[Senate Hearing 118-29, Part 3]
[From the U.S. Government Publishing Office]


                                                 S. Hrg. 118-29, Part 3

              CONFIRMATION HEARING ON FEDERAL APPOINTMENTS

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION
                               __________

                             MARCH 22, 2023
                               __________

                           Serial No. J-118-2
                               __________

                                 PART 3
                               __________

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


                        www.judiciary.senate.gov
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                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
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                       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

                              ----------                              

                       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

                              ----------                              


                       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

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            Questions Submitted to Hon. Amanda K. Brailsford
                           By Senator Hirono

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               Questions Submitted to Hon. S. Kato Crews
                           By Senator Hirono

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                 Questions Submitted to Molly R. Silfen
                           By Senator Hirono

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          Responses of Hon. Amanda K. Brailsford to Questions
                      Submitted by Senator Hirono

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              Responses of Hon. S. Kato Crews to Questions
                      Submitted by Senator Hirono

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               Responses of Molly R. Silfen to Questions
                      Submitted by Senator Hirono

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