[Senate Hearing 118-29, Part 10]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 10
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
----------
OCTOBER 4, 2023
----------
Serial No. J-118-2
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PART 10
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
S. Hrg. 118-29, Part 10
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 4, 2023
__________
Serial No. J-118-2
__________
PART 10
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
------
U.S. GOVERNMENT PUBLISHING OFFICE
56-021 PDF WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina,
AMY KLOBUCHAR, Minnesota Ranking Member
CHRISTOPHER A. COONS, Delaware CHARLES E. GRASSLEY, Iowa
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE K. HIRONO, Hawaii MICHAEL S. LEE, Utah
CORY A. BOOKER, New Jersey TED CRUZ, Texas
ALEX PADILLA, California JOSH HAWLEY, Missouri
JON OSSOFF, Georgia TOM COTTON, Arkansas
PETER WELCH, Vermont JOHN KENNEDY, Louisiana
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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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Graham, Hon. Lindsey O........................................... 2
Hirono, Hon. Mazie K............................................. 7
Booker, Hon. Cory A.............................................. 10
Cornyn, Hon. John................................................ 5
VISITING INTRODUCERS
Wyden, Hon. Ron, U.S. Senator from Oregon........................ 3
prepared statement........................................... 183
Menendez, Hon. Robert, U.S. Senator from New Jersey.............. 9
Merkley, Hon. Jeff, U.S. Senator from Oregon..................... 4
Schatz, Hon. Brian, U.S. Senator from Hawaii..................... 6
NOMINEES
Kasubhai, Hon. Mustafa Taher..................................... 11
Questionnaire................................................ 44
Responses to written questions............................... 120
Additional materials......................................... 185
Kazen, Hon. John A............................................... 12
Questionnaire................................................ 205
Responses to written questions............................... 256
Additional material.......................................... 281
Park, Hon. Shanlyn A. S.......................................... 13
Questionnaire................................................ 282
Responses to written questions............................... 318
Additional materials......................................... 354
Semper, Jamel K.................................................. 14
Questionnaire................................................ 377
Responses to written questions............................... 401
Additional material.......................................... 438
Smith, Micah W. J................................................ 15
Questionnaire................................................ 439
Responses to written questions............................... 469
Additional materials......................................... 512
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
----------
WEDNESDAY, OCTOBER 4, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
226, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Blumenthal, Hirono, Booker, Padilla, Ossoff, Welch, Graham,
Grassley, Cornyn, Lee, Cruz, Cotton, Kennedy, Tillis, and
Blackburn.
Also present: Senators Wyden, Merkley, Schatz, and
Menendez.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing of the Senate Judiciary
Committee will come to order. I'd like to take a moment to
first acknowledge that this is our first full Committee hearing
since the passing of our friend and colleague, Senator Dianne
Feinstein, a treasured leader of the Senate and this Committee.
It is a bit unreal to begin these proceedings and to know that
our dear friend will not be joining us at the dais.
Dianne conducted herself with steely determination, grace,
and dignity in all of her work before this body. And I hope we
will all try to honor her by measuring up to that high
standard. I want Members to know we're working on a plan to
honor her personally for her service on the Committee, and
we'll talk about that a little later.
Today, we'll hear from five judicial nominees: Judge
Mustafa Kasubhai--did I come close to pronouncing that
correctly?
Judge Kasubhai. Yes.
Chair Durbin. Good. Nominated to the District of Oregon;
Judge John Kazen, nominated to the Southern District of Texas;
Judge Shanlyn Park, nominated to the District of Hawaii; Jamel
Semper, nominated to the District of New Jersey; and Micah
Smith, also nominated to the District of Hawaii.
Congratulations to each nominee, and your family and friends
who gathered.
Before I turn to Ranking Member Graham, I want to note that
each of today's nominees has received blue slips from both home
State Senators. This includes Judge Kazen, who has received
blue slips from Senators Cornyn and Cruz.
Both Senators previously worked with the White House on the
nomination of Judge Irma Ramirez to the Fifth Circuit. And I
thank them and the White House for continuing to work in good
faith to fill judicial vacancies on Texas district courts. I
look forward to similar progress in other States.
We have several colleagues joining us to introduce nominees
today, and first, I'll turn to Senator Graham for any opening
remarks.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. I think all of us
on this side have the same view of Senator Feinstein as you do.
She was a consequential Senator, an incredibly kind, decent
person who was passionate about her causes. But you could
always find common ground if you sought it with Dianne, and she
will certainly be missed.
If you're looking for a role model, as a young person, on
how to conduct yourself, I would recommend Senator Feinstein.
The life she lived would be a good one to try to replicate.
So a couple things. Last month was the largest illegal
crossings, I think, ever--border is in absolute chaos. Ukraine,
since the war started that was supposed to last 2 weeks, has
destroyed 50 percent of the Russian combat capability. We spent
less than 5 percent of our military budget in helping Ukraine,
and NATO was larger.
So if you'd told me in the 1980s not one American soldier
would have to die to reduce the combat capability of the
Russian military, and you could do that for 5 percent of our
military budget, nobody would've believed you. Ukraine has
taken back 50 percent of the territory lost in the initial
invasion, and back from 2014 even. What more do you expect
these people to do? They're fighting like tigers. They have
died by the thousands. It is in our interest.
To those on the Democratic side, we have to come up with a
border security plan that will stop the flow: 8,000 to 10,000
people a day with no end in sight is unsustainable. The asylum
system is broken. The First Safe Country Rule has been ignored.
Parole has been abused. I will challenge my Democratic
colleagues to work with us to find a strong border plan to stop
what is going on at the border.
To my Republican colleagues, I don't know how the drama in
the House ends. But I want us to be the party that recognizes:
You do not solve your national debt problems by reducing the
power of your military in dangerous times. It's never cheaper
to let people take land of others by force of arms because they
won't stop.
So if you're worried about adding to the debt, let's make
sure we don't have a major war between NATO and Russia, and
that China is not enticed to invade Taiwan.
Being strong is cheaper than being weak. And if you really
want to do something about the debt, which we all do, most of
the money is not in the discretionary accounts. So with that
Mr. Chairman, ready for the hearing.
Chair Durbin. Thank you, Senator Graham. Let me just say
that I couldn't agree with you more on your statements on
Ukraine. I was saddened, angered, maybe even embarrassed, that
we did not include money for Ukraine in the recent Continuing
Resolution.
The war goes on. The Ukrainians are sacrificing their
lives. As the president of Ukraine, Zelensky, told us when he
met with us just a few weeks ago, we give our lives, we ask you
to give your money. That's not too high a price to pay to
defend freedom and democracy in this important part of the
world. I stand ready and hope that we do this quickly.
On the issue of the border, I have said it publicly before
and we are struggling to find a starting date, but I hope it's
soon, when we do sit down on a bipartisan basis and start
talking about the border.
Congress has to accept its legislative responsibility. We
cannot just point fingers at the White House. We are the ones
who are commissioned to write the laws and to make the policy
that the White House should follow. And we have a lot more to
do.
We haven't had a significant immigration bill for over 30
years. We need one and need it now. And I'm ready to join you
on a bipartisan basis to make that happen.
We have introductions for our nominees and many of our
colleagues are here for the purpose. And first up is Senator
Ron Wyden of Oregon to introduce Judge Kasu----
Senator Wyden. Kasubhai.
Chair Durbin. Thank you, I appreciate that.
STATEMENT OF HON. RON WYDEN,
A U.S. SENATOR FROM THE STATE OF OREGON
Senator Wyden. Thank you, Mr. Chairman. And Mr. Chairman,
thank you very much for your courtesy, and all your help with
our nominee.
And to colleagues, just one sentence about Senator
Feinstein. Last night I was looking at pictures. And at an
event that she organized, there was our former Republican
Leader here, Senator Cornyn, Trent Lott, standing with Henry
Waxman, the California liberal. And I said to myself, that was
part of the beauty of Dianne Feinstein, always bringing people
together. Remarkable.
So, Senator Merkley and I are very pleased to be able to
join all of you to introduce Judge Mustafa Kasubhai, nominee
for the District Court for the District of Oregon. His
credentials are so long, I would keep you till breakfast if I
went through. And I would ask Mr. Chairman, if we could make my
remarks part of the record, and I'll just make a couple of
comments.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Wyden. The judge is eminently qualified for this
position. You've got those qualifications. He was a district
court magistrate. So in effect, he was the first Muslim-
American judge to be appointed to the Federal bench. And he's
been in private practice.
And I think for my first point, because a number of you
have raised it, Senator Merkley and I hold Town Hall Meetings
in all of our rural counties. I have some this weekend. The
judge has extraordinary rural credentials because before he
served as a magistrate judge, he practiced law in Klamath
Falls.
Now, if you're not familiar with Klamath Falls--I've got a
Town Meeting there in a few days--it's very rural, agriculture,
natural resources. And it's a place that's recruiting doctors,
and lawyers, and the like.
But to give you an idea of these kind of rural connections,
the judge owns a portable sawmill that he uses to mill logs
into beautiful finished wood products. So if you ever are
looking for a way, Senator Whitehouse, to have some wonderful
floors in your home----
[Laughter.]
Senator Wyden [continuing]. Don't call Ghostbusters, call
our nominee because he can do it for you.
So he is the first South Asian-American to serve on our
local courts at home when he was appointed as magistrate judge.
As I said, he was first Muslim American in his 16 years on the
bench. He won awards for judicial excellence from the Oregon
Bar, the National Asian Pacific American Bar Association, and
they're a testament to his work ethic and his expertise. The
unanimous judgment of the American Bar Association was to rate
him as ``well qualified.''
And one of the other areas that Senator Merkley and I
appreciate about the judge is, he's always mentoring students
in order to create hope and opportunity for the next generation
of legal professionals.
Mr. Chairman, I've entered, with your staff, the letters of
support from across the political spectrum, across Oregon,
across this country, people who have worked with him.
I urge all Members of this Committee to support Judge
Mustafa Kasubhai, and will be happy, as Oregon's United States
Senators, to work with all of you for those who want additional
information. But I know some of you asked questions about the
judge's connection to rural communities, and his are stellar.
Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Wyden. Senator Merkley.
STATEMENT OF HON. JEFF MERKLEY,
A U.S. SENATOR FROM THE STATE OF OREGON
Senator Merkley. Well, I am honored and pleased to add my
voice to that of my colleague, Senator Wyden, in support of
this nomination.
Mustafa Kasubhai's leadership in the law has been evident
since he first came to our State over 30 years ago as a young
man to attend the University of Oregon School of Law. And he
served as president of the Student Bar Association.
Soon after, he began his career in private practice,
representing clients throughout Southern and Eastern Oregon
while working out of offices in Eugene and Klamath Falls. It
gave him a personal understanding of the challenges facing
working folks, folks living in rural areas, which can look very
different in our State, as in so many States, from the
viewpoints in larger cities.
His service continued as a member of the Oregon Workers'
Compensation Board. He was appointed to the Lane County Circuit
Court in 2007, where he served for a decade. And that was when
the Board of Judges, which is composed of the active and senior
Federal court judges for the District of Oregon, elected Judge
Kasubhai to serve alongside them as a U.S. magistrate judge. He
served in that position ever since, and in September, President
Biden nominated him to join their ranks on the U.S. District
Court for Oregon.
I appreciate his quote when he said, ``I have always
imagined that democracy is solar powered. It works when a light
shines on all of its functions. That light is the rule of
law.''
And earlier this week, he visited the National Archives,
too, and his words pay tribute to the Constitution. So it's
with admiration and with pride that I commend his nomination to
all of you sitting here on the Judiciary Committee.
Thank you for taking into account his sterling credentials,
his breadth of service at all levels, and the respect and
admiration of his peers and his students all across our State.
He's an outspoken champion for justice, a fierce believer in
democracy, and a passionate advocate for the rule of law.
Thank you, Mr. Chairman, Mr. Ranking Member, and Members of
the Committee.
Chair Durbin. Up next is Senator Cornyn to introduce Judge
Kazen.
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Chairman Durbin, for allowing me
to introduce John Kazen, who's been nominated for a vacancy in
the Laredo Division of the Southern District of Texas.
Since 2018, he's served as U.S. magistrate judge on the
district court. He's handled over 85 civil consent cases that
have gone to final judgment. As Members of the Committee know,
magistrates ordinarily do not handle the full docket that a
Federal judge does. But in cases where the parties consent,
then they can. So he's handled 85 civil consent cases that have
gone to final judgment as well as almost 2,000 misdemeanor
cases.
And it's unusual, at least in my observation, that
magistrates or their--that parties consent to magistrates to
try jury trials. But he's had seven civil trials and one
misdemeanor criminal trial, which is a remarkably high number
for a magistrate judge, particularly since he's only served
since 2018.
Judge Kazen has gotten high praise from the Laredo legal
community and from the other district judges in Laredo. Judges
Marmolejo and Saldana rave about his work. A good benchmark of
this is that Judge Kazen has an overwhelmingly high number of
consent cases, as I mentioned. That represents, I believe, a
great vote of confidence in his integrity, his temperament, and
his legal abilities.
