[Senate Hearing 118-29, Part 3]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 3
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MARCH 22, 2023
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Serial No. J-118-2
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PART 3
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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
55-358 PDF WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AMY KLOBUCHAR, Minnesota CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii TED CRUZ, Texas
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
PETER WELCH, Vermont THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
C O N T E N T S
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MARCH 22, 2023, 10:01 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Padilla, Hon. Alex, a U.S. Senator from the State of California.. 1
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana... 1
INTRODUCERS
Risch, Hon. James E., a U.S. Senator from the State of Idaho,
introducing Amanda K. Brailsford, Nominee to be United States
District Judge for the District of Idaho....................... 2
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado, introducing Hon. S. Kato Crews, to be United States
District Judge for the District of Colorado.................... 2
Hickenlooper, Hon. John W., a U.S. Senator from the State of
Colorado, introducing Hon. S. Kato Crews, to be United States
District Judge for the District of Colorado.................... 4
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho,
introducing Amanda K. Brailsford, Nominee to be United States
District Judge for the District of Idaho....................... 8
STATEMENTS OF THE NOMINEES
Witness List..................................................... 15
Brailsford, Hon. Amanda K., Nominee to serve as United States
District Judge for the District of Idaho....................... 6
questionnaire and biographical information................... 16
Crews, Hon. S. Kato, Nominee to serve as United States District
Judge for the District of Colorado............................. 7
questionnaire and biographical information................... 53
Silfen, Molly R., Nominee to serve as a Judge of the United
States Court of Federal Claims................................. 5
questionnaire and biographical information................... 105
QUESTIONS
Questions submitted to Hon. Amanda K. Brailsford by:
Ranking Member Graham........................................ 138
Senator Hirono............................................... 142
Senator Lee.................................................. 143
Senator Hawley............................................... 146
Senator Kennedy.............................................. 152
Senator Tillis............................................... 156
Questions submitted to Hon. S. Kato Crews by:
Chair Durbin................................................. 164
Ranking Member Graham........................................ 165
Senator Hirono............................................... 169
Senator Lee.................................................. 170
Senator Hawley............................................... 173
Senator Tillis............................................... 179
Questions submitted to Molly R. Silfen by:
Ranking Member Graham........................................ 187
Senator Hirono............................................... 191
Senator Lee.................................................. 192
Senator Hawley............................................... 195
Senator Tillis............................................... 201
ANSWERS
Responses of Hon. Amanda K. Brailsford to questions submitted by:
Ranking Member Graham........................................ 207
Senator Hirono............................................... 217
Senator Lee.................................................. 218
Senator Hawley............................................... 227
Senator Kennedy.............................................. 247
Senator Tillis............................................... 261
Responses of Hon. S. Kato Crews to questions submitted by:
Chair Durbin................................................. 268
Ranking Member Graham........................................ 271
Senator Hirono............................................... 279
Senator Lee.................................................. 280
Senator Hawley............................................... 286
Senator Tillis............................................... 303
Responses of Molly R. Silfen to questions submitted by:
Ranking Member Graham........................................ 311
Senator Hirono............................................... 321
Senator Lee.................................................. 322
Senator Hawley............................................... 330
Senator Tillis............................................... 348
LETTERS RECEIVED WITH REGARD TO HON. S. KATO CREWS
Asian Pacific American Bar Association of Colorado (APABA), March
17, 2023....................................................... 354
Colorado attorneys who have worked with Judge Crews, March 16,
2023........................................................... 356
Colorado attorneys who represented plaintiffs in employment and
civil rights matters, March 16, 2023........................... 358
Colorado Hispanic Bar Association (CHBA), March 17, 2023......... 360
Colorado Sam Cary Bar Association (SCBA), March 21, 2023......... 362
Colorado Women's Bar Association (CWBA), March 18, 2023.......... 365
Cook, La Kischa J., March 20, 2023............................... 367
Former law clerks, employees, staff, and mentees, of Judge Crews,
March 21, 2023................................................. 369
Marquez, Hon. Monica M., March 16, 2023.......................... 371
Shaw, Vince, September 4, 2023................................... 373
LETTERS RECEIVED WITH REGARD TO MOLLY R. SILFEN
Colleagues and coworkers in the fields of intellectual property
and appellate law, March 20, 2023.............................. 375
Current and former adjunct professors at the Antonin Scalia Law
School at George Mason University, March 17, 2023.............. 378
Former law clerks at the United States Court of Appeals for the
Federal Circuit, March 20, 2023................................ 380
Leahy, Hon. Patrick J., former U.S. Senator from the State of
Vermont, March 22, 2023........................................ 384
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Hon. Amanda K. Brailsford...................................... 385
American Bar Association's Standing Committee on the Federal
Judiciary, evaluation of the professional qualifications of
Hon. S. Kato Crews............................................. 386
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, MARCH 22, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Alex Padilla
presiding.
Present: Senators Padilla [presiding], Kennedy, and Tillis.
