[Senate Hearing 118-29, Part 12]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 12
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 15, 2023
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Serial No. J-118-2
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PART 12
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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
56-023 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
VISITING INTRODUCERS
Lankford, Hon. James, U.S. Senator from Oklahoma................. 2
Sablan, Hon. Gregorio, U.S. Delegate from the Northern Mariana
Islands........................................................ 4
NOMINEES
Hill, Sara E..................................................... 5
Questionnaire................................................ 26
Responses to written questions............................... 86
Additional materials......................................... 127
Manglona, Hon. Ramona Villagomez................................. 7
Questionnaire................................................ 154
Responses to written questions............................... 229
Additional material.......................................... 248
Russell, John David.............................................. 6
Questionnaire................................................ 249
Responses to written questions............................... 282
Additional materials......................................... 311
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, NOVEMBER 15, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Hirono, Padilla,
Graham, Grassley, Lee, Kennedy, and Tillis.
Also present: Senator Lankford and Delegate Sablan.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing of the Senate Judiciary
Committee will come to order.
Today, we'll hear from three judicial nominees: Sara Hill,
nominated to the U.S. District Court for the Northern District
of Oklahoma; John Russell, also nominated to the U.S. District
Court for the Northern District of Oklahoma; and Judge Ramona
Manglona, nominated to serve a second 10-year term on the U.S.
District Court for the Northern Mariana Islands.
Congratulations to the nominees, and their families.
Before I turn to Ranking Member Graham, I want to note that
Ms. Hill and Mr. Russell each have received blue slips from
both Republican home State Senators, Senators Lankford, who is
with us today, and Senator Mullin. I thank the Senators for
working with the White House in good faith to fill these
vacancies, and thank all the other Members on the Republican
side who are doing the same. We are seeing similar progress in
many States, and it is encouraging.
Now, 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 want to compliment my colleagues from Oklahoma, also,
and, you know, trying to make the process work the best we can.
The bottom line, we're about to leave and the Supplemental
will not be passed. I think the Government will be funded, but
with wars raging in Israel, and they rage in Ukraine, and we
have a broken border. So I'm hoping that we can find a way
forward when we get back to help our allies who are in
distress, but also to help ourselves.
And the key to all this, Mr. Chairman, is getting a border
solution that would deter people from coming. At the end of the
day, if people feel like they can come here, get released, and
never get deported, they'll keep coming.
So I've got a simple goal: Turn the system around to deter
people so we make some order out of chaos, and I think that's
the key to this package. And Senator Lankford's been working on
it, and I appreciate all he has done. So, thank you.
Chair Durbin. Senator Graham, you and I have been working
on this issue for at least 10 years, maybe longer.
Senator Graham. Longer.
Chair Durbin. It's been 30 years since Congress has done
anything substantive in this area. I think we all agree on both
sides of the aisle that something needs to be done to bring
order to our border situation. I hope that we can achieve that,
and I think that there's a spirit of good will, which I've
discussed with Senator Lankford yesterday, that can lead to
that.
But I also hope we understand, as well, that trying to do
it all before we provide critical aid to Israel, and to
Ukraine, and humanitarian aid, may be an agenda that is not--is
overly ambitious. We'll see. Let's keep a positive attitude
toward it and hope that we can get this done in a thoughtful
fashion.
First, let me introduce Senator Lankford, from Oklahoma.
STATEMENT OF HON. JAMES LANKFORD,
A U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Lankford. Mr. Chairman, thank you, Ranking Member
Graham, thank you so much for your time, and for the
opportunity to be able to introduce Sara Hill and John Russell
today to the Judiciary Committee. These are some outstanding
Oklahomans that I think you'll enjoy some spirited conversation
with to go through, and will have no doubt that they'll be able
to answer your questions fully and completely.
I also appreciate the Committee's sufficient processing of
these two nominees. At the moment, the Northern District of
Oklahoma has one full-time judge, and then we have a second
judge that is split between our three districts.
To give you a context on this, they have about 500 cases in
their backlog right now in the Northern District of Oklahoma,
based in the wake of the McGirt decision from several years
ago, and the overwhelming number of cases that are then coming
that direction.
