[Senate Hearing 118-29, Part 11]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 11
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2023
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Serial No. J-118-2
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PART 11
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-022 PDF WASHINGTON : 2024
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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
LAPHONZA BUTLER, California 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........................................... 1
Whitehouse, Hon. Sheldon......................................... 8
Blumenthal, Hon. Richard......................................... 7
Booker, Hon. Cory A.............................................. 5
VISITING INTRODUCERS
Menendez, Hon. Robert, U.S. Senator from New Jersey.............. 4
Shaheen, Hon. Jeanne, U.S. Senator from New Hampshire............ 2
Hassan, Hon. Maggie, U.S. Senator from New Hampshire............. 3
NOMINEES
Aframe, Seth Robert.............................................. 10
Questionnaire................................................ 52
Responses to written questions............................... 82
Additional materials......................................... 154
Fonzone, Christopher Charles..................................... 26
Questionnaire................................................ 189
Responses to written questions............................... 226
Kiel, Hon. Edward Sunyol......................................... 24
Questionnaire................................................ 263
Responses to written questions............................... 305
Additional materials......................................... 379
Russell, Sarah French............................................ 25
Questionnaire................................................ 382
Responses to written questions............................... 436
Additional materials......................................... 524
APPENDIX
Senator Whitehouse:
United States Department of Justice, letter, June 30, 2017... 564
United States Department of Justice, letter, January 18, 2022 566
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
----------
WEDNESDAY, NOVEMBER 1, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Blumenthal, Hirono, Booker, Padilla, Ossoff, Welch, Graham,
Grassley, Cruz, Hawley, Kennedy, and Blackburn.
Also present: Senators Shaheen, Hassan, and Menendez.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order. Today we'll hear from three
judicial nominees and an executive nominee: Seth Aframe,
nominated to the U.S. Court of Appeals for the First Circuit;
Judge Edward Kiel, nominated to the District of New Jersey. I'm
sorry if I mispronounced that name. Is that correct? Thank you.
Sarah Russell, nominated to the District of Connecticut; and
Christopher Fonzone, nominated to be an Assistant Attorney
General in the Justice Department's Office of Legal Counsel. I
congratulate all the nominees, and the families and friends
supporting them here today.
We have several colleagues joining us today to introduce
today's nominees, and I will introduce Mr. Fonzone personally.
But first, I'll turn to Senator Graham for 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 tomorrow
we'll be taking up subpoena requests. None of us will support
that, and Senator Grassley and I are working on some subpoenas
of our own. So, if you want a subpoena war, you'll get one. I
can't believe we're doing it in the middle of all this stuff,
but there you go. Thanks.
Chair Durbin. Thank you, Senator. We'll hear introductions
of our nominees. First is Senator Shaheen, to introduce Mr.
Aframe.
STATEMENT OF HON. JEANNE SHAHEEN,
A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Shaheen. Thank you, Chairman Durbin, Ranking Member
Graham, Senators Grassley and Whitehouse. Thank you for this
opportunity to introduce Seth Aframe, who is nominated to serve
as a judge on the First Circuit Court of Appeals.
Mr. Aframe is joined today by many proud family members who
are sitting with him: his wife, Karen; his sons, Max and Noah.
He's also joined by his parents, Lisa and Jeff; his brother,
Craig; and his in-laws, Ellie and Ed Sondik. Thank you all for
being here.
Mr. Aframe is an impeccably credentialed and highly
respected member of the New Hampshire Bar. He is a graduate of
Georgetown University Law School and has spent most of his
legal career in public service.
Since 2007, Mr. Aframe has worked as an assistant United
States attorney in the New Hampshire United States Attorney's
Office, where he currently serves. He is chief of the Criminal
Division and chief of the Appellate Division. He's tried 20
cases in Federal court and argued more than 100 appeals before
the First Circuit.
He has more appellate experience than almost any attorney
in New Hampshire, and it speaks volumes that all four former
U.S. attorneys whom Mr. Aframe has served under, appointed by
both Republican and Democratic Presidents, are supporting his
nomination. In a joint letter, these former U.S. attorneys say,
of Mr. Aframe, and I'm quoting here, ``Each of us regards Mr.
Aframe as a distinguished and persuasive appellate advocate who
has successfully represented the Government and earned a well-
deserved reputation for excellence. His knowledge of the law is
extensive. His writing is pristine and persuasive. We doubt
there is any practicing attorney who has briefed and argued
more cases before the First Circuit,'' end quote.
But the praise is not just from prosecutors. A group of
defense attorneys who have litigated many times against Mr.
Aframe have also lauded his nomination. Again I'm quoting, ``We
believe Seth has a perfect judicial temperament. In what is
often a difficult role as a prosecutor, he epitomizes open-
mindedness, courtesy, patience, freedom from bias, and
commitment to equal justice under the law,'' end quote.
Moreover, the ABA echoed these glowing endorsements in
giving Mr. Aframe a unanimous ``well qualified'' rating.
Outside of the courtroom, Mr. Aframe is an adjunct
professor at the University of New Hampshire Franklin Pierce
School of Law, demonstrating his steadfast commitment to
sharing his legal expertise and the benefit of his robust
appellate and criminal experience with attorneys of tomorrow.
Above all else, it is abundantly clear to all who know him
and have worked with him that Mr. Aframe's intellect and his
commitment to preserving justice and integrity in the law make
him an excellent candidate to serve on the Federal bench.
His nomination is also supported by the former president of
the New Hampshire Association of Criminal Defense Lawyers and
past presidents of the New Hampshire Bar Association, among
others.
In reflecting on their time working with Mr. Aframe, his
former colleagues at the U.S. Attorney's Office said, quoting
again, ``His knowledge of the law is deep and extensive. During
our time working with Mr. Aframe, there is no other person who
was relied upon more to clarify complex legal issues, provide
sound and thoughtful advice on legal strategies, and to aid in
providing the best representation of the United States.''
Mr. Chairman, Ranking Member Graham, Senators, I believe
that Mr. Aframe's deep appellate experience, his unwavering
commitment to equal justice under the law would make him an
excellent judge.
Thank you, again, for allowing me to introduce him today.
I'm honored to be here, and I urge the Committee to support his
nomination.
Chair Durbin. Thank you, Senator Shaheen. And I might just
say for the record that visiting Senators who are issuing
endorsements are not expected to stay. We know you have busy
schedules. You're welcome to stay as long as you'd like to.
Senator Hassan.
STATEMENT OF HON. MAGGIE HASSAN,
A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Hassan. Well, thank you, Senator Shaheen, and thank
you, Mr. Chair and Ranking Member Graham and distinguished
Members of this Committee. I'm honored to be here to join
Senator Shaheen in introducing Seth Aframe of Hopkinton, New
Hampshire, to the Committee. And I am pleased to join Senator
Shaheen, and other New Hampshire leaders, in supporting Mr.
Aframe's nomination to serve as judge on the United States
Court of Appeals for the First Circuit.
I also want to thank Mr. Aframe's family for being here
today. I know how proud they are of him, and how proud he is of
them.
As you heard from Senator Shaheen, Mr. Aframe is
exceptionally qualified to serve on the First Circuit Court of
Appeals. The American Bar Association unanimously rated him as
``well qualified,'' the highest possible rating, and at every
step of his career, Mr. Aframe has demonstrated professional
excellence.
Granite Staters know that they can always depend on Mr.
Aframe to pursue justice, exercise fairness, and do right by
the people of New Hampshire. Mr. Aframe's work in the U.S.
Attorney's Office includes arguing many cases before the First
Circuit, leading the Appellate and Criminal Divisions, and
working on the LASER Docket, a drug court that helps get people
struggling with addiction into treatment.
His exemplary service in the U.S. Attorney's Office is
matched by his dedication to his community. He has taught at
the University of New Hampshire's law school for 15 years. He
regularly gives back to the next generation of aspiring lawyers
by serving as a judge for student mock trials. He has served
both as a member of his local school board and as president of
his synagogue, Temple Beth Jacob. In this way, Mr. Aframe
demonstrates the New Hampshire ethos of ``all hands on deck.''
That's our approach to service, and Mr. Aframe has demonstrated
that approach in serving his community, his State, and his
country.
It is, therefore, no surprise that many Granite Staters
have come forward to strongly endorse Mr. Aframe's nomination
to the First Circuit. Four previous United States attorneys for
the District of New Hampshire wrote a letter stating, quote,
``Each of us regards Mr. Aframe as a distinguished and
persuasive appellate advocate who's successfully represented
the Government and earned a well-deserved reputation for
excellence.''
It's not only Mr. Aframe's fellow prosecutors who have
confidence in his abilities. New Hampshire defense attorneys,
including public defenders, also trust and support Mr. Aframe.
Charles J. Keefe, writing a letter on behalf of these defense
attorneys, wrote that, ``In what is often a difficult role as
prosecutor, he epitomizes open-mindedness, courtesy, patience,
freedom from bias, and commitment to equal justice under the
law.''
Mr. Aframe also has the backing of many New Hampshire law
enforcement officers, including one letter that highlighted
how, quote, ``We have observed firsthand Seth's professionalism
and unmatched abilities as a Federal prosecutor. His honesty,
straightforward demeanor, and overall compassion for people
have distinguished him in that role.''
Additionally, past presidents of the New Hampshire Bar
Association strongly support Mr. Aframe.
The breadth of support from both sides of the courtroom,
from the legal community and law enforcement alike, is a
testament to Mr. Aframe's exemplary career thus far. He is
exactly the sort of person our country needs on the judicial
bench. I have no doubt that, as a judge on the First Circuit
Court of Appeals, he will serve with the same excellence,
selflessness, and commitment to his State and country that has
defined his entire life, and he will make every Granite Stater
proud. Thank you.
Chair Durbin. Thank you, Senator Hassan. And at this point,
Senator Menendez is recognized.
STATEMENT OF HON. ROBERT MENENDEZ,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman, Ranking Member
Graham, distinguished Members of the Committee. Today I have
the pleasure of joining Senator Booker in introducing another
exceptionally well-qualified nominee for the U.S. District
Court of New Jersey, Mr. Edward Sun Kiel. If confirmed, Mr.
Kiel would be ready to serve on day one.
He already knows the District of New Jersey and the Newark
courthouse. After all, it's where he has capably served as a
U.S. magistrate judge for the past 4 years. In every case and
at every step, he's demonstrated an even temperament and a
resolute commitment to equal justice under the law. During his
time on the bench, he has shown a keen intellect and a deep
reverence for precedent and the rule of law.
In addition to his regular duties, Judge Kiel serves as
Newark Vicinage's pretrial opportunity program, an initiative
that offers treatment alternatives and noncustodial sentences
for eligible individuals.
Before his dedicated judicial service, Judge Kiel spent 27
years as an attorney in the Garden State, developing an
extensive record, including pro bono work for numerous
organizations, as well as several church groups.
He has sterling credentials and a wealth of accumulated
trial experience. But beyond these qualifications, I would
submit to my colleagues that what makes Judge Kiel an ideal
candidate for the Federal bench is his lived experience.
Judge Kiel was born in Daegu, South Korea, to parents who
fled North Korea on foot during the war. To hear him tell his
story, his parents didn't have much in the form of material
possessions, but nonetheless they considered themselves rich.
Guided by unwavering faith, they set out toward uncertain
shores in America with just $40 to their name, a gift pooled
together by relatives before the journey.
On their very first Sunday in the United States, Judge
Kiel's mother, who is here with us today, placed the money in
the church's offering plate. What an amazing story of
resilience and optimism. What a powerful testament to the
American Dream.
When Judge Kiel's parents became U.S. citizens in the late
70s, they did so in the very courthouse where he now serves as
magistrate judge. Both of his parents' naturalization
certificates hang in his chambers as a reminder of what is
possible in this country we all love.
So, make no mistake. Judge Kiel is eminently qualified to
serve as a U.S. district judge. He has the temperament, the
knowledge, and the integrity that we look for in judicial
nominees.
As I've long believed, our independent judiciary must
reflect the best of America, the best of our citizens, and the
best of our values. With his experience and his perspective,
Judge Kiel is both. His nomination not only addresses our
shared goal of filling judicial vacancies, it also ensures that
our sacred institutions better reflect the rich tapestry of our
Nation.
It is therefore my hope that Judge Kiel earns strong
bipartisan support from this esteemed Committee so that he can
swiftly be confirmed to the District Court of New Jersey. I
have no doubt that he will be an incredible legal asset to New
Jersey's Federal bench and encourage my colleagues to give him
all the due consideration at today's hearing. Thank you.
Chair Durbin. Thank you, Senator Menendez. Senator Booker.
OPENING STATEMENT OF HON. CORY A. BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. I truly appreciate joining with Senator
Menendez in really celebrating an extraordinary American. Judge
Kiel, who's with us right now, is someone that should make our
whole Nation celebrate.
He's joined here by his mother, Gracie, his wife for 25
years, Nancy, and his three children, Elizabeth, Amanda, and
Andrew. Good to see them all here.
He's joined by his brother and sister-in-law, and members
of his judicial chambers. This is extraordinary, to have this
gathering of New Jerseyans here to witness something that is
truly special.
As Senator Menendez says, Judge Kiel was born in South
Korea. His mother and late father escaped tyranny in North
Korea, and they did that during the Korean War. Judge Kiel's
family ultimately settled in New Jersey, where his father
founded New Jersey's second-oldest Korean church, the Korean
United Presbyterian Church in Bloomfield, New Jersey, and his
mother worked in the drycleaners to support the family.
Together, Judge Kiel's parents built a life in New Jersey
motivated by faith, a desire to serve community, and a love of
country. Fealty to this Nation, faith, and family--there's
nothing more American than that trifecta. And their sacrifice
and their love raised a man who is, in many ways--as James
Baldwin said, ``Children are never good at listening to their
elders, but they never fail to imitate them.''
Judge Kiel's nomination is momentous, and here's the really
magic of it. It is a full-circle realization of the American
Dream. I hope my Committee Members listen to this: Should we
confirm him as a Federal judge, he will serve in the same
courthouse where his parents were naturalized as citizens of
this great country.
Judge Kiel's confirmation will bring us so much closer to
ensuring that our judiciary is truly reflective of the rich
tapestry of experiences of all Americans.
It has been a privilege of mine to get to know this family.
They have moved me and inspired me, and Judge Kiel now is a
fixture in our Nation and in our State, again, in that
trifecta. He's a fixture as a faith leader, he's a fixture as a
family man, and he is a mentor to so many great young
attorneys, many of them who are here right now.
It is amazing that Judge Kiel is someone who would be a
great leader in and of himself, but would be a trailblazer in
his position as a Korean-American Federal judge in our State.
There are many, many obligations as a United States
Senator, but perhaps none is more exciting than to be able to
be a small part of the ascendancy to the judiciary of such
extraordinary Americans as this one. His experience serving the
people of New Jersey as a magistrate judge on the District
Court of the District of New Jersey, presiding over civil and
criminal cases--his experience is clear.
He has issued more than 1,000 orders, reports, and
recommendations and opinions. He's volunteered to preside over
the court's pretrial opportunity program, something very
important to me and many other Members here, a front-end
diversionary program for nonviolent offenders caught up in the
criminal justice system.
He is living those ideals in the faith he believes in: May
justice roll down like water and righteousness like a mighty
stream.
We are blessed to have him before us today, and I am
excited about his testimony and, more importantly, about his
ascendancy to the Federal judgeship.
