge is to listen to the
arguments, analyze the record and apply the law to reach a
correct outcome, and I'm absolutely committed to doing that if
I were fortunate enough to be confirmed.
Chair Blumenthal. Thank you very much. I'll turn to the
Ranking Member.
Senator Grassley. Congratulations on your nomination.
Before I get to questions, I wanted to talk about Justice
Thomas writing a touching tribute to his former colleague and
your former boss, Justice Ginsburg. This is what Judge Thomas
said, ``Justice Ginsburg and I often disagreed but at no time
during our long tenure together were we disagreeable with each
other. She placed a tremendous premium on civility and respect.
This approach did not lessen her strong convictions but rather
facilitated a respectful environment in which disputes
furthered our common enterprise of judging. Whether in
agreement or disagreement, exchanges with her invariably
sharpened our final work product.''
I notice that, like Justice Ginsburg, you seem to have a
capacity to work with, debate, and learn from people you
probably disagree with. You wrote letters supporting the
nominations of Judge Thapar and Judge Stras, both of whom were
President Trump's Supreme Court shortlist.
In your legal publications, you have thanked conservatives
like Paul Clement, Judge Neomi Rao, for helping with your
scholarship. You've spoken at the Federalist Society event. Has
working with people that you may disagree with sharpened your
legal arguments? Has it made you a better lawyer?
Mr. Heytens. Absolutely, Senator Grassley.
Senator Grassley. It seems to me that you probably worked
with many originalists in your years as a lawyer. Do you know
any originalists who might want to overturn Brown v. Board of
Education?
Mr. Heytens. Senator Grassley, I certainly suspect that I
have worked with people who would identify themselves as
originalists. I don't feel it's my place to say whether someone
else would identify themselves a particular way or not. I guess
I would say I've met very few people in my life who have
expressed interest in overturning Brown v. Board of Education.
Senator Grassley. Thank you for that answer. My last set of
questions.
You spent the last 3 years or so as solicitor general. In
that role you've argued a number of views that I'm sure myself
and many of my colleagues might disagree with. I'm sure you're
aware that many of President Trump's judicial nominees had also
served as State solicitor general, like Kyle Duncan, Britt
Grant, Andrew Brasher, and Eric Murphy, just to name a few. Is
it fair to say that you have many arguments you may or may not
agree personally with that you've had to make before the
courts?
Mr. Heytens. Thank you for that question, Senator Grassley.
I have spent a long time litigating both on behalf of the
Federal Government, on behalf of the State government, and in
private practice. I take my obligations, my ethical obligations
as a lawyer very seriously, so I don't think I'm permitted to
identify any cases where I did or did not personally agree with
an argument that my client was making.
I think I can say without violating my obligations that
there may have been cases that did or did not better or worse
align with my own personal views, but that's because that's not
the role of an advocate. The role of an advocate is to
represent their client and make arguments on behalf of their
client.
Senator Grassley. I think you just answered my next
question but I'm going to ask it anyway. Aren't you duty bound
to zealously advocate on behalf of Virginia's interest as
solicitor general?
Mr. Heytens. Absolutely, Senator Grassley.
Senator Grassley. Can you describe the differences in roles
between being a judge and being a State solicitor general?
That's my last question.
Mr. Heytens. Of course, Senator Grassley. I think the roles
are complimentary in the sense that both the role of advocate
and the role of judge are necessary to make our system work the
way it is supposed to. But they are different, fundamentally
different roles. The role of an advocate, whether for the State
government, whether for the Federal Government or a private
party, is to advocate on behalf of their client. The role of a
judge is to apply the law and reach the correct outcome in a
particular case.
Senator Grassley. Thank you.
Mr. Heytens. Thank you.
Chair Blumenthal. Thanks, Senator Grassley. Senator Durbin.
Chair Durbin. Thank you very much, Chairman Blumenthal.
Thank you for being here Mr. Heytens. I appreciate it.
I noticed here when we asked you, of all the cases that
you've been involved in, to pick your 10 that were the most
significant litigated matters in which you personally were
involved, on the list of 10 were 2 or 3 pretty hot political
topics. The removal of the Robert E. Lee statue in Richmond,
the D.C. Sniper case. COVID-19 case involving Gold's Gym
franchises, and a couple which were more obscure, like uranium
mining in Virginia which I don't know much about. I'm really
trying to put this into perspective of your experience in that
role of advocating in those cases and the controversy that
might have been associated with them and the impact it had on
your experience, your judgment, even your personal relationship
with people in the community.
Mr. Heytens. Thank you for that question, Mr. Chairman. As
you mentioned, I have been involved--I'm sorry. I realized my
mic was off. As you mentioned I have been involved in several
very high-profile matters, particularly in the last few years
in my role as an advocate for the Commonwealth of Virginia. You
know, those cases all raised interesting and difficult
challenges. The Malvo v. Mathena case you mentioned, obviously
it was something that had been going on for a very long time
before I started representing the Commonwealth of Virginia in
that case. I became involved only at the U.S. Supreme Court
phase, after, actually it turns out, a decision of the United
States Court of Appeals for the Fourth Circuit in that case.
The Lee monument litigation was very different. I was
involved in that case basically from the moment that it was
filed. I remember getting the phone call about the litigation
having been filed, and the reason that case, I think, is so
significant is it's one of, if not the only case I've ever been
involved in literally from beginning to end, from the moment--
from the moment there was a request for a temporary injunction
through the trial on the merits, through post-trial proceedings
and all the way to the State Supreme Court.
And then some of the other cases you mentioned. I mean, it
has been an extraordinary----
Chair Durbin. So let me dwell on the Lee monument case for
a moment because the point I'm trying to get to is what kind of
outside influence/pressure did you feel in the responsibility
that you had for Commonwealth?
Mr. Heytens. Pressure, I would guess I would say, in the
sense of one of the things that's so significant about
government service is the knowledge that you're never just
representing an individual in the way that you sometimes are in
private practice. You are representing the Commonwealth as a
whole. You're representing the Governor. You're representing
the elected officials, the General Assembly of Virginia. I
think that's one of the things that makes public service so
thrilling, but it also can make it a little scary sometimes as
you realize this is a big responsibility.
I wouldn't say pressure--and so I'd say pressure in a sense
of a felt obligation you really need to do very well. This is
an important case. A lot of people are paying attention to it.
But at the end of the day, litigation is litigation, and you do
the absolute best you can and hope for the best result you can
for your client.
Chair Durbin. And your relationship with opposing counsel
after?
Mr. Heytens. I would say very positive, Senator. One of the
great thrills of my life, I remember one of the cases that I
did that's mentioned on my form was actually an oral argument
against my old boss, Paul Clement, who was representing the
other side, and this is in the Bethune-Hill litigation. And,
you know, I think he was obviously someone I had known before
and since then, but I've also gotten to know opposing counsel
in a number of these cases, and I have worked as hard as I can
to treat my opposing counsel with respect, to separate the
personal and the legal, and I believe I've had a very positive
relationship with my opposing counsel in all my cases.
Chair Durbin. Thanks for your answers. Thank you, Mr.
Chairman.
Mr. Heytens. Thank you.
Chair Blumenthal. Thanks, Senator Durbin. Senator Kennedy.
Senator Kennedy. Professor, you're on leave from the
faculty at Virginia Law, are you not?
Mr. Heytens. I am, Senator.
Senator Kennedy. One of your colleagues, Professor Paul
Stephan, tells me you are a rock star.
Mr. Heytens. That is very kind of him to say that, Senator.
Professor Stephan is a wonderful person.
Senator Kennedy. Yes. I went to law school with him. He may
be the smartest guy I've ever met. He deserves to be on the
Federal bench, frankly.
I've been listening to you carefully. You don't sound to me
like you're much of politician. I like that. I'm going to ask
you a couple of questions. I want to stipulate up front,
Professor, you're going to follow precedent, and I know you've
been coached. I'm not blaming the Biden White House. The Trump
White House did it too, you know, coach all of our nominees to
just say, ``We're going to follow precedent.'' I think you'll
follow precedent anyway, but I'm not going to ask you to tell
me how you decide a case. That would be unethical. Might be
legal, but it would be unethical.