The Northern District now no longer does civil cases at
all. At all. So the civil case backlog has backed up for years
because there's not enough judges to actually fulfill the civil
cases. So they're doing the criminal cases right now and trying
to be able to do everything they can to catch up. So the need
there for the additional judges is incredibly significant for
them.
Between 2020 and 2021, there was a 66 percent increase in
criminal cases filed in the Northern District. Between 2021 and
2022, there was an additional 28 percent increase. Due to this
massive increase in criminal cases and the need to ensure
constitutional rights to a speedy trial, the civil cases have
not been heard, as I mentioned before.
So, we need to be able to get additional judges, so we've
gone through this process. Every person who becomes a Federal
judge swears an oath that states, in part, that they will
``administer justice without respect to persons, and . . . will
faithfully and impartially discharge and perform all the duties
incumbent upon'' them ``as a judge under the Constitution and
laws of the United States.''
In reviewing potential nominees, it's important to me that
I believe every person who will be a judge in my State will
follow that oath, and I have no doubt these two nominees will
consider that process. We have a very rigorous process of
interview in my State as we work through this, and as the
Chairman mentioned, this has to be an agreement between both
Senators in Oklahoma and the White House.
And as I would tell you that both Senators from Oklahoma
and the White House don't agree on a lot of things, but we do
have to find common ground to be able to work on things
together. And we have gone through a rigorous process over the
course of the last year to be able to come with two incredibly
well-qualified candidates.
John Russell lives in Tulsa. He received his bachelor's
degree from Oklahoma State University, graduated from the
University of Oklahoma College of Law in 1988 with distinction.
John is a husband, a father to three daughters, and has two
granddaughters. Here to support him today is his wife, Karen,
his daughters, Emily and Allison, and his sister, Hope, which I
hope he'll spend some time actually introducing them more
completely.
John has significant experience in both public and private.
He began his career as a trial attorney in the Tax Division of
the Department of Justice. He's prosecuted and defended civil
tax cases on behalf of the United States, and was named an
outstanding attorney. He served as an assistant United States
attorney for 7 years before moving to private practice, and he
currently practices at GableGotwals in Tulsa.
One thing that stood out to me about John is also his
dedication to serving the community, his volunteer in his pro
bono time. He's been named one of Oklahoma's Super Lawyers from
2016 to 2022. He's been listed in Oklahoma's Top 50 lawyers in
2013, 2015, 2021, and 2022. I have no doubt, based on the
respect that he has in our State, that he'll also be a highly
competent and an excellent judge, and I recommend his
nomination.
Sara Hill is the second nominee we have. She's from
Tahlequah, Oklahoma, as the former attorney general for the
Cherokee Nation of Oklahoma. If confirmed, she'll be the first
Native American woman to serve on the Federal bench from
Oklahoma.
Sara's joined today by her husband, Jerry; her sister,
Jennifer; the deputy principal chief of the Cherokee Nation,
Bryan Warner; and the Cherokee Nation attorney general, Chad
Harsha.
Sara's an exceptionally impressive nominee whose career in
private practice and in public practice has focused on serving
others. Before she became attorney general for the Cherokee
Nation, Sara served as a special assistant United States
attorney for the Northern District of Oklahoma.
Over the many years that my staff have worked with Sara, we
have found her to be one of the smartest people in the room in
just about any room she walks in.
She is highly respected in Tulsa for her legal knowledge
and insight, and her ability to be able to not only discuss the
law, but to be able to walk through complexities in the law.
When she speaks, even those who have a different legal
opinion often listen and respect the argument that she makes.
Her goal as an attorney has always been to bring level-headed
perspective to the goal of building consensus, traits that will
make an excellent judge.
I have no doubt that as a Federal judge, Sara will be
guided by the United States Constitution, a document that she
knows and respects. I am confident she will serve our State and
our country extremely well, and I encourage her swift
confirmation.
Thank you, Mr. Chairman.