Prior to his current role, Judge Kazen spent the majority
of his career in private practice working at a firm he founded
in 1997.
It's significant that Judge Kazen has been nominated to
this position because his father, George Kazen, a revered icon,
really, in the legal community in Laredo in South Texas, served
on the Federal bench for 39 years. So I know, Judge, your
father passed away in 2021, and I'm sad, as I know you are, he
couldn't be here today to share in this remarkable
accomplishment of yours. But it's clear that his legacy lives
on.
Senator Cruz and I--Mr. Chairman, and I appreciate the kind
comments you made about our good faith cooperation with the
nomination process--Senator Cruz and I, as you know, have a
Federal Judicial Evaluation Committee. It's a bipartisan
committee of some of the best lawyers in the State of Texas. We
call it the FJEC, for short, the Federal Judicial Evaluation
Committee.
It's an institution that I'm very proud of because we make
sure, regardless of who's in the White House, that we have
properly vetted candidates we can recommend to the White House.
And we appreciate the fact that the White House has been
receptive to our willingness to work in good faith. Senator
Cruz, I know, feels the same way.
And Judge Kazen received the highest marks of any of the
people interviewed for this position. So I have a great deal of
confidence that he, Judge Kazen, will faithfully uphold the
rule of law and the Constitution of the United States. And I
look forward to supporting his nomination, and I would urge all
of my colleagues to do the same. Thank you very much.
Chair Durbin. Thank you, Senator Cornyn. We have two
nominees from the State of Hawaii, and I will recognize the
senior Senator Brian Schatz, first, to introduce Judge Park and
Mr. Smith.
STATEMENT OF HON. BRIAN SCHATZ,
A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Schatz. Thank you very much, Chairman Durbin,
Ranking Member Graham, Members of the Committee.
I'm proud to support the nominations of Micah Smith and
Judge Shanlyn Park to serve as judges on the U.S. District
Court in Hawaii. Both of them are exceptionally qualified and I
appreciate the opportunity to help to introduce them to the
Committee.
Micah Smith's story is a quintessentially American one. The
son of an immigrant, he grew up in a housing project on Kauai,
attending public schools before going to Lock Haven University,
where he graduated with top honors, and later to Harvard Law
School.
For the past 11 years, he has served as a Federal
prosecutor for the U.S. Attorney's Office, first in the
renowned Southern District of New York, and, more recently, in
the District of Hawaii, where he serves as deputy chief of the
Criminal Division.
Those who know him often highlight his abiding sense of
fairness and balanced temperament. A colleague noted, quote,
``He listens and considers carefully before voicing his
opinion,'' adding that he has an unwavering commitment to
achieve a better system of justice that provides access to
justice for all.
That same commitment to equal justice underpin Judge
Shanlyn Park's two decades as a public defender, giving voice
to those most in need. A graduate of the University of Hawaii's
Richardson School of Law, she represented low income defendants
on a variety of complex cases, earning a reputation, among
colleagues and opposing counsel alike, as a highly skilled,
compassionate, and solutions-oriented attorney.
And she brought her integrity and sound judgment to the
bench, since becoming a State court judge in 2021. In
supporting her nomination, a former boss remarked, quote, ``The
law is more than a job for Shanlyn,'' calling her, ``a great
ambassador for the law.''
Judge Park's credentials are impressive by any measure, but
the historic nature of her nomination should not be lost on
anyone. If confirmed, she would be the first Native Hawaiian
woman to serve on the Federal bench.
Both nominees have the legal acumen, as well as the
character and temperament, required to fulfill the duties of
the United States district court judge. It's for these reasons
that I'm proud to work with a Member of the Judiciary Committee
and my partner in the Senate, Senator Hirono, in supporting
their nominations to the Federal bench. Thank you very much.
Chair Durbin. Thanks, Senator Schatz. Senator Hirono.
OPENING STATEMENT OF HON. MAZIE K. HIRONO,
A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Hirono. Thank you, Mr. Chairman. I'm glad to join
my colleague Brian Schatz in supporting the two nominees from
Hawaii. So thank you, Mr. Chairman and Ranking Member Graham,
for holding this hearing for our two outstanding nominees,
Micah Smith and Judge Shanlyn Park.
And I want to begin by welcoming their families, and their
friends, and loved ones, including all those who got up really
early this morning to watch these proceedings in Hawaii.
So, in introducing Judge Shanlyn Park, she has been
nominated to serve on the U.S. District Court of Hawaii. Judge
Park was born and raised in Hawaii, where her distinguished
career has been spent almost entirely in public service.
Inspired, no doubt, by her father's work as a longtime Honolulu
police officer.
She graduated cum laude from Chaminade University and the
William S. Richardson School of Law, and she clerked for
Magistrate Judge Francis Yamashita.
Prior to her time on the bench, Judge Park served in the
Federal Public Defender's Office for the District of Hawaii for
20 years. During her career, she represented numerous indigent
clients before the U.S. District Court for the District of
Hawaii and the Ninth Circuit.
After leaving the Federal Defender's Office, she entered
private practice and, even there, she demonstrated her
commitment to serving her community, receiving special
recognition from the District of Hawaii for providing pro bono
services.
In 2021, she was appointed to serve as a Hawaii Circuit
Court judge, and as a judge, she has earned high marks from
practitioners and litigants for her even-handed approach and
well-reasoned decisions.
Judge Park is held in high regard in the Hawaii legal
community as demonstrated by letters of support that the
Committee has received from the former U.S. Attorney Flo
Nakakuni, Federal Defender Salina Kanai, and a group of
prosecutors at the Honolulu Department of the Prosecuting
Attorney.
National groups have also offered support for her,
including the National Asian Pacific American Bar Association,
the Native Hawaiian Bar Association, the National Congress of
American Indians, the Native American Rights Fund, and the
National Native American Bar Association.
If confirmed, Judge Park would make history, as noted by my
colleague, Senator Schatz, as the first--the first Native
Hawaiian woman to serve as a Federal district court judge. And
we say it's high time and long overdue.
Along with Judge Park, I'm pleased to introduce Micah
Smith, nominated to serve in the U.S. District Court for the
District of Hawaii. Micah has an impressive legal career. After
graduating from Lock Haven University, summa cum laude, and
Harvard Law School, magna cum laude, he clerked on the U.S.
Court of Appeals for the Second Circuit for Judge Guido
Calabresi, and then on the Supreme Court for Justice David
Souter.
Micah spent 4 years at O'Melveny & Meyers, where he helped
author a brief in U.S. v. Jones, a pivotal Fourth Amendment
case before the Supreme Court. And Justice Scalia wrote the
opinion for a unanimous Supreme Court, siding with Micah's
client, Jones.
He then became a Federal prosecutor, a job he has held for
the last 12 years. He began at the U.S. Attorney's Office for
the Southern District of New York, where he tried cases on
racketeering, drug trafficking, fraud, money laundering, and
murder for hire. He was promoted to deputy chief and then co-
chief of the Violent and Organized Crime Unit, where he
supervised approximately 20 prosecutors.
Even with all his success, Micah never forgot where he came
from. A proud son of Kauai and graduate of Kauai High School,
Micah returned home to Hawaii in 2018 to join the U.S.
Attorney's Office in Hawaii.
And he was promoted to deputy chief of the office's
Criminal Division, and serves as the criminal civil rights
coordinator, working closely with the Civil Rights Division,
law enforcement agencies, and other prosecutors to protect the
rights of people in Hawaii.
And last year, he was also named chief of appeals and legal
strategy, responsible for reviewing and editing appellate
briefs, providing advice to other prosecutors in his office.
The quality of Micah's work is evident. He has won numerous
awards in his time at the Department of Justice, including the
Homeland Security Investigations, New York Prosecutor of the
Year Award, and U.S. Attorney General's Award for Distinguished
Service, and many others. The Committee has received many
letters supporting his nomination, including from national
organizations.
So I know that both of these nominees have the kind of
experience, temperament, and demonstrate a commitment to public
service, along with their deep roots in Hawaii, which will make
them excellent judges in the Hawaii District Court.
And after today's hearing, I know that my colleagues will
agree, likewise, and I urge their swift consideration and
confirmation. Thank you, Mr. Chairman.
Chair Durbin. Thank you very much, Senator Hirono. And now
I recognize Senator Menendez.
STATEMENT OF HON. ROBERT MENENDEZ,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman. Chairman Durbin,
Ranking Member Graham, and distinguished Members of the
Committee, it's an honor to join in introducing an
exceptionally well-qualified nominee for the U.S. District
Court of New Jersey, Mr. Jamel Ken Semper.
For more than 15 years, Mr. Semper has tirelessly sought
justice for the residents who call New Jersey home. It is a
central theme that runs throughout Mr. Semper's career: an
unwavering commitment to the rule of law and to the communities
the law is meant to protect.
He began his career as an assistant prosecutor in Union
County, handling a wide range of cases across the appellate,
juvenile, and adult trial units. Then in Essex County, he went
after carjackers and murderers, including the first prosecution
of a homicide under New Jersey's domestic terrorism statute.
In 2018, he was sworn in as an assistant United States
attorney in Newark, climbing the ladder, and ultimately serving
as chief of both the Violent Crime and Organized Crime Units.
Today, he's the deputy chief of the Criminal Division, a
role where he is responsible for supervising all phases of
criminal investigation and efforts.
In each of these positions, Mr. Semper has demonstrated an
unflinching fidelity to the rule of law and the role of
precedent in pursuing cases. Time and time again, he has forged
the essential balance between keeping New Jerseyans safe and
building trust between the residents and those who have sworn
an oath to protect them. This community-focused approach has
earned Mr. Semper plaudits from individuals and organizations
representing diverse interests, especially those who advocate
for communities of color in the Garden State.
Consider the words of Reverend Ron Slaughter, the pastor of
Saint James A.M.E. Church in Newark on the day of Mr. Semper's
nomination. He said, quote, ``Semper has touched all the bases,
stayed connected to the community, remained patient. This is a
great day for New Jersey, America, our judiciary, and my
community.'' And I couldn't agree more.
Mr. Semper's nomination not only furthers our collective
goal of addressing judicial vacancies across our State and
country, it also advances our efforts to diversify the Federal
bench. It brings us one step closer toward ensuring that our
most hallowed institutions reflect the rich tapestry of
America.
As I said at the start, I am truly honored to introduce him
today. Why? Because for nearly 18 years, I've always taken my
constitutional duty to provide advice and consent on judicial
nominees seriously. It's one of the most solemn obligations as
a United States Senator.
I'm a firm believer that our independent judiciary must
reflect the best of America's values and its citizens. Which is
why I can honestly say that Jamel Semper's relentless
commitment to public service, combined with his temperament,
intellect, and the trust he has built with New Jerseyans, is
exactly what we look for in a Federal judge. He will no doubt
be an asset to New Jersey's Federal bench.
I encourage my colleagues to give him all due consideration
at today's hearing and urge strong bipartisan support of the
Committee so that he can swiftly be confirmed to his rightful
place in the District Court of New Jersey.
Chair Durbin. Thank you, Senator. Finally, Senator Booker
is here to introduce Mr. Semper as well.
OPENING STATEMENT OF HON. CORY A. BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Thank you. It's an honor to join my senior
Senator in singing the praises of Jamel Semper Fi--I mean, I'm
sorry----
[Laughter.]
Senator Booker [continuing]. Just Semper. Although he is
always loyal. This guy is incredible. And I don't want to
repeat the things that Senator Menendez has already said, but I
do think he left out that this man is incredibly Jersey.
How Jersey is he, do you ask? He is a graduate of Rutgers
Law School. He is a native son of Essex County. He is more
Jersey than the Garden State Parkway. And he, like many people
who have driven that notable road, has paid it forward. He's
paid his tolls.
And I will tell you, perhaps one of the greatest
contributions he has made to our State before I talk about his
professional life, is his extraordinary family. Now, I just
would love my colleagues to see this family and I would ask
them to stand up right now. It's not a commandment from the
Senate, but it is a request----
[Laughter.]
Senator Booker [continuing]. These are four incredible kids
who I think are future leaders. I'm happy that the Constitution
says they have to wait until they're 30 to run against me----
[Laughter.]
Senator Booker [continuing]. But it is just an
extraordinary family that he has. Perhaps his best life
contribution.
But I live in Newark, where this man has worked for a very
long time. He worked--and my Republican colleagues want to
note--under a Trump-appointed U.S. attorney. And that work that
they did, they sat together with my police director then, in
Newark, a man named Anthony Ambrose, and they came up with a
strategy to keep our city safe.
At a time that shootings were going up in a lot of places,
the nominee will know that shootings dropped dramatically in
the city of Newark because of their prosecutorial strategies.
When I asked the mayor, when I asked the police director, what
was one of the key secrets, they pointed to the work that this
team did. And Mr. Semper was a major part of that.
What does it mean when you have a city that drops in
homicides or shootings almost a quarter? Well, it means that
the city thrives. This is an extraordinary American in so many
ways.