But I do want to know how you think. Let's take a new
right. Let's--I'm not going to try to talk to you about the
relationship between a fundamental right and a suspect
classification because you'll beat me on that one, but we both
know that they both used to create new rights. Let's take
wealth, wealth as a suspect classification. Do you think
heightening the scrutiny of wealth as a social economic policy,
socio-economic policy, is a decision for the voters through
their legislative body or the courts?
Mr. Heytens. Senator Kennedy, I believe the Supreme Court
has already confronted the question of whether wealth is a
suspect class----
Senator Kennedy. I know.
Mr. Heytens [continuing]. And that they concluded----
Senator Kennedy. Rodriguez, but they could--once again, I'm
not talking about--I know they said no, but I'm just asking--
asking you to put your law professor hat on.
Mr. Heytens. Well, like I said, Senator Kennedy, I think
that the Supreme Court in deciding Rodriguez has essentially
said that it is a matter for the legislature not a matter for
the courts, and if I were confirmed as a lower court judge I
would follow that guidance from the Supreme Court.
Senator Kennedy. Okay. We know, you've probably taught it,
we know that the right to use contraceptives is a penumbra of
the--let's see, you correct me if I'm wrong--First, Third,
Fourth, Fifth Amendments to the Constitution. Now you don't
find the words ``right to use contraceptives'' in the
Constitution, and I personally think people ought to have the
right to use contraceptives, by the way, but we know that that
right was found as a penumbra of those amendments in Griswold
v. Connecticut. But we can't see it in the Constitution. Is
that a pretty fair statement?
Mr. Heytens. Senator Kennedy, I would agree that the word
contraception is not in the Constitution, and like you, my
understanding is that the Supreme Court decision that
recognizes that right is Griswold v. Connecticut, yes.
Senator Kennedy. Okay. Are there other penumbras that we
can't see?
Mr. Heytens. Senator Kennedy, I'm not aware of any Supreme
Court decision other than Griswold that used the specific word
penumbra. I think----
Senator Kennedy. Do you think there are other penumbras out
there, lurking out there that we can't see?
Mr. Heytens. Senator Kennedy, I'm not sure that I think
there are other penumbras out there that we can't see because,
as I think I've said, I think the only time the Supreme Court
has ever used that specific word is in Griswold v. Connecticut.
The Supreme Court has, for at least 130 years, concluded that
the Constitution protects certain rights, such as the right to
marriage, the right to travel, the right to raise children,
that are not expressly set out in the text of the Constitution.
Senator Kennedy. Professor, I don't really care about your
politics. I care about your intellect which is, I think, pretty
well established. And I care about your analytical abilities. I
care about your integrity, and I care about your understanding
of the role of the judiciary. And some of the nominees that
have appeared before us, I believe, see it as their--see their
role as a Federal judge to try to rewrite the Constitution and/
or our statutes every other Thursday to advance a social agenda
that they can't get by the voters through their elected
representatives, and I don't agree with that. I don't get the
impression that you're like that. I'll give you the last word.
Mr. Heytens. Well, thank you for that, Senator Kennedy. I
think the role of a judge is very important, but I think it is
a limited one. I think it is of--I don't--I think it is the
role of the judge has the important role to apply the law to
the facts before him or her in the cases that come before them.
Senator Kennedy. Thank you, Mr. Chairman.
Chair Blumenthal. Thanks, Senator Kennedy. I see no
additional colleagues on our Committee to pose questions to
you, Mr. Heytens, so thank you very much for joining us. We're
honored to have you. And I will now call the next panel, which
are the district court nominees and Mr. Dellinger.
[Witnesses are sworn in.]
Chair Blumenthal. Welcome to the Committee. We will ask you
if you have any remarks, opening remarks, we'll go down the
panel and ask each of you to give them. Ms. Giles?
STATEMENT OF PATRICIA TOLLIVER GILES,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
Ms. Giles. Thank you. I would like to start by thanking
you, Senator Blumenthal, for presiding today. I would also like
to thank Chairman Durbin and Ranking Member Grassley for
setting this hearing, and all the Members of the Judiciary
Committee for considering my nomination. I would also like to
thank President Biden for the honor of this nomination, and
Senator Warner and Kaine for recommending me to the President,
for their trust and confidence that they've placed in me, and
their kind words of introduction for me today.
This is truly the honor of my professional life, and I
thank the Lord for this day, for the grace that He has shown me
over the years, and for how far He has brought me in my life.
I would also like to take this opportunity to introduce and
thank my family who is attending with me today, starting with
my mother, Ollie Tolliver, who is the daughter of a
sharecropper, born and raised in rural Mississippi. And for me,
my mother is the personification of strength, faith, love, and
wisdom, and she has always been and will always be my North
Star.
I'd like to acknowledge my three siblings, Felicia, Johnny
Jr., and Jonathan, and my niece, Lauren, who have supported me
my entire life.
And finally, but certainly not least, my son, Pierce, who
is my inspiration and has done a great job taking care of me
over the years.
I would also like to acknowledge two people who aren't with
me today physically but who I carry with me in my heart each
and every day of my life, and that is my beloved husband, Gene,
who was my best friend, and my father, Johnny Tolliver. And I
know that they are both smiling in heaven today.
I would also like to thank my extended family of nieces,
nephews, in-laws, my aunts, uncles, and cousins, my friends, my
mentors over the years, my church family, my colleague in the
U.S. attorney's office, and members of the Defense Bar and the
entire court family at the Alexandria Division who have
supported me over the years.
And I'd especially like to thank Judge Gerald Bruce Lee for
giving me the honor of being his first Federal law clerk and
for launching my legal career.
And with that, I welcome your questions.
Chair Blumenthal. Thank you very much, Ms. Giles. Mr.
Nachmanoff.
STATEMENT OF MICHAEL S. NACHMANOFF,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
Judge Nachmanoff. Thank you. I'd like to start by thanking
Chairman Durbin and Ranking Member Grassley for scheduling this
hearing today, Senator Blumenthal for chairing the hearing, and
the entire Committee for considering my nomination. I'm very
grateful to Senators Warner and Kaine for recommending me to
the President and for their kind introductions this morning.
I'd like to express my deep gratitude to President Biden for
nominating me.
I would not be here today without the unwavering love and
support of my family. My father's distinguished career in
Government, which includes service in the Navy, Treasury, and
State Departments and on the National Security Council, has
been a model for me as I pursued my own career in public
service. He's watching from home today, and I want to thank him
for his love and all that he has done for our family and this
country.
My mother's no longer with us, but her joyful spirit lives
on in me and all of those who are the beneficiaries of her
boundless energy and love.
My brothers, David and Jeffrey, have always been an
inspiration to me and I'm grateful for their support and that
of my wonderful extended family.
My wife, Kiki, and daughters, Anne and Charlotte, are here
with me today. My oldest daughter, Clara, is watching from
California. I'm enormously proud of my children, and I owe a
debt of gratitude to Kiki that can never be repaid for all the
sacrifices she has made on my behalf.
In addition to my family, I'm fortunate to have had
numerous mentors, and I want to thank two in particular, Hon.
Leonie M. Brinkema, for whom I clerked, and the late Frank
Donner, my law partner and the first Federal defender in this
district. I'm eternally grateful for all they taught me about
integrity and justice.
Thanks to my many colleagues and opposing counsel, all of
whom I consider friends, especially my courthouse family who've
been so supportive of me throughout this process.
Finally I want to acknowledge the extraordinary work of my
chamber staff, Gul Gharbieh and Brittany Hacker. They've both
provided me with invaluable assistance.
It is a tremendous honor to have been nominated, and if
confirmed it will be a privilege to continue my public service
as United States district judge.
Thank you, and I look forward to answering your questions.
Chair Blumenthal. Thanks very much. Ms. Nagala.
STATEMENT OF SARALA VIDYA NAGALA,
NOMINEE TO SERVE AS UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT
Ms. Nagala. Good morning. I'd like to thank Senator Durbin,
and Ranking Member Grassley, and all the Senators on this
Committee for allowing me to appear today.
I'm also deeply appreciative to President Biden for the
great honor of this nomination, and to Senators Blumenthal and
Murphy and their staff members for their support in this
process and for the kind introductions today.