Chair Durbin. Senator Lankford, thank you for joining us
today. I know you have a busy schedule, and we'll excuse you
when you're ready to leave.
Senator Lankford. Thank you, Mr. Chairman.
Chair Durbin. I'll next recognize Congressman Gregorio
Sablan--I hope I pronounced your name correctly?
Delegate Sablan. Yes, you did. Thank you.
Chair Durbin. Please proceed.
STATEMENT OF HON. GREGORIO SABLAN, A U.S. DELEGATE FROM THE
NORTHERN MARIANA ISLANDS
Delegate Sablan. Yes. Thank you very much, Chairman Durbin,
and Ranking Member Graham, and Members of the Judiciary
Committee. Good morning.
Thank you for this opportunity to support the nomination of
Ramona Villagomez Manglona to a second 10-year term as chief
judge for the United States District Court for the Northern
Mariana Islands.
As the sole elected representative of the Marianas in the
United States Congress, I supported the nomination and
confirmation of Judge Manglona when the seat opened on the
Federal bench in 2009. Previously, the position had been held
by men not from the Marianas.
I believe with the growing political maturity of our
islands, manifested that year by my own election as the first
representative of the Marianas in Congress, the time has come
to fill the Federal district court seat with a qualified
individual from our islands.
President Obama and the United States Senate concurred.
Now, President Biden has confirmed the validity of that
decision by nominating Judge Manglona to serve a second 10-year
term.
Judge Manglona has proven to be an impartial and thoughtful
jurist, and has become a respected member of the Federal
judiciary. During her tenure, she has participated in hundreds
of cases and always exhibited a deep respect for the United
States Constitution and the rule of law.
As a trailblazing first woman and first person of Chamorro
descent to sit on the Federal bench in the Marianas, Judge
Manglona has demonstrated that neither attribute is an
impediment to excellence, nor to the faithful execution of her
duty to maintain the integrity of the law.
You have before you Judge Manglona's record of decision-
making. So let me speak to how she has used her position to
contribute to the Marianas community.
She has hosted multiple outreach programs for emerging
leaders: the High School Mock Trial program, the local
Judiciary's Law and the Freshman Legislature Conference, the
Girl Scouts Justice Patch program, and the Pacific Century
Fellows. And just last week, Judge Manglona has become a
grandmother. So, happy times for her.
Judge Manglona's commitment to her community is
particularly commendable in view of the two modes of the two
super typhoons just 3 years apart and the global pandemic.
While maintaining court operations under these difficult
circumstances, she also managed to coordinate the transition to
a new Federal courthouse, and she found the bandwidth to
establish the district's first evidence-based drug court
program.
No wonder Judge Manglona, along with her superb team,
received a 2019 Director's Award for Extraordinary Actions from
the Administrative Office of the United States Courts. No
wonder USA Today recognized Judge Manglona as a ``Woman of the
Century'' from the United States Territories. No wonder the
American Bar Association Standing Committee on the Federal
Judiciary reached the unanimous finding that Chief Judge
Manglona is ``well qualified'' to serve on the United States
District Court for the Northern Mariana Islands.
And I may say, Mr. Chairman, and Ranking Member, and
Senators, it is with this I speak for many others in our
community when I say it is a sense of pride when we see a
woman, or a person, one of us, sitting there as the U.S.
district court judge for the Northern Marianas.
So, Mr. Chairman, and Members of the Committee, I
respectfully ask you to agree Ramona Villagomez Manglona should
continue to serve as the chief judge, and send your
recommendation to the full Senate for confirmation. Thank you.
Chair Durbin. Thank you, Congressman. We appreciate your
being here today.
Delegate Sablan. Thank you very much.
Chair Durbin. Now we're going to ask the nominees to
approach the table and stand by their chairs for a moment while
we administer the oath.
[Witnesses are sworn in.]
Let the record reflect that all three nominees have
answered in the affirmative. And Ms. Hill, you'll be the first
to proceed with 5 minutes, and each will have that opportunity.
Ms. Hill.
STATEMENT OF SARA E. HILL, NOMINEE TO SERVE AS UNITED STATES
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA
Ms. Hill. Chair Durbin----
Chair Durbin. You have to press the button on the console.