Also present: Senators Risch, Bennet, Hickenlooper, and
Crapo.
OPENING STATEMENT OF HON. ALEX PADILLA,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Padilla [presiding]. Good morning, everybody. This
hearing will come to order. My name is Alex Padilla. I've been
asked to serve as Chair for today's hearing by Chairman Durbin.
Today we will hear from three judicial nominees: Molly
Silfen, nominated to the Court of Federal Claims; Judge Amanda
Brailsford, nominated to the District of Idaho; and Judge Kato
Crews, nominated to the District of Colorado. Congratulations
to all three nominees and their families.
The two district court nominees before us each have
received blue slips from both of their home State Senators, and
I would like to thank Senators Crapo, Risch, Bennet, and
Hickenlooper for working with the White House in good faith to
expeditiously fill these judicial vacancies. Our colleagues are
all joining us today for introductions of the nominees.
But first, I would normally turn to Senator Graham, Ranking
Member of the Judiciary Committee, for opening remarks. In his
absence, I'll turn it over to the good Senator from the State
of Louisiana, Senator Kennedy.
STATEMENT OF HON. JOHN KENNEDY,
A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Kennedy. Thank you, Mr. Chairman. I just wanted to
welcome all our nominees and our guests today. And with that,
I'll turn it back over to the Chair.
Senator Padilla. All right. We're operating pretty
efficiently here this morning, Senator.
Senator Kennedy. I think we ought to be in charge all the
time.
[Laughter.]
Senator Risch. Does that need a second?
Senator Padilla. Absolutely. Without objection. We'll now
hear introductions for our nominees beginning with Senator
Risch.
STATEMENT OF HON. JAMES E. RISCH, A U.S. SENATOR FROM THE STATE
OF IDAHO, INTRODUCING AMANDA K. BRAILSFORD, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF IDAHO
Senator Risch. Well, thank you very much, Mr. Chairman and
Mr. Ranking Member. Thank you so much for having us here. It's
my great honor and privilege to come here to meet with you
today. And I'd like to introduce Judge Amanda Brailsford, who's
here with me today to serve the United States District Court
for the District of Idaho.
Judge Brailsford, congratulations to you, and welcome to
you and your family. If confirmed, Judge Brailsford would not
only be the first woman to serve in this role in Idaho, but
also one of the most qualified nominees that I've seen move on
to our Federal bench in Idaho.
Judge Brailsford was born in Hagerman, Idaho, and received
her degree summa cum laude from the University of Idaho. One of
the finest law schools in the United States of America, I might
add. My alma mater also. She began her career in private
practice working nearly 20 years at a law firm before starting
her own civil litigation firm in Boise.
Judge Brailsford was then appointed to the Idaho Court of
Appeals by my good friend, and successor, former Governor Butch
Otter, who I might add, was one of the best governors that
Idaho has had, and where she served since 2019, and had a hand
in deciding a majority of the opinions that have been rendered
by that court.
As you can see, Judge Brailsford has a significant
qualifying experience in civil and criminal matters, and would
practice respect for the Constitution and the rule of law we
demand in Idaho from our Federal bench.
For these reasons, it's my honor to commend Judge Amanda
Brailsford to you, and I look forward to supporting her
nomination on the floor, which I'm confident you will move
expeditiously. Thank you so much.
Senator Padilla. Thank you, Senator Risch.
Senator Risch. I'm going to ask--Mr. Chairman, I'm going to
be--I'm going to ask to be excused. I think Senator Crapo is
coming, but, as you know, we've got Committee meetings going on
all over. So, thank you very much.
Senator Padilla. Thank you. I now turn to Senator Bennet to
introduce Judge Crews.
STATEMENT OF HON. MICHAEL F. BENNET, A U.S. SENATOR FROM THE
STATE OF COLORADO, INTRODUCING HON. S. KATO CREWS, TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF COLORADO
Senator Bennet. Thank you very much, Senator Padilla--
Senator Kennedy, it's good to see you, as well--for the
opportunity to introduce Kato Crews, President Biden's nominee
for the U.S. District Court for the District of Colorado. I
know that Cato's parents, Don and Napoleon, are with us today,
along with his stepmother, Brooke, and his wife, April. I thank
all of them for making the trip to join us this morning as I
have the chance to introduce, with Senator Hickenlooper, this
exceptional nominee.
Judge Crews is a son of Colorado. He was born in Pueblo,
proud steel town in the high desert in the southern part of our
State. Kato's family didn't have a lot as he was growing up,
but his parents worked hard to put him and his sister first.
And by the time Kato was in middle school, he knew he
wanted to be a lawyer. His dad had been a solo--had a solo law
practice in Pueblo. And while Kato didn't exactly know what his
dad did for work, he knew he was helping people. He had the
respect of his community, and he looked great in a suit.