I'm here today with my parents, Drs. Rup and Vani Nagala,
who have been my greatest role models. They have truly lived
the American Dream. They immigrated to the United States from
India and have lived in North Dakota, where my three siblings
and I were born and raised, for more than 40 years. They
dedicated their lives to providing medical care to rural North
Dakotans, and they taught me the importance of public service.
Every opportunity that I have been given in my life was set in
motion by my parents' hard work, sacrifice, and love.
I'm also grateful to my sister, Sonia, who is here today,
and to my brothers, Jay and Vik, who are watching from home.
I'm lucky to be their sister.
I also have with me today my brilliant husband and true
partner, Alexander Rosas, who has been an unending source of
love, support, and friendship since we met on the first day of
law school so many years ago. Alexander is an amazing dad to
our two young boys, Andrew, who is 3, and Annand, who is 2. We
are grateful to my parents-in-law, Alan and Christina Rosas,
for their support and for traveling from Michigan to
Connecticut to watch the boys while we are here today.
I'm also grateful for the support of my siblings-in-law,
Wayne, Susan, Kyle, and Anna.
Finally, I would like to thank my family, friends,
colleagues, and defense counsel watching around the world and
around the country, with special gratitude to my many mentors,
including Judge Susan Graber, for whom I clerked and whose
passion for the law is unbridled, and to my wonderful
colleagues at the United States Attorney's Office in
Connecticut, who serve the United States with honor every
single day.
I look forward to answering your questions. Thank you.
Chair Blumenthal. Thanks so much. Judge Williams.
STATEMENT OF OMAR ANTONIO WILLIAMS,
NOMINEE TO SERVE AS UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT
Judge Williams. Thank you, Senator Blumenthal for chairing
today's meeting and for your incredibly kind remarks. Chairman
Durbin, Ranking Member Grassley, and esteemed Members of this
distinguished Committee. Thank you all for having me here
today.
Thank you to President Biden for this humbling nomination,
and to Senators Blumenthal and Murphy for supporting my
application. I'm here because of them, and because of my
mother, Lupita, who grew up in poverty in rural Texas, worked
the fields, and lost her parents at an early age. My father,
Geraldo, who grew up in Panama, a descendant of those who built
the canal. His father worked for the government when people of
color automatically earned a lower wage. My parents are retired
after successful careers in education and in business, and they
instilled in my amazing sister, Nadia, and in me, a focus on
academics, hard work, faith, and service to others.
My wife, Andrea, was raised similarly. She's a hard-working
managing attorney, an invested mother, wife, and daughter. She
is the rock of our family, showing loving patience in the
pandemic and keeping our spirits up. Throughout this process,
she has excelled at work and managed our household so that I
could work late. Thank you.
Together we're raising children, Harrison and Grace, who
are kind, determined, and resilient. I'm here because of them,
because of my coworkers, and because of my mentors who believed
in me and who encouraged me to apply.
Justice Lubbie Harper and former Chief Justice Chase Rogers
of our State Supreme Court have led me by example and with
candor. If I am fortunate enough to be confirmed, I promise you
that I will adhere to the law as it's written, and that I will
work hard every single day to become worthy of your faith in
me.
I thank you very much, and I look forward to your
questions.
Chair Blumenthal. Thank you. Mr. Dellinger.
STATEMENT OF HAMPTON Y. DELLINGER,
NOMINEE TO SERVE AS ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL POLICY
Mr. Dellinger. Thank you, Senator Blumenthal, Chairman
Durbin, Ranking Member Grassley, and Senators of the Judiciary
Committee, including my home State Senator from North Carolina,
Senator Tillis.
I am honored to appear before you today as President
Biden's nominee to be the Assistant Attorney General for the
Office of Legal Policy.
And thank you, Senator Coons, for your generous
introduction and for being so nice to me when we were young.
I'm thankful to be joined here today by my daughter, Austin
Dellinger, and, Chairman Durbin, I want you to know she's about
to enter her senior year at the University of Chicago. We
expect her to graduate and then be a free agent for a permanent
home, so Illinois is very much in the running.
And I appreciate the love and support of family who cannot
be present, including my son, Jackson, and a quartet of
professors who have taught me so much, and tuition-free.
My amazing wife of almost 27 years, Professor Jolynn
Childers Dellinger. My father, Professor Walter Dellinger,
who's done so much for the law inside and outside of the
classroom. My wonderful, always younger brother, the one with
the Ph.D., Dr. Drew Dellinger.
And finally I'd like to remember my mother, Professor Anne
Maxwell Dellinger, who passed away recently. She was a blessing
to me and always will be my moral compass.
North Carolina is home to so many who have strengthened our
country, and I'm grateful that my life has been touched by
several of them. After law school I clerked for James Dickson
Phillips Jr., who was awarded a Bronze Star and Purple Heart
for his heroism in World War II, before going on to his
distinguished career as Dean of the UNC Law School and a judge
on the U.S. Court of Appeals for the Fourth Circuit.
I was also privileged to know Dr. John Hope Franklin, the
celebrated historian whose groundbreaking book, ``From Slavery
to Freedom: A History of African Americans,'' helped propel the
Civil Rights Movement creating the more just State and Nation I
was blessed to grow up in.
If confirmed, I believe my nearly 30-year career as an
attorney in the public and private sectors has prepared me to
succeed as the head of the Office of Legal Policy.
I will draw upon my experience as North Carolina's deputy
attorney general and as chief legal counsel for the Governor's
office in addition to my long-time work as a litigator.
Litigators are officers of the court with an ethical duty
to know and acknowledge binding law and operative facts.
Recognition of the law's boundaries coupled with the rigorous
empirical approach to the facts are, in my opinion,
prerequisites to developing sound legal policies.
Necessary, too, is an inclusive approach that seeks common
ground and consensus. Beyond serving as a primary policy
advisor to DOJ leadership, OLP coordinates rulemaking for the
Department and assists with the vetting of potential judicial
nominees. I am committed to focusing on the facts and adhering
to the rule of law across the Office's entire portfolio.
I believe the wide range of clients and viewpoints I have
represented, as well as the strong working relationship I have
had with elected, appointed, and nonpartisan career officials,
will serve me well as I undertake to solicit and synthesize the
views of diverse stakeholders.
I am humbled to have been nominated to lead the Office of
Legal Policy, and if confirmed it will be a privilege to join a
department of such dedicated, talented public servants who so
expertly and consistently carry out its mission of ensuring the
fair and impartial administration of justice for all Americans.
I look forward to answering the Committee's questions.
Chair Blumenthal. Thanks very much, Mr. Dellinger. I'm so
glad you mentioned your folks. I'm a big fan and admirer of
them and proud to count myself as a friend of your dad's.
Today has very much a personal feeling for me. It feels
very personal. Your stories are so striking and moving. Your
families really have lived the American Dream, as Ms. Nagala
said about hers. And I think you represent the best of America.
You will be the voice and face of justice on the bench, having
litigated in district courts as well as appellate courts in the
country.
I know, as you do, that very often you will be the end
point for people who seek justice and fairness. A lot of folks
simply can't go to the next level or don't feel that the
strength of their case warrants it. But you will be that face
and voice of justice, and so, in my view, nothing the U.S.
Senate does is more important than our advice and consent on
our future judges.
So, I would like to ask each of you whether you feel that
you can put aside whatever the pressures and other kinds of
intrusions of the day are, and there are many, because each of
you has family that are supportive, and put aside your past
experiences and views, your political perspectives, to focus on
the person or the group in front of you seeking justice.
And I'll begin with you, Ms. Giles.
Ms. Giles. Thank you for that question, Senator. I agree
with you. I think that judges have the largest role in our
judicial system because they have the most impact on the fair
administration of justice, and whether or not parties perceive
whether or not they have received justice. When judges approach
the case, they need to approach them with an open mind,
unbiased, unswayed by any personal opinions and belief. Your
litigants are demanding that. They're expecting that. They are
owed that. And if I am honored to be confirmed, I will do that.
Chair Blumenthal. Mr. Nachmanoff.
Judge Nachmanoff. Thank you, Senator. For the past 6 years
serving as a magistrate judge, I've tried my best to
impartially and fairly give everyone a chance to be heard, to
look at the facts on the record, and to apply the law fairly
and evenly. And although my experience in private practice and
as a Federal defender has helped me and prepared me to become a
judge, my past is of no moment in addressing each of the cases
that I have. Those cases are decided solely on the
circumstances and the facts before me, and what I've really
learned in those 6 years is that every case is the most
important case to the litigants before me, whether it is a
speeding ticket on the GW Parkway or a multi-million-dollar
patent case. For those individuals, that is their most
important day in court, and I've tried to be respectful and do
my job to the best of my ability, and faithfully apply the law.