There.
Ms. Hill. Thank you for that tip.
Chair Durbin. Now you're in business.
Ms. Hill. Thank you, Chairman Durbin, and Ranking Member
Graham. I appreciate the opportunity to appear before the
Committee today. I'm also honored and humbled by the support of
my State Senators, Senator Lankford, and my fellow Cherokee,
Senator Markwayne Mullin. And I appreciate Senator Lankford's
introduction here today. I want to express my appreciation to
President Biden for the honor of a nomination to serve as a
district judge in the Northern District of Oklahoma.
I would like to briefly introduce my parents who are
watching me today from Tahlequah, Oklahoma. My father, Roy
Hill, is a combat veteran who served with the 101st Airborne
Division, and retired after a long career in public service
working for the State of Oklahoma. My mother, a first
generation college graduate, also retired from a career in
public service. I am so very proud to be their daughter. I must
also express gratitude for my son, Landon, a college sophomore
at Northeastern State University, who is today in Tahlequah,
keeping an eye on his grandparents who are hopefully also
keeping an eye on him.
I would like to introduce some dear friends and family who
have come with me in person today, including my sister,
Jennifer Daniels; the deputy principal chief of the Cherokee
Nation, Bryan Warner; attorney general of the Cherokee Nation,
Chad Harsha. There are many other family, friends, and
colleagues, both online and here today, who are supporting me,
and I am grateful for all of them.
Last but certainly not least, I want to introduce my
husband, Jerry Starkey, who stands with me today as he has
stood with me for over 25 years. All of his family have made
themselves my family, and I'm also incredibly grateful for my
in-laws, Carol, Butch Daniels, Steven, and Tina.
In closing, I'd like to also take a moment to honor the
continuing career of Judge Claire Eagan, who assumed senior
status in the Northern District of Oklahoma in 2022. She was
the first woman to become a district judge in that district,
and it is an honor to be nominated to succeed her. I want to
thank her for illuminating a path into the Federal judiciary
for women in the Northern District. Thank you.
Chair Durbin. Thank you, Ms. Hill. Mr. Russell.
STATEMENT OF JOHN DAVID RUSSELL, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA
Mr. Russell. Chairman Durbin, Ranking Member Graham,
Members of the Judiciary Committee, thank you for scheduling
this hearing. I want to thank President Biden for nominating me
for one of the two vacancies in the Northern District of
Oklahoma. It is an honor and a privilege to be nominated.
I want to thank my home State Senators, Senator Lankford
and Senator Mullin, for establishing the committee to review
applications, and for their recommendation of my nomination to
the President. I particularly thank Senator Lankford for the
warm introduction and kind remarks this morning.
I have too many people to thank, but I'm going to start
with my family. And I have to say, I won the lottery when it
comes to family. I would not have had the success in my career
without their support. I want to particularly thank my wife,
Karen, who is with me today. In 37 years of marriage, she has
been my biggest supporter, pushing me to do my best and always
having my back.
She gave up her career practicing law to raise our three
daughters, and the great work she has done shows. You are the
best. With me, too, is our oldest daughter, Dr. Emily Russell
Levy, of Denver, Colorado, and our second daughter, Allison
Russell Barton, of Tulsa. Our youngest daughter, Olivia Russell
White, is at home in Tulsa with our two very perfect
granddaughters, and they are watching remotely. I thank all
three of our daughters and their husbands for their support.
I want to thank my parents, Paul and Patty Russell, who are
back in Oklahoma watching online. My parents taught me the
values of hard work and an education through their example. I
want to thank my three sisters and their husbands.
My oldest sister, Hope Saunders is here with me today. My
sisters, Allison Fuller and Susan Sharpe, are in Oklahoma
watching online. I want to thank my mother-in-law, Stella
Smith, watching from home, and my late father-in-law, Joe,
watching from above. They have been unwavering supporters.
I want to thank the great lawyers and the support staff at
my law firm, GableGotwals, for being great colleagues and their
support through this process. I practice law with the best
lawyers in Oklahoma, and I'm proud to be a part of that great
firm.