Kato attended public high school in Rye, Colorado, a rural
town in the San Isabel foothills, where he was the only
African-American male in his entire school. He earned a B.A.
from the University of Northern Colorado, and a J.D. from the
University of Arizona, where he served on the law review, made
the dean's list, and offered pro bono aid to survivors of
domestic violence.
After law school, Kato served as an attorney for the
National Labor Relations Board in Denver, where he investigated
and prosecuted charges of unfair labor practices. He spent the
next 17 years, Mr. Chairman, in private practice. First at a
big firm in Denver where he made partner, and then at a smaller
firm he founded with colleagues.
In private practice, Kato focused on civil litigation and
employment law, representing both sides of the legal ledger of
workers and employers. His inclines ranged from large companies
to family businesses, nonprofits, charter schools, and
vulnerable Coloradans.
In one case, Kato represented a worker who had left his
employer to start his own vehicle booting company. When the
employer sued him for breaching a non-compete agreement, Kato
defended the worker and saved his new small business from ruin.
In private practice, Kato tried cases in Federal and State
courts, administrative agency, serving as chief or sole counsel
in jury trials, bench trials, and administrative hearings.
And, for the last 4\1/2\ years, he served as a magistrate
judge for the District of Colorado. In this role, he's presided
over five jury trials and one bench trial. He's performed most
tasks expected of a district court judge, from handling
evidentiary proceedings to all matters before, during, and
after trial.
During his time on the bench, Judge Crews came to
understand how pro se litigants often struggled to advocate for
themselves. He also saw young lawyers eager for courtroom
experience. So he founded a program to connect the two, giving
younger lawyers valuable time in court and pro se litigant's
free help to navigate certain proceedings. That's just one
example of Judge Crews' commitment to making the legal system
more accessible to litigants, to future lawyers, and the
community.
As Colorado's first African-American magistrate, Judge Kato
spends as much time as he can in the community, serving on non-
profit boards, mentoring students, and using the power of his
example to help young Coloradans imagine a career in law. I
have a pile of letters, Mr. Chairman, in my office from former
mentors and colleagues who also describe Judge Crews as a true
public servant who works hard, never loses his poise or his
patience, and never forget where he came from. He's one of the
most successful judges in our State, and one of the most
qualified.
Judge Crews knows what it means to try a case as a
litigator and preside over one as a judge. He's practiced law
for the government and for firms, large and small. He's tried
cases from the perspective of employers and employees, for
clients with resources and clients with none at all.
I have no doubt he would make an excellent district court
judge, and I urge the Committee to send him to the floor with a
strong bipartisan vote. Thank you, Mr. Chairman, for having me
here today.
Senator Padilla. Thank you, Senator Bennet. We're also
joined this morning by Senator Hickenlooper, to introduce Judge
Crews.
Senator Bennet. I was going to leave, but now I'm going to
stay.
[Laughter.]
Senator Hickenlooper. I worry that might turn out not to be
a wise decision.
[Laughter.]
STATEMENT OF HON. JOHN W. HICKENLOOPER, A U.S. SENATOR FROM THE
STATE OF COLORADO, INTRODUCING HON. S. KATO CREWS, TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF COLORADO
Senator Hickenlooper. Thank you, Chairman Padilla and
Ranking Member Graham, for inviting me to speak. Thank you,
Senior Senator Bennet, for sharing your words. And I can't add
too much but I do want to provide a little bit of perspective.
And I agree that his experience--Judge Kato Crews' experience,
intellect, and integrity make him an ideal candidate for
Federal judiciary.
He comes before this Committee with well-earned support,
thanks to a career dedicated to the people, as Michael was
recounting. In addition to his more than 20 years' experience
in employment law, since 2018, he served as a magistrate judge
on the very court to which he has been nominated.
Michael mentioned his mentors and the stacks of letters.
There's also a number of letters from his proteges and younger
people that he took under his wing, provided guidance and
inspiration to. He's a well-documented believer in giving back.
His commitment to pro bono work is almost limitless. He founded
the Federal Limited Appearance Program, a volunteer program
that provides litigants with legal representation and
procedural and other non-dispositive situations.
Judge Crews' experience in community service, as Michael
said, has earned enthusiastic support from all corners of the
State, all members of the Colorado legal community. Not just
former colleagues, but labor leaders, elected officials up and
down the list. Obviously, when the American Bar Association
does their rankings, if there was a category for ``most
qualified,'' which there's not, but, he is ``well qualified''--
he would be ``most qualified,'' were there such a ranking.
In supporting his nomination, a number--a group of
attorneys, who have appeared as opposing counsel in Judge
Crews' courtroom, wrote that, and I quote, ``Not one of us
questions magistrate Judge Crews' intellect, integrity, respect
for the rule of law, and the profession we share.'' They added
that he has, quote, unquote, ``embodied what all hope to see in
a judicial officer: fairness and impartiality.''
I could not agree more. Kato has my full, wholehearted
support. I encourage this Committee to support his nomination
with that same commitment. We look forward to the Senate acting
swiftly to confirm him to this office, which he is so eminently
qualified. Thank you to the Chair, and Ranking Member, and
every Member of the Committee, for your consideration of this
truly remarkable and outstanding nominee.