In the prosecutor's office, he supervised 36 Federal
prosecutors in all phases of criminal investigation and
litigation, helping to drive down crime in our State.
In his current role as deputy chief, he also supervises the
Violent Crime Initiative, a joint task force that's set out to
reduce gun violence in New Jersey communities. And they had
incredible success.
I don't want to repeat all of his incredible credentials,
but I do want to say something very personal. As many people on
this Committee know that I am very concerned about how many
people have been chewed up by the criminal justice system.
We have a nation that has a proclamation that we are the
free Nation, but we incarcerate more people than any other
nation on the planet Earth. There are more African Americans
incarcerated today, and under criminal supervision, than all
the slaves in 1860.
And so I asked him in my interview: You're a prosecutor,
you helped keep my city safe, but how am I sure that young men
and women coming before you will get a fair shake at the
criminal justice system?
And in a very emotional response, he told me what many
Black men in America have--that the criminal justice system has
visited upon his family. He's had a close family member who was
a defendant.
He brings somebody to the bench that we really need:
extraordinary empathy. He's helped keep Black communities, like
the one I live in, safer and stronger. He's done it with
empathy and heart. He has brought justice to this justice
system.
And should we give this great Jersey boy a chance to sit on
the bench? As he showed with a U.S. attorney nominated by
Trump, as he showed with a city that is a bright blue city in
our Nation, that he will find balance, he will find judicial
restraint, he will find aggressive pursuit of justice. He will
be the kind of judge that we need in the United States of
America.
And I know that this is a day that our ancestors are happy.
That our bench in New Jersey should further reflect the
experiences of so many people. This is a Jersey boy that I'll
assure that will even make my friend from Louisiana, Senator
Kennedy, proud. Thank you.
Chair Durbin. Thank you, Senator Booker. I thank all the
Members for coming and introducing the nominees who will now
approach the witness table.
[Pause.]
Chair Durbin. Please remain standing. Thank you. Please
raise your right hand.
[Witnesses are sworn in.]
Chair Durbin. Thank you. Let the record reflect that all of
the nominees answered in the affirmative. So we will let them
proceed.
And I'm going to start with Judge Kasubhai with a 5-minute
opening statement. The same opportunity will be given to each
nominee. Judge, proceed, please.
STATEMENT OF HON. MUSTAFA TAHER KASUBHAI, NOMINEE
TO SERVE AS UNITED STATES DISTRICT JUDGE FOR THE
DISTRICT OF OREGON
Judge Kasubhai. Thank you, Chair Durbin and Ranking Member
Graham, for the privilege of appearing before this Committee
for your consideration.
I'd like to express my deep gratitude to President Biden
for nominating me, and for giving me a chance to serve my
country.
And to my home State Senators, thank you, Senator Wyden and
Senator Merkley, for those gracious introductions and for your
strong support. Coming here 3,000 miles away, you brought a
heart of Oregon that made me feel right at home.
Now, I'd like to acknowledge some important people who
brought me into this life, and some people who give my life and
work deep meaning. I'm the proud son of immigrants, Taher and
Aviza Kasubhai. They immigrated here as Indian Muslims and,
soon after, embraced their new identity as American Muslims.
And in raising me in our faith traditions, I learned the
importance of justice and mercy, kindness and compassion, and
pursuing one of the highest callings: public service. And that
to be in service to others requires practicing humility every
day.
And to my wife and best friend, Kristin, it is from our
seemingly very different backgrounds that we've created a life
together that's best summed up as ``A Life of And,'' the most
powerful word in the universe. And when bringing all of each of
us into the mix, our sum is infinitely greater than the parts.
And I love you to infinity and back.
And to our two children, I'm in awe of your beautiful and
independent spirits. You both are an antidote to cynicism. You
make me an optimist, and I love you both two times to infinity
and back, which makes three times to infinity and back a real
number.
To Bonnie and Ernie, my mother- and father-in-law, you are
the salt of the earth. And thank you for welcoming me into your
home. You bring an abundance of humility and enduring
commitment to family. And you've taught me that whatever we
build, we build it for centuries to come. In other words, you
can't go wrong with adding more concrete.
And to my friends and colleagues in the District of Oregon,
I couldn't hope to work with more kind and gracious public
servants. You embody that ideal of service to others. You make
me a better judge.
And finally, I'd like to thank my alma mater, the
University of Oregon School of Law. The only public law school
in Oregon, and whose mission is to inspire public service.
Thank you, to all the deans and faculty through the decades who
have inspired so many graduates, including me, to make public
service our vocation.
Honorable Senators of the Committee, I look forward to our
discussion.
Chair Durbin. Thank you, Judge. Judge Kazen.
STATEMENT OF HON. JOHN A. KAZEN, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DIS-
TRICT OF TEXAS
Judge Kazen. Chair Durbin, Ranking Member Graham, thank you
for scheduling today's hearing. It is a privilege to appear
before this Committee.
Thank you, Senator Cornyn, for your very kind introduction.
I want to sincerely thank Senator Cornyn and Senator Cruz, as
my home State Senators, for your support and recommendation for
me for this position. And of course, I want to thank President
Biden for nominating me to the position of district court
judge.
I would not be here if it were not for the examples that my
parents, Barbara and George Kazen, set for me throughout my
life. My mother, Barbara, dedicated her life to serving the
community and to helping the less fortunate of our community.
My father was, to me, the embodiment of dedication and public
service to the law. Although they have both now passed, they
have given me their spiritual strength throughout this process.
I'd like to introduce my wife, Hayley, who is here with me
today, who has always been a source of inspiration and strength
to me throughout our 30 years of marriage. We are very proud of
our daughter, Claire, who is finishing her last year of
veterinary school, and who could not miss the days to travel
here because she's in the midst of her rotations. And so we're
sad to miss her, but we are very proud of her.
Here, instead, is one of our nieces, Ms. Mia Escobedo, who
is a political science major at Texas State University. She was
able to take a few days off from college and join us. She was
interested in this very constitutional process.
There are so many family and friends, and court staff, and
current and former law clerks, who are watching and who have
been incredibly supportive to me throughout this process. And I
want to thank all of them from the bottom of my heart.
I would also not be here without the mentors that I've had
throughout my legal career. There is, of course, my father, but
also Judge Robert Parker, who I clerked for after graduating
from law school. The lawyers--many lawyers that taught and
trained me at Kemp Smith law firm in El Paso, Texas, my former
law partners in Laredo, and so many other lawyers and judges
that I've learned from over the course of my career.
But I particularly want to recognize the two district
judges at our Federal courthouse in Laredo: Judge Diana Saldana
and Judge Marina Garcia Marmolejo, who have been mentors and
role models to me during the past 5 years that I have worked
with them as a magistrate judge. They have been tremendously
supportive to me throughout this process, and I appreciate
their guidance and mentorship.
Senators, I look forward to answering your questions.
Senator Booker. Mr. Chairman, I didn't know--he pointed out
his wife, and his wife did not identify herself. I don't know
if she's--there she is. Okay. So good to see your family here.
Chair Durbin. Thank you, Senator Booker. Judge Park.
STATEMENT OF HON. SHANLYN A. S. PARK, NOMINEE TO
SERVE AS UNITED STATES DISTRICT JUDGE FOR THE DIS-
TRICT OF HAWAII
Judge Park. Aloha. Good morning, Chair Durbin, Ranking
Member Graham, and Members of the Committee. I am grateful and
humbled to appear before you this morning as you consider my
nomination.
I'd like to thank President Biden for the honor of this
nomination. And I'd like to thank Senator Hirono and Senator
Schatz for their very kind words this morning, and for their
recommendation to the President.
I would like to take a moment to introduce a few important
people in my life. First, my husband, Ku'uhaku Park, who has
been with me for the last 28 years. His love and support, I
couldn't do it without him.
Next, my parents, Louis and Barbara Souza. My parents'
support, love, and foundation have always been with me. They
could not travel here with me today, and I hope they figured
out how to use the link that I sent them----
[Laughter.]
Judge Park [continuing]. So that they can be watching at
4:30 in the morning in Hawaii.
I'd like to acknowledge and thank my two wonderful
children, Kamalu and Kahiao. Being their mother has been an
honor, and I am so proud of the people that they have become.
I come from a large family and have many supportive
friends. I won't go through that list today, but I do want to
thank and acknowledge them, as well.
I especially want to thank Judge Leslie Kobayashi. If I am
fortunate to be confirmed, I would be humbled and honored to
fill her vacancy. Judge Kobayashi has been my mentor, my
friend, my inspiration. She's the type of judge who leads by
example, and administers justice fairly and impartially, and
embodies the word, ``Aloha.''
I also want to acknowledge friends and colleagues spanning
my 25-plus-year career. These lawyers and the legal staff that
I worked with embody hard work, integrity, kindness, and I have
learned so much from them each and every day.
Finally, I want to acknowledge and thank my State court
family. I am so incredibly grateful to my colleagues on the
State of Hawaii judiciary, especially Judges Trish Morikawa,
Lisa Cataldo, Rowena Somerville, and Jeanette Castagnetti. My
colleagues are good individuals who do good work to make Hawaii
better, and I am proud to serve the people of Hawaii beside
you.
And finally, I'd like to thank my hardworking staff, Crista
Odom and Trevor Tomashero, as well as my past and present law
clerks. These individuals allow me to do my job daily, and they
have made my chambers a vibrant second home.
Thank you, again, for the opportunity to appear before you
today, and I look forward to your questions.
Chair Durbin. Thank you, Judge. Mr. Semper.
STATEMENT OF JAMEL K. SEMPER, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF
NEW JERSEY
Mr. Semper. Thank you, Chairman Durbin and Ranking Member
Graham, for scheduling this hearing. I'd like to thank
President Biden for the honor of this nomination. I'd like to
thank Senator Menendez and Senator Booker for your recommending
me to the President, and along with your kind words this
morning.
For 15 years, I've dedicated my career to public service by
upholding the rule of law. I've been blessed to serve with
selfless public servants.
I'd like to thank my former colleagues at the Union County
and Essex County Prosecutor's Office.
I would like to thank all my State and Federal law
enforcement partners and all of my colleagues at the United
States Attorney's Office in the District of New Jersey.
I'd like to thank my friend and mentor, New Jersey's former
U.S. Attorney Craig Carpenito, who first gave me the honor of
serving my country 5 years ago.
With me today is my mother, Judy Wilson, an immigrant from
Guyana who came to America after her mother, who served as a
house aide to a family in New York, immigrated my mother to
Brooklyn, where our American story began.
Also with me today is my big brother, Khalid Alexander
Semper. A September 11th cancer survivor who helped put me
through law school.
Also with me today is my life partner, my wife, Lucinda
Jordan McLaughlin. We met 15 years ago while serving as
prosecutors. We never imagined that our journey would bring us
before this Committee. We are blessed to be here today with our
four children who are the absolute center of our lives, and who
I hope will be quiet during the course of this hearing.
[Laughter.]
Mr. Semper. I would like to thank my father, Edrich Ken
Semper, who we lost 5 years ago after a long and brave battle
with cancer. While serving as a police officer in his native
Trinidad, my father came to America with the hope of becoming a
forensic scientist so he could return home to serve. The vast
opportunities he received in America, led him to become an
engineer and a small business owner in New Jersey for 30 years.
My father infused us with a love for America and a passion to
serve others.
I'm very grateful to him, and I look forward to answering
your questions.
Chair Durbin. Thank you, Mr. Semper. And Mr. Smith.
STATEMENT OF MICAH W. J. SMITH, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF
HAWAII
Mr. Smith. Chair Durbin, Ranking Member Graham, and Members
of the Committee, thank you for considering my nomination
today.
Thank you to Senator Schatz and Senator Hirono for their
generous introductions this morning and for their strong
support. Thank you to their judicial selection committee for
recommending me to the Senators.
And thank you to President Biden for the tremendous honor
of this nomination. It's especially an honor to be considered
for the seat held by Judge Seabright, a fair and thoughtful
judge, and a dedicated public servant.
I wouldn't be here today without the love and support of my
family and friends. And so I'm grateful for the opportunity to
introduce some of them to you today.
My parents, Betty and Bill, flew in from Texas to be here.
My mother grew up in what was, at that time, the Territory of
Hawaii, in plantation housing. My father grew up in Central
America in Honduras, and he immigrated to the United States as
a young adult. And through their sacrifices and hard work, they
made it possible for their four children to have a better life.
And one of their children is sitting before this honorable
Committee today. I thank my parents, and I thank our great
country, for making stories like ours possible.
My wife, Tiana, is also here. Tiana and I grew up together
on the island of Kauai. It's a small, tight-knit rural
community. And for the last 20 years, I've been blessed with
her optimism, humor, and love. Tiana is accompanied today by
our 10-year-old son and our 7-year-old daughter. And like Mr.
Semper, I'm very hopeful they'll sit still during the hearing,
and we're so proud to be their parents.
My siblings are all here, as well: my big sister, Anna; my
big brother, Luke; and my younger brother, Jonathan. They're
quite simply the best siblings anyone could possibly have.