I believe in the grand story of America. This is truly one
of the great family journeys, and I'm excited to have him here
today. Thank you.
Chair Durbin. Thank you, Senator Booker. I now recognize
Senator Blumenthal.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Thank you, Mr. Chairman. Thanks for
holding the hearing, and thanks to President Biden for
nominating this extraordinary group of lawyers, and people with
such broad and impressive experience, to the Federal bench.
I'm very honored to support Sarah Russell, a nominee for
the District of Connecticut Federal court. Senator Murphy and I
were privileged to suggest her to President Biden, and we thank
him for moving forward, and this Committee, Chairman Durbin,
and Ranking Member Graham, for having this hearing today.
I can't really say too much in favor of Sarah Russell. She
is what we litigators would call, ``the real deal.'' She has
the intellect, but more than just the book-smart learning and
academic qualifications, she has the emotional intelligence to
be a truly great judge: a caring and compassion combined with
toughness, which is required of a judge, and the experience of
not just teaching and litigating, but actually combining the
two.
She has taught students how to litigate. And I have
personal experience in knowing of her work as a litigator in
the Federal courts.
She graduated from Yale as an undergraduate and then Yale
Law School. She clerked for two extraordinary Federal judges,
one district court judge and the other a court of appeals
judge, and then she began an extensive and impressive career in
the courts, which has won her praise from prosecutors, from
academics, from everybody in the Yale and Connecticut legal
community.
A group of 16 former Federal prosecutors has written on her
behalf, and a former chief of the Office of the Criminal
Division in the United States Attorney's Office, Connecticut's
Inspector General Robert Devlin, a former Federal judge, Brian
Austin, former Senior State's Attorney Kevin Kane--former chief
State's attorney, Maura Crossin, who is the Victim's Advocate.
Prosecutors respect her work as much as the defense bar, and I
want to quote one letter in particular. By the way, Mr.
Chairman, I'd like all these letters to be made part of the
record, if there's no objection.
Chair Durbin. Without objection.
[The information appears as submissions for the record.]
Senator Blumenthal. One letter in particular, from Robert
Devlin, his concluding paragraph, this is from a former
prosecutor and a judge: ``I always found Sarah Russell to be
even-handed in her approach to issues. It goes without saying
that she is a person of towering intellect and unquestioned
integrity. As a judge, I have no doubt that she would
demonstrate great fidelity to the rule of law. She is also
unpretentious and quite likeable. She would make an excellent
Federal judge.''
I would just conclude by saying her fidelity to the rule of
law is perhaps her singularly most important qualification at a
time when the rule of law is threatened as never before. We
need judges like Sarah Russell. I'm very pleased to support her
today. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Blumenthal.
Now I am pleased to introduce Mr. Christopher Fonzone,
nominated to be an Assistant Attorney General in the Justice
Department Office of Legal Counsel.
Born in Allentown, Pennsylvania, received his undergraduate
degree from Cornell, his J.D. from Harvard Law School. He then
embarked on two extraordinary clerkships. He clerked first for
Judge J. Harvie Wilkinson on the Fourth Circuit Court of
Appeals and then for Justice Stephen Breyer on the United
States Supreme Court.
Mr. Fonzone has a significant amount of experience in
Federal Government, including the Department of Justice. Began
his legal career as an attorney with appellate staff in the
Department's Civil Division. Also served as attorney advisor
with the Office of Legal Counsel, 2 years as special counsel in
the Office of General Counsel at the Department of Defense.
For 4 years, from 2013 to 2017, he held several roles in
the White House, including service as counsel in the White
House Counsel's Office and legal advisor to the National
Security Council.
After leaving the White House, he spent 2 years as a member
of the Fulbright Foreign Scholarship Board at the State
Department, completed a stint in private practice, advising
clients on privacy and cybersecurity before returning to public
service.
In 2021, President Biden nominated him to serve as general
counsel to the Office of the Director of National Intelligence,
confirmed by the Senate on a bipartisan basis for that job.
An impressive dedication to public service. I look forward
to hearing more about his breadth of experience.
Congratulations, Mr. Fonzone, to your family and friends who
have gathered here today.
Before we move to the first panel with Mr. Aframe, I have
been asked to recognize my colleague, Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you very much, Chairman. And I
hope my colleagues will indulge me for one second, because I
have long-pending business with the Department of Justice that
I need to bring to resolution, and I hope very much that that
resolution can be achieved before a Committee vote on Mr.
Fonzone, and certainly before a floor vote, so there is no
delay in getting him into the Office of Legal Counsel.
But for my colleagues' benefit, I want to explain why it
has come to this.
Back in the Obama administration, I asked Attorney General
Lynch to take a look at whether the successful DOJ civil RICO
case against the tobacco industry, for fraudulently
misrepresenting the dangers of its product, was a template for
litigation against the fossil fuel industry.
After considerable prompting, I ultimately received this
letter [holds up a document] from the Department of Justice,
FBI, which told me two things: One, ``Be assured this referral
was taken seriously and was thoroughly assessed''; second,
``The Government must prove beyond a reasonable doubt the
existence of an illegal enterprise.''
For those in the room who aren't lawyers, this was a civil
RICO case, and ``beyond a reasonable doubt'' is a criminal
burden of proof.
And if you actually went and looked at the tobacco
complaint the DOJ brought, it actually pled the burden of
proof.
So, clearly, whoever wrote this letter had not even
bothered to read the complaint. So, I take no solace in the
assertion that ``this referral was taken seriously'' or ``was
thoroughly assessed.'' Eight years later, there's still no
evident sign of an honest look having been taken. Eight years.
The FBI's supplemental background investigation into Brett
Kavanaugh, after the sexual assault allegations surfaced during
his confirmation process, seemed to violate DOJ and FBI
policies, and false things seemed to have been said about it.
So, I've pressed to understand what actually went on.
During the time that the FBI virtually opened its files to
Committee Republicans to investigate the Crossfire Hurricane
investigation, literally boxloads of documents, I was refused
any information, including things as simple as the FBI's public
Tip Line policy guidelines. We found it on the internet.
Materials eventually gradually dribbled out, but very
slowly. No claim of privilege, just stalls and noncooperation.
That has now been a 5-year wait, and I would like to get this
matter resolved.
Then, in the Trump administration, the Antitrust Division
sent a threatening letter to auto companies that had
embarrassed the White House by concluding emissions
negotiations with the State of California that the fossil fuel
industry didn't like.
I'm not a great antitrust expert, but I do know that when
corporate interests gather to lobby governments, that is exempt
from antitrust: the Noerr-Pennington doctrine.
So, I wanted to know what had prompted the letter. I was
asked to stand back while the inspector general investigated.
I was told, ``Because of the ongoing review by the Office
of Inspector General, the Department has not endeavored to
answer your specific questions concerning the matter, as we
believe it is appropriate to wait until OIG completes its
review to respond to any questions you then may have.''
There is no ongoing inspector general exemption to
congressional oversight, and it has now been 3 years.
I ask both of those letters to be made a part of the
record.
Chair Durbin. Without objection.
[The information appears as submissions for the record.]
Senator Whitehouse. And, finally, an FBI agent who worked
in the New York field office during the Clinton-Comey-Giuliani
FBI New York Field Office fiasco, has been charged with crimes.
In his plea negotiations, I wanted to make sure he was
questioned independently, like, by the inspector general, about
that fiasco. The FBI has every incentive to cover up that
fiasco, so an independent debrief as a condition of the plea
seemed an obvious precaution.
I can't get an answer about whether the IG is involved.
Remember, in the letter I just read, I was told that the IG was
involved and that that was the reason why I couldn't get any
information.
Here, I'm told that they can't tell me if the IG is
involved.
It seems to me that DOJ either can or cannot tell me about
IG involvement, but it doesn't get to do both. That's been only
about a year, but it's a really easy question, and it's a
pretty important one when you consider the incentive of the FBI
not to expose whatever happened between the New York Field
Office and former U.S. Attorney Rudy Giuliani and Director Jim
Comey that caused Director Comey to violate DOJ procedures and
launch political torpedoes at Hillary Clinton.
So, again, my apologies to my colleagues for taking this
time, but I did want to explain--because I really don't do this
often--what has come to this point.
And I hope it will be resolved before votes come on Mr.
Fonzone, who is well qualified for his position and had no role
in any of these problems.
Chair Durbin. Thank you, Senator Whitehouse. The first
panel is Mr. Seth Aframe, and I ask him to please remain
standing for a moment to take the oath.
[Witness is sworn in.]
Chair Durbin. Let the record reflect the witness and
nominee has answered in the affirmative. And you may proceed
with an opening statement.
STATEMENT OF SETH ROBERT AFRAME, NOMINEE TO SERVE AS UNITED
STATES CIRCUIT JUDGE FOR THE FIRST CIRCUIT
Mr. Aframe. Thank you, Senator Durbin. Thank you, Ranking
Member Graham, and Members of the Committee.
First, let me thank the Committee for holding this hearing
today, and second, thank you, to the President, for nominating
me to this important position. And finally, thank yous, to
Senators Shaheen and Hassan, for those kind introductions.
At the outset, please indulge me to mention an experience
that actually may not be referenced in your materials. From
early on, I was interested in American Government, which merged
into my interest in the law.
My earliest formative experience was in the fall of 1990
when, as a junior in high school, I came here as a United
States Senate page. And, in fact, Senator Grassley was already
about 10 years into his tenure.
[Laughter.]
Mr. Aframe. That semester, I developed a conviction which
has never left me: to pursue a career in public service.
I never thought I would speak to a Committee of United
States Senators, and I cannot pass on the chance to thank you
for the page program. As it did for me, I know it has turned
hundreds of other young people toward careers in public
service.
Let me turn now to a critical figure in my life, Judge
Jeffrey Howard. In 2003, my wife and I came to New Hampshire
from Boston for a year. I intended to clerk for Judge Howard
and then find a career in public service back in Boston.
We fell in love with the Granite State that year, and Judge
Howard graciously extended my clerkship until I could find the
career I wanted in New Hampshire. I hope I will get to discuss
later all that I learned from Judge Howard about being a good
person, a good lawyer, and the attributes of a good judge. But
for now, I want to thank him for allowing me to pursue the
career I wanted in the place that I love.
In 2007, I found that career when I joined the United
States Attorney's Office. It has been an honor to represent the
United States in the district court and over 100 times before
the First Circuit Court of Appeals. I want to thank all the
United States attorneys--Tom Colantuono, John Kacavas, Don
Feith, Emily Rice, Scott Murray, John Farley, and Jane Young--
for giving me so many opportunities.
Mr. Chairman, New Hampshire has been a great place to be a
lawyer. I've learned so much from opposing counsel, law
enforcement, U.S. attorney colleagues, court staff, and the
judges before whom I have appeared. I am grateful to all of
them.
And now let me introduce you to my family. I am thankful to
have my parents and in-laws here today. To my parents, Lisa and
Jeff, what can I say? You have loved me every day and done
everything you could to make every dream of mine come true. And
I am lucky to have the greatest in-laws, Ellie and Ed Sondik.
They have loved me like their own son shortly after I stepped
foot in their home almost a quarter century ago.
I'm fortunate to have my brother, Craig, here, not only a
sibling but a good friend, and I am pleased that his family is
watching in Massachusetts. And then my brother, Rob--my
brother-in-law, Rob, and his family are watching in California.
And now let me introduce my two terrific sons, Noah and
Max. Noah is a junior in Hopkinton High School. He wanted me to
thank the Committee for holding the hearing in the brief
interregnum between varsity soccer and basketball seasons.
Max is a sophomore at Tufts. I asked him what class he
would miss today. He told me American politics, but he said
that traveling to DC for his dad's Senate confirmation was a
pretty good excuse for that class.
And, finally, Karen, my wife of almost 22 years. She is the
best thing that ever happened to me. She is my best buddy. Life
has been great because of her.
I also have two colleagues I'd like to recognize: retired
AUSA Arnie Huftalen is one of my great mentors, and AUSA
Georgie MacDonald is my great friend and frequent trial partner
extraordinaire.
I have several other friends and colleagues in the room,
and many more watching at home. Thank you, to all of them.
Mr. Chairman, I have worked for, or practiced in front of,
the First Circuit for most of my career. To possibly continue
my career in public service by joining that court brings me
great joy. To do so by assuming Judge Howard's seat,
representing the State I love, places that joy beyond words.
Thank you, so much. I look forward to answering your
questions.
Chair Durbin. Thank you, Mr. Aframe. There are so many
aspects of your career that I can speak to, but I want to raise
a question about something that you've identified as an
important part of that career.
We ask you to identify the cases you've been involved in
that you wanted us to take note of, and the fifth case is one
entitled, United States v. Smith.
In that case, you represented the United States,
prosecuting--at trial, on appeal, and in post-appeal
litigation. It involved a defendant who had produced child
pornography images by raping a 3-year-old girl and capturing
the encounter on video. The defendant was ultimately convicted
and sentenced to 600 months of imprisonment. The conviction and
sentence were affirmed on appeal.
The reason I raise this case is because of the note that
you've included in describing the case. And you said, ``An
important part of the trial preparation was helping the
victim's parents deal with feelings of guilt in allowing the
defendant access to their daughter.''
The reason I raise that is, this has been an issue which
we've considered in this Committee, something known as CSAM,
child sexual abuse. It is an outrageous situation, horrible,
and has impacts on children which go far beyond the obvious.
And it appears that this case, that you represented the
Government in, at least touched on that same concern that we
all share.
We passed a bill out of this Committee, unanimously, to
deal with the people in Big Tech and their response to try to
protect our children.
I--as a parent and grandparent, I live in fear of this
[holds up a cell phone] little piece of technology, and when I
see my grandchildren holding onto it and dealing with it every
minute, every day, I wonder what's happening.
Even the most conscientious parent cannot be sure that they
are protecting their child. Would you comment on that
particular note that you made in that description of the case?
Mr. Aframe. Yes. So, Senator, as you've sort of described
the facts, it was a very difficult case. It was a young child.
The defendant had ingratiated himself to the family, to get
access to the child. And so, of course, the family, when it
came to light what the defendant had done with this child, felt
tremendous guilt.
And so obviously prosecuting it in the traditional sense
was an important part of that case, but it was a very important
part of that case to work with the family, to console the
family, to help the family understand that it was not their
fault, and to help the family see that the criminal justice
system can do only so much.
We can do what we did, which is prosecute and put the
defendant in jail, but ultimately, this child was young, and
the family was going to have to, you know, figure out how to
move forward. And I think part of that case that I am most
proud of, I think, is that I was able to help them sort of
change that mindset from guilt to figuring out how are they
going to move forward when the criminal justice system part of
the case was over.
Chair Durbin. Thank you very much. Senator Graham.
Senator Graham. Thank you. In that case, I think you
recommended 60 years. Is that right?
Mr. Aframe. Yes. I----
Senator Graham. Okay.
Mr. Aframe [continuing]. Believe so.
Senator Graham. Why not life?
Mr. Aframe. Those, I believe, were the guideline--beyond
the guideline. I think it was consecutive sentences on multiple
counts. I believe production of child pornography carries 30-
year maximums, so I believe we were--we couldn't have asked for
life, based on----
Senator Graham. Okay.
Mr. Aframe [continuing]. The statutes.
Senator Graham. All right. Are you familiar with the
Carpentino case?
Mr. Aframe. I am, Senator.