Senator Padilla. Thank you, Senator Hickenlooper.
As has been mentioned, we're also expecting Senator Crapo
at some point this morning. Reason for not being here, we have
multiple Committees meeting this morning. So, if, and when,
he's able to join us, we'll acknowledge him for some opening
remarks.
It is now my pleasure to introduce Molly Silfen, who has
been nominated to the Court of Federal Claims. Ms. Silfen is a
graduate of Yale College and of Harvard Law School. She began
her legal career in private practice where she handled patent
and trademark issues for both individual patent owners, as well
as major companies.
She then spent 2 years clerking for Judge Alan D. Lourie in
the U.S. Court of Appeals for the Federal Circuit, the court
that hears appeals from the Court of Federal Claims. In 2013,
Ms. Silfen joined the U.S. Patent and Trademark Office as an
associate solicitor.
Since joining the Office, she has argued 23 appeals before
the Federal Courts of Appeals and has served as counsel of
record in five merits cases before the Supreme Court. Ms.
Silfen has also completed two details since joining the USPTO.
She first spent a year with the appellate staff in the
Justice Department's Civil Division. And more recently, some of
you may recall, she spent 2 years detailed as a counsel with
Senator Leahy's Senate Judiciary Committee staff. It is good to
have her back with us today.
At his request, I'd like to enter into the record Senator
Leahy's statement of support for Ms. Silfen's nomination.
[The information appears as a submission for the record.]
Ms. Silfen does have the experience at all levels of the
Federal judicial system and the technical expertise required to
serve on the Court of Federal Claims. I welcome her and her
family today and look forward to hearing her testimony.
And now, I invite all three nominees to please come
forward. And, before you sit down, I will rise, as well, ask
you to raise your right hand.
[Witnesses are sworn in.]
Senator Padilla. Thank you. Please have a seat. Let the
record reflect all three nominees have answered the question in
the affirmative. I'll now turn to Ms. Silfen for your
statement.
STATEMENT OF MOLLY R. SILFEN, NOMINEE TO SERVE AS A JUDGE OF
THE UNITED STATES COURT OF FEDERAL CLAIMS
Ms. Silfen. Thank you, Chair Padilla, for those kind
remarks and for chairing this hearing. I'd also like to thank
Chair Durbin, and Ranking Member Graham, for scheduling the
hearing. And, thank you to the Members of the Committee, and
your staffs, for your hard work.
It's a pleasure to be back here where it was wonderful to
work with all of your staffs last Congress, and it's equally
exciting, but a bit scarier now, to be on this side of the
dais.
I'd also like to thank President Biden for the nomination.
I'm honored by his confidence in me. A heartfelt thank you to
Senator Leahy for his support. He also gave me the incredible
opportunity to work on this Committee, and I have the deepest
respect for the bipartisan work that you do, and what you can
accomplish working together.
In that vein, I'd also like to thank Senator Tillis for his
support and his staff for being terrific partners when we
worked together on the IP Subcommittee.
I'd like to thank all of my family and friends, those who
are here today and those who cannot be here. Thank you to my
parents for their unconditional love and support. Thank you to
my husband, Jonathan, who has been my strongest supporter and
biggest cheerleader, and even stayed home today at the last
minute to take care of a sick kiddo. And, thank you to our two
boys who are such kind and caring human beings, and who give me
hope for the future.
Thank you to Judge Lourie, who is kind enough to come
today. I was honored to be his law clerk, and he was a role
model in careful reason decision-making.
And, thank you to my colleagues and friends throughout my
career for modeling excellence in the practice of law.
Once again, I'm thrilled to be here today, and I welcome
the Committee's questions.
Senator Padilla. Thank you very much. Judge Brailsford.
Judge Brailsford. Good morning.
Senator Padilla. Let's make sure your microphone is on.
Sorry.
STATEMENT OF HON. AMANDA K. BRAILSFORD, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF IDAHO
Judge Brailsford. Thank you for convening this hearing and
for your time and attention. I am both honored and humbled to
appear before the Committee. Thank you to President Biden for
nominating me and for the opportunity to serve my country, if
confirmed.
Thank you to Senator Risch for your kind introduction, and
to both Senators Crapo and Risch, of the great State of Idaho,
for recommending me for this nomination, and for their support
and encouragement. If confirmed, I would work diligently every
day to earn the trust and confidence placed in me.
It would be a great honor to succeed the Honorable Lynn
Winmill, who has been a hardworking, dedicated, and steadfast
public servant, for his country and for the State of Idaho, for
more than 35 years.
I would like to acknowledge the many people in my life who
have supported me throughout my career and whose support has
carried me here today.
With me today is my family and my inspiration: my husband,
Matt, my daughter, Avery, and my sons, Mitchell and Maddox. As
always, I appreciate that you have my back, today and every
day. Additionally, I would like to acknowledge my parents.