Last, I'd like to thank the many great lawyers from whom I
learned how to practice law. I will be forever grateful for
their guidance. Mr. Chairman, I look forward to answering the
Committee's questions. Thank you.
Chair Durbin. Thank you, Mr. Russell. Judge Manglona.
STATEMENT OF HON. RAMONA VILLAGOMEZ MANGLONA, NOMINEE TO SERVE
AS UNITED STATES DISTRICT JUDGE FOR THE DISTRICT COURT FOR THE
NORTHERN MARIANA ISLANDS
Judge Manglona. Thank you, Chairman Durbin, Ranking Member
Graham. Good morning. I would like to thank you, and the other
Committee Members, for holding this hearing.
I am grateful and thankful to President Biden for
nominating me to serve a second term as the sole district judge
for the District Court for the Northern Mariana Islands. I am
humbled by his decision to recommend that I continue serving in
this judicial capacity.
I would like to also express my sincere appreciation, or,
as we say in the Chamorro language, Un Dangkulu na si Yu'us
Ma'ase, to Congressman Gregorio Kilili Sablan for his kind
introduction and supporting my renomination.
There are family members joining us this morning who are
excited to witness this confirmation process in person: my
loving and supportive husband of almost 34 years, John, who's
here together with my two siblings, Patricia Patricia V.
Cepeda, who flew in from Houston, and Thomas P. Villagomez, who
made the long 10,000-mile journey all the way from Saipan; my
nephew, Thomas Peter Villagomez, from the Bay Area; and my
grandnephew, Wally Wesley, who lives right here in the DC area.
My two children, Dencio and Savana, who were here with me
in 2011 for my first nomination hearing, are unable to join us
today. My daughter, Savana, just gave birth a week ago to our
first grandchild, Kaia Jay Manglona Jefferson. Savana and her
husband, Jalen Jefferson, are at their home in Sacramento,
absorbing all the joys of parenthood.
My son, Dencio, is currently in Saipan, having just
recently started a new job after obtaining his master's degree
in public administration at American University just this prior
May. He's saving his leave time to be able to travel to
Sacramento and meet his niece, Kaya J., in December, when we
all hope to be able to gather for the holidays.
My nephew, Thomas A. Manglona, II, also wanted to be here
in person, but is also back home covering all the regional
news, including this story. It is 1 a.m., Thursday, tomorrow's
Standard Time right now, and I believe my six other siblings,
and their families, are viewing this event live stream.
My in-laws, Pres and Lee Torres, in Saipan, as well as
Vincent and Benita Manglona on Guam, and their children, are
also online. My brother, David, who was here with me in 2011,
is online from Hawaii. So we have a broad group. And I also
understand some of the district court staff back on Saipan, as
well as Guam, where I usually sit by designation, are also
tuning in, including my dear friend, Chief Judge Frances
Tydingco-Gatewood of the District Court of Guam. Thank you all
for showing your support, and I am grateful.
I thank the Committee for allowing me to make these
introductions. And I look forward to answering your questions.
Chair Durbin. Judge, thank you very much.
And we know the duration of the trip makes it a special
sacrifice for you to be here, and we certainly appreciate you,
and your family and friends who are in attendance, for making
that sacrifice. I'm going to start the round of questioning.
Five minutes for each Member.
Ms. Hill, most Members of Congress who have Tribal
representation in their States understand this whole issue of
Tribal sovereignty and the fact that you could have served as
attorney general for the Cherokee Nation. Could you summarize,
in a few sentences, the difference, or the challenge, that you
faced with that responsibility?
Ms. Hill. Serving as attorney general of the Cherokee
Nation, you know, is--post-McGirt especially, has been very
challenging. There's been a great increase in the number of
criminal cases that are being heard. Indian Tribes have
jurisdiction over crimes committed by Indians across their
Indian countries, so throughout the reservation of the Cherokee
Nation, the Cherokee Nation has jurisdiction, and the office of
the attorney general is responsible for prosecuting those. So,
as the attorney general, it has been the responsibility, post-
McGirt, to scale up that office in a way that--as we're able to
handle all the different cases that came to us.