Chair Blumenthal. Thank you. And I apologize. I should've
addressed you as Judge Nachmanoff.
Judge Nachmanoff. Thank you. No need to apologize.
Chair Blumenthal. Ms. Nagala.
Ms. Nagala. Senator, for the better part of a decade, I've
had the wonderful privilege of representing the United States
in Federal court as an assistant U.S. attorney, but I truly
take to heart that the role of an advocate is different from
that of the role of the judge.
As a judge--as a prosecutor, I've had the opportunity to
appear before a number of judges in our district who are
faithful to the rule of law, who treat all the people who
appear before them with dignity and respect, and I would be
very honored to join in that tradition if I'm fortunate enough
to be confirmed.
Chair Blumenthal. Judge Williams.
Judge Williams. Thank you, Senator Blumenthal. I've also
had the great fortune of having been able to show my ability to
do this from the bench in State court over the past 7 years,
and frankly it's been quite liberating in some ways. As an
advocate you know the stakes of being unsuccessful in court as
to your client, and you know the times that you might not have
done what you're asking a judge to do, although legal. As a
judge you're able to focus on the rule of law and the facts of
circumstances in front of you and do what you believe is right.
I'm certainly able to do that.
Thank you, Senator.
Chair Blumenthal. Thanks. I have a separate question, Mr.
Dellinger, for you. I think that--that one of the challenges
facing Attorney General Garland and his team has been to
restore the credibility and luster, and I do view it as a
tradition of great professional luster of our Department of
Justice. Having served as U.S. attorney, I think its
credibility and independence are important beyond almost any
other quality. And I think that he and his team have begun that
effort very, very diligently and well.
How do you see your role as providing support for that
effort?
Mr. Dellinger. Thank you, Senator Blumenthal. And I agree
in your assessment of the current leadership of the Justice
Department. I have the highest regard for General Garland, for
the Deputy Attorney General, Lisa Monaco, and for the Associate
Attorney General, and for the institution itself. I was taught
constitutional law by Burke Marshall at the Yale Law School,
who served as head of the Civil Rights Division during the
Kennedy administration in the Justice Department, and I thought
of him as a hero. Both my parents have had the pleasure of
serving within the Justice Department, my mom with the FBI.
I think the--it is fundamental that the Justice Department
be independent and that integrity be at the forefront of
everything that is done. It is--there are tens of thousands of
career employees, personnel at the Justice Department, day in
and day out, who are incredibly dedicated, who are incredibly
talented, and it would be an honor to work with them. General
Garland has made clear that there will be no politics, no
partisanship at the Justice Department. I completely support
that. I have had that experience at the State level working in
a law enforcement organization, the North Carolina attorney
general's office. You have to follow the law. You have to
acknowledge the facts. You have to be able to work with
nonpartisan personnel, with members of both parties, as I did
as a deputy attorney general working with U.S. Attorneys in the
Bush administration, in the Clinton administration, and so I'm
very comfortable with the mandate that General Garland has set
down.
I hope to have the opportunity to serve with him.
Chair Blumenthal. Thank you. Thank you all for your
answers. I turn to the Ranking Member, Senator Grassley.
Senator Grassley. Thank you. Just to explain why I wasn't
here to hear your testimony is because I was down the hall to
Finance Committee asking questions, so I'm going to start with
Judge--Ms. Giles. You know the Eastern District well, working
for Judge Lee and being a seasoned litigator there, so I want
to congratulate you on your nomination. I am interested in
understanding the approach that you would take to reading the
law as a district judge, especially in the areas of statutory
rights and constitutional rights. Would you please explain for
us what judicial philosophy would guide you in deciding
statutory or constitutional issues?
Ms. Giles. Yes. Thank you for that question, Senator.
When--I've never been a judicial officer, so I don't
approach the bench with a set philosophy. I will say that my
belief about the role that a judge should serve is created by
my experience as a litigator, both as a criminal litigator and
a civil litigator. And I believe that judges should approach
the interpretation of the law in a fair and unbiased manner,
not approaching it with an end result in mind or with any type
of bias, but simply to research the binding Supreme Court and
fourth circuit precedent for my case or in my situation, and
then just fairly applying the law to the facts.
Senator Grassley. Thank you. To Ms. Nagala, prior to
becoming assistant U.S. attorney you were an associate at a law
firm where you helped write an amicus brief that advocated for
the removal of handguns from American homes in the community in
2010. So, I have two questions in regard to that. Do you
believe that the Second Amendment protects the rights of
Americans to own and keep handguns in their house?
Ms. Nagala. Yes, Senator. That is the holding of the
Supreme Court in Heller.
Senator Grassley. Okay. Do you stand by the view set forth
in the amicus briefs today?
Ms. Nagala. Senator, that brief was written in my very few
weeks as a junior associate at the law firm. The firm had
already brought on the clients and the position that the
clients wanted to take in the amicus brief. I would follow the
law of the Supreme Court in Heller and McDonald if I were lucky
enough to be confirmed for this position.
Senator Grassley. To Mr.--Judge Nachmanoff, in your Senate
Judiciary questionnaire, you briefly mentioned that you spent a
period of time serving as a crimes and misdemeanor prosecutor
for Herndon, Virginia, so two questions in regard to that.
Could you tell us a little more about your time as prosecutor?
And B, how do you think your experience as both a prosecutor
and a public defender has affected your role as a judge?
Judge Nachmanoff. Thank you for that question, Senator
Grassley. I would be delighted to address that.
One of the clients of my law firm when I was in private
practice for 6 years was the town of Herndon. And in Virginia,
towns and municipalities can contract out their prosecutorial
functions for misdemeanors, and so I, along with my partner,
would regularly go to the town of Herndon and prosecute the
misdemeanor dockets. It was a wonderful opportunity, and I
valued it greatly.
I had served as a paralegal in the Department of Justice
before law school, and so I found prosecution work rewarding.
It also informed my work as a defense attorney in private
practice and as a public defender. I'm a great believer that
some of the best defense attorneys have been prosecutors. And
some of the best prosecutors have had the experience of
representing individual clients as criminal defense attorneys.
All of those experiences contributed to the work that I've
done for the past 6 years as a magistrate judge in helping me
understand the lawyers who come before me and the challenges
they face both on the prosecution side and on the defense side.
Senator Grassley. Okay. My last question will have to be
also, you have extensively advocated for the repeal of
mandatory minimums during your career as a Federal public
defender. If confirmed, you will be responsible for imposing
mandatory minimums if the crime fits the criteria. Are you
capable of imposing such sentences given your strong advocacy
against mandatory minimums?
Judge Nachmanoff. Thank you, Senator. Yes, absolutely. I
will be able to impose mandatory minimums where appropriate,
and, in fact, over the past 6 years, some of my
responsibilities have included the imposition of sentences that
include mandatory minimums. Magistrate judges cannot sentence
in felony cases, but misdemeanor cases that are assimilate
State law often have mandatory minimums, and I have imposed
those sentences consistent with the law, and if fortunate
enough to be confirmed, I would certainly do so and follow the
law as a district judge.
Senator Grassley. Thank you all for your answers. I yield.
Senator Whitehouse [presiding]. Senator Blumenthal had to
step out for a minute and has informed us that Senator Durbin
is next, followed by Senator Kennedy. He will be back shortly.
Chair Durbin. Thanks, Senator Whitehouse. Ms. Giles, how
old is Pierce Giles? You've got to turn your mic on.
Ms. Giles. Sorry about that. He's 12.
Chair Durbin. He looks a lot older with that suit and tie
on. I've really noticed how proud he was of his mom.
Ms. Giles. Thank you.
Chair Durbin. And your mom. What a story.
Ms. Giles. Yes.
Chair Durbin. I'm glad she's here today to see this moment
in your life. I'm sure it means a lot to her. It certainly does
to us.