Senator Graham. Okay. This involves a man who was accused
and convicted of raping a disabled 14-year-old who was deaf, I
believe. Does that ring a bell?
Mr. Aframe. Not deaf, but hearing impaired, certainly.
Senator Graham. Hearing impaired. But disabled, right, 14-
year-old?
Mr. Aframe. Fourteen-year-old, hearing impaired.
Senator Graham. And the person that raped her had
previously served 13 years for sexually abusing other minors.
Is that correct?
Mr. Aframe. I don't know if it was 13 years. I take your
word. He did serve a prior sentence for a State sex offense.
Senator Graham. Against minors?
Mr. Aframe. I believe so.
Senator Graham. Okay. And you recommended 405 months. Is
that correct?
Mr. Aframe. I believe so, and I think the judge sentenced
him slightly lower than that.
Senator Graham. Yes. Okay. There's a note in a memo here:
``The sentence requested here will incapacitate the defendant
until he is in his sixties. Hopefully, by that time, the danger
the defendant presents will have subsided.'' Did you write
that?
Mr. Aframe. Either I or my colleague did.
Senator Graham. Well, it was given under your name.
Mr. Aframe. I--I----
Senator Graham. Your office.
Mr. Aframe. I understand what you're----
Senator Graham. Is it your testimony before this Committee
that you age out, in terms of being a sexual predator against
children?
Mr. Aframe. I think that certainly, that there's an
argument that, as you get older in age, that--that that's
possible. That was certainly a guidelines sentence that we
requested in that case, which is----
Senator Graham. What----
Mr. Aframe [continuing]. A very long sentence.
Senator Graham [continuing]. What information do you have
to suggest that was possible?
Mr. Aframe. So, look, it is challenging to predict what's
going to happen to someone 405 months from now----
Senator Graham. Don't you think the past is the best
indication of the future? The man was served 13 years in jail,
got out, raped a 14-year-old girl, and you believe that if he
got to his sixties, it'd probably be okay?
Mr. Aframe. And he received a very long sentence, Senator.
Senator Graham. Well, the point is, can you give me
information about some, some source that says that, over time,
your propensity to do this to children goes down?
Mr. Aframe. I think there's some evidence that----
Senator Graham. Thank you very much.
Chair Durbin. Senator Whitehouse.
Senator Whitehouse. Welcome, Mr. Aframe.
Mr. Aframe. Thank you, Senator.
Senator Whitehouse. Good to have you here. I wish you well
in your travels to the First Circuit.
Mr. Aframe. Thank you.
Senator Whitehouse. Where you will encounter Rhode Island's
own Lara Montecalvo, who has an equally distinguished appellate
criminal career on the other side of the proceedings and also
Rogeriee Thompson, who has taken senior status but remains a
leader of the First Circuit and, I think, a colleague beloved
by her fellow judges.
So, I think you'll find that you have a good Rhode Island
welcome on the First Circuit when you get there.
Mr. Aframe. And let me say Judge Selya, as well, my----
Senator Whitehouse. Exactly.
Mr. Aframe. One of my heroes.
Senator Whitehouse. I was going to go on to Judge Selya,
because he is, I think, one of the senior judges among all the
circuits, with a very, very distinguished and long career and
also a very considerable vocabulary.
Mr. Aframe. Indeed.
Senator Whitehouse. As everybody who knows him will know.
In Rhode Island, we have, at the State level, a drug court.
We have at the State level a veterans' court. We are working on
developing a mental health court, and our United States
district court has the H.O.P.E. program for offenders. And they
all seem rather aligned with your work representing the New
Hampshire U.S. Attorney's Office in, I think you call it the
LASER program?
Mr. Aframe. Yes.
Senator Whitehouse. Tell me a little bit about the LASER
program, and tell me about what its lessons have been for you
as a hard-nosed, prosecutorial type like Senator Blumenthal.
Mr. Aframe. So, the LASER program--and LASER stands for
Law-Abiding, Sober, Employed, and Responsible. It was the
brainchild of Judge Joseph Laplante. It's been around for about
a decade. I've been the U.S. attorney's representative for, I
think, 8 years. It takes low- to medium-level drug offenders
who we believe have a substantial chance of rehabilitation.
There's an intensive, up-front vetting process in which the
U.S. attorney makes the ultimate decision. The person pleads
guilty to a felony right at the front. It's a year-long program
that has all sorts of both drug abuse as well as life skills,
so not only is there a whole drug counseling component, but
there is--get your driver's license back, get a GED, get
employment--all of those things so that someone might be well
positioned at the end to have a productive life. And if someone
completes the program--and I would say we have north of 50,
less than 100, probably, graduates--they do not get a prison
sentence. They get a term of supervised release, and hopefully
they are able to turn their lives around.
And I have seen people turn their lives around through the
program. So, it takes careful, up-front vetting. It takes
extensive and intensive work with the people through the year-
plus that they're in the program. And then it takes monitoring
on the back end. But doing all of that, we have seen some good
results in, I think, helping people avoid incarceration, which
is a good thing, I think, for these people, but more
importantly to have good lives and be productive members of the
community. Which we all want. So, it's a very good program.
Senator Whitehouse. The last thing I'd ask you, knowing
well that you're going to an appeals court, not a trial court,
is to--through your decisions and through the messages that you
send as a member of the First Circuit Court of Appeals, to
encourage the use of the jury.
It's locked down pretty hard on the criminal side, so we
still have a lot of criminal jury trials, but civil jury trials
are a vanishing species, and I think our country loses a lot
when civil jury trials are discouraged.
One of the remarkable things about the civil jury is that
it is protected from influence, and it can make very big
decisions about very big interests. And it comes for that one
case, and then it's gone, so you can't cater to it over the
years, the way you can an agency or an official. And if you try
to manipulate the jury, there's a name for that, and that's
something that you would prosecute.
So, I think it's a really important mechanism in our system
of governance that the hard, square corners of the jury box
stand as a redoubt against influence and politics and the power
of money. So, do your best to make sure that the civil jury
trial remains alive and well in the First Circuit.
Mr. Aframe. Thank you, Senator.
Chair Durbin. Thank you, Senator Whitehouse. Senator
Grassley.
Senator Grassley. Congratulations to you.
Mr. Aframe. Thank you, Senator.
Senator Grassley. I want to get at how you might look at
interpreting a statute, generally, not a specific statute but,
more importantly, in that, the extent to which legislative
history might play a role, and when it would play that role in
your decision-making.
Mr. Aframe. So, I think the Supreme Court, I think, has
said to the extent it has any role, I think it's certainly a
secondary role.
So, let me answer the question, I think, as you asked it
originally, more broadly. I think it's clear under the Supreme
Court precedent that you begin with the text. If the text is
clear, you end there.
There's then a whole series--if the text is ambiguous,
there's no precedent on point, you look to a whole series of
things. But I think you start with the statute as a whole, you
look to statutes that are in pari materia with that statute,
you look at canons of construction, clear statement rules.
And I think some kinds of legislative history can have some
purpose, such as Committee reports. What I would say about that
is, I think bad statutory interpretation is what I would call
cherry-picking: When someone just says, well, here's a quote
from legislative history that I like or a dictionary definition
that I like, and then that's the answer to the problem.
I think good statutory construction, is a broad--if the
statute's ambiguous and you're beyond the text, is looking at
all of those things together, to do the best you can to
predict, to determine what Congress meant, and what the
President meant, when they signed the law.
That's the goal, and I think that it's all of these sources
together, and really being cognizant in your own mind you're
not engaging in that cherry-picking that I don't think is good
statutory interpretation.
Senator Grassley. Now, I don't want you to get too deep
into judicial activism on one hand or judicial restraint on the
other hand, but within that globe, do you believe that a judge
should ever consider his or her own values or policy
preferences when determining what the law means or what the
case outcome should be? If so, under what circumstances?
Mr. Aframe. No. I think as a--certainly as a middle--as a
court of appeals judge, we are a court of error correction, and
we are supposed to do our level best to apply the law as the
Supreme Court has pronounced it. And what the First Circuit
says about that is, not just the narrow holdings but the
considered dicta of the Supreme Court. And that means the goal
is not just to apply narrow holdings but to figure out what the
Supreme Court has said and do our level best to apply that in
the broadest way to the cases before us. That has nothing to do
with my personal beliefs----
Senator Grassley. Yes.
Mr. Aframe [continuing]. About any topic.
Senator Grassley. What about your own life experiences? I
mean, you're X number of ages now, and you've been practicing
law for a long time, and all that sort of thing. What--is there
anything in your life experiences that might influence that
process?
Mr. Aframe. I hope it brings me the skills to do the job
well. I hope I have the temperament and the patience and the
academic ability and the empathy and thoughtfulness to do a
good job. But it's not that my opinions matter. What matters is
that I'm doing my level best, with the skills and temperament
that I've developed, to try to predict the law and apply it as
best as I can.
Senator Grassley. What are your views on something that's
very dear to me, that I never get legislation passed on but
sometime I hope to: What are your views on cameras in the
courtroom?
Mr. Aframe. You know, so, first of all, I think that that
is a policy decision, ultimately. I've never had that
experience--so I've heard myself in oral argument after, but
that's to the extent.
So, I think one of the things that's discussed is, how
would that affect lawyers' behaviors in the courtroom, the
trial court? I've just never had it, so I don't know if it
would affect my behavior in any negative or positive way. But I
know it's an issue that's out there and is discussed.
Senator Grassley. What do you believe are the most
important attributes for an appellate court judge and whether
or not you possess them? Do you have attributes along that
line, do you feel like?
Mr. Aframe. I hope so. So, I think they are fairness,
fidelity, and clarity.
So, I think fairness is what you'd, I think, expect from
any judge, which is to be open-minded, curious, thoughtful,
respectful of the litigants. Give it your all. I think that's
the fairness component.
Fidelity is sticking to that record and sticking to the
precedent, and what I described in my earlier answer to you
about how you go about doing the job of figuring out what the
law is and how to apply it.
And clarity, the goal at the end of the day, right, is to
write an opinion, and I want that opinion to be clear to
litigants, and I want it to be clear to lawyers and judges and
the bar and the community, because I think we have an
obligation to explain to people what we're doing, why we're
doing it, in a transparent way.
I hope, in my appellate work that I've been doing since
2010, over 100 times before the First Circuit, I've been able
to develop those skills, certainly, before Judge Howard. As a
law clerk, I also had practice in those things. And I feel like
I'm ready to bring them to the First Circuit, and if I'm lucky
to be confirmed, I'll give it my best.
Senator Grassley. I'd like to end with a comment, if I
could, about his suggesting that I was 10 years in the Senate
when he was a page.
[Laughter.]
Senator Grassley. You don't have to comment on this, but I
hope that I told you what I tell pages today. You know, we've
got this--I don't think it's a rule--I just think somebody
decided that no page should ever talk to a Senator unless the
Senator talks to them first. And I think that's a stupid rule.
And so I tell every group of interns, you can talk to me
anytime you want to, because you're here to learn, and if you
can learn anything from Chuck Grassley, I'd like to impart----
Mr. Aframe. Yes.
Senator Grassley [continuing]. It to you. And I hope I told
your group that.
Mr. Aframe. Well, I'll say I learned a lot, and it changed
my life. So thank you, Senator.
Chair Durbin. And I've been blessed with the Grassley
wisdom for so many years.
[Laughter.]
Chair Durbin. Made me what I am today. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
I was told never to talk to Senator Grassley unless he
talked to me first.
[Laughter.]
Senator Grassley. That's wonderful. Thank you.
[Laughter.]
Senator Blumenthal. You are an eminently qualified nominee
for the First Circuit Court of Appeals, and I'll be pleased to
support you.
I noticed that you began in the United States Attorney's
Office on the civil side, and then you moved to the criminal
side. Do you think you have the kind of experience that will be
necessary for you to sit on civil cases? Most of your
experience----
Mr. Aframe. Yes.
Senator Blumenthal [continuing]. Is criminal.
Mr. Aframe. So, an interesting part of the process, to get
to be sitting at this table, is to really look at your career
in a, in sort of a bigger way, that you don't do every day.
So, I had 3 years at a large law firm in Boston. That was
all civil. I had 3 years in the United States Attorney's Office
doing employment, medical malpractice, administrative law. For
Judge Howard, I would say it was 60 percent civil, at least.
And for Justice Cowin, on the Massachusetts Supreme Judicial
Court, it was all civil. She actually handled the criminal
work, and we, her law clerks, spent our time on the civil work.
So, when I added it all up, it was mostly half and half.
And I'd also say to you, I have a broad interest in the
law, so while my 9-to-5 is criminal law mostly, I read a lot. I
listen to a lot. I think about the law, generally, a lot. And
so it's my interest, it's my passion, and so I do think I will
be able to deal with both sides of the so-called legal house, I
think, well.
Senator Blumenthal. I think the record should note that
your wife was nodding in the background when you were referring
to reading a lot.
Mr. Aframe. Yes.
[Laughter.]
Mr. Aframe. I listen to some podcasts, legal podcasts, and
legal Supreme Court oral arguments, when making dinner
sometimes. My children and my wife don't love that, but, you
know, it is what it is.
Senator Blumenthal. We won't go too deeply into----
Mr. Aframe. Yes. Yes, well----
Senator Blumenthal [continuing]. That area. Let me ask you
about law clerks. You'll have----
Mr. Aframe. Yes.
Senator Blumenthal [continuing]. Two or three of them. You
served as a law clerk to two very able judges. In terms of
picking your own law clerks, will you look to diversity as a
qualification or a criterion?
Mr. Aframe. Yes. So, I think diversity is important in two
ways. One is, you want to give the opportunities to people of
all different kinds of backgrounds and all different sort of
vectors of ways, of people. It also helps the chambers. You
want to have interesting, dynamic discussions, and people with
different experiences bring that. So, you want to find all
different sorts of people, which I think puts an onus on the
judge to go out and talk to different law schools, different
communities within the law schools.
And I'll point--I'll say one other thing that I think,
that--I learned this at the First Circuit conference that was
about a year ago. There was a diversity panel, and I attended
the panel.
And one of the judges said that you will eventually hire a
law clerk that you didn't think was great, and you might be
inclined to think, to associate that lack of greatness, so to
speak, with some attribute of the person. Don't do that,
because that's what stops diversity, and it's to realize that
it's not the characteristic, it's just that decision wasn't the
best one, and just keep going.
And I hadn't thought of it that way, but I thought that was
an insightful remark. So, I think it's both going out and
finding all sorts of different people to work in your chambers
and then reminding yourself that, you know, to keep going. And
that's what I would try to do.
Senator Blumenthal. Thank you. Thank you very much. Thanks.
Chair Durbin. Thanks, Senator Blumenthal. Senator
Blackburn.
Senator Blackburn. Thank you, Mr. Chairman, and
congratulations to each of you. We always love getting to know
more about our nominees, and I think it's wonderful when their
families can come and be a part of the day.
Mr. Aframe, I want to come to you. I know you're aware of
the circumstances around Michael Delaney's withdrawal for his
nomination and, of course, the fact that he had used those
hardball tactics against a minor girl, who was a victim of
sexual assault, and chose to report it and chose to go forward
with that prosecution.
And the fact that he chose to name, to shame, and to really
humiliate her is something that this panel objected to. And he
did withdraw, and I was hopeful that we were going to see that
the White House would bring us nominees that did not have
questions.