Growing up on the ranch, you taught me the value of hard work
and perseverance. To my in-laws, Kerry and Carol, thank you for
your love and support.
I would also like to thank my friends, my outstanding
support staff at the Idaho Court of Appeals, and my supportive
colleagues in the practice of law and on the bench, and my
trusted mentors. I greatly appreciate the Committee's
consideration of my nomination, and I look forward to answering
your questions.
Senator Padilla. Thank you. Judge Crews.
STATEMENT OF HON. S. KATO CREWS, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF COLORADO
Judge Crews. Thank you, Chair Padilla, Chair Durbin,
Ranking Member Graham, and the Members of this Judiciary
Committee. And many thanks to President Biden for the honor of
this nomination, to Senators Bennet and Hickenlooper for their
warm introduction and for their support. And, thank you to our
district court nominating committee.
With me today is my high school sweetheart, who is also my
wife, April. I thank her for her love, support, and sacrifices
through all these years.
Our two children, unfortunately, could not be here. Turns
out that when your kids become young adults, they sometimes
have their own life obligations that take precedent even over
matters like this. Our daughter is in her junior year as an
undergraduate student, and our son is attending his last days
of his dance trade school. But they're both watching from their
devices, and I love them dearly, and I thank them for the
privilege it has been to be their father.
Also with me today is my mother, Don, my pop, Napoleon, and
my stepmother, Brooke. I thank each of them for their
unwavering love and guidance.
And my additional guests include my law clerk, Stephanie,
who has been with me since I took the bench in 2018, and
Claudia, who is a recent addition to my chambers.
I want to thank all the family and friends who couldn't be
here today and extend a heartfelt thanks to my judicial
colleagues from the District of Colorado. These are some of the
best colleagues I've had in my career, and it's been an honor
to work with and to know them.
And a special thanks to my former partners, Julie Waggener
and Rick Foster, and my dear friends, Chung Lei and Sam Brown,
for their support. It's been the honor of my life to serve the
public as a United States Magistrate Judge, and it would be an
even higher honor to be confirmed as a United States District
Judge. I thank this Committee for this opportunity to appear
and to answer your questions.
Senator Padilla. Thank you, Judge Crews. Before beginning
with the questions from the Committee, we've been joined by
Senator Crapo with the words of introduction of Judge
Brailsford. Senator Crapo.
STATEMENT OF HON. MIKE CRAPO, A U.S. SENATOR FROM THE STATE OF
IDAHO, INTRODUCING AMANDA K. BRAILSFORD, NOMINEE TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF IDAHO
Senator Crapo. Well, thank you, Chairman Padilla. And, I
thank all of the Members of the Judiciary Committee. I
apologize for being late. I was--I have three hearings this
morning, and one of them I had to make an introductory
statement at, where I was the Ranking Member, so I apologize
for being late. But I appreciate you letting me squeak in here
and make my introductory comments of Amanda Brailsford.
Judge Brailsford represents the best our State has to
offer, and I hope you'll be able to support her nomination in
this process. Judge Brailsford hails from Hagerman, Idaho, and
is an Idaho native through and through. She received both her
undergraduate degree and her Juris Doctorate from the
University of Idaho, graduating summa cum laude from the
University of Idaho for her law degree in 1993.
Judge Brailsford clerked for the Honorable Thomas Nelson of
the United States Court of Appeals for the Ninth Circuit
shortly after that. After her clerkship, she worked in private
practice with Holland & Hart in Boise, first as an associate
and then as a partner. As a partner, she handled matters
relating to agriculture, product liability, and corporate law
while also working as the hiring partner.
In 2013, she became a founding partner of Andersen Banducci
PLLC in Boise, focusing on matters related to complex
corporate, environmental, and antitrust law, while also
managing all aspects of the firm. In November 2018, Governor
Butch Otter appointed her to the Idaho Court of Appeals. She
assumed office in 2019, and was reelected in May 2020.
Judge Brailsford has been admitted before the Idaho State
Bar, the United States District Court for the District of
Idaho, the court for which she's currently nominated, and the
United States Court of Appeals for the Ninth Circuit.
Outside of her employment, Judge Brailsford and her husband
have been married for more than 20 years and have three
children. I'm sure you're going to get a chance to introduce
them, Amanda. Beyond her employment, she served on the Idaho
Supreme Court Evidence Rules Advisory Committee from 2016 to
2019, and has been an active volunteer with the local swim
teams in Boise.
When I reviewed candidates with Senator Risch, Judge
Brailsford stood out as one who would adjudicate cases
according to the Constitution and the law consistent with
established precedent. Throughout her career, Judge Brailsford
has demonstrated adherence to the Constitution and law, as
written, and has earned the respect of her legal peers.
She's proven herself to be knowledgeable in law and
procedure, an active participant in both the legal community
and her local community, and an extremely qualified candidate
for Idaho's next district judge. I thank you for this
opportunity.