You are quite a litigator. Many people who've called
themselves trial attorneys never get close to a trial. You've
amassed significant trial experience. Twenty-two cases of
verdict and chief counsel in 17 of those cases. That doesn't
hurt when you're seeking a district court judgeship that may
put you into trial courtroom with regularity. So have you
worked primarily on the criminal side?
Ms. Giles. I--the last 18 years have been on the criminal
side. Prior to that I spent 2\1/2\ years at a large law firm
doing general commercial litigation, and prior to that I spent
2 years clerking on the District Court in the Eastern District
of Virginia.
Chair Durbin. Great background. Judge Nachmanoff, did I
pronounce your name correctly?
Judge Nachmanoff. Yes.
Chair Durbin. Great. Federal Public Defender for the
Eastern District of Virginia, you're responsible for
supervising the office's general strategy of challenging
sentencing disparities between crack and powder cocaine. And in
the 2007 Supreme Court case Kimbrough v. the United States, you
successfully argued that a district judge had the discretion to
impose a lower sentence than one recommended by the sentencing
guidelines for a crack cocaine offence.
We have been active in this Committee on the issue of
sentencing, hoping that we can undo some of the harm for some
earlier decisions by Congress. Senator Grassley had to step
away again, but he and I worked with Senator Whitehouse,
Senator Cornyn, and others to bring the First Step Act to
President Trump for his signature.
I'd like to ask you, based on your experience, how the
crack powder sentencing disparity impacted your work as a
Federal public defender?
Judge Nachmanoff. Thank you, Chairman Durbin. I had the
privilege of arguing the Kimbrough case about the 100:1 crack
powder disparity in the Supreme Court, and following that
decision, of course, the Sentencing Commission retroactively
lowered sentences for some defendants who had been already
sentenced for crack cocaine. And then, of course, this body and
through your leadership, the Fair Sentencing Act was passed,
and then the First Step Act was passed. As Federal defender, we
handled hundreds of those cases involving retroactivity and
sought to seek lower sentences for defendants who had been
sentenced very harshly. And as a result, many of those
individuals were released a little bit earlier than they
otherwise would've been.
In my role, of course, as a magistrate judge, I have played
a different role and not been involved in that issue.
Chair Durbin. It's interesting. The law that created this
disparity was bipartisan. Passed Congress. Many of us voted for
it to our regret today, but did. And when it came to changing
it, that also was bipartisan, left, right, and center.
Democrat, Republican. Business and other interests came
together with the understanding that we had not done the job
properly and a lot of lives were compromised.
I thank you for your leadership on this issue.
Judge Nachmanoff. Thank you.
Chair Durbin. Ms. Nagala, you received an award for a case
involving a Romanian. It sounds like it was a complicated case.
Could you tell us a bit about it?
Ms. Nagala. Certainly, Senator. Thank you for that
question.
The case involved the extradition of a number of Romanian
citizens who were responsible for sending emails to average
people, essentially asking them to click on a link and input
their banking information. These are typically known as
phishing emails. Many of us probably have seen them and
hopefully not fallen victim to them, but from afar these
individuals were engaged in sending those emails, collecting
the bank information, and then victimizing a number of people
in Connecticut and throughout the United States.
Chair Durbin. And you had them extradited to the United
States?
Ms. Nagala. That's correct, Senator Durbin.
Chair Durbin. And an 80-month sentence?
Ms. Nagala. Correct, Senator.
Chair Durbin. So, and received an award for your effort
along I'm sure with your team. So I just want to note that for
the record.
I thank the other two nominees. I'm sorry that I've run out
of time but thank you. I say to you, Judge Williams, that
you've been found ``well qualified'' by the American Bar
Association, and I know you'll be an addition to the Federal
bench.
Mr. Dellinger, great family tradition continues. Thank you.
Senator Whitehouse. With my apology to Senator Kennedy from
misstating the order, we recognize Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Congratulations to
all the nominees. Thanks for being here.
Mr. Dellinger, I'd like to start with you if I could. The
Office that you're being nominated for, Office of Legal Policy,
is a very important one obviously at the Department of Justice,
one with a long and proud tradition. It will play an important
role in the vetting and nomination of judicial nominees, or at
least it has traditionally, so I want to ask you some questions
about the Court.
Starting with the current member of the Court about whom
you've had relatively a lot to say, some of what you said
frankly surprises me, and I want to give you an opportunity to
clarify the record here.
I'm talking about Justice Clarence Thomas. When you were in
law school, you wrote an attack on Justice Thomas, saying that
before he even took his seat on the U.S. Supreme Court, he was
illegitimate. You said using the word justice with regard to
Clarence Thomas was an oxymoron and that his decisions would
never have any legitimacy. That's quite a series of charges to
make against a man like Justice Thomas, who's now stood on the
Court for quite a length of time. He's faced quite a lot in his
life, I think. His life story is well-known. His unique
position on the Court is well-known. So let me just give you an
opportunity here to address these very serious accusations. Do
you regard Justice Thomas as an illegitimate member of the U.S.
Supreme Court?
Mr. Dellinger. I do not, Senator Hawley.
Senator Hawley. Do you regard his opinions as illegitimate?
Mr. Dellinger. I do not.
Senator Hawley. Would you want to clarify your views now
and what has changed since you wrote--authored those attacks on
Justice Thomas?
Mr. Dellinger. Well, thank you, Senator Hawley. We share
the same law school, and I wrote those comments in law school,
approximately 30 years ago, at a time of a contentious and
momentous nomination and confirmation hearing. A lot of time
has passed. I certainly acknowledged immediately the outcome of
that. Justice Thomas was granted a lifetime appointment. I
recognize his service on the Court. I recognize the historic
nature of his service on the Court as the second African-
American Justice. I recognize that he has been an important
figure in the law, and I have the highest regard for the U.S.
Supreme Court, for the justices who are confirmed to lifetime
appointments, and I've recognized that throughout his time on
the Court.
Senator Hawley. Good. So, in other words, it sounds like to
me, what I hear you saying is that you would retract these
comments and regret that you made them those years ago?
Mr. Dellinger. Right. I can't turn back time, and again,
those comments were made 30 years ago when I was a student.
They do not reflect my recognition of his service on the Court
and the importance of his service on the Court.
Senator Hawley. Good. Very good. Let me ask you about some
other comments you've made about various Supreme Court cases.
You've been a pretty fierce critic of the Supreme Court's
cases, recent cases, regarding election integrity. You said
that conservatives on the Supreme Court are a major barrier to
your view of what ought to happen with election rules in this
country. You've criticized the Crawford case, which was written
by Justice Stevens by the way, not a notable conservative. The
Rucho case, RNC v. DNC, the McCutcheon case, Citizens United,
the McDonald case, the Kelly case. Given your stance on these,
I assume you're probably also a critic of the recent Brnovich
case. Am I to take from this that you will be an advocate for
appointing judges and Justices who will seek to overturn these
decisions?
Mr. Dellinger. No, Senator. The decision on who to nominate
lies exclusively with the President. The Office of Legal Policy
plays an important role but a limited role. And it's similar to
a role I played in North Carolina as the Governor's chief legal
counsel, which is to vet the background and qualifications of
potential nominees for the President to be considering.
Senator Hawley. Well, if I could just interrupt you there.
But you and I both know that that's where the real work is
done. I mean the list that gets to the President, right, that's
where the real spade work is done, so what I'm asking--you're
going to play a very--if you're confirmed, you'll play a very
important role in this process. You've been very outspoken and
very critical about all of these cases and even very fiercely
critical of those on the Republican side of the aisle who have
fought for election integrity and of the U.S. Supreme Court. So
let's come back to this again.
Will you be an advocate for appointing judges and Justices
who will seek to overturn these decisions, the McCutcheon case,
Citizens United, the McDonald case, the Crawford case?
Mr. Dellinger. Senator, I recognize all of those cases as
the law of the land. And I will say, Senator, that I do think
in the area of public corruption that----
Senator Hawley. But do--I'm sorry to interrupt you. We have
a really short time, and my time's almost over. What I'm
asking, I think, is do you advocate that they be overturned? I
understand you recognize them as law of the land. Of course
they are. They're controlling precedent. The Supreme Court can
revise its own precedent as we know.
So, will you, you're going to have an important advisory
role. Will you advocate for judges and Justices who will seek
to limit and overturn these cases that you've criticized so
fiercely?
Mr. Dellinger. Senator, I will not be an advocate in the
role that I hope to be confirmed for.