And I know you've talked a little bit about the Smith case,
and I will get to that. I do want to go first to the Carpentino
case. This really disturbed me. And I'll say, it really
disappointed me. So, do you recall that case?
Mr. Aframe. Yes, Senator.
Senator Blackburn. Okay. Now, that case--for my colleagues,
so that they're aware--this man kidnapped a child and took her
to an abandoned motel in Vermont, and then he raped her. But it
was not the first time that he had abused children.
In the sentencing memo that you wrote as the prosecutor,
you noted that the defendant had just been released. He had
just been released. So, we learned that he was a convicted
felon on multiple counts. So, he had just been released from a
13-year prison sentence for sexually assaulting minors. Now, he
repeatedly stripped his victims naked and attempted to sexually
assault them while they tried to push him off. In one case, he
smothered a little girl with a pillow while he raped her. In
another case, he got so violent that he punched the victim in
the face.
By your own account, he was a sexual predator who was a
clear and present danger to children in the community. Despite
all of this, you still recommended a sentence far below the
Probation Officer's suggested guidelines. Isn't that correct?
Mr. Aframe. I mean, we--I don't know what the Probation
Officer recommendation was--40, a 405-month sentence is well
beyond 30 years in prison, Senator.
Senator Blackburn. I'll be happy to tell you what that was,
because I've got a memo on that. You recommended a sentence
that was below what was recommended. In your sentencing memo,
you wrote, and I'm going to quote you, ``The sentence requested
here will incapacitate the defendant until he is in his
sixties.'' You knew what that sentence was. ``Hopefully, by
that time, the danger that the defendant presents will have
subsided.'' Mr. Aframe, ``Hopefully.'' Really? ``Hopefully'' ?
``Hopefully'' ?
You're going to deliver justice to this guy who has a
record? He's a sexual predator. He has raped these children.
Were you really basing your sentence on hope?
Mr. Aframe. Senator, I was basing my sentence on the
sentencing guidelines, and that sentence----
Senator Blackburn. No, sir. You did not follow the
sentencing guidelines.
Mr. Aframe. Well----
Senator Blackburn. I am sorry. I will be happy to submit
that to you.
Let's talk about the Smith case. This one made me want to
throw up. I have a 3-year-old granddaughter. Three years old.
And the fact that this man had--he was guilty of
manufacturing pornography. He created six videos of himself
sexually abusing a 3-year-old girl. He did this. You noted that
the most poignant evidence of the harm this victim caused was
the look of fear in the young girl's eyes. This is astounding.
And despite this, you recommended 60 years, even as the
guidelines recommended life in prison. You just said you
couldn't give him life, but no, the guidelines said you could
give him life.
How in heaven's name, sir--how could you let somebody off
that raped a 3-year-old child? I--it is beyond me. I don't see
how you could possibly have advocated for anything other than
life, for what he had done, and that is what the guideline
called for.
Mr. Aframe. Senator, the guidelines are overridden by the
statutory maximums. Thirty years is the statutory maximum for
production of child pornography----
Senator Blackburn. The guidelines were for life. Thank you,
Mr. Chair.
Chair Durbin. Do you want to finish the sentence?
Mr. Aframe. Sure, Senator. The guidelines provide a
sentence, but ultimately what controls are the statutes, and
the statutes are 30 years for each count of child pornography
production. He was convicted of two counts. The statutory
maximum was 60 years, as I remember the case.
Chair Durbin. Senator Padilla, do you--are you--
[Pause.]
Chair Durbin. Senator Kennedy, why don't you go ahead.
Senator Padilla is preparing. Senator Padilla----
Senator Kennedy. Mr. Aframe, how are you?
Mr. Aframe. Good, Senator. How are you?
Senator Kennedy. I'm well. What is rent control?
Mr. Aframe. As I understand rent control, it's some cities
may have laws that limit the ability of landlords to raise
rent, but it's not something I'm that familiar with.
Senator Kennedy. Okay. Well, why isn't that a taking that
merits compensation from Government?
Mr. Aframe. I don't know whether that's been litigated or
how that's been resolved. I have never dealt with rent control.
Senator Kennedy. Well, I'm----
Mr. Aframe. I'm----
Senator Kennedy. I want to understand what you think about
it, how you think. Why isn't it a taking? I mean, your
Government is taking money from the private owner of an
apartment. Why isn't that a taking, just like if they took his
property to build a highway?
Mr. Aframe. So, I'm not well versed enough in takings to
give you a definitive answer, but I'll give you what I know
about takings and----
Senator Kennedy. No. Tell me what you think.
Mr. Aframe. So----
Senator Kennedy. Tell me how you would analyze that case.
Mr. Aframe [continuing]. I would be looking at the
precedents that say to what extent can Government regulation
be----
Senator Kennedy. Suppose there are no precedents. I know
you--we'll stipulate you would look at precedents.
Mr. Aframe [continuing]. But the----
Senator Kennedy. I want to know how you would----
Mr. Aframe [continuing]. The----
Senator Kennedy [continuing]. Analyze that case.
Mr. Aframe. Well, the question is, what can the Government
do as far as regulation where there's still value in the
property but maybe not the maximum, and does that constitute a
taking? That's what I'd have to study. I don't----
Senator Kennedy. Yes.
Mr. Aframe [continuing]. Know the answer about that.
Senator Kennedy. Tell me what do you think about it. How
would you analyze it?
Mr. Aframe. Well, from what I know about----
Senator Kennedy. What are the competing interests?
Mr. Aframe. Well, the competing interests are the
Government's interest in housing, I would think, on one----
Senator Kennedy. Yes.
Mr. Aframe [continuing]. Side, the property owner's
interest in making the maximum amount of money, on the other.
Senator Kennedy. Well, why couldn't--why couldn't the
Government--it has a legitimate interest to help poor people.
Why couldn't the Government accomplish that by just, just
allocating some tax money to housing subsidies?
Mr. Aframe. Well----
Senator Kennedy. And then you don't have to take somebody's
private property.
Mr. Aframe [continuing]. That would be a policy decision,
another way to try to get at that end. You're asking me whether
it's a taking.
Senator Kennedy. Yes. Is----
Mr. Aframe. And I think that, that I am not sure that a
limit on how much you can make constitutes a taking, but I
don't know that for sure. I would need to think about that and
study that.
Senator Kennedy. Well, aside from--if you were back in
private practice, how would you analyze that? How would you
reach a decision?
Mr. Aframe. Again, I----
Senator Kennedy. And please----
Mr. Aframe [continuing]. And I----
Senator Kennedy [continuing]. Don't tell you'd go look up,
look at precedent, because----
Mr. Aframe. Well----
Senator Kennedy [continuing]. You're not going to find
much.
Mr. Aframe [continuing]. I know that there are cases about
regulation that limits the value of property----
Senator Kennedy. Mm-hmm.
Mr. Aframe [continuing]. And I believe that those cases
say, unless the property is basically brought down to no value,
or very little value, it's not a taking. That's my memory,
and----
Senator Kennedy. No. That's not accurate.
Mr. Aframe [continuing]. That would be relevant, but----
Senator Kennedy. That's not accurate.
Mr. Aframe [continuing]. I could be wrong about that.
Senator Kennedy. You can have a highway come through and
take part of your property, which----
Mr. Aframe. Right.
Senator Kennedy [continuing]. Diminishes the value, but
you've still got to compensate the landowner, and you've got to
compensate the landowner for consequential damages, as well.
That's clearly a taking. Why is rent control any different,
counselor----
Mr. Aframe. Senator, I----
Senator Kennedy [continuing]. Achieve the Government
purpose in a less discriminatory way? Why isn't this open and
shut?
Mr. Aframe. Well I, Senator, without doing more work on
it--I mean, I tried to tell you what I would think about it.
But I'm also telling you I don't know necessarily how it'd come
out, and I would need to read and think about it more. But I
would think about the Government interest, understanding that
there is a loss to the owner of the property, and figure out
how those interact.
Senator Kennedy. Okay. What's the--what's the new rule
about how flexible an employer has to be if an employee asks
for an accommodation because of a religious belief?
Mr. Aframe. There has to be--the employer has to suffer a
substantial hardship, which is a change in the law. The law was
more--gave employers more flexibility in that area, and there
was--I think the case is DeJoy, from last term----
Senator Kennedy. Okay.
Mr. Aframe [continuing]. Made that more difficult for
employers, raised the burden on them.
Senator Kennedy. Okay. Fair enough. You will faithfully
follow precedent. Is that right?
Mr. Aframe. Yes, Senator, I will do my very best to do
that. Yes.
Senator Kennedy. Would you have followed the Dred Scott
case?
Mr. Aframe. As a--as a lower-level judge?
Senator Kennedy. Yes.
Mr. Aframe. I mean, in a----
Senator Kennedy. It's a yes-or-no question.
Mr. Aframe. I think that--Senator, I mean, there's a
fidelity--there's a fidelity of lower court judges, and
hopefully a Supreme Court would make the right decision there.
Senator Kennedy. Would you have followed the Dred Scott
case?
Mr. Aframe. As a lower court judge, I think you have no
choice, but you can write that the Supreme Court should do
something about that, and I would have.
Senator Kennedy. Would you have followed Plessy v.
Ferguson?
Mr. Aframe. It's the same answer. You have to--Agostini v.
Felton said lower court judges must follow Supreme Court
precedent.
Senator Kennedy. Why wouldn't you quit first?
Mr. Aframe. Well, I guess I hadn't thought of that option,
Senator, but I--but I would certainly make my voice heard. But
I would have to----
Senator Kennedy. Well, you don't think Dred Scott----
Mr. Aframe [continuing]. Follow the precedent.
Senator Kennedy [continuing]. Was an immoral decision? Do
you?
Mr. Aframe. Yes, Senator.
Senator Kennedy. Okay. Why wouldn't you quit?
Mr. Aframe. Perhaps, I would. I hadn't thought about--I
hadn't thought about it like that, Senator. I don't know. I
hadn't thought about that.
Senator Kennedy. Okay.
Mr. Aframe. But I would make my voice heard. But I do want
to say that in a vertical court of--judicial system, it is
critical that middle level judges do their best to follow
precedent.
Senator Kennedy. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Kennedy. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair.
Just on the topic here that Senator Kennedy's leaving us
on, I can't help but reflect on this. Now, I'm not a judge, and
I do not play one on TV, but as a Member of this body,
sometimes we can speak to leadership and the need for
institutions to reform. And sometimes it is strategic and
effective to leave an institution, try to change it from the
outside. Sometimes it's imperative to remain within an
institution--within an institution and change it from the
inside.
There's no right, wrong, good, bad, just different ways to
approach it. That's not a question. That's just a statement,
unless you care to comment.
But I actually have a comment that would be constructive
for the deliberation of the Committee. I understand that
several of my colleagues have raised questions earlier in the
hearing about a case, United States v. Carpentino. And so, for
the record, and for clarification, I want to ask this: As the
prosecutor in the case, what sentence did you ask for, and what
did the judge ultimately impose?
Mr. Aframe. My belief is that we asked for 405 months,
which is well beyond 30 years, and I think the judge imposed
384, I believe, but it was slightly lower, I remember, than
what we asked for.
Senator Padilla. So, your involvement with the case is a
question/concern for some of my colleagues. And so, to make
sure I understood you clearly, you asked for a higher sentence
than what was ultimately imposed. Is that correct?
Mr. Aframe. That is correct.
Senator Padilla. Thank you. Very helpful.
Now, my other question is important. I ask it of all the
nominees that come before this Committee, and in some ways it's
building on a question that Senator Blumenthal asked earlier
about law clerks. I have come to appreciate how a Federal
clerkship is a fantastic starting point for a legal career, one
that helps young lawyers to excel and often forms the basis of
serving the top ranks of the Nation's legal profession, whether
it's in the judiciary, whether it's in private practice,
whether it's elsewhere.
But far too often, women and minority law students are not
chosen for Federal clerkships, despite having comparable,
sometimes more than just competitive credentials and skills.
You talked--you answered Senator Blumenthal's question
about what you would do to help diversify the clerks, should
you be fortunate enough to be confirmed. But can you just take
a moment and explain to me why you think it's important, why
you value diversity in the courtroom and in the field?
Mr. Aframe. So, you provided--you provided, I think, one of
the answers, I think, which I completely agree with, which is
opportunity. It was certainly an opportunity for me. It's been
an opportunity for many other people that I know, and it's a
pathway that I want to make available to as many people as
possible. That's one.
But there's a selfish side to it. Part of this job I'm
really looking forward to is the dynamic of my chambers, and
talking with young people about interesting legal topics. And
those conversations are more interesting if you have people who
have done different things and been different places and have
different backgrounds.
And so that's the dynamic I want to have, and diversity is
part of that. And so it's both to help the clerk, who I hope to
mentor through their career--that's certainly part of it--but
it's also for me, to have that dynamic environment that I hope
to have.
Senator Padilla. So, I appreciate that answer and, just in
closing, will also share that, big picture: It improves public
confidence in the judiciary, when the judiciary more
comprehensively--not just who's sitting on the bench, but more
comprehensively reflects the diverse Nation that it serves. So,
thank you for being here.
Mr. Aframe. Thank you, Senator.
Senator Padilla. Thank you, Mr. Chair.
Chair Durbin. Thanks very much, Mr. Aframe, for appearing
before us. We will possibly send you some written questions
which we hope you can answer on a timely basis.
Chair Durbin. Thank you----
Mr. Aframe. Thank you.
Chair Durbin [continuing]. Very much.
Mr. Aframe. Thank you.
Chair Durbin. Now I ask the second panel to approach the
table.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect the nominees have
answered in the affirmative, so we're going to let them
proceed. Mr. Kiel, I'm going to recognize you first for 5
minutes.
STATEMENT OF HON. EDWARD SUNYOL KIEL, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
Judge Kiel. Good morning, Chairman Durbin, Ranking Member
Graham. Thank you for scheduling this hearing. I thank
President Biden, for the honor of this nomination, and to my
home State Senators, Robert Menendez and Cory Booker, for their
support of my nomination and for their kind remarks this
morning.
I would like to first introduce some very important people
in my life who are here today. First, my wife, Nancy. She is my
greatest cheerleader and supporter. She's my best friend and a
wonderful mother to our three children and a successful and a
well-respected ophthalmologist. I'm so happy to share this
moment with her.
My mother, Grace, is here, and Senator Booker and Senator
Menendez were kind enough to tell a little bit of the
backstory. My father and mother were refugees from North Korea
who fled south during the Korean War. They lived in Daegu,
Korea, where my two older brothers and I were born.
My father came to the United States to study at Princeton
Seminary, sent by Christian missionaries. My mother, older
brothers, and I joined my father in the United States a couple
years later, and we settled in New Jersey, where my father
founded one of the oldest Korean churches in New Jersey and
where my mother worked at a drycleaners to support my father's
ministry and our family. My father passed away in August at the
age of 97, after a fulfilling and very accomplished life. My
brothers and I have reaped the rewards of our parents'
unwavering faith and belief in the American Dream.
My two brothers are here. My oldest brother, Sam, is a
pediatric anesthesiologist at a leading children's hospital in
New Jersey. My middle brother, Paul, was a nuclear engineer for
the Navy, a veteran of the first Gulf War. He is now an in-
house patent attorney.