And last, I'd like to thank my professional family. I won't
mention everyone by name. But I would like to mention Justice
David Souter and Judge Guido Calabresi, whom I had the honor of
clerking for early in my career, Chief Judge Sri Srinivasan,
whom I had the privilege of working with at the law firm of
O'Melveny & Myers.
I'd also like to thank my fellow law clerks from those
years, and my colleagues from those years, as well as my many
friends from the U.S. Attorney's Offices in the District of
Hawaii and the Southern District of New York. Two of those
friends, Ryan Poscablo and Robert Boone, were able to join me
at this hearing, as well.
So, thank you, again, Senators, and I look forward to your
questions.
Chair Durbin. Thank you. Each Member of the panel will have
5 minutes of questioning.
Judge Kazen, you presided over several naturalization
ceremonies, including two this year. In one of your addresses
to our new citizens, you said, and I quote, ``Your journey is
not over. America is a country of immigrants. America has been
made great by immigrants. We are all children of immigrants.''
That was a very poignant and profound statement,
particularly in light of the gathering today. We have so many
people aspiring to serve this Nation whose stories are stories
of immigrants coming to this country at great sacrifice to be
part of America.
Are there any other observations you'd like to make about
your naturalization experience?
Judge Kazen. Senator, I tell--I talk to the participants in
the ceremony that I am the product of immigrants. I'm a fourth-
generation Lebanese immigrant. My great-grandparents immigrated
from Lebanon.
And so I share with them the example that my grandfather
and my father, and what they accomplished and what their
children, is what I mean of their story has not ended. Their
children and their descendants will contribute, and have the
potential to contribute to this country, and enrich this
country.
And so, the only other thing I can think of is presiding
over those naturalization ceremonies is one of the most
rewarding things I do as a judge because those people, after
they take the oath of citizenship, they are glowing with pride
to become citizens of this country.
And it's something that you can tell it's been a life
accomplishment for them. It's extremely rewarding to share that
experience with them.
Chair Durbin. Thank you for sharing that with us. Judge
Park, I'm going to ask you a hard question. You served as
public defender for 20 years, I believe?
Judge Park. That's correct.
Chair Durbin. And I've taken a look at some of the cases
that you were called on to defend criminal defendants before
the court. Some of the crimes that were charged were absolutely
horrible against those defendants.
What did you view as your responsibility as public defender
and as an attorney when it came to the defense of these
individuals?
Judge Park. Senator, I felt that it was my responsibility
pursuant to the Sixth Amendment of the Constitution to provide
these individuals with zealous representation. That is what the
Constitution demands, and that is what I provided to these
individuals.
So many individuals who come into the criminal justice
system don't have an understanding of the crime that they've
committed, the impact.
And so throughout my career, I worked on many cases, as
you've acknowledged. And throughout that process, I've
advocated for those individuals, but also understood the impact
that their offense had on others and tried to acknowledge that
when we were dealing with the case.
Chair Durbin. Judge Kasubhai, I hope I get your name
correct before the end of the hearing. Am I close?
Judge Kasubhai. Senator, it's Kasubhai. And yes, you are
right on.
Chair Durbin. I looked at your record. Looks like 4 years
or so, maybe 5, as magistrate. Another 11 or 12 as a State
court judge, and you come here today. Can you tell me about the
nature of a courtroom?
Many people's experience is limited to what they've seen on
television. And having practiced before being elected to
Congress in the Central District of Illinois and getting to
know the Federal judges, I know the temperament of a judge and
the environment of the courtroom itself has such an impact on
whether people feel that they're being treated justly and
fairly.
What is your experience?
Judge Kasubhai. Senator, over the 16 years that I've had
the privilege of serving as a judge in both the State of Oregon
and in our District Court of Oregon, temperament and demeanor,
particularly from the judge.
But that also extends to the way in which our staffs engage
with the people that come into our courtroom, absolutely impact
how access to the courts might really turn into actually
accessing the courts. So it turns the potential into the
reality.
The foundation of that is humility. And frankly, humility
is the foundation of all things that come from the court and
upholding the rule of law. And so what I try to do when I sit
on the bench is to ensure that people--I extend to people
graciousness and patience. So they have not just the
opportunity to be heard, but to be deeply heard for the cases
to be considered.
And when I issue a ruling, whether somebody prevails or
doesn't prevail, I want that ruling to be conveyed in a way
that helps them to think of the court as a place in which
decisions can be decided impartially without regard to who they
are and that they were heard.
Chair Durbin. First man I ever worked for in politics said
humility is a first casualty in politics. And maybe that's the
case. I hope that our deportment on this side of the panel will
be excellent today, as well. Senator Graham.
Senator Graham. Thank you, Mr. Chair. Mr. Kasubhai, in 2020
while you're a magistrate judge, you apparently gave a speech
stating that Ibram Kendi is an amazing historian, author, and
he does important work in the history of the construction of
race. You wrote a book, am I right, called, ``How to Be an
Antiracist'' ?
Judge Kasubhai. Senator, I want to make sure I understood
the question. I didn't write a book----
Senator Graham. Or it was an article? What was it?
Judge Kasubhai. I believe the author, Ibram Kendi, wrote a
book about how to be an anti-racist.
Senator Graham. Okay. I'm sorry. Yes. So you cite him in
this speech. And here's what he argues: ``That the only remedy
to past discrimination is present discrimination. The only
remedy to present discrimination is future discrimination.'' Do
you agree with that?
Judge Kasubhai. Senator, discrimination in the treatment
of--of treating anyone negatively is not appropriate. And our
courts, through the Students for Fair Admissions, has also
clarified that as a national guidepost.
Senator Graham. So you don't agree with that?
Judge Kasubhai. The statement that you meet discrimination
with discrimination is not part of what our courts should be
upholding. It has been clear in our guidance from the Supreme
Court, as well.
Senator Graham. So you do not agree with Mr. Kendi's
proposition as I read it to you?
Judge Kasubhai. That is correct.
Senator Graham. Okay. Tell me about the--is it a pamphlet
of your court? I think you created, ``Pronouns in the Courts''
guide. Tell me about that.
Judge Kasubhai. I developed what's often called sort of a
``cheat sheet'' for the bench of just the simple prescriptions,
or language, that I could use to ensure access to the courts.
That everybody who comes before the court can be acknowledged
and identified in dignified ways.
And that related to the issue of the use of pronouns and
honorifics such as Mr., or Ms., or Mx., and for that matter,
Mrs. And so I invite people, when they come to court and
introduce themselves, to offer their identity in the way of
their honorifics.
Senator Graham. Is that practice used by other judges, or
do you know?
Judge Kasubhai. I know that other judges identify their
pronouns, for example, in their signature emails, and that
other judges throughout the State, in Oregon, encourage people
to identify their pronouns when coming into court so they,
also, can ensure that people are dignified by identifying
themselves in the courtroom.
Senator Graham. I can't say the name of the--I guess it's
the plaintiff here, somebody v. the City of Eugene. Are you
familiar with that case? B-O-U-D-J-E-R-A-D-A.
Judge Kasubhai. Boudjerada.
Senator Graham. Yes. That case, is it--did that case come
before you? Or did you rule that Eugene, Oregon's citywide
curfew, in response to rioting, and looting, and acts of
violence, was unconstitutional?
Judge Kasubhai. Senator, under the First Amendment, and
that was the structure and the analysis in that case, involved
a time, place, and manner restriction on protests.
Senator Graham. Do you think you appropriately applied
existing precedent of Oregon law to this case?
Judge Kasubhai. In every instance, Senator, I strive to
apply binding precedent from the Ninth Circuit, as well as the
Supreme Court.
Senator Graham. Well, this one, to me, seems like legal
gymnastics to get around the most recent case in Oregon, but
that's just my opinion.
Further along, in this same case, you recently ruled, I
think, Eugene's city manager and police chief are not entitled
to qualified immunity regarding their decision to implement the
curfew. Is that correct?
Judge Kasubhai. In that follow-up opinion, after analyzing
the issues of First Amendment and the time, place, and manner
restrictions, I subsequently considered the issues with respect
to several 1983 claims against individual officers, as well as
the chief of police and the city manager.
In that opinion, I found that the individual officers were
not subject to suit because of qualified immunity. But----
Senator Graham. Well, I didn't ask you that. I asked you
about the police chief.
Judge Kasubhai. And with respect to the police chief and
the city manager, in--with the actions that were taken, in
light of what our--what I determined to be----
Senator Graham. Right.
Judge Kasubhai [continuing]. Clearly--a clear violation of
a constitutional right----
Senator Graham. One last question. How would you describe
the violence and the destruction of property in Eugene, Oregon?
How would you describe that?
Judge Kasubhai. Senator, violence and destruction of
property anywhere is----
Senator Graham. Would you consider it a riot? A riot?
Judge Kasubhai. Senator, the facts before me were involving
the issues of whether the citywide curfew, as opposed to a
curfew within narrow boundaries, was constitutionally
appropriate.
Senator Graham. I would encourage my colleagues to look at
this particular scenario and make your own decision whether or
not a curfew was justified. Thank you.
Chair Durbin. Thanks, Senator Graham. Senator Whitehouse.
Senator Whitehouse. Good morning, everyone. Congratulations
on your nomination. I wish you well going forward. I was glad
to see so many colleagues speak so highly of each of you.
I've been watching our court in Rhode Island, and also
courts around the country, witnessing a very significant
diminution in civil jury trials, jury trials generally, civil
jury trials, in particular.
Some years ago, the then-chief judge of our Rhode Island
District Court noted that they hadn't seen a civil jury trial
in 3 years.
Now, with the appointments that we've made to that court,
it has opened back up, if you will, and now civil jury trials
are happening again. But civil jury trials have been, I think,
considerably discouraged by actions of the Supreme Court, as it
relates to rules of procedure. And even more discouraged by the
Supreme Court, as it relates to agreements to handle matters
through private mediation and arbitration, very often forced on
consumers in massive contracts that they have no ability to
negotiate.
So, I'm interested in hearing your thoughts on the role of
the civil jury. I think our Founding Fathers saw it as not just
a fact-finding adjunct to a judge, but actually an important
part of our constitutional structure of governance.
And, in particular, those of you who've been magistrates,
in some cases, it's the magistrate's job to try to make sure a
case does not go to trial, and to put pressure on parties to
settle so that the judge doesn't have to go through running a
jury trial. And I want to make sure that that's not the way you
behave, and that's not the way you would behave as a judge.
And I guess I'll just go right down the line, if you don't
mind saying a quick word on your view of upholding the
institution of jury trials, should you be confirmed. Judge
Kasubhai.
Judge Kasubhai. Senator, jury trials are enshrined in our
Constitution within the body itself in the Sixth and Seventh
Amendments. With respect to civil jury trials, they're a
cornerstone to our democracy.
When Senator Merkley described a comment that I made about
democracy works and only works when you shine the light on it,
the juries are what bear witness to that which happens in our
courtrooms and that which is determined to be fact or not. They
are an incredible moderator to that which is, and which is not.
And without the jury system to help set that tone, to set that
model going forward, we lose a piece of our democracy.
Judge Kazen. Senator, it's different--I understand your
question to focus on jury trials in civil cases. There's a few
things about that as I--well, I presided over my first jury
trial as a judge within a few months of taking the bench as a
magistrate judge. I do strongly believe in civil cases and the
party's right to have their cases heard and have their issues
aired in front of a jury.
As a lawyer, of course, that comes from my background of
being primarily a civil trial lawyer. And so, I've believed in
the right to get to a jury and to try cases. And it is, as I
tell the jurors in the cases when we're doing jury selection,
that their being there, they're participating in a fundamental
right under our Constitution. They're participating in the
Constitution. They're exercising their constitutional rights by
participating. So I do believe it's a very important right.
Senator Whitehouse. Judge Park.
Judge Park. Most of my experience has been in the criminal
jury trial system. However, I will share this, it is vital to
our justice system to have jury trials.
I have had the pleasure of talking with jurors after the
conclusion of their cases to ask them about their experience.
And while many are very honest and say they didn't, you know,
coming in, they didn't necessarily want to serve, by the end of
the trial, they were all honored to serve their country and to
do their duty.
And they recognized the importance of that process to be a
jury of their peers to an individual who has been charged with
an offense. So I've recognized, and see, how vital jury trials
are. And I would say, in the State of Hawaii, civil jury trials
are happening all the time. So it's alive and well there.
Senator Whitehouse. Mr. Semper, you'll be the last, because
my time has just run out.
Mr. Semper. Thank you, Senator. I share the views of my
colleagues. As a lawyer, I've spent a considerable amount of my
time in front of juries putting important and difficult
questions in front of them. I think the jury system is an
indispensable feature of our legal system, and if I were so
fortunate enough to be confirmed, I would certainly do what I
could to facilitate the jury trial process.
Senator Whitehouse. Thank you, Chairman.
Chair Durbin. Thanks, Senator Whitehouse. Senator Cornyn.
Senator Cornyn. Judge Kazen, I'm glad that the Chairman
asked you about your experience with naturalization ceremonies.
My experience has been the same. It's one of the most positive,
hopeful experiences that I've ever had, like you suggested
participating in that process.