Senator Hawley. My time has expired. I'll have some more
questions for you for the record. Thank you, Mr. Dellinger.
Thank you, Mr. Chairman.
Mr. Dellinger. Thank you, Senator.
Senator Whitehouse. Welcome to all of you. I have two
questions for the judicial candidates, and the first has to do
with civil juries. From the acts of our revolution to the words
of Blackstone, which in that era were so important to our
nascent legal community, civil juries were central to our
founding. And yet, we seem to see from the Supreme Court a
pronounced effort to impede access to civil juries that may go
back to Blackstone's comment about civil juries that they're a
check on the wealthy and the powerful. And those of us who work
in this legislative space understand that the wealthy and
powerful have privileged fast lanes to get what they want done
in Congress, and they can apply political pressure to
presidents and administrations, but when they come before a
court, when they are in a courtroom, the hard square corners of
the jury box demand that everyone be treated alike, and some
folks don't like that.
So, I want your assurance that you will bring some
understanding of the role of the civil jury in our
constitutional structure to your job as a judge that will be
supervising civil juries, with any luck. Right across the way,
starting with Ms. Giles.
Ms. Giles. Thank you for that question, Senator. I agree
with you that juries are essential to our legal system, and in
my role as a judge, it would be to ensure that our juries
reflect a cross section of our community and that when they
serve that they're going to be fair and unbiased, and during--
conducting voir dire, it's my job to make sure that that jury
is fair and unbiased.
Senator Whitehouse. Judge Nachmanoff.
Judge Nachmanoff. Thank you, Senator. I agree. Juries are
essential to our civil and criminal justice system. One of the
things I tell new citizens when I'm privileged to be able to
swear in new citizens is that one of their rights and
responsibilities is to be able to sit on juries, and so I'm a
great believer in the value, both for the jurors and for the
system and those who are the beneficiaries of it, that we have
jury trials.
Senator Whitehouse. Ms. Nagala.
Ms. Nagala. Senator, I agree with Ms. Giles and Judge
Nachmanoff that juries in civil and criminal cases are an
essential feature of our constitutional system.
Senator Whitehouse. Judge Williams.
Judge Williams. Thank you, Senator. This is certainly a
unique aspect of our legal system throughout the world, and
it's one that incredibly important. I do recognize its
importance. Thank you, Senator.
Senator Whitehouse. The other question that I wanted to
ask, I had a telling conversation with a member of our circuit
courts of appeal who described with some woe his sense that he
had colleagues who, in their decisions, were dedicating their
efforts to auditioning for advancement. In my view when a judge
has parties before them in a case, the judge has a solemn duty
to the parties before them to bring them justice and to follow
the law and not to be auditioning for third parties outside of
the courtroom with a view to political advancement.
Could you offer me your views on auditioning as a proper
role of a Federal judge?
Ms. Giles. I could not agree with you more, Senator. The
role of the judge is to decide the case and controversy before
the judge and not to--the judge should never be thinking of any
other issue or reason for deciding a case.
Senator Whitehouse. Judge Nachmanoff.
Judge Nachmanoff. I could not agree more with Ms. Giles.
Senator Whitehouse. Ms. Nagala.
Ms. Nagala. Likewise, Senator. They said it well.
Senator Whitehouse. And Judge Williams.
Judge Williams. Agreed, Senator. I'm fortunate enough to be
serving in a State where we're subject to reappointment every 8
years, but my decisions are based on the fact and circumstances
in front of me in every case. Thank you.
Senator Whitehouse. Thank you. And I think the next in our
order is now Senator Kennedy, who I misled earlier about his
spot in the order. So my apologies. Senator Kennedy is
recognized.
Senator Kennedy. Thank you, Mr. Chairman. Ms. Giles, your
son's name is Pierce?
Ms. Giles. Yes, Senator. And thank you for that kindness
you shown him.
Senator Kennedy. Well, I'm happy to. Is this Pierce right
behind you here?
Ms. Giles. Yes, it is.
Senator Kennedy. Mr. Pierce, you have anything you want to
add to this?
[Laughter.]
Senator Kennedy. How about vote for your mom?
[Laughter.]
Ms. Giles. Yes.
Senator Kennedy. Mr. Dellinger, I'm not going to ask you
about what happened in law school, and I was glad to hear you
talking about being nonpartisan. You must have had an epiphany.
Want to read you a tweet. It's from 2019. You weren't in law
school then, were you?
Mr. Dellinger. I was not, Senator.
Senator Kennedy. How old were you then?
Mr. Dellinger. I was--I had passed over half a century.
Senator Kennedy. This is what the tweet says, ``Yes, there
are some women GOPers,'' meaning members of the Republican
Party, ``and a tiny number of Democrats who want Government not
women to control women's bodies. But if there were no
Republican men in elected office there would be no abortion
bans.'' Did you write that?
Mr. Dellinger. Senator, I do not recall that specific
tweet, but I do not deny writing it.
Senator Kennedy. You wrote it.
Mr. Dellinger. Okay.
Senator Kennedy. There it is. Bigger than Dallas. Do you
think that my votes with respect to abortion are based on the
fact that I want to control women?
Mr. Dellinger. Senator, I cannot speak to that.
Senator Kennedy. Well, why did you say it? In front of God
and country.
Mr. Dellinger. Well, Senator I do believe that the
reproductive rights established in Roe v. Wade and then dealt
with in Casey, June Medical, and other Supreme Court decisions
are important.
Senator Kennedy. And that's fine. I agree with that.
Reasonable people disagree, but that's not what you said,
Counselor.
Mr. Dellinger. Right. And Senator----
Senator Kennedy. You said every Republican, other than the
ones that you like, have their position on abortion because
they're misogynistic.
Mr. Dellinger. Well, Senator, I----
Senator Kennedy. Do you believe in God?
Mr. Dellinger. Senator, I have faith. I believe. I
certainly----
Senator Kennedy. A lot of people have faith.
Mr. Dellinger. Right.
Senator Kennedy. Did it ever occur to you that some people
may base their position on abortion on their faith?
Mr. Dellinger. Senator, I sincerely appreciate people have
a different position on abortion than I----
Senator Kennedy. You sure don't tweet it. Have you ever
tweeted that?
Mr. Dellinger. Well, Senator, I'm saying it now under oath,
and I do----
Senator Kennedy. Yes. You're up to be nominated. You want
me to vote for you.
Mr. Dellinger. Well, Senator, I am determined to tell the
truth, and if I could make clear, Senator--and I appreciate
your question and your concern. But Senator, I recognize the
difference between someone saying something, you know,
inartfully as a private citizen and working as a lawyer, and I
think I've got a 30-year track record of being open----
Senator Kennedy. Okay. I get all that.
Mr. Dellinger. And just to----
Senator Kennedy. I've got to move on. We don't have much
time, Counselor. Jeez. Do you believe the Justice Department is
systemically racist?
Mr. Dellinger. Senator, I believe every institution in our
country exists on a history----
Senator Kennedy. Yes, but do you believe the Justice
Department is systemically racist?
Mr. Dellinger. Senator, if I could, I believe every
institution in our country has dealt with racism and sexism and
xenophobia.
Senator Kennedy. I know, but today? I agree with that, but
I'm just asking a simple question. Today, do you believe the
Justice Department is systemically racist?
Mr. Dellinger. I do not believe that the Justice
Department----
Senator Kennedy. Okay. What about the law firm of Hampton
Dellinger? It's your law firm. Is it systemically racist?
Mr. Dellinger. Senator, I have done my best to try----
Senator Kennedy. Simple question. Do you believe it's
systemically racist?
Mr. Dellinger. Right. And I'm trying to answer it, sir.
Senator Kennedy. I know. I think you're trying to dodge it,
but you go ahead.
Mr. Dellinger. Well, sir, I certainly do not try to
practice systemic racism. I do recognize----
Senator Kennedy. Neither do I. But is your law firm
systemically racist?
Mr. Dellinger. It is not.
Senator Kennedy. How about your former law firm, Boies
Schiller? Are they systemically racist? You got a bunch of
racists there?
Mr. Dellinger. Certainly they have tried to deal with
implicit bias, to recognize it, and to remove any barriers----
Senator Kennedy. Are they systemically racist?