My three children are here. Elizabeth, she just graduated
from Wellesley College in Massachusetts, and is now working in
New York City. My twins, Andrew and Amanda, are juniors in
college: Amanda at Villanova University, and Andrew at Vassar
College. My children are wonderful young people that my wife
and I are so proud of. Finally, for family, my niece is here,
Alayna Choo. She just graduated from University of Virginia Law
School and is working in Big Law here in DC.
Also in attendance are my law clerk, Usma Khan, and my
courtroom deputy, Shea Smith. And I would like to acknowledge
my two other law clerks, Brian Supranowitz and Samantha
Greenfield, who are back in chambers and holding down the fort
there.
And, finally, I want to thank my Federal family back in the
District of New Jersey. The judges and staff of our great
district serve the public with honor, distinction, and
dedication. Thank you, all, for your support and encouragement
throughout the process.
Senators, thank you for your time, and I look forward to
answering your questions.
Chair Durbin. Thank you, Judge Kiel. Professor Russell?
STATEMENT OF PROFESSOR SARAH FRENCH RUSSELL, NOMINEE TO SERVE
AS UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT
Professor Russell. Thank you, Chairman Durbin, Ranking
Member Graham, and Members of this Committee, for considering
my nomination. I want to thank Senator Blumenthal and Senator
Murphy for their tireless work on behalf of the people of
Connecticut, and for this country.
And I also want to thank you, Senator Blumenthal, for your
incredibly kind introduction. I will try to be worthy of it.
I want to thank President Biden for this nomination. It's
the highest honor of my professional life.
I want to say a special thank you to the Honorable Michael
B. Mukasey, who is traveling to be here today. He experienced
some flight delays, so he's en route, and he told me to talk
slowly.
[Laughter.]
Professor Russell [continuing]. So, hopefully he'll make
it.
Following law school, I clerked for Judge Mukasey in the
Southern District of New York. I saw Judge Mukasey approach
each case with an open mind, bringing to bear careful study of
legal precedents, and a keen appreciation for the facts of each
individual case.
Judge Mukasey's love for this country and his total
commitment to uphold the rule of law continue to inspire me.
I also had the honor of clerking for the Honorable Chester
J. Straub of the Second Circuit, who was a model of
impartiality and collegiality. I was so fortunate to clerk for
these brilliant judges who approached their work with humility,
and treated all they encountered with the utmost respect.
With me today is my husband of 17 years, Sean. Thank you,
Sean, for your love, support, and encouragement over all these
years. Sean is sitting with our three incredible boys, ages 10,
13, and 15. Between the three boys, they are missing eight
different football and ice hockey practices to be here to
support their mom. I appreciate you boys for coming, for
sitting still, and for being the great kids that you are.
My parents are also here. They came here directly from
Texas, where they were helping to take care of my brother's
baby twin boys. Growing up, my parents always put us kids
first, and now they dedicate countless hours caring for their
grandchildren.
My parents taught me the importance of working hard and
giving it your all, no matter what you choose to do. Thank you,
Mom and Dad, for being here and for your unconditional love
throughout my life.
I'm so glad to have my sister, Kristin, here, and my dear
friend, Laura, as well. My in-laws, the Doyles and the
McElligotts, are watching from Connecticut. Also watching from
Connecticut are my colleagues and students at Quinnipiac
University School of Law.
I have friends, family, and mentors watching from around
the country. I would not be here but for your support and your
belief in me.
Thank you, to the Committee, for considering my nomination,
and I look forward to answering your questions.
Chair Durbin. Thank you, Professor. Mr. Fonzone?
STATEMENT OF CHRISTOPHER CHARLES FONZONE, NOMINEE TO SERVE AS
AN ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL
Mr. Fonzone. Chairman Durbin, Ranking Member Graham, and
Members of this Committee, I'm honored to appear before you
today.
Thank you for scheduling this hearing and for taking the
time to consider my nomination. And thank you, Senator Durbin,
for the kind introduction.
With your permission, I would like to express my gratitude
to a few members of my family. My mother, Mary Ann Fonzone, is
watching today's proceedings from her home in Allentown,
Pennsylvania. She's probably only slightly less nervous than
she was the last time she watched one of these hearings. She
and my father instilled in me and my brother, Steve, from a
young age the importance of trying to do the right thing, and
without their guidance, I would not be here today.
My wife, Jill, is with me today, and there's really nothing
more to say than I can't thank her enough for her love,
counsel, patience, and good humor. Without her support and
encouragement, I would not be prepared to undertake this
challenging role.
I would also like to thank President Biden and Attorney
General Garland for the confidence they have shown in me with
this nomination, as I have seen firsthand the importance of the
Office of Legal Counsel's unique mission.
In particular, earlier in my career, I had the privilege of
serving as an attorney advisor in the office. While doing so, I
was able to observe how the office sought to advance the rule
of law and contribute to the important work of the country by
carefully deliberating over difficult legal questions and
providing officials across the executive branch with candid,
independent, and principled legal advice.
The importance of OLC's mission became even more apparent
to me later in my career as the legal advisor to the National
Security Council, and now, as the general counsel of the Office
of the Director of National Intelligence.
I've often confronted difficult legal questions that have
significant implications for the intelligence officers,
servicemembers, and diplomats who are doing difficult and often
dangerous jobs far away from home, and who are committed to
protecting the Nation in a manner consistent with the
Constitution and the laws of our country.
I've always endeavored to provide my clients with the most
timely, practical, and sound counsel that I can on those
questions. But I've also learned that it's precisely in these
circumstances, when you're facing difficult legal issues and
the stakes are high, that it's most necessary and helpful to be
able to pick up the phone and seek advice from an office that
is simply dedicated to providing its best view of the law.
That's why, if I am fortunate enough to be confirmed, it
would be an honor to be able to draw on my experience as an
executive branch lawyer to assist others in precisely the same
way that the Office of Legal Counsel has helped me.
Put simply, I think it's impossible to replicate the sense
of mission and purpose a lawyer feels when they are trying to
work through a difficult legal question in the service of their
country. And it would be the privilege of a lifetime to return
to an office whose work lies at the heart of that task.
I'm grateful for your consideration today and welcome your
questions.
Chair Durbin. Thank you, Mr. Fonzone. Now we'll do a round
of questions from the Members of 5 minutes each. Professor
Russell, I'll start with you.
I've been through a number of these hearings for nominees.
I consider this panel, like most of the others--in fact,
virtually all of them--well-qualified people. The obvious
questions which will be asked are related to your temperament,
your knowledge of the law, and any prejudice you bring to this
aspiration.
You, of course, having written extensively on sentencing
and been engaged in public defense, may raise some questions
among some panelists. Would you like to address that initially?
Professor Russell. Thank you, Senator. So, I began my
career, as I mentioned, as a law clerk, so I saw firsthand,
first clerking for the Honorable Michael B. Mukasey in the
Southern District and then for Judge Straub on the Second
Circuit, I saw firsthand the role of the judge. And in both
these judges, I saw them approach cases with an open mind and
bringing to bear impartiality, setting aside any of their past
experiences or views.
So, I know what it means to be in that role as judge, and I
know how different that role is from an academic, or a policy
advisor, or from someone who is an advocate in the court
system.
So, in my career, I have held those different positions.
So, from being a law clerk, I moved to be an assistant Federal
public defender, and then I moved into clinical law teaching,
and so have worked with students to represent indigent clients
in a range of different types of cases, mostly civil and, most
recently, at Quinnipiac Law School.
And we have done all different cases, in State court, in
Federal court, before administrative agencies, helping people
not just with issues related to the criminal justice system but
also with child support issues, with employment issues and a
range of different issues.
So, I do think my career has had a broad scope, and I have
also had the opportunity to be a policy advisor of types and
issues, as well.
Finally, I'll say, Senator, that I've been called upon the
court to serve in some other capacities. So, I was--I serve as
counsel to our Federal Grievance Committee for the District of
Connecticut, and that's in a position that the chief judge
asked me to serve in. And the chief justice of the Connecticut
Supreme Court had previously asked me to serve on the Committee
for Judicial Ethics.
So, I've worked with the court system in those capacities,
as well. So, I do think I have had a broad career and now have
a sense of the role of judge as being quite different than
those other roles I've occupied.
Chair Durbin. And certainly your service as clerk to Judge
Mukasey brings to this panel--well acquainted with the judge--
an indication that you have at least dabbled in the political
spectrum when it comes to legal questions. So, thank you for
that.
Judge Kiel, what an amazing story you have in your family,
a family of immigrants who came with nothing and made such a
great life here in this country.
Please share with us any thoughts you have as your
aspiration to this judgeship is underway, as to what that means
in light of your family background.
Judge Kiel. Sure. Thank you, Senator. Senator Booker spoke
about the entire circle that I've come to, where my parents
were naturalized in the same courthouse where I now sit. And it
means so much to me. At my investiture, I surprised my parents
with a framed portrait of their naturalization certificates,
and those are hanging at the entrance to my chambers as a
constant reminder of what an incredible country that we live
in, and the opportunities that we have.
I do want to make one correction. And Senator Menendez
talked about my mother putting in the $40 at the offering plate
on that first Sunday, and my mother is sitting here. At my
investiture, when I said that, she took me aside afterwards and
said, the next time you talk about that, it was $50----
[Laughter.]
Judge Kiel [continuing]. So, get it right. So, Mom, I got
it right today.
But, Senator, it is an incredible legacy, an incredibly
gift that our parents have given to us, to get to the successes
that my brothers and I have. Thank you.
Chair Durbin. We have a common experience. My mother was an
immigrant, and her naturalization certificate is behind my desk
in my Senate office, and on the corner is a little receipt for
the filing fee of $2.50.
Judge Kiel. Okay.
[Laughter.]
Chair Durbin. And I asked her why she kept that receipt,
and she said, if the Government ever challenged me, I could
prove----
[Laughter.]
Chair Durbin [continuing]. That I paid the $2.50. Thank you
very much. Senator Kennedy.
Senator Kennedy. I'm going to defer to Senator Hawley.
Chair Durbin. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Congratulations to
the nominees. Thanks for being here.
Judge Kiel, let me just start with you. You're involved, I
think, with a group called the Asian American Legal Defense and
Education Fund. Have I got that right?
Judge Kiel. I did a couple cases with them, Senator. It's
probably been 15 years, at least, since I did any work with
them.
Senator Hawley. Okay. Fair enough. Have you done some
fundraising for them? Did I--do I understand that correctly, or
is that--or am I misinformed?
Judge Kiel. I don't believe I've ever done any
fundraising----
Senator Hawley. Okay.
Judge Kiel [continuing]. For them.
Senator Hawley. Well, let me just ask you about--I'm
curious because of some things they've said recently, so just
let me ask you about this, and you can give me your viewpoint
on it.
Earlier this month, right after the attacks on Israel, the
AALDEF said that it stands in solidarity with Palestinian,
Arab, and Muslim communities and went on to help push out on
social media a ``toolkit''--that's their word--for student
protesters that we've seen on our campuses, including
resources, talking points, and chants for students who are
pressing to end the genocide in Gaza, which, of course, we've
seen invoked by those who are calling for the destruction of
the state of Israel.
So, let me just give you a chance to respond to that. Does
that--what's your view on that? How do you read this? I mean,
how do you read this statement from this group? Just give me
your--let me give you the opportunity to respond to that. How
about that?
Judge Kiel. Senator, I have not had any involvement with
the group for a very, very long time, and my only involvement
was representing restaurant workers in wage and hour claims.
I'm not familiar with that statement from AALDEF, so I'm not
sure that I can comment on that.
Senator Hawley. Fair enough. Let me just ask you, does
this--I assume that doesn't represent your views, your personal
views, the position that the group has taken here with regard
to the attacks on Israel?
Judge Kiel. As I said, Senator, I'm not sure in what
context or what that statement was. I haven't read the full
statement, so I can't really tell you whether I----
Senator Hawley. Well, how about this? Why don't I just let
you--why don't I give you an open-ended chance to say, with
regard to the attacks on Israel, the threats on Jewish
Americans, what we're seeing on our college campuses where we
have some student groups out there saying, ``From the river to
the sea, Palestine must be free,'' which, of course, is a call
for the elimination of the state of Israel--why don't you just
tell us what your views are on that?
Judge Kiel. Senator, it's a very complicated issue. I
haven't really studied it. It is a terrible situation, what is
going on there. And, Senator, that's all I can really say what
my personal views are.
Senator Hawley. Well, would you--let me put it to you this
way. Would you condemn those who are calling for--who say
things like, ``From the river to the sea,'' which is a call for
the elimination of the state of Israel and, frankly, the
killing of Jews in the Middle East? I mean, would you condemn
that?
Judge Kiel. Senator, as I said, I know it's a very
complicated situation. It's a tragic situation. I haven't
studied the situation. I don't know how I can answer that
today, Senator.
Senator Hawley. Well----
Judge Kiel. Because----
Senator Hawley. Yes, go ahead.
Judge Kiel. As a judge, in the role that I would be
playing, my personal views of things would not come into
consideration, certainly, Senator, and I would keep an open
mind for all matters that come before me--and that's the way
that I would approach the job of a judge.
Senator Hawley. I totally understand that, and I'm not
asking you to comment on any case. I just am trying to--I
wanted to give you a chance to respond to this group's
statement, but let me just see if I can get you to--understand
your views, here.
Just with regard to the attacks on Israel and the violence
in this country against Jewish Americans: You condemn all of
that, you have no truck with that, you would say that we should
condemn all of that explicitly, I assume. Right? I mean, I
don't want to put words in your mouth. I mean, you tell----
Judge Kiel. Yes. Yes, Senator. Any violence here in this
country against Jewish people should be condemned.
Senator Hawley. Okay. And these protests that we've seen,
where people are explicitly calling for the elimination of the
state of Israel--we had Jewish students at Cooper Union, in New
York, who were barricaded inside a library for hours while pro-
Hamas protesters banged on the doors, shouted at them, screamed
at them. You would condemn all of that, I assume?
Judge Kiel. I'm not familiar with that situation, Senator.
I know nothing about that.
Senator Hawley. Are you familiar with the campus protests
that happened all across the country? And the Senate's
addressed this in a resolution that passed unanimously,
condemning that rhetoric of genocide, frankly, against the--I'm
just trying to get you to say, I hope, that you condemn that,
you think that's wrong, you're----
Judge Kiel. One----
Senator Hawley [continuing]. Against it.
Judge Kiel. One hundred percent, Senator. I would condemn
the genocide of Jewish people.
Senator Hawley. Okay.
Judge Kiel. Yes.
Senator Hawley. Mr. Fonzone, let me very quickly--because
I'm almost out of time now, and there are lots of other
Senators who want to ask you questions. But I just wanted to
ask you quickly about some work--and we can follow up in
written questions--but some work you've done for the People's
Republic of China, different entities.
You did some work for Huawei, I think, in 2018, for the
Ministry of Commerce of the Chinese government, and then for
the Hong Kong Trade Development Council, if I'm not mistaken,
in 2019 and 2020, another governmental entity. That was right
during the Hong Kong protests.
My question to you is--now, I'll give you some more for the
record, but my question for you is, did you advise that council
during that time of the Hong Kong protests, on messaging, on
what was happening there? I mean, tell us about your work.
Mr. Fonzone. Senator, thank you for the question. I know
this is an issue of interest to the Senate. It came up in my
last confirmation process, as well. I think, in general, my
practice in private practice was focused on advising companies
on American law and how American law works.