Of course, what we're talking about is legal immigration,
which, I think, has been an important part of the lifeblood of
our country, our culture, and our prosperity. Illegal
immigration has been a disaster.
You are going to be sitting as an Article III district
judge in a border city, Laredo, Texas. Right across the border,
Nuevo Laredo, where, when I was in college, we used to go over
to dine, and shop, and things like that. No one goes to Nuevo
Laredo anymore because of the violence, and the kidnappings,
and the like.
But can you just describe a little bit of the changes that
you've seen in Laredo, a border city in Texas, over the last
few years when it comes--in terms of the volume of migrants,
the drugs, and the violence?
Judge Kazen. Senator, of course, I've grown up and lived
along the border my entire life. I've raised my daughter in
Laredo, Texas. And so, you know, it's--we're part of the
community.
It is--illegal immigration is a serious problem for the
border communities, and the Nation in general. We see, of
course, a heavy volume of immigration criminal cases in our
courts. That makes up the majority of the cases that we deal
with.
I don't personally, honestly, in my day-to-day life living
in Laredo, I haven't experienced a particular change as a
result of the immigration issues and the illegal immigration.
But certainly, it is reflected in the volume of cases that we
deal with. Even as a magistrate judge, I handle a lot of
different pieces of those criminal cases and it is a serious
issue that we deal with.
Senator Cornyn. Senator Whitehouse talked about the dearth
of civil jury trials. Have the immigration docket and border
courts like yours made it difficult to get to civil jury trials
because of the volume of cases?
Judge Kazen. Historically, that is exactly correct. I mean,
traditionally over the years, it was my father, as a judge. As
you know, we have deadlines to resolve civil cases. And so it's
been the--we say at the courthouse is: The criminal docket is a
jealous mistress, and it is difficult to focus attention on the
civil docket seriously because of the heavy, heavy criminal
docket that we have along the border.
And so one of the things I was told by my district judges
that I was hired to do, as a magistrate judge, was to focus
attention--because of my background experience with civil
litigation, was to focus attention on the civil docket and try
and get cases--civil cases to trial if the parties consented to
me.
Senator Cornyn. Of course, there's probably no bigger
impediment to access to the courts in a civil case than the
cost of hiring counsel and the time it takes. And, in fact, if
you look at the statistics, I think one of the reasons why
there's so few civil jury trials these days is because the cost
of litigation.
And I worry that, more than anything else, that we've
priced access to justice in a civil case out of the price range
for most litigants. Unless, of course, you happen to be
catastrophically injured and are able to negotiate a contingent
fee with the lawyer representing you, or perhaps you're hired
by an insurance company, or some Fortune 500 company.
But that's just--that's a huge concern of mine. Not
something you all can necessarily solve, but I think it's a
huge problem for our country in terms of access to justice.
There's no--I mean, you might as well put the lock on the front
door of the courthouse for many people because they just can't
afford to get there or the time it takes to get their case
resolved.
Judge Kasubhai--if I'm pronouncing that correctly--let me
just ask you--Senator Graham asked you about some comments in
an Oregon State Bar Bulletin, I believe, entitled, ``Is There a
Place for Us? '' You stated that, ``We must set aside
conventional ideas of proof when we're dealing with the
interpersonal work of equity, diversity, and inclusion.''
And in that same interview, you said, ``As a judge, I can
appreciate the challenge of employing a different mode for
understanding truth.'' Could you explain what you meant by
those words?
Judge Kasubhai. Yes, Senator. First, I'd like to explain
that in the course of all of the time that I've served on the
courts, that the rules of evidence, the burdens of proof, the
standards that have been established by the law and precedent,
have always been that which I have followed and upheld.
Senator Cornyn. Well, that's reassuring, but you can
understand why I would ask a question about different modes for
understanding the truth and setting aside conventional ideas of
proof. Are you talking about in the courtroom or outside of the
courtroom?
Judge Kasubhai. Absolutely not in the courtroom. What I was
referring to was the idea of sitting down and talking with a
friend from a different background. And when that friend from a
different background might explain an experience, to be able to
simply set aside the idea of saying, ``Well, prove it to me,''
but simply accept that that was that friend's experience, to
understand where that friend was coming from.
So oftentimes lawyers could be accused of always trying a
case no matter who they might be talking to, including friends.
And so the idea of setting that normal skill and technique
aside when talking with somebody, whether it be at a coffee
shop, or even in a meeting, to be able to look at each other
with dignity and understand that people have different
experiences.
Senator Cornyn. Thank you. My time's up.
Chair Durbin. Thanks, Senator Cornyn. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you, all,
for your service to your States and our Nation. And I'm really
impressed by the distinction of your backgrounds and your
determination to continue careers of public service. Thank you
and congratulations.
Mr. Smith, I'm going to give you an opportunity to continue
the response to Senator Whitehouse's question, because he
didn't have time to finish, and it's an important question, if
you have anything to add.
Mr. Smith. Thank you, Senator. I appreciate the question
and the opportunity to comment on it. Our--the Founding
generation recognized the importance of the civil jury trial,
right? It was enshrined in the Seventh Amendment. I do think
it's one of the bulwarks of our legal justice system.
One of the things I would say is, both the Federal Rules of
Civil Procedure, and, in slightly different language, the
Federal Rules of Evidence, recognize that it is important for
judges not just to ensure the just disposition of cases, but
also the speedy and, to the extent possible, inexpensive
disposition of cases.
And I do think that judges have a role in trying to help
move cases along so that it can be possible for some parties to
try their cases, because civil jury trials, like criminal jury
trials, are very important, not just for ensuring just results,
but also for giving citizens and members of the community an
opportunity to participate in that process.
Senator Blumenthal. Great. I noticed that you clerked for
Judge Guido Calabresi, and then for Justice Souter, two members
of the Federal bench. I know well Guido Calabresi has been a
longtime friend in Connecticut, and then worked for the U.S.
Attorney's Office in the Southern District of New York, and
then went to Hawaii. How did you happen to go to Hawaii?
Mr. Smith. Thank you, Senator. I really appreciate the
question. My wife and I both grew up in Hawaii, and we'd always
known that we wanted to move back home at some point.
I had been working in the Southern District of New York for
about 6\1/2\ years, and in the summer of 2018, my son, my
oldest child, was getting ready to start kindergarten. And when
we got to that point, we were thinking about what kind of
education, what kind of upbringing we wanted him to have. And
obviously upbringing is great everywhere.
But for us, having grown up in Hawaii, a particularly
special place for us, we wanted our children to grow up there.
So that was one of the reasons why that was the time period
where we decided to move.
Senator Blumenthal. Well, Hawaii's gain was our loss on the
East Coast, so. But congratulations.
Mr. Smith. Thank you, Senator.
Senator Blumenthal. Mr. Semper, you have extraordinary
experience as a prosecutor. And now as deputy head of the
Criminal Division in the U.S. Attorney's Office in New Jersey,
I note that you were the lead prosecutor in the first homicide
prosecution under New Jersey's domestic terrorism statute, if I
have that correctly.
Mr. Semper. That's correct, Senator.
Senator Blumenthal. Maybe you can impart to us some of the
lessons of that prosecution and how we should be mindful of the
need, either for strengthening our laws or in some ways
reforming them, so as to focus on domestic terrorism, which I
view as the most persistent and lethal threat to our internal
security right now.
Mr. Semper. Thank you, Senator. In that particular case,
the defendant was radicalized online. During the time of the
incident, he had sought after a lot of material related to
ISIS, and his ultimate goal was to go to Syria to join the
caliphate.
During that radicalization process, he killed three men in
his native State of Washington before coming to New Jersey,
which he was going to use as a jump-off place to go to the
Middle East before he ultimately took the life of the victim in
our case.
The lessons that I learned in that particular matter was,
one, it was a collective effort by law enforcement. We were
very fortunate enough to have an intelligence-sharing apparatus
between the local authorities in Washington, the Federal
agencies who we worked with, and also our local authorities in
New Jersey.
I have found generally, in my experience with law
enforcement, that there is no ``I'' in ``team,'' and
collaboration is really key to identifying threats and
neutralizing them. As far as the rest of it, the policy stuff,
I would leave to you all, the experts. But certainly, it was a
case unlike others I had dealt with, up to that point.
Senator Blumenthal. Thank you. My time has expired, but I
wish all of you well. You're going to be great judges, and you
will be the face and voice of justice for most litigants who
can't afford to take appeals, as you well know.
And I would just add my voice to others who talked about
the immigration naturalization proceedings, which I do
regularly. I'm going to be doing them this Friday in
Connecticut. I love doing them. They give me hope and
inspiration, especially as I get out of Washington from time to
time. Thank you.
Chair Durbin. Thanks, Senator Blumenthal. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for being here, for your willingness to be considered for these
important positions. Judge Kasubhai, I'd like to start with
you, if that's all right.
A few months ago, in May of this year, you gave a
presentation to the Oregon State Bar in which you included the
following in your remarks, quote, ``DEI, Diversity, Equity, and
Inclusion, is the heart and soul of the court system. Can we
say that? Yeah, I just did, and I say it proudly.'' Mr.
Kasubhai, Judge, could you explain what that means?
Judge Kasubhai. Yes. Access to justice is at the heart of
the work that I do within the courtroom, and ensuring that
everybody who--everybody is dignified and treated with dignity
when they come into the courtroom, and for me to preside over
those cases----
Senator Lee. Right. But you'd say that's the heart and soul
of the judicial system more than equal justice under the law,
more than the Constitution, more than the law itself, or the
job of interpreting the law fairly, where litigants before you
have disagreements as to the law's meaning?
Judge Kasubhai. In the way in which, and in the context in
which, I was using the term and referring to diversity, was the
idea and the ideal of equal justice under the law. That
everybody, no matter what their background, beliefs--whatever
that might be, that everyone is entitled to access to the
courts, and that equity.
Senator Lee. All right. Let's circle back to that one in a
minute.
The First Amendment's protection of free speech is
foundational. It's been described as one of our first freedoms.
It's been described accurately, I think, fairly by many, as
being upstream from all of our other rights, and it has to be
protected vigorously. And we also know that there are time,
place, and manner accommodations that can go along with that.
Among other things, there are special exceptions that occur
where riot control measures are necessary due to an outbreak of
coordinated overt violence.
In a case that's been referred to briefly in the hearing
today, but not much, this Boudjerada v. City of Eugene, you're
dealing with some interesting circumstances. You had riots
taking place--there were three nights of terror in Eugene,
Oregon, during the BLM riots of 2020, where, in your words, the
following was going on, quote, ``A crowd applying graffiti,
lighting fireworks, and blocking traffic, throwing glass
bottles toward officers, surrounding a patrol car, smashing its
windows and puncturing its tires''--with the officers inside
the patrol car, mind you.
The group, quote, ``started fires in the roadway, attacked
people in vehicles in the downtown area. Several businesses
were vandalized and looted, and several officers were
injured.'' You went on to state that, ``Members of the group
carried heavy backpacks and bottles, and were communicating via
radios.''
So, in response to this, the city implemented some riot
control measures. They imposed a citywide curfew, one that
lasted 7 hours. We had three rioters who were arrested during
the curfew, and despite the Ninth Circuit precedent in the
Menotti case, addressing a very similar curfew in Seattle, you
decided that the Eugene, Oregon, curfew was unconstitutional.
Can you explain to me how consistent with the Ninth Circuit
precedent in the Menotti case--how does a 7-hour curfew through
the middle of the night in the wave of such destruction and
terror prevent ample means of communication? Can you explain
that to me?
Judge Kasubhai. The Menotti case did provide guidance and
assisted me in evaluating the legal analysis that I applied.
There were two curfews that had been imposed. One was a
downtown curfew, so there were geographic restrictions. That
was not the curfew that was before me, nor did I find that
unconstitutional.
It was a citywide curfew that actually subjected everybody
in the city, well beyond the boundaries of downtown, to out
into the residential neighborhoods such that the application of
that curfew--that citywide curfew--could have criminalized
people's behavior of just trying to get home, well outside of
any of the riots and the protests.
Senator Lee. You've praised Ibram X. Kendi as someone who
you like, as an amazing historian and author. And you said that
you've liked--you would like to push some of Ibram X. Kendi's
ideas even further.
I'm sure you're aware, he's famous for saying, quote, ``The
only remedy to racist discrimination is anti-racist
discrimination. The only remedy to past discrimination is
present discrimination. The only remedy to present
discrimination is future discrimination.'' Kendi also stated
that, ``In order to truly be an anti-racist, you have to be
anti-capitalist.''
So I'd like to know, first of all, what would you do to
push Ibram Kendi's ideas even further? And do you believe
someone should be praising--someone who is currently a Federal
magistrate judge, be praising someone who encourages
discrimination in any circumstance?
Judge Kasubhai. Senator, I don't recall having ever
remarked that I want to push Ibram Kendi's ideas further. In
questions earlier in this hearing, I clearly stated that the
ideas that have been described here, that have been attributed
to Ibram Kendi, are not ideas that are consistent with the 20
years in my public service, 16 as a judge.