Mr. Dellinger. I have no reason to think that they are.
Senator Kennedy. All right. I'm out of time. Man, that's
not just one tweet, Counselor. You got a whole bunch of them
here. As long as King Kong's arm.
Chair Blumenthal [presiding]. Senator Klobuchar.
Senator Klobuchar. Just getting over King Kong's arm.
[Laughter.]
Senator Klobuchar. So, Mr. Dellinger, I just want to start
by saying what I need to know about you is that you are a
friend of Chris Coons, who we all respect very much on this
Committee, and I think you went to school with him, is that
right?
Mr. Dellinger. I did. He was a year older than me, and he
was very nice to me when he didn't have to be.
Senator Klobuchar. Okay. Excellent. You and I talked on the
phone about antitrust. Do you want to talk about that? There's
a lot of people on this Committee that care a lot about that,
and we have finally gotten a name of someone to head up the
Antitrust Division over at the Justice Department, which will
be before us soon. And we need to get started on these cases.
Could you talk about your past experience with that, even
though you wouldn't be overseeing that Division?
Mr. Dellinger. Yes, Senator Klobuchar, and thank you for
the question, and thank you for the opportunity to speak with
you before. I think antitrust is a critical area for American
law and for the American economy and for the American people.
One of the first cases I did in the North Carolina Attorney
General's Office was the suit against Microsoft, in the 1990s,
when it was gaining a large amount of control and concentration
over the internet, joining with your State of Minnesota in that
effort. And I think at the end of the day--and we've also seen
Senator Tillis, the consolidation in the agricultural industry.
And I've very much been focused on small farmers in North
Carolina, tobacco farmers, hog farmers, that's something that
Senator Grassley and I talked about. And so that concentration
in large sectors of the economy has to be a concern, and I very
much am glad it's a concern, Senator, for you and for the
Congress and the President. We want innovation. And we don't
want to impede innovation. We want companies to be successful,
but it cannot be at the expense of consumers and of small
business. And so while I would not be in litigation--not have a
litigation function if confirmed, I think from a policy
perspective, assisting the Attorney General, the
administration, and if appropriate, the Congress, in dealing
with concentration in sectors that may be limiting innovation
and harming consumers would very much be a focal point of mine.
Senator Klobuchar. Very good. Thank you. Mr. Nachmanoff,
prior to your selection to serve as a Federal magistrate judge,
right, you served in the Office of Federal Public Defender. You
represented hundreds of clients in criminal proceedings. I
guess my first question would more pertain to your magistrate
time. Do you think experience matters in these jobs?
Judge Nachmanoff. Thank you, Senator. I do think experience
matters. I think experience can come from many different
sources. I've been very privileged to serve as a magistrate
judge in the court where I've been nominated to serve as a
United States district judge. I know that my experience over
the last 6 years working with the district judges and working
on those cases would be of great benefit to me if I were
fortunate enough to be confirmed.
Senator Klobuchar. And how about your experience as a
public defender?
Judge Nachmanoff. Thank you. Likewise, my 26 years now
almost of working in the Eastern District of Virginia, starting
as a law clerk and then in private practice and then as a
Federal defender, has all given me experiences working with
clients and working with all facets of the court, from
appearing before the judges to working with probation officers
and opposing counsel, that I think have aided me in my work was
a magistrate judge and would be of great benefit to me if I
were fortunate enough to be confirmed.
Senator Klobuchar. Thank you. Ms. Giles, I know that you
were a prosecutor, and I actually led the Abolish Human
Trafficking Act with Senator Cornyn many years ago before a lot
of people were talking about it. And I know that you, as the
assistant United States attorney, led a number of prosecutions
in human trafficking. Could you talk about your experience with
those cases?
Ms. Giles. Yes, thank you, Senator. Those cases are
extremely important because the victims in those cases tend to
be the most vulnerable in our society, children, women who are
either by force, fraud, or coercion forced into prostitution.
And in doing those cases, they were extremely rewarding because
you are definitely doing a service to those victims and
ensuring that they are not future victims. And those cases
definitely have benefited me personally but also in terms of
what I've learned just in the process of dealing with victims.
Senator Klobuchar. Thank you, and I'll submit some other
questions on the record. But I know that you, Mr. Williams,
also--Judge Williams, also worked on the Judicial Opioid
Initiative which I thank you for. Thank you.
Chair Blumenthal. Thank you, Senator Klobuchar. Senator
Tillis.
Senator Tillis. Mr. Chair, I'll defer to Senator Cotton.
Follow him.
Chair Blumenthal. Senator Cotton.
Senator Cotton. Thank you. So magnanimous of you, Senator
Tillis. Appreciate it.
Mr. Dellinger, you stated on December 16th, 2019, that
independent groups cannot, quote, ``engage in hate speech at
federally funded schools without violating Federal civil rights
laws.'' What is hate speech?
Mr. Dellinger. Well, Senator, I believe hate speech is
speech directed at a particular ethnic group or nationality
intended to intimidate. We do not, you know, prosecute speech
lightly. It never should. Prosecution should be focused on
actions, but I do think there are certain instances where
speech is directed at a racial or ethnic minority with the
intent to intimidate.
Senator Cotton. And you think that violates our
Constitution and Federal civil rights laws?
Mr. Dellinger. Senator, I think it can if it is intended to
convey a threat, to suggest----
Senator Cotton. Well, a threat is different from hate
speech. So I'm asking for a definition of hate speech.
Mr. Dellinger. Well----
Senator Cotton. A clear standard that a judge might apply.
Mr. Dellinger. Senator, I appreciate the difficulty of this
area, and it's--in North Carolina we have had a Hate Speech
Act. When we see intimidation and threats that appear to be
motivated by racial or other----
Senator Cotton. Intimidations and threats are different.
That's not hate speech.
Mr. Dellinger. Well----
Senator Cotton. It can be motivated out of hate, but
threats are a clear and different legal standard.
Mr. Dellinger. What I was going to----
Senator Cotton. I'm trying to figure out--you didn't say
``threats and intimidation'' on December 16th, 2019. You said
``hate speech at federally funded schools without violating
Federal civil rights laws.'' So I presume you have in mind some
definition of what hate speech is.
Mr. Dellinger. Well, Senator, I think I was--I had in mind
what has been in statutes, and as I--the statutes I'm most
familiar with, usually ethnic intimidation will convey an
enhanced or might have an enhanced penalty to it. I think
prosecutors have to be very careful in this area. I completely
understand the First Amendment concerns, and I share them, but
I do think whether it's the General Assembly in North Carolina
or Congress has been willing to say that for certain types of
intimidation or threats that seem to be motivated by racial or
other impermissible animus there can be an enhanced penalty.
Senator Cotton. Does the Constitution allow the Government
to treat any American differently based on his or her skin
color?
Mr. Dellinger. It depends on what is being treated. If it
is identified discrimination based on race or gender or sexual
orientation, then under the Constitution, under Supreme Court
precedents, that, you know, characteristics can be considered
in remedying that identified discrimination.
Senator Cotton. A specific institution to remedy specific
past discrimination.
Mr. Dellinger. Well, that has been established before a
court and there is going to be a remedial effort to deal with
it. That's my understanding, Senator.
Senator Cotton. But in other instances, the Government
must, of course, treat all citizens equally irrespective of
their race.
Mr. Dellinger. Well, Senator, you know, that is going to be
defined by the Supreme Court. I recognize there are a number of
areas where neutrality is--is the best approach. You think
about the Texas Top 10 Percent Plan or raising the minimum
wage, there are a number of areas where you may be able to
address disparate historic treatment in a race-or gender-
neutral way.
Senator Cotton. Do you believe--do you agree with Dr.
Martin Luther King, Jr. that we should judge people by the
content of their character and not the color of their skin?
Mr. Dellinger. Yes.
Senator Cotton. Let's turn to a couple of Supreme Court
decisions. You've voiced your support repeatedly for Roe v.
Wade. Do you believe that Roe v. Wade was correctly decided?
Mr. Dellinger. I do, Senator.
Senator Cotton. Do you believe that DC v. Heller was
correctly decided?
Mr. Dellinger. I certainly--there has been a range of views
about that----
Senator Cotton. The first one was very easy. The second one
is not so easy.
Mr. Dellinger. Well, no, what I was going to say applies to
both, which is there has been a range of discussion and
disputation about both decisions.