For the three entities you just mentioned, I did a small
amount of work at the request of other partners, you know, much
of it many years ago.
None of that work has had--has affected my ability to give
objective advice in my current role at the Office of the
Director of National Intelligence, and none of it would, if I
was fortunate enough to be confirmed at OLC.
Senator Hawley. This is my last thing, Mr. Chairman. Just
last question. But did you, in 2019, 2020, at the height of
those protests in Hong Kong which the government brutally
repressed--I saw it with my own eyes--did you give the trade
council any kind of advice involving issues related to those
protests?
Mr. Fonzone. No. The advice--and I obviously can't get into
privileged information, but the advice we gave was--the work I
did was basically on advising them on issues related to my
practice, which was around privacy and cybersecurity.
Chair Durbin. Senator Whitehouse.
Senator Whitehouse. Thank you very much. Mr. Fonzone,
welcome. I hope we will get through the issues I addressed
earlier and we can proceed swiftly to your confirmation.
I served as United States attorney back in the Clinton
administration, and at the time, the Office of Legal Counsel
was viewed essentially as the high temple of legal excellence
and integrity. And since I've been in the Senate, things have
gone rather awry.
We first had the warrantless wiretapping opinions, which
were so appalling that, when they became public, the colleagues
of OLC in the Department of Justice threatened to resign en
masse if the program was not restructured, notwithstanding
OLC's prior secret opinions approving of it.
Then, not long after that, the torture program came along,
again supported by OLC opinions--in this case, so bad that the
Department actually turned around and withdrew the opinions.
And, indeed, they were so bad that the Department later
offered the opinion that OLC lawyers were not subject to the
duty of candor that an ordinary workaday lawyer going into the
J. Joseph Garrahy Judicial center in Providence, Rhode Island,
with six files under his arm is subject to, on a busy, busy
day--that these elite Ivy-educated, super high-performing
lawyers would not be held even to that standard.
Now, that did quell the problem of how bad the opinions
were, but it set, I think, a very bad example by exempting OLC
from the most basic standard for workaday lawyers.
And then we moved on to the issue of executive versus
legislative access to documents, oversight, and so forth. And,
as you know, OLC used to--under the Reagan Memo, which is still
nominally in play--used to have a duty to be kind of an
ombudsman, or arbiter, to take a fair and neutral position and
try to find common ground between the legislative ask and the
agency priorities.
That changed dramatically, to the point where the OLC
became the outermost reach of the most arcane and exotic
doctrines of executive supremacy, virtually autocratic
doctrines.
And then, when those doctrines appeared in Article III
courts and were mocked and rejected, the position of OLC was,
well, that wasn't the Supreme Court, so it doesn't count.
As you were advising companies, would you overlook a
district court decision in the jurisdiction in providing advice
about what that company should or shouldn't do?
Mr. Fonzone. So, Senator, there's a lot there. I guess
I'd----
Senator Whitehouse. Just that last question.
Mr. Fonzone. Thank you for the question. The----
Senator Whitehouse. I'm not asking----
Mr. Fonzone [continuing]. Last question----
Senator Whitehouse [continuing]. You to respond to the
whole mess.
Mr. Fonzone. Yes. Obviously, when I was advising companies,
I would not advise them to ignore relevant precedent.
Senator Whitehouse. Yes.
Mr. Fonzone. And I think----
Senator Whitehouse. I mean, it just seems a little weird
that OLC treats itself like it's another circuit court of
appeals and its judgments can only be repaired or corrected by
the United States Supreme Court.
It leaves an enormous gap, between what the law is and what
OLC is telling people, that can persist for years and years and
years and years until the Supreme Court addresses it.
And it's a matter of real concern for us, because we think,
I think, in Congress, that a lot of the ideas that the OLC has
propounded are really, really badly wrong.
And Senator Kennedy and I have worked together on finding
an alternative method because we've given up on the good faith
and neutrality of OLC in this regard. So, we're creating, in a
bipartisan fashion--with a bipartisan report and a bipartisan
bill--an alternative.
So, given this challenging history for what used to be the
high temple of legal excellence, what--and you can, we can have
this discussion more, but I'm interested in what guardrails you
think OLC should build for itself to prevent another
warrantless wiretapping fiasco, another torture opinions
fiasco, and another walk-away from Department policy, as
expressed in the Reagan Memo, and from the rule of law where
Article III courts have opined.
Mr. Fonzone. Thank you, Senator. And, you know, I'm not
going to sit here and say OLC has always gotten it right. And
as you've said, there's times when they haven't gotten it
right. And I think the only thing the Office can do to
establish trust is to deliver the best advice it can, frank and
independent advice, and to do that consistent with its best
practices that have been stated publicly, which--I think
there's three main, sort of, buckets of them.
One is, that it gives frank, independent advice that's its
best view of the law, independent of the policy preferences of
any administration; second, that it only gives that advice
after rigorously vetting it and after thorough deliberation
between the career attorneys in the Office and the appointed
leadership; and then, third, to the extent it can, it makes its
advice public, so it could be subject to scrutiny.
I don't--it's OLC answers the type of questions that not
everyone's always going to agree upon, but I think it owes it
to the American people to give advice consistent with those
best practices.
Senator Whitehouse. Thank you, Chairman. To be continued.
Chair Durbin. Senator Graham.
Senator Graham. Thank you. Mr. Fonza--is that right, Fonza?
Did I get it right?
Mr. Fonzone. Fonzone, yes.
Senator Graham. Yes. Thank you, sir. You did legal work for
Huawei. Is that correct?
Mr. Fonzone. I did. When I was in private practice----
Senator Graham. Yes.
Mr. Fonzone [continuing]. A number of years ago----
Senator Graham. Okay.
Mr. Fonzone [continuing]. I did a small amount of work, at
the best----
Senator Graham. So, is the--pretty well, the policy of the
United States to tell our allies that if you buy Huawei
technology we're not going to do business with you because we
think Huawei is an extension of the Communist Party and it
would get into all of our data and it would be a national
security threat. We've actually told allies, if you join
Huawei, we're going to shut down sharing with you. Are you
familiar with that?
Mr. Fonzone. I'm aware of some of the work the United
States Government----
Senator Graham. Based on what you know about Huawei, is
that sound policy?
Mr. Fonzone. Senator, I think--I did a small amount of work
for Huawei a number of years ago.
Senator Graham. No, that's not my question. Is--I mean, you
know, you did a small amount of work for Huawei----
Mr. Fonzone. Yes.
Senator Graham [continuing]. I'm not holding your client
against you----
Mr. Fonzone. Yes.
Senator Graham [continuing]. I just want to understand.
Mr. Fonzone. Yes.
Senator Graham. Do you know who you were representing here?
Mr. Fonzone. Yes.
Senator Graham. I mean, Huawei is considered by our
Government a threat, so if you--a foreign--if you're an ally of
the United States and you buy the Huawei systems, we're going
to shut down sharing information. That's the policy that I
support. Does that make sense to you, given what you know about
Huawei?
Mr. Fonzone. Senator, I've--a lot of time has passed----
Senator Graham. Okay.
Mr. Fonzone [continuing]. Since I represented Huawei.
Things have changed. I have no reason to second-guess the
policy of the United States on this ground----
Senator Graham. Okay.
Mr. Fonzone [continuing]. And I think more importantly for
my current role is--for the role I've been nominated for----
Senator Graham. Well, during your time representing them,
did the way they do business give you any concerns along those
lines?
Mr. Fonzone. Senator----
Senator Graham. I mean, it was--I mean, Huawei is owned by
the Communist Party, basically. Right?
Mr. Fonzone. Senator, I can't remember my thinking at the
time----
Senator Graham. Yes.
Mr. Fonzone [continuing]. What I can say is that OLC is not
a policymaking office, and----
Senator Graham. Yes. I got you.
The Hong Kong Trade Development Council--so, you're
familiar with those folks. Right?
Mr. Fonzone. I did----
Senator Graham. Yes.
Mr. Fonzone [continuing]. Much like Huawei----
Senator Graham. Yes.
Mr. Fonzone [continuing]. I did a small amount of work for
them.
Senator Graham. Yes. So, during 2019, the government of
Hong Kong went hard against pro-democracy protesters, and the
Hong Kong Trade Development Council seems to be behind the
governor of Hong Kong, whatever you call the guy.
Did you ever say anything to them about what's going on in
terms of--this will--not good?
Mr. Fonzone. Senator, my work for the Hong Kong Trade
Development Council, much like my work for Huawei, was done at
the request of other partners, and I----
Senator Graham. No, I understand that.
Mr. Fonzone. I had no interaction with----
Senator Graham. I mean, everybody deserves a lawyer. I
mean, trust me, I've represented people I don't agree with.
That's not the point.
The point is, it seems to me that during 2019 was a crucial
time for democracy in Hong Kong. That was a time I would expect
people to stand up and be counted, not provide comfort. So, did
you ever, or anybody in your firm, ever suggest to the
Chinese--Hong Kong Trade Council that what you're doing is
going to put you on the wrong side of the United States and out
of line with international law?
Mr. Fonzone. I can't speak for everyone at my firm. I had
no direct interaction with them, so I----
Senator Graham. Okay. Thank you very much.
Mr. Fonzone. Thank you.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Mr. Fonzone, I'm
not sure I would agree with my colleague Senator Whitehouse
that the Office of Legal Counsel has been ever the high temple
of jurisprudence, but I'd just like to ask you, if there is
ever any attempt to shape or interfere with your judgment as
head of the Office of Legal Counsel, will you disclose those
efforts to this Committee?
Mr. Fonzone. Senator, I think it's incredibly important the
Office of Legal Counsel gives frank and independent advice. I
know the President and the attorney general share that view.
I don't know if I could say, here, today--because there
might be confidences in terms of things that are given,
disclosed to me, but if I was confirmed, I would resist any
effort to put undue pressure on the Office and make sure that
any advice I gave was free of any policy preferences.
Senator Blumenthal. You'd not only resist, but you'd object
and reject any efforts to impose pressure. I don't know what
undue pressure would be, but any pressure, because above all
else, the Office of Legal Counsel is supposed to be
independent. Correct?
Mr. Fonzone. That's correct, sir.
Senator Blumenthal. Ms. Russell, welcome to the Committee.
Thanks for your service. Your life has been really dominated by
a career of public service, and I won't go into all that you've
done, but I think one aspect that particularly has impressed me
is your work on behalf of veterans, and others who, all too
often, are voiceless or vulnerable in our system, often
overlooked.
Could you describe perhaps some of what you've done on
behalf of veterans at the clinic, not only at Quinnipiac but
also the Yale Law School?
Professor Russell. Thank you, Senator. So, it has been my
privilege to work with veterans, and our clinic at Quinnipiac
receives referrals from the Connecticut Veterans Legal Center.
And so, on a number of occasions, we have taken cases and had
the opportunity to represent veterans.
Some examples involve cases involving child support issues
or other family law issues, and it's been a terrific
opportunity for the students to get to work closely with
clients.
These are often people suffering from disabilities,
sometimes people who've experienced homelessness and other
challenges.
For the students to get to work firsthand and represent a
client, get to go to court, stand next to the client and speak
on their behalf in court, has been an incredible experience for
me as a teacher, as I teach students to be competent and
ethical lawyers. And the clients have been really appreciative
of the time that we've been able to devote to their cases.
I have also had students who are veterans themselves. And
so one student had the opportunity to do a trial we had in
Federal court in a case, and so I got to see him for the first
time become a lawyer in court, cross-examining witnesses, and
helping to put on the case. And I also had the opportunity to
work with him as a student in preparing testimony related to a
veterans law issue for the Connecticut General Assembly. So,
all those have been wonderful experiences in our clinic, to
serve the public in different ways.
Senator Blumenthal. I might just say, coincidentally, a
number of us met this morning with various veteran service
organizations, including Allison Jaslow of the Iraq and
Afghanistan Veterans organization. She particularly cited the
work of these clinics----
Professor Russell. Great.
Senator Blumenthal [continuing]. In helping many of her
veterans.
And, you know, you have served on the court's Grievance
Committee, chief judge of the District of Connecticut appointed
you to serve on that body. The chief justice of the Connecticut
Supreme Court appointed you to serve on the judicial branch's
Committee on Judicial Ethics. Two of our governors have
appointed you to serve on the Sentencing Commission. You've
been on the advisory board of the Town of Hamden's Juvenile
Review Board. So, in many different capacities, you've led a
life of public service.
I want to just anticipate, maybe, one of the questions that
will be asked by some of my colleagues. You served on the
Sentencing Commission with prosecutors, law enforcement
officers, and victims' advocates.
And a number of recommendations were made, some of them
dealing with the sex offender registry in Connecticut. I am
very familiar with the sex offender registry because I defended
sex offender registration laws before the United States Supreme
Court. I argued the case. We won it. Laws were upheld.
This modification to the sex offender registry was made by
that commission to bring it into line with other State statues,
as I understand it. Correct?
Professor Russell. Thank you, Senator. So, there was a
proposal developed by individuals on the Connecticut Sentencing
Commission, which include victims' advocates, prosecutors,
police chiefs, and others, to move to a risk-based system from
an offense-based system. And so I was involved as a member of
the commission in developing that proposal.
Senator Blumenthal. Thank you.
Professor Russell. Thanks, Senator.
Senator Blumenthal. Thanks, Mr. Chairman.
Chair Durbin. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman.
Mr. Chairman, pertaining to Mr. Aframe from the previous
hearing and panel, and we discussed the Smith case, I went back
upstairs and pulled the sentencing memo. I've highlighted where
the sentencing guidelines recommended a sentence of life
imprisonment. I'd like to submit that for the record and clear
the air on that issue.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Blackburn. Thank you.
Mr. Fonzone, I do want to come to you. Your position, if
you're confirmed, would hold you responsible for reviewing all
Executive orders, providing legal guidance to each agency in
the executive branch, and working closely with AG Garland.
Correct?
Mr. Fonzone. That's correct.
Senator Blackburn. Okay. Let's talk about this in light of
the work you've done for the Chinese Communist Party and for
Huawei, because as Senator Graham said, we're going through a
process of ripping and replacing Huawei equipment here in the
U.S. And I'd like to know if you regret your work for Huawei,
if you regret your work for the Chinese Communist Party, and if
you regret advocating for the Chinese Ministry of Commerce,
their MOFCOM, which, in essence, you would've been turning your
back on American workers. Do you hold those actions in regret?
Mr. Fonzone. Senator, thank you for the question. As I said
in response to an earlier question, I did a small amount of
work at the request of my partners, a long time ago. It hasn't
affected my ability in my current role--to serve in my current
role and provide objective legal advice as the general counsel
of the Office of the Director of National Intelligence. I
don't--it would not affect my ability to serve at OLC. A lot of
time has passed since I served on a moot court for a partner of
mine who----
Senator Blackburn. Well----
Mr. Fonzone [continuing]. Was arguing the case for the
Ministry of Commerce.
Senator Blackburn. Okay. My time is limited.
Mr. Fonzone. Okay.
Senator Blackburn. But you doubled down on this. You did--
you did more than just a little bit. And I think one of the
things that concerns me is basically your work with the Chinese
Ministry of Commerce. You were advising them on how to game the
system, the American system. And that causes me concern.
Let me ask you this, because you're going to be working
with AG Garland, and there's been a lot of conversation from
Tennesseans that I represent. They're very concerned about two
tiers of justice, and how this affects their lives.