And, before I close, I want to say, the folks in Idaho are
excited. We've been working to get this position filled for
years, and we have an outstanding candidate. And, I want to
thank the Biden administration who worked very closely with us.
This was a situation in which Republican Senators and a
Democrat President could come together and find an outstanding
candidate for Idaho's next U.S. District Court judge.
Senator Padilla. Thank you, Senator Crapo.
We'll now begin with our questions. Now, I will ask the
first question to all three of you. And, it's a topic that I
raised with all the nominees that come before this Committee.
And, that is the importance of diversity, not just on the
Federal bench.
Happy to talk about that all day long. But I asked a
question specifically in the spirit of diversity amongst law
clerks. Federal clerkships can be wonderful launch pads for a
legal career and often serves as a pipeline to the top levels
of our Nation's legal profession, both in the public and the
private sectors. But, far too often, women and minority law
students are overlooked for Federal clerkships, despite having
equal qualifications as their peers.
So, I'd like to hear from each of you, starting with Judge
Brailsford. If you could just discuss for a moment if you agree
with that priority, the importance of diversity at all levels
of the judiciary, and should you be fortunate enough to be
confirmed, what you would do, individually and personally, to
advance diversity in clerkships in our judicial system?
Judge Brailsford. Yes. Thank you for the question, Senator.
I do believe that diversity is important in the judiciary. I
think it gives confidence to people that justice is for all.
It's also a reminder that diligence and hard work and merit
matter. And, if confirmed, I would definitely look to all
backgrounds, and diverse backgrounds, for law clerks if they
met the merit criteria to be a law clerk.
Senator Padilla. Okay. Judge Crews.
Judge Crews. Thank you, Senator. I agree. Having a diverse
bench, it's important that the bench emulates the communities
that we serve in order to ensure that the public has confidence
in the fairness and impartiality of our courts.
I would take your comment one step further and say
internships, judicial internships are an important opportunity,
to offer those to diverse law students, which is something that
I do in my chambers. I have hired diverse clerks, and it is
important to maintain that diversity at all levels. Thank you.
Senator Padilla. Thank you very much. Ms. Silfen.
Ms. Silfen. Thank you, Senator. And I couldn't agree more
with Judge Brailsford and Judge Crews. And, I would also look
for diverse set of candidates for law clerks, I think, and, I
guess I'd add, that I would look for diversity in all forms.
So, I would certainly be looking for, sort of, racial, gender
diversity, socioeconomic background, and also, I mean, others,
sort of educational background.
When I clerked for Judge Lourie, he would always look to
find clerks with different technical backgrounds, just to make
sure that the various areas of technology were covered. And
that's sort of an underrated set of diverse candidates to look
for, as well. And so, I would certainly go about looking
diligently for a wide mix of candidates.
Senator Padilla. Yes. I thank each of you for your answers.
And yes, to be clear, in addition to gender, ethnic, racial
diversity, etc., this Committee has been clear, and has worked
successfully with the Biden administration, to put forward
nominees for the bench that have a diverse set, of both
professional as well as life experience, to have a judiciary
that reflects the diverse country that it serves, but also, to
your point, Judge Crews, bolsters public confidence in the
system and the decisions that it puts out.
In my time remaining, I have a specific question for Ms.
Silfen. You've generally focused on patent and trademark issues
in your practice, and you have significant experience spanning
the public sector, the private sector, as well as academia.
Given your experience across these different sectors, can you
please describe how your prior roles will aid you as you
prepare for this specific role on the bench?
Ms. Silfen. Thank you for the question, Senator. Starting
at the beginning of my career, when I was a law clerk, I was
clerking on the Federal Circuit and reviewing all of the
various issues that the Court of Federal Claims were involved
in, reviewing cases on all the various issues that come before
the Court of Federal Claims.
In my practice, I have focused on intellectual property
cases, which are one of the areas of the court's jurisdiction.
But on top of that, my experience has spanned across cutting
issues that the Court of Federal Claims addresses. Things like
administrative law, statutory interpretation, constitutional
questions. Those sorts of things come up across the board in
all different areas of the court's jurisdiction.
And, one quick thing I would add is my experience
practicing in front of the Federal Circuit and understanding
the records of highly technical complex cases, I think, will
serve me well on the court, if I were fortunate enough to be
confirmed.
Senator Padilla. Thank you very much. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Judge, Judge,
Counselor, congratulations. I want to be sure I understand your
records.
We'll start with Judge Crews. Judge Crews, you handled a
case called Vyanet Operating Group v. Maurice. Is that right?
Judge Crews. That's correct, Senator.
Senator Kennedy. And, you were reversed in that case. Is
that right?
Judge Crews. Yes, sir.
Senator Kennedy. You handled a case called Moudden v.
University of Colorado. Is that right?
Judge Crews. I believe so, Senator. Yes.
Senator Kennedy. And, you were reversed in that case.
Right?
Judge Crews. I believe a portion of my recommendation was
reversed, yes.
Senator Kennedy. Okay. Did you handle a case called
Vreeland v. Vigil?