And I think that, you know, that's something that for
people who have Indian country in their districts are probably
more familiar with that process. It may not be that familiar to
other people.
Chair Durbin. So your responsibility as district court
judge is separate and apart from the Cherokee Nation?
Ms. Hill. Certainly. A district court judge for the United
States is an entirely different job than the job of an
advocate. As attorney general, of course, I was an advocate for
the Tribe's legal position and for its rights. Like all
attorneys, I would advocate on behalf of my client with every--
all the intellect and all of the strategic thought I could put
into it on behalf of the Nation.
For a Federal district judge, that is entirely a different
job. The job is to look at all the cases that come before you
impartially and fairly, and looking at everything on their own
terms, and then applying the facts to the law. And it's a much
different role entirely.
Chair Durbin. Thank you very much.
Judge Manglona--I want to pronounce your name correctly. Is
it Manglona?
Judge Manglona. Manglona. Yes, Manglona.
Chair Durbin. Yes. Close now. You had a range of experience
as a litigator and a jurist, and spent your legal career in the
Northern Mariana Islands, including a previous appointment to
the bench, to which you've been renominated.
I want to make a note of this fact that after the island
was hit with devastating typhoons in 2015 and 2018, you kept
the courthouse open to ensure the crucial work of the judiciary
would not be interrupted. Your judicial chambers were awarded
the 2019 Director's Award for Extraordinary Action from the
Administrative Office of the U.S. Courts.
How have your experiences equipped you to continue serving
that unique need in the Northern Marianas?
Judge Manglona. Senator, the two super typhoons that hit
Saipan, with the distance to receiving the help, was truly
challenging. I was very grateful for this board from the
Administrative Office, as well as my neighboring district in
Guam. As I mentioned, the experience that I've gone through
made me stronger in regards to being creative in how to deal
with challenges.
And I actually--from our initial experience in 2015, some
of the other districts that then suffered other natural
disasters in other parts of the country, were able to avail of
some of the lessons that we learned. And I believe all this
experience is going to ensure that, should there be another
disaster or calamity, I will be so well prepared to maintain or
keep the courthouse doors open to ensure that people's
constitutional rights are still addressed.
Chair Durbin. Well, congratulations to you on that effort.
Judge Manglona. Thank you.
Chair Durbin. Mr. Russell, while reviewing your record, I
noticed you've been representing U.S. purchasers in a putative
class action against the manufacturer of a breast cancer drug
called Herceptin. The plaintiffs in the suit contend the
company falsely labeled vials of the drug so that the
purchasers regularly receive less of the active ingredient than
they thought they were receiving. Can you tell us about your
work in that case and what specific claims the class is
raising?
Mr. Russell. Senator, the plaintiffs in that case, it's a
putative class action--it's also a multi-district litigation
case, and the claims are breach of warranty fraud. There are
several different claims relating to the lack of Herceptin that
is showing up in the vials over a historical period of time.
And so the claims are that there were--the doctors' offices
having to administer the Herceptin were required to open
additional vials at cost and loss, in each time that they
administered Herceptin to a breast cancer patient.
Chair Durbin. I'm a little familiar with that issue because
we've had the opposite be the case, as well. That drugs are put
in containers far greater than necessary for the ordinary
dosage, and many of these very expensive drugs end up being
surplus and thrown away. So labeling, and handling, and
bottling is a critical element in making sure that the American
consumer is treated fairly.
Thank you very much. Senator Graham.
Senator Graham. Thank you.
Yes. Ms. Hill, I think the Committee received a letter from
the United--UKB, how do you say, the K----
Ms. Hill. Keetoowah.
Senator Graham [continuing]. Okay--questioning your
impartiality and your ability to serve. What would you say?
Ms. Hill. I would say, you know, certainly, there's been a
fair amount of litigation between the Cherokee Nation and the
United Keetoowah Band. And in that litigation, I represented my
client to the best of my ability, which is my job and duty.