So, I think it's important that you have the opportunity to
assure the American people that you are not going to
participate in two tiers of justice, and I'd like for you to
weigh in for just about 30 seconds.
Do you condemn the politicization of the Department of
Justice and the actions that have taken place there against
parents, against pro-lifers?
Mr. Fonzone. Senator, OLC is not a policymaking office. If
I'm fortunate enough to be confirmed, OLC's role is a reactive
one. It answers legal questions presented to it by other parts
of the executive branch, and if confirmed, my----
Senator Blackburn. Do you condemn the politicization of the
Department?
Mr. Fonzone. Senator, my role at OLC would simply be to
provide frank and independent legal advice----
Senator Blackburn. So, okay. All right. So, you're not
going to do that. Okay.
Mr. Kiel, let me come to you. I think your mom deserves
``Mother of the Decade''----
[Laughter.]
Senator Blackburn [continuing]. And I'm delighted that
she's here.
Senator Hawley came to you on a question about AALDEF and
some of the--their lack of ability to condemn Hamas. So, I want
to simplify this and see if we can get a response to you,
because, see, I think your approach and what you believe about
things is important. It's important to Tennesseans. This is a
life appointment.
So, knowing how people approach problem-solving and
approach issues is vitally important. And your answers were
really quite troubling to me, because it was a non-answer, and
we would like something.
So, do you think that AALDEF needs to release a statement
strongly condemning the actions of Hamas, this beheading of
babies, this raping of women, this putting babies in an oven--
yes or no? Should they release a statement? Yes or no?
Judge Kiel. Senator, I don't know anything about the
statement.
Senator Blackburn. Okay. Let's see.
Judge Kiel. I----
Senator Blackburn. So, you have not watched the news
lately. Let's move on. Do you believe that Hamas is solely to
blame for this unconscionable violence in Israel?
Judge Kiel. Senator, I tried to respond to Senator Hawley--
--
Senator Blackburn. So, that was a yes-or-no. So, you don't
have--see, this is what is of concern to me. Let's go at it
this way. So, do you believe this is a both-sides issue? In
other words, do you believe that both Hamas and Israel are to
blame on this? Yes or no?
Judge Kiel. Senator, I don't believe it's a yes-or-no
answer for me. I--it's a very complicated issue. It's a very
tragic situation.
Senator Blackburn. I think that the U.S. recognizes Hamas
as a terrorist organization. This ought not to be complicated.
I yield.
Judge Kiel. I understand that, Senator.
Senator Blackburn. Thank you, Mr. Chair.
Chair Durbin. Judge Kiel, do you want to finish your
answer?
Judge Kiel. I did, Senator. Yes, I understand that Hamas is
considered a terrorist organization by the United States
Government.
Chair Durbin. Thank you. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I have to say that
those questions relating to Hamas, et cetera--they're rather
mystifying. This is not the Foreign Relations Committee. But be
that as it may.
I ask the following initial questions of all nominees on
any of the Committees on which I sit, so I will ask these two
questions of our panel. And, by the way, welcome to each of
you, and congratulations on your nominations.
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 Kiel, let's
start with you, and we'll just go down the line.
Judge Kiel. No, Senator.
Professor Russell. No, Senator.
Mr. Fonzone. No, Senator.
Senator Hirono. Have you ever faced discipline, or entered
into a settlement, related to this kind of conduct?
Judge Kiel. I have not, Senator.
Professor Russell. No, Senator.
Mr. Fonzone. No, Senator.
Senator Hirono. I have a short question for Mr. Fonzone.
You mentioned that the best practices for OLC--you noted three
things: frank and independent advice; I think your second was
that this advice would be discussed, thoroughly vetted; and
then the third is that the advice would be made public.
So, are these three aspects, best practices, being followed
by OLC right now?
Mr. Fonzone. Senator, it's my understanding, based on
conversations I've had with the prior leader of OLC, that they
do follow these best practices now.
Senator Hirono. Do you know when they started following
these best practices?
Mr. Fonzone. I think they've been best practices for some
time, and obviously they're ideals, and there may be times when
people think that they don't, but I think the goal is always to
follow those best practices.
Senator Hirono. That would be good, because I would not
think that the torture memo was one that was the best kind of
legal advice.
Question for Judge Kiel, I want to welcome your mother,
because--where is she, by the way? Can you wave? Hi. Annyeong
haseyo.
So, you noted that her naturalization papers are in your
office?
Judge Kiel. They're hanging with my father's naturalization
certificate at the entrance to my chambers.
Senator Hirono. Aren't you also naturalized?
Judge Kiel. I was naturalized, but through my parents'
naturalization. I was too young at the time.
Senator Hirono. Oh, okay.
Judge Kiel. Yes.
Senator Hirono. So, you don't have a naturalization
document hanging?
Judge Kiel. I do have a naturalization--I don't believe
it's called a certificate----
Senator Hirono. Okay.
Judge Kiel [continuing]. It's some other document that I
have. It has my picture on it when I was a very young child.
Senator Hirono. Well, I can relate to that, because I have
my naturalization document hanging in my office, too. So, it is
a very important experience----
Judge Kiel. Yes.
Senator Hirono [continuing]. To not come to this country
speaking any English or any of that, and to see or hear, it's a
proud moment for your family.
Ms. Russell, you spent some time at the beginning of your
career working in the Office of the Public Defender, and public
defenders play a vital role in the justice system. As my
colleague Peter Welch always notes, that is a really important
experience for people who are going to be judges.
So, can you speak to the importance of having strong
prosecutors and defense attorneys in our adversarial justice
system?
Professor Russell. So, Senator, I did have the opportunity,
following my clerkships, to work at the Office of the Federal
Public Defender in Connecticut. It was a great opportunity to
learn my way around Federal court, often appearing in different
proceedings before the court and representing clients. And I do
think it's an important role in our system. So, there's the
Sixth Amendment guarantee of the right to counsel to everyone
in the country, regardless of the nature of the offense.
So, serving that constitutional scene, that constitutional
obligation carried out through the work of the Office was
rewarding and, I think, gave me experience that would be
helpful in a transition to a new role as a judge, were I so
fortunate to be confirmed.
Senator Hirono. I note in your background that you've led,
or are leading, a number of clinical programs at your law
school. So, is there a high percentage of the students at your
law school who sign up for these clinical programs?
Professor Russell. There are. Quinnipiac has a great
experiential program, so we have most of our students taking
either a clinic or an externship, and this is a great
opportunity for the students to learn while they're in law
school and go into practice already knowing some of the skills
they need to know.
Senator Hirono. I have to say that the clinical program
that I was in was one of my best experiences at law school.
For Judge Kiel, can you talk a little bit about the
importance of diversity on our bench?
Judge Kiel. Yes, Senator. Diversity, from my perspective,
works two ways.
First is the outward view of the court. It instills
confidence in our judiciary when the public sees faces like
theirs within the judiciary and they--I think that also
instills confidence in the public that there's other people,
judges, that have had those life experiences, as well.
I think it also works inward, because we have a very small
number of people in chambers. I've been very fortunate to have
a very diverse group of law clerks, interns, and staff members.
We have great discussions, and hearing different viewpoints and
hearing different lived experiences certainly, I believe, helps
me to be a better judge.
Senator Hirono. I agree with you. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hirono.
Before recognizing Senator Kennedy, I want to acknowledge
Judge Mukasey's arrival. We're glad to have you back in the
room. And Professor Russell has already told us about your
travails in arriving here, but thank you very much for coming.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. I just feel like
I need to ask this question. Mr. Fonzone, when you advised the
companies referenced, Huawei and others, you were at Sidley?
Mr. Fonzone. Yes. That's right, sir.
Senator Kennedy. And when a client comes to Sidley, you
have to fill out a form that says, you know, here's my client
name, here's my mailing address for business purposes, and here
are my political beliefs? Is that the way it works?
Mr. Fonzone. There's definitely a client intake process.
I'm not--I don't remember all the particulars of it.
Senator Kennedy. I mean, Big Law kind of----
Mr. Fonzone. Yes.
Senator Kennedy. It's kind of like who can pay the freight,
right?
Mr. Fonzone. That's an aspect of the----
Senator Kennedy. Okay.
Mr. Fonzone [continuing]. Intake process, I'm sure.
Senator Kennedy. I understand.
Professor, I'm looking at a letter dated March 16, 2020.
It's a letter to Governor Lamont in Connecticut. The title of
it is, ``Urgent Action Needed to Protect Individuals in
Connecticut's Prisons and Jails from Coronavirus 19 Pandemic.''
Did you sign that letter?
Professor Russell. So, I don't recall, sitting here today,
Senator.
Senator Kennedy. Here's your signature. It was back here
[holds up document]. Why didn't you turn this over to us when
you were asked to submit documents?
Professor Russell. So, Senator, I made every effort to
search for everything that I had ever signed. That's not a
letter I remember, but I will certainly take a look at that
and----
Senator Kennedy. Well, we found it. We just--with a search
on the internet.
Professor Russell. I apologize, Senator. I apologize that I
missed that.
Senator Kennedy. In your letter to the governor, here's
what you say: ``As they stand, prisons and jails are
detrimental to public health and human rights and
disproportionately harm margin-alized communities, including
Black, brown, Indigenous and other communities of color;
immigrants; people with mental illness; people with
disabilities; people in the LGBTQ+ community; people who use
drugs; people engaged in sex work and street economies; and
people experiencing houselessness and poverty.''
So, if you believe that about our prisons, how are you ever
going to sentence somebody to prison?
Professor Russell. So, Senator, I will need to take a look
at that letter, and I apologize that that's not something I
found to----
Senator Kennedy. You know----
Professor Russell [continuing]. Hand to this Committee. I
can----
Senator Kennedy. You're not denying you said that?
Professor Russell. I do need to see the letter, to see the
context, because again, it's not something I remember adding my
name to----
Senator Kennedy. Yes.
Professor Russell [continuing]. I can assure you----
Senator Kennedy. All right.
Professor Russell [continuing]. Senator----
Senator Kennedy. And you also say--first, you call on
Governor Lamont to release everybody in jail. Is that right?
Because of the coronavirus?
Professor Russell. So, again, Senator, I would need to see
that letter in front of me. It certainly was not----
Senator Kennedy. You can find it [holds up document] with
a--just put your name in, into Google. You'll find it in about
three nanoseconds.
Professor Russell. I will, Senator. I can assure you that
I----
Senator Kennedy. You said--you said in your letter,
Professor, ``We call on Governor Lamont, the State of
Connecticut and all Connecticut jurisdictions to immediately
release, to the maximum extent possible, people incarcerated
pre-trial and post-conviction.'' And then you go on to say,
talking once again about our jails, ``The global COVID-19
pandemic is throwing into sharp relief the untenable state of
our penal system and the need for sustained action to'' shrink
it--shrink its scale, shrink its size, and shrink its scope.
You sound, here, like the district attorney in San Francisco.
If you believe that, how are you going ever to sentence
anybody to jail, Professor?
Professor Russell. I can assure you, Senator, that I
understand the role of the judge and that I can assure you
prison time is an appropriate sentence in many cases.
Senator Kennedy. That's not what you say here, to the
governor. You wrote the governor. This isn't some DoorDash
delivery guy. You wrote the governor of your State, 3 years
ago.
Professor Russell. So, again, Senator----
Senator Kennedy. Not when you were in law school.
Professor Russell. So, again, Senator, I would need to look
at the letter. It sounds like it was written at the height of
the pandemic, where governors were looking for----
Senator Kennedy. You also wrote the governor, you said,
``People over the age of 55 are at the greatest risk for COVID-
19, but also pose the least public safety risk to our
communities. People in this age group can and should be
released'' immediately ``to mitigate the spread of COVID-19.''
You think the governor just--if you're over the age of 55 he
should let everybody go?
Professor Russell. No, Senator. That's not a position.
Senator Kennedy. That's what you said.
Professor Russell. Okay. And----
Senator Kennedy. There it is [holds up document], big as
Dallas.
Professor Russell. Again, Senator, I will look at that
letter. I can assure you that----
Senator Kennedy. Find it on Google, Professor. You also
say, ``Governor Lamont should issue an executive order to
direct the State's attorney offices and law enforcement
entities, including the town and city police departments and
any Federal law enforcement entity operating within the State,
to immediately cease adding to the incarcerated prison
population given the high risk of infection posed by the
population increase.''
You asked the governor to tell every--every law enforcement
official in the State to stop arresting people and putting them
in jail. Didn't you?
Professor Russell. So, again, Senator, I have to look at
that letter.
Senator Kennedy. You don't remember.
Professor Russell. I do think there were modifications that
the governors were making around the country to respond----
Senator Kennedy. Okay. You also----
Professor Russell [continuing]. To the pandemic.
Senator Kennedy [continuing]. Had an opinion in your letter
about--can I have another 30 seconds, Mr.--you had an opinion
in your letter about immigration. You said, ``Immigration
detention poses the same health risks as jails and prisons, and
Connecticut law enforcement must stop feeding people into the
unsafe and inhumane immigration detention system.'' Then you
say, ``Governor Lamont should release all individuals currently
in State custody who are awaiting transfer to ICE custody, and
the Governor should declare a moratorium on all such future
transfers.''
How, if somebody is in our country illegally and commits a
crime, are you going to put them in jail [holds up document] if
you believe this about immigration?
Professor Russell. Senator, I can assure you, were I so
fortunate to be confirmed, I would treat crimes seriously.
Senator Kennedy. That's not what this letter says----
[Gavel is tapped.]
Senator Kennedy [continuing]. Professor. And it was 3 years
ago----
[Gavel is tapped.]
Senator Kennedy [continuing]. It wasn't when you were in
law school. And you didn't turn it over to us. We had to find
it on our own.
Chair Durbin. Senator, the Chair has been generous in time.
I think you've had your opportunity.
Would you like to complete your sentence or statement,
Professor?
Professor Russell. Thank you, Senator----
Senator Kennedy. I didn't mean to cut you off, but Dick was
going to cut me off, so I----
[Laughter.]
Professor Russell. I understand. And I apologize. I'd made
every effort to find anything that I had been associated with,
so there were many, many emails and internet searches, and
otherwise, that I did. I apologize if this is something I
missed. It sounds like it was a letter that many people signed
onto it. I will certainly review that and supplement my
submissions to the Committee. So, I apologize, Senator, for
having missed that.
Chair Durbin. Let me suggest that you get a copy of the
letter and respond for the record, in writing, as to what the
nature of the letter was and what your position was.
[The information appears as a submission for the record.]
Chair Durbin. And let me also add it was under the Trump
administration, where we made decisions, here, that the Federal
Bureau of Prisons would release, at least under supervision,
thousands of inmates, because of the worry over the public
health crisis which we faced. Senator Booker.
Senator Booker. I would not only say that during the Trump
administration that we did compassionate release, and I was
grateful to work with the Trump administration on that, but
Republican governors and Democratic governors all across the
country focused on people that presented the least amount of
risk: people that were medically vulnerable, no violent,
sexual, terroristic-related convictions, completion of a
substantial amount of their sentences.
So, this was not unheard of, and there were people
advocating for that all over the country. Again, Democrats and
Republicans felt that that was the right thing to do.
And then just--Professor Russell, I'm sorry, I know you
said your family is here, but is that them in the second row
back there, and those are your three boys?
Professor Russell. That's right, Senator.
Senator Booker. Yes. Well, I just want you to know, they
have an obnoxious amount of hair.