Judge Crews. Yes, Senator.
Senator Kennedy. And, you were reversed in that case, too?
Judge Crews. A portion of that was reversed, as well. Yes.
Senator Kennedy. Okay. Did you handle a case called
Vreeland v. Olson?
Judge Crews. Yes, Senator.
Senator Kennedy. And, were you reversed in that case, too?
Judge Crews. A portion of that was reversed, as well. Yes.
Senator Kennedy. Okay. You handled a case called KeyBank
National Association v. Williams. Is that right?
Judge Crews. Yes, Senator.
Senator Kennedy. Were you reversed in that case?
Judge Crews. Senator, I've issued over 1,500
recommendations and orders over the course of my 4 years on the
bench. And, that is one that was partially reversed, yes.
Senator Kennedy. Okay. You handled a case called Reneau v.
Cardinas. Do you remember that case?
Judge Crews. Yes. Senator.
Senator Kennedy. And, you were reversed in that case, too.
Judge Crews. A portion of that was reversed, as well.
Senator Kennedy. Do you remember a case called Janny v.
Gamez?
Judge Crews. Yes, Senator.
Senator Kennedy. And, were you reversed in that case?
Judge Crews. A portion of that was reversed, as well,
Senator.
Senator Kennedy. Okay. How about a case--do you remember
this case, Judge Schwartz v. City of Denver?
Judge Crews. The name is familiar, Senator. For all the
cases I've handled, I'm not recalling particulars about that
case.
Senator Kennedy. Sure. Okay. Do you remember being reversed
in that case?
Judge Crews. Senator, I'm not specifically recalling that
case.
Senator Kennedy. Okay. Do you remember a case called Lucas
v. Board of Commissioners of Larimer County?
Judge Crews. The name is familiar, Senator. The details of
the case are not coming to hand at the moment.
Senator Kennedy. Do you remember being reversed in that
case?
Judge Crews. Senator, I don't recall offhand at the moment
with that case.
Senator Kennedy. Okay. Do you remember a case called Brooks
v. Colorado Department of Corrections?
Judge Crews. Yes, Senator.
Senator Kennedy. Were you reversed in that case?
Judge Crews. I'm not recalling offhand if that was one
where I had a partial reversal.
Senator Kennedy. Okay. Do you remember a case called A.C.
v. Jefferson County School District?
Judge Crews. Yes, Senator.
Senator Kennedy. Were you reversed in that case?
Judge Crews. I was partially reversed in that case, as
well.
Senator Kennedy. Okay. You remember a case called Blake v.
United States?
Judge Crews. The name sounds familiar, Senator.
Senator Kennedy. Okay. Do you remember being reversed in
that case?
Judge Crews. I don't specifically recall that particular
case.
Senator Kennedy. Okay. Well, I've got others here, cases
that you handled in which you were reversed. Tell me why you've
been reversed so often, Judge.
Judge Crews. Well, Senator, as I indicated, I've issued
over 1,500 recommendations and orders over the course of my
career. When I approach any of these cases, I approach them all
in the same fashion, which is to analyze the law, analyze the
Supreme Court and Tenth Circuit precedent that bears on those
cases, and I apply those cases to the law as a--or, to the
facts of that case, as a magistrate judge. Many of those are
recommendations that are made, which are reviewed de novo. I
respect the decisions of those district judges who viewed those
circumstances differently.
Senator Kennedy. Okay. Thank you, Judge. Tell me how you
analyze a Brady motion.
Judge Crews. How I analyze a Brady motion?
Senator Kennedy. Yes.
Judge Crews. Senator, in my 4\1/2\ years on the bench, I'm
not--don't believe I've had the occasion to address a Brady
motion in my career.
Senator Kennedy. Do you know what a Brady motion is?
Judge Crews. Senator, in my time on the bench, I've not had
occasion to address that. And so, it's not coming to mind at
the moment what a Brady motion is.
Senator Kennedy. Do you recall the U.S. Supreme Court case,
Brady v. Maryland?
Judge Crews. I do recall the name of the case, Senator.
Yes.
Senator Kennedy. And what did it hold?
Judge Crews. I believe that the Brady case--well, Senator,
I believe the Brady case involves something regarding the
Second Amendment. It is not--I've not had occasion to address
that. If that issue were to come before me, I would certainly
analyze that Supreme Court precedent and apply it as I would
need to, to the facts in front of me.
Senator Kennedy. Thank you, Mr. Chairman.
Senator Padilla. Thank you, Senator Kennedy.
We'll give Senator Tillis a moment to settle in, and he'll
be recognized next, for his questions.
In the meantime, let me just recognize that Judge Crews--
appreciate your responses to Senator Kennedy's question--we do
acknowledge that the record was 18 cases, in which you were
reversed or critiqued by a reviewing court. Many of these, as
your responses indicated, were partial reversals, and many
others, they followed a new development in the applicable area
of the law. So, cases are, at times, dynamic.