And the record that I have shown striving to apply the law,
the Constitution, and Supreme Court precedent, would not be
consistent with this idea of supporting the ideas that you've
described as Ibram Kendi's.
Senator Lee. So you're saying that you have never said that
you would like to push some of Ibram Kendi's ideas further?
Judge Kasubhai. Senator, I don't recall having made that
particular statement.
Senator Lee. Okay. I see my time has expired. We'll follow
up on these in writing. These are concerning. One of the most
fundamental laws we have that's embedded within our
Constitution is that governments can't treat people differently
on the basis of their race, and that's why this is important to
ask you about. Thank you.
Chair Durbin. Judge Kasubhai, this case, Boudjerada case,
has come up several times. Can you tell me, was that subject to
review by the district court? How did they view your ruling?
Judge Kasubhai. That was a case in which the parties had
not consented, and it was reviewed by a district judge and
adopted without opinion on the issue of the constitutionality
finding, with respect to the curfew. The follow-up finding and
recommendation is still before the district judge and is on
review.
Chair Durbin. I see. I believe that we have Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Congratulations to
each of you. To ensure the fitness of nominees before any of
the Committees on which I sit, I ask the following two initial
questions. So we will just go right down the line, starting
with Judge Kasubhai.
Since you became a legal adult, have you ever made unwanted
requests for sexual favors, or committed any verbal or physical
harassment or assault of a sexual nature?
Judge Kasubhai. No, Senator.
Judge Kazen. No, Senator.
Judge Park. No, Senator.
Mr. Semper. No, Senator.
Mr. Smith. No, Senator.
Senator Hirono. Have you ever faced discipline, or entered
into a settlement, relating to this kind of conduct?
Judge Kasubhai. No, Senator.
Judge Kazen. No, Senator.
Judge Park. No, Senator.
Mr. Semper. No, Senator.
Mr. Smith. No, Senator.
Senator Hirono. For Judge Park, you spent the majority of
your career working in the Office of the Public Defender for
Hawaii. Public defenders play a vital role in the justice
system by ensuring that all defendants, regardless of means,
have their constitutional rights to counsel.
Can you speak, briefly, to the importance of having strong
prosecutors and defense attorneys in our adversarial justice
system?
Judge Park. Thank you, Senator. The Sixth Amendment
requires that there is a right to counsel. And the reason why
that is, is so that there can be a balance of power with
respect to these cases.
Individuals who are charged with an offense are simply
charged. The Government has the burden of proof, and to prove
that charge beyond a reasonable doubt. And it is necessary to
have attorneys represent these individuals in order to hold the
Government to that high burden of proof that is required under
the law.
And so that is something that I did for 20 years. And I
find that the right to counsel pursuant to the Sixth Amendment
is vital in order to have a fair and just legal system.
Senator Hirono. For both you, and Mr. Smith, parents can
have a profound impact on our lives.
Mr. Smith, your father immigrated to this country from
Honduras. After completing seminary, he worked his way through
college as a janitor, and went on to earn a doctorate and
become a professor.
Judge Park, your father spent a long career on the Honolulu
police force rising to the rank of major, and serving as
president of the police officers' union.
For both of you, how have your parents' experiences
impacted your lives and your careers? And this includes your
mothers, although I just mentioned your fathers. Go ahead.
Judge Park.
Judge Park. I had the honor of witnessing my father work
hard as a Honolulu police officer. His example of public
service is what drives me to this day. Growing up, I used to
paddle canoe, and didn't want to catch the bus home after being
wet for so long, and would go to the Honolulu Police Department
and sit until my father was ready to come home.
But he was so dedicated to his job, and doing the
investigations that he did inspire me. And so he was vital to
my decision to enter into the law. And my mom's support of him
throughout his legal career was critical. My dad would not have
been able to do the level of police work that he did without
her love and support.
Senator Hirono. And he would agree with that.
Judge Park. And he would agree with that.
Senator Hirono. Mr. Smith.
Mr. Smith. Thank you, Senator. When you're fortunate, as
Judge Park and I were, to have the kinds of parents we did,
your parents help you see what's possible just watching their
life stories. The things that they were able to do, from where
they started and where they ended up, makes it possible for
their children to think the same thing. And I know that my
siblings and I all feel that way.
Since my father was already discussed a little bit, let me
say just a few things about my mother. My mother became a Head
Start teacher, a substitute teacher in public school. I
remember having her in one of my classes at least once. And as
a kid, that's always embarrassing.
[Laughter.]
Mr. Smith. And you know, in the summer, she would sometimes
work shifts at Kmart to help pay the bills. And, I think, when
you see a parent just dedicating themselves to helping their
families do well, it teaches you those values.
Senator Hirono. In the brief time that I have left, again,
for both of you, Judge Park and Mr. Smith: Judge Park, you
would be the first Native Hawaiian woman to serve in the
Federal district court; Mr. Smith, your father, as I said, is
an immigrant from Honduras, and your mother is of Japanese
ancestry. In my view, the judiciary should reflect that
diversity of our Nation, and both of you reflect the vibrant
diversity of Hawaii. Could you just, very briefly, talk about
why diversity is so important, as I assume it is important, to
each of you?
Judge Park. I think diversity is important, both personal
and professional diversity on the bench, because a diverse
bench represents the community that it serves. And when you
have a diverse bench it builds and brings integrity to the
institution. And so I think it is very important.
Senator Hirono. Mr. Smith?
Mr. Smith. Thank you, Senator. I think diversity in its
broadest sense is very important. And I do agree with Judge
Park that when the community sees that the bench, and all
positions of public importance, are open to everyone from all
sorts of walks of life, backgrounds, perspective, it promotes
and ensures trust in those institutions.
Senator Hirono. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Hirono. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Judge Kasubhai,
I'm looking at an order you issued as a magistrate judge, here,
requiring the use of pronouns in your court. Do you require the
use of pronouns, the declaration of one's pronouns in your
court?
Judge Kasubhai. Senator, that may be referring to perhaps a
trial management order or a scheduling order of some kind?
Senator Kennedy. Yes--no, it's a statement. You issued it.
Here it is.
Judge Kasubhai. Oh, it's an invitation for people to
identify their pronouns and/or their honorifics.
Senator Kennedy. I'm looking at your requirement that you
issued to all people in your court. You say, quote, ``When you
introduce yourself in a meeting, you should say, `My name is
Judge Blank, and my pronouns are blank'.'' Is that right?
Judge Kasubhai. Senator, those were not requirements or
rules. Those were suggestions and----
Senator Kennedy. They were suggestions?
Judge Kasubhai. Those were suggestions and invitations----
Senator Kennedy. Okay.
Judge Kasubhai [continuing]. For people to use.
Senator Kennedy. And you also, in your directive, you say,
quote, ``I'd like counsel to . . . introduce themselves giving
your full name and your honorific, such as''--M-S period,
``Ms., Mx., or Mr.,''--not Mrs., ``and if your client will be
making an appearance, I ask you to please introduce them to the
Court by giving me their full name and their honorific, such
as''--M-S period, ``Ms., Mx., or Mr.,'' end quote. Is that
right?
Judge Kasubhai. Senator, it's not a directive. Again, it's
an invitation for people to----
Senator Kennedy. Oh----
Judge Kasubhai [continuing]. Introduce themselves.
Senator Kennedy [continuing]. It's an invitation?
Judge Kasubhai. Yes.
Senator Kennedy. Okay. All right.
I'm looking at an article from the Oregon State Bar
Bulletin from May of 2021, and I want to read one of your
quotes. Quote: ``We have to set aside conventional ideas of
proof.'' Let me say that again. ``We have to set aside
conventional ideas of proof,'' you said, ``when we are dealing
with the personal and interpersonal work of equity, division,
and inclusion. As a judge, I can appreciate the challenge of
employing a different mode for understanding truth than that
which most lawyers are accustomed to in our work,'' end quote.
Did you write that?
Judge Kasubhai. That is a quote from that article.
Senator Kennedy. So, when we're dealing with equity,
diversity, and inclusion, we should set aside conventional
ideas of proof. Is that right?
Judge Kasubhai. In the larger context of interpersonal and
personal relationships, the idea of being able to have a
conversation with somebody----
Senator Kennedy. Yes. But you didn't talk about a
conversation. You said proof.
Judge Kasubhai. It's in the context of having a
conversation with somebody about the issue of their
background----
Senator Kennedy. So----
Judge Kasubhai [continuing]. And their experience.
Senator Kennedy [continuing]. When the issue is equity,
diversity, or inclusion, we should have a different set of
proof. Is that right?
Judge Kasubhai. When it comes to the space in which people
have interpersonal relationships with one another, the idea of
respecting and dignifying each other with their experiences is
an important part of----
Senator Kennedy. So--so all issues have one set of proof,
which has been handed down by our State supreme courts, our
U.S. Supreme Court, except, you think we ought to have a
different set of proof when equity, diversity, and inclusion
are at issue. Is that right?
Judge Kasubhai. In all of my years on the bench, Senator, I
have applied the law, the rules of evidence----
Senator Kennedy. Okay.
Judge Kasubhai [continuing]. The case precedent.
Senator Kennedy. Let me move on. I'm looking at the notes
you gave us from a speech you made in February 7th, 2020. It's
entitled, speech, ``Reflections on Equity and Privilege,'' to
the Oregon Blacks in Government. You wrote, quote, ``White male
straight people allow privilege to remain in place,'' closed
quote. Did you say that? Did you write that?
Judge Kasubhai. Without looking at the specific----
Senator Kennedy. Here it is----
Judge Kasubhai [continuing]. Speech here----
Senator Kennedy [continuing]. You turned it in.
Judge Kasubhai. Well, if that's on the piece of paper,
Senator, then I have----
Senator Kennedy. Okay.
Judge Kasubhai [continuing]. No reason to----
Senator Kennedy. You also wrote, quote, ``Privilege is
incredibly similar to narcissistic personality disorder,''
closed quote. Did you write that?
Judge Kasubhai. Without looking at everything in the
context of that statement, it appears correct.
Senator Kennedy. Okay. You wrote, quote, ``The identity of
Muslims also need to be normalized in a country that is so
deeply Islamophobic.'' Did you write that?
Judge Kasubhai. Senator, I did. And what I'd also like to
clarify is that in the context of my work on the bench, I have
treated everybody equally without regard----
Senator Kennedy. I understand.
Judge Kasubhai [continuing]. To their background----
Senator Kennedy. I'm sorry. I just want to get through
this. I'm going to run out of time. You also wrote, quote, ``I
am disappointed about the way in which the Founding Fathers of
this country perpetuated inequity,'' closed quote. Did you
write that?
Judge Kasubhai. In the context of the issue of slavery,
that was something that I had----
Senator Kennedy. Okay.
Judge Kasubhai [continuing]. Been considering.
Senator Kennedy. You know, your notes you gave us from a
speech on May 17th, 2023, ``Does Race Matter?'' you said,
quote--quote,``Does race matter? Hell yes,'' closed quote.
``You know that T-shirt at the Saturday markets, the one that
says something like, `Love sees no color,' and it has all the
colors of the rainbow all over it, and it's like a tie dye
shirt. Well, the first time I saw it, I said, `Ah, how sweet.'
Then I got angry. If love doesn't see color, then I don't have
allies,'' closed quote. Did you say that?
Judge Kasubhai. Yes. And that was to explain that the work
of equity is to help understand where people are coming from,
not to ignore who they are.
Senator Kennedy. And you also----
[Gavel is tapped.]
Chair Durbin. Senator, the time.
Senator Kennedy. Yes, I know. I'm sorry. Can I have 30 more
seconds?
Chair Durbin. Thirty more seconds, Senator.
Senator Kennedy. Judge, you seem to be obsessed with race
and sexuality. I mean, you even go so far as to say that when
race, and sexuality, and diversity, and inclusion are at issue,
we need a separate standard of proof in the United States
Federal judiciary. How are litigants going to be able to trust
you?
Judge Kasubhai. Senator, that's not what I've said. There
is----
Senator Kennedy. Sure you did----
Judge Kasubhai [continuing]. No different standard----
Senator Kennedy [continuing]. Sure you did, it's bigger
than Dallas. I read it to you.
Judge Kasubhai [continuing]. When you look at----
Senator Kennedy. You turned in these documents. I didn't go
looking for them.
Judge Kasubhai. When you look----
Senator Kennedy. You seem proud of it.
Judge Kasubhai. As anyone who reviews my record on the
bench----
Senator Kennedy. I have.
Judge Kasubhai [continuing]. Thousands of cases----
[Gavel is tapped.]
Chair Durbin. I'm going to let you finish responding and
we're--your time has expired, but go ahead.
Judge Kasubhai. The rule of law is an absolute for me, the
work that I have done on the bench over the last 16----
Senator Kennedy. That's not what you say.
Judge Kasubhai [continuing]. The work that I've done on the
bench----
Senator Kennedy. But that's not what you say.
Chair Durbin. Judge, finish your sentence.