[Laughter.]
Senator Booker. And I feel a little frustrated by that.
[Laughter.]
Senator Booker. It is good to see your family here, and
it's grateful that--your willingness to serve.
Judge Kiel, thank you very much for being here. I just want
to clarify a couple things, because clearly you condemn hate,
hate crimes, whether it's hate against African Americans, hate
against Jewish Americans, hate against Asian Americans--
something you condemn. It's no controversy here.
Judge Kiel. That's correct, Senator.
Senator Booker. And--and then, it is to put you in an
uncomfortable position to ask you to speculate about statements
by any group in America, being that issues of the First
Amendment and freedom of speech are going to--could potentially
come before you as a judge. Correct?
Judge Kiel. Correct, Senator, and also, as I said, I know
nothing about the statement itself. I haven't been involved
with the organization for a very long time.
Senator Booker. Yes, more than a decade. And any
organization--you have to deal with cases and controversy, and
sometimes they're very difficult issues. What's happening on
our college campuses, which I have been following, is awful and
difficult. But I imagine there'll be a lot of cases that are
going to be coming out of those current conflicts, and it would
be inappropriate for you to comment deeper on these issues, of
matters that might come before you. Is that correct?
Judge Kiel. That's correct, Senator.
Senator Booker. Yes. I'm greatly appreciative of that. The
truth of the matter is, on a personal level, your personal
feelings, as we have seen hate crimes rise--I'm sure you have
deep personal feelings as we've seen attacks on Asian Americans
increase, as we've seen anti-Muslim, antisemitic comments. I'm
sure you have deep personal feelings on those--that increase of
hate crimes in America. Correct?
Judge Kiel. Yes, Senator.
Senator Booker. But regardless of your personal feelings,
they definitely don't affect your role as a judge. Correct?
Judge Kiel. It would not, Senator.
Senator Booker. Exactly.
Judge Kiel. And it has not.
Senator Booker. Of course, not. Of course, not. I know the
dignity you bring to the job that you do, and I know the
independence you bring, and the sober nature with which you
examine the matters that come before you, and I'm deeply,
deeply appreciative of that.
Mr. Fonzone. Right? Am I pronouncing that right?
Mr. Fonzone. That's correct, Senator.
Senator Booker. Thank you very much. You know, I--the
Boston Massacre--are you familiar with that at all?
Mr. Fonzone. Yes, Senator.
Senator Booker. You are. You are.
Mr. Fonzone. Yes.
Senator Booker. Who represented the British?
Mr. Fonzone. The--I believe it was John Adams.
Senator Booker. Yes. You're pretty good with your American
history.
[Laughter.]
Senator Booker. I'm very impressed. I was trying to make
you stumble, sir. You passed.
[Laughter.]
Senator Booker. I won't ask you to do any complex law math,
but clearly you graduated high school history.
So, an American Founding Father represented British who
massacred early colonists. Is that correct?
Mr. Fonzone. That's correct, Senator.
Senator Booker. Should we cast any aspersions on the
patriotism of someone who represented British?
Mr. Fonzone. As one of our Presidents, I don't think we
should cast aspersions on John Adams.
Senator Booker. I really appreciate that. I am a member of
the--excuse me, I am not a member of, but I have supported the
ACLU in the State of New Jersey a lot. Their history has been
representing people that I would consider despicable, who have
despicable views. Is that correct? Do they--the ACLU?
Mr. Fonzone. Yes, they have definitely represented folks
who have despicable views.
Senator Booker. Yes. And should I ascribe any of the views
of the clients that you've had in your life--should I ascribe
them to any of your personal feelings?
Mr. Fonzone. No, Senator.
Senator Booker. Okay. I appreciate that. I appreciate that.
Thank you very much.
And the last thing, to Judge Kiel, who I'm grateful for you
being here, and the trailblazing nature of your position,
really, I mean, literally going to be, if confirmed, you're
going to be the first Korean-American judge on the District of
New Jersey. You're aware of that?
Judge Kiel. Yes.
Senator Booker. Yes. And so I guess my last question is--
because I kind of got a feeling of your parents and your mom
as--sounds like she was pretty tough? Is that true?
Judge Kiel. She was nicer than my father.
Senator Booker. Okay.
[Laughter.]
Senator Booker. I'm just wondering, finally, do you think
your mom is really proud of you?
Judge Kiel. I know that my mom is really proud of me, and I
do thank the Senators, before, for recognizing my mother,
because my mother has been largely in the background. But she's
worked incredibly hard, and I'm very happy that she got some
recognition today.
Senator Booker. It is a righteous thing, that, on the
record, in the United States Senate, for, in perpetuity, will
be how awesome your mother is.
Judge Kiel. Thank you, Senator.
Senator Booker. I just want, again--again, obviously, you
can see my insecurities--I just want to put on the record that
your son, too, has obnoxious hair.
[Laughter.]
Judge Kiel. We tell him that all the time, Senator.
Senator Booker. Okay.
Judge Kiel. Thank you.
Chair Durbin. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Professor Russell, I want to go back to this letter that
Senator Kennedy was asking you about it. You signed this letter
March 19th of 2020. That was 3 years ago. You did not disclose
this letter to the Committee. Why did you not disclose it to
the Committee?
Professor Russell. So, Senator, I have no memory of signing
that letter. It sounds like it was right at the start of the
pandemic. So, I apologize. I made every effort to try to find
anything that was responsive----
Senator Cruz. So, I guess----
Professor Russell [continuing]. To the Senate----
Senator Cruz [continuing]. If you have no memory, you
didn't consider it that big a deal, I'm assuming?
Professor Russell. Senator, I'm just not sure. It's not
something I remember signing. I don't doubt that you----
Senator Cruz. All right. Well, I want to----
Professor Russell [continuing]. Have it there.
Senator Cruz [continuing]. Talk about this letter, because
it's an extraordinary letter. This is not--I know the Chairman
and Senator Booker were trying to rehabilitate you by saying,
well, lots of people did humanitarian release for some people
incarcerated.
That's true, but this letter is not within the bounds of
the mainstream. This letter is actually quite extreme.
This letter begins with, ``The undersigned organizations
and individuals call on Governor Lamont to act immediately to
protect the lives of incarcerated people in our State. Three
urgent steps are needed: (1) the immediate release of as many
people in custody as possible; (2) a moratorium on new
admissions into jails and prisons.''
Do you think a moratorium on new admissions into jails and
prisons--is that a policy you support?
Professor Russell. So, Senator, again, I don't have the
letter in front of me to understand the context, but I know
there were efforts to reduce new admissions, but there're
obviously some people who would present a public safety risk.
Senator Cruz. So, so--but your letter didn't say that. And
I want to read from this letter, because it is an astonishing
letter. The second page: ``We call upon Governor Lamont, the
State of Connecticut, and all Connecticut jurisdictions to: (1)
Immediately release, to the maximum extent possible, people
incarcerated pre-trial and post-conviction. We recognize that
jails and prisons are not safe and do not promote wellbeing for
anyone. The global COVID-19 pandemic is throwing into sharp
relief the untenable size of our penal system and the need for
sustained action to shrink its scale, size and scope.''
This next sentence is underlined: ``We outline below a few
considerations to initiate State action and emphasize they do
not preclude the release of groups not explicitly discussed in
this letter.''
Do you think it was a good idea to, as this letter says,
quote, ``immediately release to the maximum extent possible,
people incarcerated pretrial and postconviction'' ?
Professor Russell. So, Senator, I'd want to understand the
context around ``extent possible.''
Senator Cruz. It's a letter you signed, so you know the
context.
Professor Russell. So, again, Senator, I don't have it in
front of me, and I didn't have a memory of the specifics.
Releases need to be----
Senator Cruz. Please give the witness a copy of the letter,
which is right there. You'll have it in front of you in about
10 seconds.
Professor Russell. Thank you, Senator. I do believe
releases need to be consistent with public safety.
Senator Cruz. Okay. Well, that's not what this letter says.
The letter continues: ``Pretrial release:'' quote, ``Governor
Lamont should use his emergency powers to protect incarcerated
people, their communities, and correctional staff by releasing
all people''--all--``who are incarcerated without having been
convicted of any crime.'' All people means murderers. It means
serial rapists. It means child molesters.
Do you think it is remotely reasonable to call upon the
governor to release every murderer in the State of Connecticut
prior to conviction, to essentially eliminate pretrial
incarceration?
Professor Russell. So, I think, Senator, that releases
should be consistent with public safety. For----
Senator Cruz. But that's not what you said. The letter
doesn't say that.
Professor Russell. Were I----
Senator Cruz. It says all.
Professor Russell. Were I so fortunate to be confirmed as a
judge, I would strictly follow the Bail Reform Act, which
includes preventative detention----
Senator Cruz. But that's not remotely----
Professor Russell [continuing]. Mechanisms.
Senator Cruz [continuing]. This letter. All right. The next
page, you also call on the governor to do this, and this is a
quote, ``Declare a moratorium on incarceration. Governor Lamont
should issue an executive order to direct the State's attorney
offices and law enforcement entities, including town and city
police departments and any Federal law enforcement entity
operating within the State, to immediately cease adding to the
incarcerated population given the high risk . . . posed by
population increase, both to those already incarcerated and to
those entering correctional facilities. Public officials with
authority to set bail, including judges''--and you're nominated
to be a judge--``bail staff, and police officers, should
maximize release on personal recognizance.''
Do you think it is a good idea to declare a moratorium on
incarceration and to say, in Connecticut we are no longer
arresting anybody? Because that's what your letter says.
Professor Russell. So, Senator, as I heard it, it was
urging a, sort of, to the extent possible--and I guess, you
know, my view at that time, with the pandemic, is--and I know
that the----
Senator Cruz. It doesn't say, ``to the extent possible.''
It says, ``all.'' And let me ask you. You're a law professor.
You signed a letter asking the governor of the State of
Connecticut to issue an executive order ordering Federal law
enforcement to cease adding to the incarcerated population in
the State.
Is there any plausible constitutional justification for a
governor ordering the Feds: You are no longer allowed to
incarcerate anyone in our State?
Professor Russell. I would assume, Senator, that was a
reference to using State----
Senator Cruz. No.
Professor Russell [continuing]. State facilities.
Senator Cruz. No, it doesn't say that.
Professor Russell. So, again, Senator, I think that this
appears to be a letter that was issued at the----
Senator Cruz. So, lots of people signed something kooky,
but lots of people haven't been nominated to be a judge. The
last thing you say is, you call on Connecticut to release
illegal aliens and not refer them to ICE--to release them all.
Is that a policy you support, releasing every illegal
alien, as well, in addition to releasing murderers and rapists
and child molesters?
[Audio malfunction.]
Professor Russell. So, Senator, I think the letter, it
sounds like, was at the start of the pandemic and was looking
at potential solutions to COVID and jails--and the people
incarcerated, as well as staff----
[Gavel is tapped.]
Professor Russell [continuing]. I will----
Chair Durbin. Finish your sentence.
Professor Russell. I will say, were I so fortunate to be
confirmed, I would treat very seriously the laws, the statutes
that Congress has written, binding Supreme Court, Second
Circuit----
Senator Cruz. Three years ago, you did not.
Chair Durbin. Senator Welch.
Senator Welch. Thank you. I'll be brief. I know time is
short. Just a couple of things. I'm delighted to have another
public defender being nominated, and I thank Senator Hirono for
bringing that up.
And is it permissible to move that all of the entire
families--it's wonderful to get the introduction to your
families. You'll all be part of the judicial team after a vote,
hopefully.
I want to go to Senator Cruz--I know in Vermont we had a
real debate. We have a Republican governor, Democratic
legislature, so it was divided. But we were really struggling
with what to do all around, but particularly with folks who
were incarcerated, because it was seen to be a very, very
dangerous health situation, not only for the inmates but for
all the folks who worked there.
And there were significant adjustments that were made that,
in normal times, pre-COVID, would probably not have been made.
And it did include early release of a number of people. There
was always a focus, obviously, on making certain that people
who were regarded as extremely dangerous would not be set
loose.
So, whether everybody got it right, I don't know, but what
I do know is that in Vermont we made significant
accommodations, and I think our public health was benefited by
it.
And I also do want to say, I think it's a fair debate about
the prison system and whether our approach to justice is over-
reliant, because we do have an extraordinarily high prison
population, second only to Russia.
So, I think it's a fair question for people who are
concerned about justice to take into account the question of
whether there's alternatives, or other ways, to provide for
public safety as opposed to just rely on prison. I mean, the
Three Strikes laws that we had, the excessive--the differential
sentencing for crack cocaine or powder cocaine--there's a whole
array of things. So, I just want to acknowledge that that is an
ongoing debate.
Mr. Fonzone, I thank you for your work. I just want to make
sure that you'll continue the effort to try to have more
transparency from that Office. That's really important, I
think, to all of us.
Mr. Fonzone. Yes, Senator. I think one of the, I think,
best practices of the Office is to be as transparent as they
can be, about its opinions, and I think that it has a
presumption that its significant opinions would be made public.
There's times when officials or agencies----
Senator Welch. Right.
Mr. Fonzone [continuing]. Ask for advice, and they seek--
ask for confidentiality. We have to respect that, but----
Senator Welch. All right. And----
Mr. Fonzone [continuing]. In general it would be fully
transparent.
Senator Welch. Thank you. And I'm just going to go down,
for each of you, because, you know, by the definition, if
you're a lawyer, you're advocating for your client. So you're
oftentimes advocating not necessarily for things that you
believe in, but are legitimate arguments or legitimate
positions on behalf of your client. And you play a different
role as a judge.
So I just want to allow you each to affirm that, in your
role as a judge, it will be your view of the law and the facts,
as opposed to your personal point of view, that will be the
basis upon which you make your decisions. Judge Kiel?
Judge Kiel. Yes, Senator. That's correct. I practiced in
private practice----
Senator Welch. Right.
Judge Kiel [continuing]. For 28 years, and I was an
advocate for 28 years. And when----
Senator Welch. Right. And--and----
Judge Kiel [continuing]. I became a judge, I had to turn
that off and keep an open mind for all.
Senator Welch. And, Professor Russell, I see you've got a--
you've got some backup here with Mr. Mukasey. Thank you. But,
can you do that?
Professor Russell. Yes. So, Judge Mukasey was my first
judicial role model and remains my role model----
Senator Welch. Right.
Professor Russell [continuing]. And so I think it's
critical that judges approach their work with an open mind,
setting aside any past experiences or personal views, and
consider each case individually. Whenever I appear before a
court, that's the kind of judge----
Senator Welch. Right.
Professor Russell [continuing]. I wanted for my clients,
and that's the kind of judge I would want to be.
Senator Welch. Thank you. Mr. Fonzone?
Mr. Fonzone. Thanks, Senator. If I was fortunate enough to
be confirmed at the Office of Legal Counsel, my north star
would be delivering frank and independent advice, free of----
Senator Welch. Thank you.
Mr. Fonzone [continuing]. My preferences or the policy
preferences of----
Senator Welch. Thank you.
Mr. Fonzone [continuing]. The administration.
Senator Welch. I yield back.
Chair Durbin. Thank you, Senator Welch, and thanks to all
the nominees. Just a logistical note: If you receive written
questions, if you could have them back to us by the end of
business on November 8th, I'd appreciate that.
Thank you, your family, and friends, for this appearance
before the Committee.
[Whereupon, at 12:30 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
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