Senator Cotton. The Roe v. Wade was very easy for you to
say correctly decided. Why is DC v. Heller not so easy?
Probably because you disagree with Heller, right?
Mr. Dellinger. Well, sir, they're both the law of the land.
With Casey----
Senator Cotton. Oh, I know they're the law----
Mr. Dellinger. Well, I----
Senator Cotton. You're not up for a judge.
Mr. Dellinger. Right.
Senator Cotton. Not up for it to be a judge. The Office
you're up for literally has policy in its title. I bet I could
ask Judge Williams if he thought Marbury v. Madison was
correctly decided. He'd probably say, ``I can't decide that. I
can't say it because I'm going to be a judge.'' That's why I'm
asking you.
Mr. Dellinger. I could----
Senator Cotton. Literally, policy is in the title. What's
the difference between Roe v. Wade, quick yes answer; DC v.
Heller, a hedged answer. Is it because you do not agree with DC
v. Heller?
Mr. Dellinger. No. I might have--if I was the Justice of
the Supreme Court which I will not be, I might have voted with
the minority in that case, but that's not relevant to the
position I've been nominated for. You know----
Senator Cotton. Actually, it's very relevant. You're going
to be reviewing all these judges. I bet you're going to try to
find judges who share your views on DC v. Heller and the Second
Amendment.
Anyway, my times expired. Senator Tillis was very generous.
We've got a vote to go to as well, so I'll yield back.
Chair Blumenthal. Senator Coons.
Senator Coons. Thank you. And thank you to my colleagues.
If I might, given the focus a number of my colleagues have
provided on Mr. Dellinger and his background and his service, I
thought I'd take just a moment and share with some of the other
Members of this Committee why I am so enthusiastic about his
nomination if I might briefly, and I know I'm delaying my
colleague Senator Tillis and Senator Blumenthal. We all need to
get to go to the floor for a vote.
But in reviewing what you've done in the decade since we
were law students together, I was struck by two, in particular,
letters in support of your nomination to lead the Office of
Legal Policy, one from a group of faith leaders, one from a
group of law enforcement leaders. Two dozen faith leaders
who've known you for decades said, ``throughout his career,
Hampton's advocated for just causes and operated with care and
concern for his fellow human beings, displaying the kind of
compassion, humility, and integrity we should demand for our
public servants.'' They go on to say the country will benefit
greatly from your generosity of spirit, something I think I
look forward to seeing on display in your leadership role in
the Department of Justice. And a much larger group of law
enforcement leaders, dozens of law enforcement leaders, talk
about the high level of rigor and seriousness you will bring to
the position and that you have demonstrated in their service
alongside you that you understand the challenges faced by law
enforcement officers and officials and take those concerns into
account when developing policy.
Was there anything else you wanted to say, Mr. Dellinger,
before I conclude about your experience advising the Governor,
about the role you'll have in terms of forming legal policy,
and was there anything else you wanted to speak to before I
conclude and we all move on to a vote?
Mr. Dellinger. Well, thank you, Senator Coons, and it
doesn't seem like it was that long ago that we were classmates
together. I remember I couldn't get a date, and now I've got a
21-year-old youngest child.
I do think it's important for you to know, and for all the
Senators to know, that I recognize the role that I've been
nominated for. It is not my think tank. It's the Attorney
General's think tank. It's not, you know, my policies. It's the
Attorney General's policies, the Justice Department's
leadership.
There's also an important rulemaking function that I would
take very seriously, and I think that the rigor and detail one
needs to try to succeed as a litigator, which is a very rule
bound profession, is the type of rigor I would try to bring to
the rulemaking function.
And finally, with regard to the judicial nomination
process, you know, I was proud of the role I played in North
Carolina vetting judges on occasion, trying to bring a
potential nominee to the Governor's attention. One of the
judges I'm most proudest of is Al Diaz, who had served in the
military courts as a judge, a defense attorney, and a
prosecutor in the JAG Corps. And he was a first in North
Carolina. He was the first Hispanic judge named to the Superior
Court, but I also would say to the media, who would never quote
this part, he was the best. He was the best qualified judge
that I saw in terms of professional qualifications and has had
a distinguished career. And so in my overriding focus was on
integrity. Does a potential nominee have personal integrity,
show integrity in the workplace, but above all show integrity
to the rule of law? And that would be absolutely my North Star,
which is this potential nominee, does he have the integrity to
understand and acknowledge the Constitution, the binding
precedents of the Supreme Court? I certainly would, you know,
and again, I understand the difference between being a private
citizen at times maybe saying things quickly or inartfully, the
professionalism one needs as a practicing attorney, and then
what's different about being in a law enforcement organization.
And it's not just something I can talk about theoretically.
I've been in a law enforcement organization as deputy attorney
general of North Carolina I recognize you have to have an
overriding focus on independence, on being apolitical, being
nonpartisan and working with career employees and officials in
both parties.
And if fortunate enough to be confirmed, that's exactly
what I would do.
Senator Coons. Thank you, Mr. Dellinger. I, for one,
believe that Attorney General Garland and our President will be
well served by your advice. I look forward to supporting your
nomination. Thank you, Mr. Chairman.
Chair Blumenthal. Thanks, Senator Coons. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman. I know the vote's
coming up, but I think I can outrun you, so I won't be the last
person voting. But Mr. Dellinger, thank you for being here.
You know, as I was hearing some of my colleagues talk, I
realized that I have a little bit different perspective, mainly
because we know so many people, we have so many mutual
acquaintances. And I think it's very important for my
colleagues to understand that I have heard, from across the
political spectrum, support for you. So, I'm not going to get
into a lot of details from when you and I met in the office.
Thank you for spending the time that you did. I think that you
talked about your writings in law school. I think all of those
should be discounted, particularly if you come back and say you
no longer stand by them. I can think of a million different
things that I said back in the day that I would no longer say
today.
You and I are going to have to agree to disagree on
position on reproductive rights. I've spent--you and I were
walking the halls of North Carolina legislative buildings and
the Governor's executive offices at the same time. We passed
bills that I thought made sense and promoted life. I think the
difference is, in my view, it's about the unborn child, and
it's the voice of the unborn that motivates me to look at
things where we can make sure that families are properly
informed and that we can preserve human life every--to the
maximum extent.
I do want a commitment from you though, as you're advising
the White House on nominations, that you're looking deep into
the records of those who are being nominated to make sure that
they are people who will uphold the law and interpret the
Constitution as written. Do I have your commitment to do that?
Mr. Dellinger. Yes, Senator. You absolutely do.
Senator Tillis. I'm just being sensitive to time. I
wanted--Mr. Williams, I wanted to tell you I tend to watch
where questions are directed, and I think you got the fewest
questions. You should consider that a very good sign. And to
all the nominees, thank you all.
Mr. Nachmanoff, I just had a real quick question. You know
that I've--in North Carolina we did the Justice Reinvestment
Act early exit for persons incarcerated. Up here, I've
supported efforts to try and make sense out of our criminal
justice reform. Are you familiar with any of the things that
we've been carrying through this Committee and have an opinion
on them?
Judge Nachmanoff. No, Senator. Thank you for that question.
I'm not familiar. In my present job, of course, I'm in a very
different role, and so I can't speak to that.
Senator Tillis. Yes. Well, I think you'd find if you study
some of it, I think it's an indication of bipartisan support
for making--improving the situation.
You all, I'm going to yield back the rest of my time, but
congratulations on your nominations. You should be very proud.
I'm sure the folks sitting behind you are very proud, and I
wish you the best of luck. Thank you.
Chair Blumenthal. Thank you, Senator Tillis.
Senator Tillis. And Mr. Dellinger, I will be supporting
your nomination.
Mr. Dellinger. Senator, thank you.
Chair Blumenthal. Thanks, Senator Tillis. We have a vote
that is ongoing right now, so in the absence of any objection,
I'm going to call the hearing to a close.
The record will remain open for 1 week. Colleagues who want
to submit additional questions can do so, and you may be asked
to submit answers in writing. So we welcome you here. We wish
you good luck. I think you have demonstrated that you have
strong support in this Committee, and I look forward personally
to supporting every one of you.
Thanks so much. This hearing is adjourned.
[Whereupon, at 12 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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