Judge Kasubhai. The work that I've done on the bench in
ruling over all the people's cases that have appeared in front
of me, from all backgrounds of all faiths, you'll find that I
have upheld the rule of law, and upheld the precedent of our
Constitution, and our Supreme Court, and the Ninth Circuit.
Senator Kennedy. Well, if this Chairman would give me time,
I could go through the cases and prove----
Chair Durbin. Well----
Senator Kennedy [continuing]. That that's not the case.
Chair Durbin. Senator----
Senator Kennedy. I just don't see how you can be a fair-
minded judge.
Chair Durbin. Senator Booker.
Senator Booker. Thank you very much. Mr. Kasubhai, I--my
favorite author is James Baldwin. Would you--love his books,
quote from his books--would you make the presumption that I
agree with everything James Baldwin has said?
Judge Kasubhai. I wouldn't presume that, Senator.
Senator Booker. I read my colleague J.D. Vance's book,
``Hillbilly Elegy.'' I have bought it for other people. Would
you think to ascribe to me all the views of my colleague, J.D.
Vance?
Judge Kasubhai. No, sir.
Senator Booker. I have a little--forgive me, this is a
little petty. I'm about to do this, but--I have bought Senator
Cotton's book. I bought it because he didn't give it to me.
[Laughter.]
That's the petty part, I apologize. It's actually a real--
--
Senator Cotton. I'll still sign it for you, though, if you
want to.
[Laughter.]
Senator Booker. But it is actually pretty extraordinary.
Senator Cotton surprised me. He's quite a historian. Would you
ascribe to me all the views of Senator Cotton?
Judge Kasubhai. No, sir.
Senator Booker. Even if I've quoted from his book----
Senator Cotton. But you should.
[Laughter.]
Senator Booker. Even if I've quoted from his book, would
you do that?
Judge Kasubhai. I would not, sir.
Senator Booker. So the book that's been brought up, ``How
to Be an Antiracist,'' which was on Time Magazine's must-read
list, which was a runaway bestselling book--would it be a
mistake for anybody to ascribe to you all the views of the
author?
Judge Kasubhai. It would.
Senator Booker. Yes, absolutely. I agree that there's some
points in the book that are worth quoting, and I can't--I don't
remember, but I imagine I may have. But there are definitely
parts of the book that I don't agree with, as well. And I--
that's the same for you.
Judge Kasubhai. It is correct, sir.
Senator Booker. Does my race matter?
Judge Kasubhai. Without going into a couple of hours of a
conversation, Senator, it depends on both the person as well as
how people perceive them.
Senator Booker. But isn't that the point? Like, what a
crazy question: My race, does it matter? It's such a hotbed of
discussion in America now. It's often very polarizing. But the
truth of the matter is, it's part of my identity. I'm a
Christian, I'm an American, I'm a Black guy. And to me,
obviously, those are identifying features that matter.
Within the criminal justice system, would it be fair to
have a judiciary that did not have African Americans?
Judge Kasubhai. It's important for diversity to be
represented on the bench. Experience is the life of the law.
Senator Booker. Right. Because the law is independent in
many ways--should be, I should say, independent of racial
reasoning when applying the facts of the law. Right?
Judge Kasubhai. Correct.
Senator Booker. But I've seen lots of studies, you don't
need to comment on, about implicit racial bias in the law. We
know from the data that if you control for other factors--
income, geography, education--that African Americans in the
criminal justice system have tended to get longer sentences for
similar crimes. Are you aware of that research?
Judge Kasubhai. I'm aware of that research.
Senator Booker. Right. And so the idea that diversity is
important to talk about, to have a criminal justice system that
reflects the diversity of the population. Many people, even if
it's just for the matter of faith in the system of minority
groups, one would say that diversity is very important. Yes?
Judge Kasubhai. Absolutely.
Senator Booker. But I think there's at least a spirit that
I'm feeling that your views on the importance of diversity--
urgency, I would say, of diversity, that your understanding
that the legitimacy of the courts, your understanding that
everybody from Harvard Business School to consulting companies,
like McKinsey, have said diverse teams are better teams.
There's some kind of confusion with, perhaps, those so
strong beliefs and your ability to be an objective judge in
legal matters and to apply the law. And I would just like to
ask you, when it comes to the cases that come before you, what
is the process by which you go about to coming to conclusions?
Judge Kasubhai. Senator, it's a very stringent--stringent
and rigorous process. It starts with reading the briefs, and
then reading them again, and making sure I understand the
issues that have been raised before me, the law that is being
applied and invoked by the parties.
And then working through each and every one of those
arguments, and understanding the rules that are being invoked,
and testing--testing the hypotheses that the parties are making
in their arguments----
Senator Booker. Right.
Judge Kasubhai [continuing]. Over and over and----
Senator Booker. Yes.
Judge Kasubhai [continuing]. Over again.
Senator Booker. And so I don't need to go through the
rigorous processes, but I just--you don't care what their
pronouns are when you're applying the law.
Judge Kasubhai. Absolutely not.
Senator Booker. You don't care the color of their skin when
you're applying the law.
Judge Kasubhai. Most certainly not.
Senator Booker. Yes. You are applying the law, even though
you do believe, like most of the people around this dais, that
having diverse teams is a good thing for America. When it comes
to doing your job, you have a rigorous processes of which these
things don't enter.
Judge Kasubhai. You said it better than I could, Senator.
Senator Booker. Thank you very much. The last thing I just
want to say is to Jamel Semper: Your mother is extraordinary.
Is that true or false?
[Laughter.]
Senator Booker. That is a trick question.
Mr. Semper. Senator----
Senator Booker. You know you're under oath, yes?
Mr. Semper. Senator, before God and country, my mother is
quite extraordinary.
Senator Booker. She is an immigrant to this country. Yes?
Mr. Semper. Yes. Yes, she is.
Senator Booker. She has two extraordinary children, from my
understanding. Right?
Mr. Semper. She does.
Senator Booker. You and your brother?
Mr. Semper. Yes.
Senator Booker. Your brother got cancer in his 9/11-related
heroism. Yes?
Mr. Semper. Yes. Yes, he has. Yes, he has.
Senator Booker. Yes. And he has been supportive of you
because he's the older brother. Right?
Mr. Semper. Yes. He and my mother helped put me through law
school. I'm incredibly grateful for them.
Senator Booker. Right, right. So you will do right by this
country if you should you get this position?
Mr. Semper. Senator, if I am fortunate enough to be
confirmed for this position, I will do all that I can to serve.
Senator Booker. And you will do right by your mama. Right?
Mr. Semper. I have and I will.
Senator Booker. Thank you very much, Mr. Chairman.
Mr. Semper. Thank you.
Chair Durbin. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. And
congratulations to each of you on your nominations. And it's so
wonderful to hear your introductions of your families. And I'm
so pleased, Mr. Semper, that you now have a Congressional edict
to be good to your mama.
[Laughter.]
I think that is just awesome. We mamas like things like
that.
We're also informed by looking at your records and reading
your writings. And Judge Kasubhai, I want to come to you
because as I looked at some of your readings and writings, your
decisions, you seem to have an affinity for Marxism.
And in a 1994 essay, you criticize the concept of private
property. And I'm going to quote you here. You argued that, and
I quote, ``Property incites rebellion,'' end quote. And this is
one of the many positive statements that you have made about
Marxist approaches and Marxist policies, Marxism.
And, you know, President Reagan--as I was reading some of
your things that leaned toward Marxism, I thought of President
Reagan's comments when he said that the march of freedom and
democracy would leave Marxism on the ash heap of history. And
that's exactly where it belongs, because Marxist regimes, as of
2023, have been responsible for the deaths of over 100 million
people.
So, it disturbs me when I see this leaning to Marxism in
your writings. So, a yes-or-no question: Are you a Marxist?
Judge Kasubhai. No, Senator.
Senator Blackburn. Okay. Will you, right now, disavow the
tenets of Marxism that you have praised in some of your
writings?
Judge Kasubhai. Senator, I have not praised Marxist ideas,
and I would disavow any other system than that which is--than
that would have--be supported by our U.S. Constitution and our
laws.
Senator Blackburn. I appreciate your comment, but sir, in
your writings you have given the opposite opinion. But you've
also made a number of concerning statements regarding sexuality
and the disempowerment of women.
Specifically, you've aligned yourself philosophically with
a professor who has espoused the disturbing views that all
heterosexual relationships are, per se, infused with violence,
and that all sexual acts should be viewed as rape.
Not only is this view wrong and offensive, but also, and
perhaps more importantly, it undercuts the important work that
is being done across this country to empower survivors of
sexual assault.
When you say that all sexual acts are rape, you
delegitimize and silence women who actually are victims of
sexual assault. So, how can women possibly trust that they will
be treated fairly in your courtroom given your disturbing views
on this subject?
Judge Kasubhai. Senator, that law review article to which
you're referring, I believe was published--I wrote in 1995. I
did not align myself with those ideas. The law review article
summarizes several different theories of laws----
Senator Blackburn. We're familiar with the article. Do you
regret citing these very concerning statements?
Judge Kasubhai. Senator, the description or summary of
these different theories is not a subscription to, or an
attestation of, the validity of----
Senator Blackburn. Do you denounce the view that all women
are, per se, disempowered by our system?
Judge Kasubhai. I do not ascribe to those theories that I
was summarizing in that article. And I would also turn to my
years of serving on the bench and treating all people fairly--
--
Senator Blackburn. Let me--let me move on. I've got 30
seconds.
I also was troubled by your involvement as the prosecutor
in the Gonzalez case. Mr. Gonzalez was arrested for allegedly
raping a 12-year-old little girl. The FBI eventually reviewed
the media seized from his home and identified horrific images
of child sexual abuse.
The sentencing memo that you prepared--oh, this is for Mr.
Smith. Your sentencing memo, you outlined Mr. Gonzalez's
heinous crimes. The images that were found on his phone were
created in his home, in his own bedroom, with girls as young as
10 years old.
And they found out he had parties, he would offer them
illicit substances, he would then abuse them. And he did this
multiple times over a 15-year period of time. It started in
1997, and still, with all of that information, you went far
below the guidelines.
And, in fact, for this repeat child abuser, you recommended
a sentence of just over 10 years, and he had done this to kids
for 15 years. So, why did you do that?
Mr. Smith. Thank you for the question, Senator. I do recall
the case of Mr. Gonzalez. That was a case that, I believe, I
was assigned when I had just started in the Office. I
recognized immediately the seriousness of those offenses, and,
I believe, I had Mr. Gonzalez prosecuted within a month or so
of my having been assigned the case.
When I make sentencing recommendations in court, especially
as a new prosecutor in the General Crimes Unit in the Southern
District of New York, I make those sentencing----
Senator Blackburn. Okay.
Mr. Smith [continuing]. Recommendations----
Senator Blackburn. Well, the court rejected your
recommendation. They went above you, to 15 years, and then gave
him an additional 10 years of probation. This is something that
is terribly concerning to me. Thank you, Mr. Chairman.
Chair Durbin. I'm going to let Mr. Smith finish his answer
to your inquiry.
Mr. Smith. Thank you, Chair Durbin. I just wanted to
mention, particularly in the General Crimes Unit in the
Southern District of New York, the sentencing recommendations
that we make are in close consultation with our supervisors,
considering all of the 3553(a) factors.
And so when I appear in that forum, I'm representing the
Office, and I do that as a prosecutor in all of my cases. I am
not speaking on behalf of my own personal views. I try to set
those things aside. And I try to represent the Office.
If I were fortunate to be confirmed, I would do the same as
a judge. I would set any personal views aside, and I would
endeavor to apply the law faithfully and define the facts
fairly.
Chair Durbin. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. First of all,
congratulations to each of you for the nomination and for the
opportunity to be here today. In preparation, I'd be shocked if
you haven't been advised that when it comes to be Senator
Padilla's turn, here's a question to anticipate.
Diversity is a beautiful thing. It's one of the biggest
strengths of our Nation--not just across the board, not just in
communities, not just in government, but in, particularly, the
Federal judiciary.
I know my colleague, Senator Hirono, asked a general
question about diversity. I always ask about diversity because
diversity's important, not just in terms of who sits on the
Federal bench, right? The diversity of life experience, the
diversity of professional experience ought to be part of the
processing considered, not just for more inclusive or
reflective outcomes, but for public confidence in the Federal
judiciary and its decisions.
All that being said, what I tend to ask nominees is, what
would you do, if you're fortunate enough to be confirmed, to
advance diversity in your courtroom, if you agree with my value
statement? And if you disagree, I'd love to hear it. And not
just broadly with support staff and whatnot, but particularly
when it comes to law clerks. I think most of you may have a
specific example or experience where a quality clerkship
experience can really help a career at the outset.
Whether you pursue public service, whether you pursue
private practice, that clerkship opportunity can be pivotal.
So, what can we do to open the door to that experience for
a more diverse group of young law students and law clerks than
we have historically? And we'll start with Mr. Kasubhai.