Senator Tillis.
Senator Tillis. Thank you, Mr. Chair. I'm sorry I was a
little late. I was actually in the anteroom with another
Member, but I wanted to come and say hello, congratulate you
all for your nominations, and just ask a couple of questions.
Ms. Silfen, I think maybe by me writing a letter of
recommendation to the administration on you, you kind of know
where I'm leaning on your confirmation. And, thank you for the
work that you did for Senator Leahy. I may ask you about
workload in the Claims Court, if I get an opportunity to.
Otherwise, we'll submit something for the record.
And, I should also say that Ms. Brailsford--did I pronounce
that right? Because you've been vetted and supported by two
colleagues in Idaho that I have a lot of support for, that I
intend to vote for your nomination, as well. I would ask you
the questions that they clearly already have, in order to
support your nomination.
So, Mr. Crews, I want to ask you, I may only have one
question for you, and it has to do with a case that you ruled
on, on qualified immunity, I think for prison guards, related
to a prisoner who was denied a couple of meals after a
complaint about the food, which is a legitimate complaint that
someone incarcerated can make.
I understand it was then reversed by a district court, then
held up by the Tenth Circuit. Am I right about those fact
patterns? Correct me, if I'm wrong.
Judge Crews. I recall a case where that was the fact
pattern, Senator.
Senator Tillis. Well, I, you know, for one, think that we
have a lot of people calling for repealing qualified immunity,
generally for law enforcement. And I, you know, the
circumstances of the case are what they are and, you know, seem
to be a rational basis for that specific example of why they
were not covered under qualified immunity.
Before you started serving in a judicial role, did you ever
publish, make statements, opine on qualified immunity, for, or
against, it?
Judge Crews. No, Senator. I don't believe I made any
statements for, or against, that.
Senator Tillis. Could you--if you're somebody, like me, who
thinks that people in law enforcement roles need to be held
accountable, we've seen some tragic incidences where they are
being prosecuted. Most recently, the prison--or, the sheriff's
deputies with the case in Virginia, just more recently.
But, could you at least characterize the process that--the
judicial process, that you were a participant in, as an example
of how you can have qualified immunity in place for people in
public safety and still rely on the courts to identify the bad
actors and hold them accountable?
Judge Crews. Sorry, Senator, can you reframe that question?
Senator Tillis. Okay. Well, we have a lot of people who are
weaving the narrative that--and I have to go back to my least
favorite webpage. That is a subpage of ActBlue, which is the
aggregation engine for good Democrats to get fundraising.
There's a subpage there that's called ``A-C-A-B.'' It's the
13.12-mile run. And they describe--it's a Black Lives Matter-
sponsored page for fundraising. They describe ``1-3-1-2,''
translates into ``A-C-A-B,'' which translates into ``All Cops
Are Bastards.''
So, there are some people who think that all law
enforcement officers are bastards, and, therefore, you have to
assume that they're bad actors, and none of them should have
any kind of coverage for qualified immunity.
And, I'm stipulating that there is some small percentage of
law enforcement, with the tens of thousands that we have across
the country, who make bad judgments. They're either bad people,
or they make bad judgments in a very stressful situation. But I
don't jump to the notion that even a significant minority are
in that category.
But, we have people here that think the way you do, this
is, threaten all people in public safety without having
qualified immunity in a job that's very, very difficult and
very, very dangerous. So, when I was reading your briefer, I
actually saw this as an example of where qualified immunity
among people in public safety can still be balanced and still
be in place, and allow the judicial process to weed through
ones that step beyond any sort of standard that should allow
them to be excused for their actions.
And so, I don't even have a question for you. I wanted to
talk about qualified immunity, and I want to talk about your
case, in particular, where you ruled, then it was reversed, and
then vetted by the Tenth Circuit, proves to me that you don't
have to strip qualified immunity to allow law enforcement to
continue to do the great work that the vast majority of them
do, every day. Thank you for being here.
Judge Crews. Thank you.
Senator Padilla. Thank you, Senator Tillis.
Seeing no other Senators joining Judiciary Committee today,
I want to make sure the nominees know this is not a reflection
of you or the importance of these nominations. As I mentioned
earlier, there's multiple--multiple Committees meeting
concurrently today. So, other Members of the Committee, no
doubt, will be able to submit questions for the record. The
deadline for those being by 5 p.m. on Wednesday, March 29th.
So, I will begin to move to adjourn today's hearing. In
addition to reminding everybody of that deadline for the
questions for the record, I will also announce that that is
also the deadline to submit letters for the record, and similar
materials. And if there's no further questions, or items
pending before our Committee today, this hearing is adjourned.
[Whereupon, at 10:45 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. Amanda K. Brailsford
By Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. S. Kato Crews
By Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Molly R. Silfen
By Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Hon. Amanda K. Brailsford to Questions
Submitted by Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Hon. S. Kato Crews to Questions
Submitted by Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Molly R. Silfen to Questions
Submitted by Senator Hirono
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]