Judge Kasubhai. Senator, I agree with your value statement,
and with respect to the work on the court, it's absolutely
important to bring diversity and diverse experiences from all
backgrounds, to staff, that's important, but law clerks. Over
the 16 years that I've served on the bench, I've worked hard to
ensure that I have a diverse group of law clerks that have
worked with me throughout all of these years.
But we have to go further than that. It has to be externs.
People from law school, students, and then reaching out into
the community to high school, and middle school, to make sure
that people are thinking about law school, not just at the last
minute, but their entire lives.
Senator Padilla. Thank you.
Judge Kazen. Senator, I agree that diversity is important.
Over the last 5 years as a Federal magistrate judge, I have
hired law clerks from different geographic backgrounds,
religions, genders, of course, law schools, and just, you know,
national origin, and race. But, you know, all those
experiences, I believe, are important to enrich and give
different perspectives on backgrounds. And so it is something
that I'll continue to do with the law clerks that I hire.
Judge Park. I started my legal career as a law clerk to a
magistrate judge, and I know the value that that clerkship
provided to me and the doors that it opened. When I look to
hire, not only law clerks but interns and externs that help and
assist in my chambers, I do look at not only their personal
diversity, but their professional diversity. And that is
important to me when I make that decision on who to hire.
Mr. Semper. Thank you, Senator. I agree with the comments
of my colleagues. I think diversity is very important. I think
it helps to--when you draw more people into our institutions,
particularly institutions like the judicial system, I think
that helps to affirm the confidence that the community must
have in our institutions. I would also just say, I think
academic diversity is important, as well.
I came from a State law school, and, you know, these
positions, they are great, and they are stocked with a lot of
people from the top schools. But I think there's a lot of
talent within our State schools. And so, if I were fortunate
enough to be confirmed for this position, I would have an eye
toward that, as well.
Mr. Smith. Thank you, Senator. I don't think I could say it
better than my fellow nominees. I agree that diversity is
important in its broadest sense. And I also agree the legal
clerkships at the beginning, especially--really at any point in
a nominee's career--are incredibly important. They were
certainly important experiences for me and I would be carefully
trying to pick the best people for those positions, recognizing
their importance.
Senator Padilla. Thank you very much. Mr. Chair, before I
close, I just want to clarify that there's still an
opportunity. The deadline for letters for the record, that are
support for these nominees, is still open.
Chair Durbin. Yes.
Senator Padilla. So there's still time for Mr. Semper's mom
to weigh in here----
[Laughter.]
Senator Padilla [continuing]. If necessary. Thank you.
Mr. Semper. I'll do some lobbying. Thank you.
Chair Durbin. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Judge Kasubhai, I think your fellow nominees owe you a debt
of gratitude, because many Biden nominees have been extreme,
but your record is so far out of the mainstream that you have
attracted virtually all of the questions.
I was particularly intrigued by your statement to Senator
Blackburn that you said you are not, in fact, a Marxist. And
then you said, and I wrote it down, ``I have not praised
Marxist ideas.''
Now, as you know, in law, there is the fact of evidence.
And so let's go to something you wrote. An article that is
entitled, ``Sensualized Property Theory,'' in which you wrote--
it begins, it's on the front page of your law school newspaper.
You write, quote, ``Intimate knowing, the lovers kissed,
familiar and ever exciting, passionate transcendence beyond the
physical exhilaration lies a burning light in our limbs, our
hearts. Floating, flying, falling in every direction, amorphous
and wonderful, time stretching, space curving, exquisitely
explosive eros, and yet, I timidly tremble every time.''
Now, somehow, this is about property, which is not
immediately evident as to why.
But later, in the article, you write--you say, ``Property
is not simply a relationship between an owner and an object of
ownership. Property is primarily a complex relationship between
people, and secondarily regards the objects people exploit.
``Historically, three paradigms have dominated European
notions of property. Locke appealed to the notion that labor
points to who has the right to exploit property. Bentham relied
on utility to dictate who has rights based on how the property
is exploited. And Marx was plainly disgusted with the
alienation that property imposed, and its establishment of an
`us' and `them,' and `haves' and `have-nots.'
``Each theory alone denies important components of human
experience. Among them are the ability to work, the need for
personal privacy and boundaries, and uniquely diverse desires,
which spin us all in differing life directions. However, the
process toward integrating all three may provide a framework
for relationships that enhances each unique self. The
aspiration toward intimate knowing, the intimate knowing of
oneself and others is a creative struggle toward redefining
property.''
What the hell does that mean?
Judge Kasubhai. Senator, when I was preparing and reviewing
my materials for this hearing and for the process, I also have
to admit that that writing was far from clear or articulate,
and the poetry was definitely not good. Now, Senator, I don't
make----
Senator Cruz. Do you believe we need to have a creative
struggle toward redefining property, which is what you were
advocating for?
Judge Kasubhai. You know, that was something that I wrote
30 years ago, Senator. And in the course of just, you know,
exploring law school and the ideas that came with----
Senator Cruz. Okay. So your flirtations with Marxism were
30 years ago. So let's go more recent.
In 2020, you gave a speech entitled, ``Reflections on
Equity and Privilege,'' and you said, quote, ``First, the world
is wide enough for all of us. Privilege derives its power from
the belief in scarcity: scarcity of money, natural resources,
food, and power itself. The desire to control it all drives
privilege. I want to suggest to you that equity, the idea of
equity, rejects this model of scarcity.''
Now, that's Marxism in 2020. What did that mean?
Judge Kasubhai. I've never considered that to be Marxist,
Senator. It's the idea that equal access, and in the context of
the work that I do here----
Senator Cruz. So, there is no scarcity. There are no
property rights. Equity gives everyone an entitlement to each
other's property. Is that right?
Judge Kasubhai. Not at all. And in the context of the work
that I do on the bench, Senator, when you look at my record for
all of these 16 years, you'll find that I have upheld the
Constitution and our case precedent.
Senator Cruz. Okay. Well, let's turn to something else you
wrote in the Wisconsin Women's Law Journal--again, this is your
writing. The name of the article is ``Destabilizing Power in
Rape: Why Consent Theory in Rape Law Is Turned on its Head.''
You cited Professor Catharine MacKinnon, who argued, quote,
``sexuality itself is a power web in which heterosexual
relations, per se, are infused with violence and control.''
And, quote, ``Most intercourse is rape.''
Now, her views are extreme. And yet--and when Senator
Blackburn asked you about them here at the hearing, when you
want to be confirmed, you try to distance yourself from them.
But here's what you wrote in the article. You embrace those
views. You wrote, quote, ``I employ the view that `rape is sex'
in order to focus on the significance of consent in rape law.
The sex act is a violation, per se, without consent. In order
to properly align the consent doctrine in rape law with consent
in other areas of the law, non-consent must be presumed.''
Do you believe that is a mainstream view that--that
heterosexual sex is rape?
Judge Kasubhai. Senator, in that article, I was exploring
different ideas and theories, and I was employing the
hypothetical that you've just described to try to tease out a
particular issue with respect to consent. With respect to your
last question----
Senator Cruz. So, you also quoted Professor MacKinnon, who
wrote, quote, ``sexuality is to feminism, what work is to
Marxism.''
Let me ask you again, what does that mean?
Judge Kasubhai. Senator, I was summarizing different
theories that people were presenting, so that way I could
explain them and then employ an analysis with respect to the
issue of what consent was, in the context of sexual assault
back in, 30 years ago.
Senator Cruz. I think your views are far, far out of the
mainstream.
Chair Durbin. Senator Welch.
Senator Welch. Thank you very much. I'm going to ask Judge
Park, you're the--I'm a public defender. I think I'm the only
one in the Senate, and I've been delighted at the number of
public defenders who've been nominated. And our Constitution,
of course, provides for the right of us, all, as advocate for
everyone charged with a crime, because it is about the process,
not the individual.
I just want to ask you if you agree, and I'm sure you do,
about the necessity for zealous advocacy from the defense, as
well as from the prosecutors. And if so, why?
Judge Park. It is necessary in order to have a fair and
just criminal----
Senator Welch. Is your microphone on?
Judge Park. It's necessary in order to have a fair and just
criminal system that there be zealous representation on both
sides of the aisle. Not only does our Constitution require it,
but the caselaw requires it. It requires that Federal public
defenders be effective, and----
Senator Welch. Right. And that's the 1938 Supreme Court
case, Johnson v. Zerbst, then the 1963 Supreme Court case
Gideon v. Wainwright held that--that the Constitution requires
appointment of counsel. Can you tell me whether, in your
experience, we're living up to meeting that constitutional
requirement?
Judge Park. The Federal Public Defender's Office that I
worked at certainly did. There was time when I was there, the
Federal public defender made sure to train the attorneys to be
able to do our job and to do it zealously within the bounds of
the law. And at that Office, when I was there, I also
participated in training other attorneys to do just that.
Senator Welch. That's great. And my understanding,
according to statistics, that 9 out of 10 defendants in Federal
court, U.S. district court, have appointed counsel.
Judge Park. I would believe that that number may be
accurate, yes.
Senator Welch. Well, that's why I'm definitely hoping, as
I've said before, that we maintain the budget--we don't cut it
for the Federal Defenders. Thank you.
Judge Park. Thank you.
Senator Welch. Judge Kasubhai, you know, my colleagues on
the Republican side are asking about some of your writing and
what you mean, and whether it's clear or it isn't, whether it's
prose or poetry.
But I have a lot of respect for the academic inquiry into
issues, like, what is property? How does it affect
relationships? That's a normal area of legal inquiry, is it
not? Whether people agree or not with what a particular writer
says?
Judge Kasubhai. Senator Welch, I agree. In order for me to
love the law and love our country, you know, looking at things
in a critical way, just simply substantiates why our country
and our democracy is as great as it is.
Senator Welch. Right. But then, when you are in your role
as an academic where it's open inquiry, which is different than
your role as a judge, which is confined by the boundaries of
the law--and I heard in one of your earlier answers, your
description of the process you go through, reading the briefs,
testing them, and the hypothesis.
Can you just explain that and what you would be doing in
your role as a judge as opposed to in your role as a, I would
say, academic?
Judge Kasubhai. It is a profound obligation and duty to
uphold the rule of law, end-stopped.
And in the course of the work that I do under the oath that
I've taken as a magistrate judge in the District of Oregon, is
to rigorously evaluate the law. If it's a jury trial, ensure
that the rules of evidence are applied so the record can be
complete and without question, and then to apply those facts to
the law as necessary.
Senator Welch. Thank you. You know, the question of
diversity came up and everyone of you answered that you're in
favor of diversity. But I know among some of my colleagues,
there's apprehension that diversity means special treatment.
And I just want each of you to have an opportunity to say
that--to indicate whether, if you have a defendant, diversity
is going to determine or affect your decision about what the
law says or requires. Any--yes.
Judge Kasubhai. No.
Judge Kazen. No, Senator.
Judge Park. No, Senator.
Mr. Semper. No, Senator.
Senator Welch. Okay.
Mr. Smith. No, Senator.
Senator Welch. All right. Thank you very much. And
congratulations on your nominations. I yield back, Mr.
Chairman.
Chair Durbin. Thank you, Senator Welch. And I'll just make
a couple observations. Judge Kasubhai, 16 years on the bench,
is that right?
Judge Kasubhai. Sixteen years on the bench and 4 additional
years as a neutral appellate adjudicator.
Chair Durbin. Did you ever write an opinion during that
period of time?
Judge Kasubhai. On the bench, no. As a neutral adjudicator
on the Workers' Compensation Board, I was involved in panel
decision-making and opinions that have been issued.
Chair Durbin. When it came down to the cases that you
considered as a State judge and a Federal magistrate, there is
a written record.
Judge Kasubhai. Yes, and you're right. State court, and as
a magistrate judge, my written opinions, well over 400 of them,
are clear for the record.
Chair Durbin. And isn't it interesting today that when we
considered your life's work and whether you're prepared for the
Federal bench, the only reference made was to a case,
Boudjerada----
Judge Kasubhai. Boudjerada.
Chair Durbin [continuing]. Which you, I suppose, issued an
opinion as a magistrate, which was accepted by the district
court?
Judge Kasubhai. Correct.
Chair Durbin. So the only opinion, out of the hundreds that
you have written, that higher courts said you were right on,
your view of the law, the First Amendment and such, was
appropriate--but they've gone back.
If I could give counsel to any law school class, I'd say to
them, ``If you ever aspire to be a Federal judge, hold some of
those wild thoughts in your mind and don't sit--don't write
them down so that some Senator 30 years from now can read them
back to you.''
Judge Kasubhai. Especially poetry.
[Laughter.]
Chair Durbin. Yes. Well, your poetry has been fed back to
you today.
[Laughter.]
Chair Durbin. And I'll just say that they didn't spend much
time, in fact, literally no time, on written opinions involving
the law and the facts, and went after your poetry. So don't be
discouraged. Poetry's still very important.
Well, it turns out that we have questions for the record--
will be due to the nominees by 5 p.m. on Wednesday, October
11th.
The record will likewise remain open to that time to submit
letters and similar materials.
The hearing is going to stand adjourned with gratitude to
the nominees, their families, and friends.
[Whereupon, at 12:08 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
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