Certainly, taking on the role of Federal district judge is
one that leaves behind the life of advocacy and embraces the
job and the life of a jurist. One who takes the case that's
before them, and looks at them fairly, impartially, and applies
the law to the facts. And I understand very much that that's
the job of the district judge and not to serve as an advocate.
Senator Graham. Okay. Are you familiar with a--called a
``corrupt bargain'' --the allegation of a corrupt bargain
between the Cherokee Federal and HHS concerning construction of
a migrant detention center? Are you familiar with that?
Ms. Hill. I'm not. I'm familiar with the attempt to
construct a migrant facility that----
Senator Graham. But you had nothing to do with that?
Ms. Hill. No. That was done by Cherokee Nation businesses.
Senator Graham. Okay. As an advocate for the Cherokee
Nation, obviously you have to represent your client with vigor,
and I think that's what all lawyers do. The two Senators speak
very well of you. When it comes to the Dakota Pipeline, can you
tell me your position regarding that?
Ms. Hill. So when the Dakota Access Pipeline was--when the
dispute in Indian country arose with the Standing Rock
Reservation, I was the Secretary of Natural Resources for the
Cherokee Nation. The legislature, the elected leaders of the
Cherokee Nation, passed resolutions in support of the Standing
Rock Tribe. And so, as part of a delegation of the Cherokee
Nation, you know, I participated in activities regarding that
pipeline.
Senator Graham. Okay. In terms of--do you have any
particular bias against the fossil fuel industry?
Ms. Hill. I do not. I've worked--I think my record reflects
that I've worked also with fossil fuel companies. When they are
putting in infrastructure, things like pipelines, one of the
things they have to deal with is trying to make sure they don't
affect the various sites where there might be Tribal interests.
And so, working directly with those pipeline companies to
make sure that they're cited properly, and in compliance with
the law, is something that I've also done. So I've worked with
companies that are also involved in fossil fuels. I do not
believe I have any bias against them, and I think my record
would reflect that.
Senator Graham. Ma'am, how do you say your last name,
again?
Judge Manglona. Manglona.
Senator Graham. How long does it take to get from Saipan to
here?
Judge Manglona. Twenty-four hours one way, door to door.
Senator Graham. You said that very certain.
[Laughter.]
Senator Graham. That's a long haul.
Judge Manglona. I've done it many times.
Senator Graham. So you also have cases in Guam. Is that
right?
Judge Manglona. Yes, I sit by designation.
Senator Graham. Is there anything the Committee can do to,
like, make your job easier?
Judge Manglona. Confirm me.
[Laughter.]
Senator Graham. Yes. Good answer. I just assumed you had
the job, so--yes, let me not jump over that part. You seem to
be well qualified. Everybody listening back in Saipan, she's
doing good.
Judge Manglona. Yes.
Senator Graham. So, I mean, how do you really--I mean, how
long does it take you to get to Guam?
Judge Manglona. Well, Saipan and Guam are in the same
archipelago. So I just fly down. It's about a 30-minute flight.
Unfortunately, airline is the only way. Boat is by days. And so
we're in the same time zone. It makes it easier. There were the
days when we would have three to five flights in a day.
Nowadays, it's very restricted. So it does constrain.
But thank goodness for modern technology. In 2021, I
presided over a 7-week trial where I was doing the trial in
Guam and then handling my cases virtually in Saipan. So I can
move things along.
Senator Graham. Okay. Thank you, much.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Congratulations,
to each of you.
I ask the following two foundational questions of nominees
to--for any of the Committees on which I sit. So I'll start
with Ms. Hill and go right down the line. 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?
Ms. Hill. No, Senator.
Mr. Russell. No, Senator.
Judge Manglona. No, Senator.
Senator Hirono. Have you ever faced discipline, or entered
into a settlement, related to this kind of conduct?
Ms. Hill. No, Senator.
Mr. Russell. No, Senator.
Judge Manglona. No, Senator.
Senator Hirono. Ms. Hill, you have a long career working
for the Cherokee Nation, most recently as attorney general. So
I think that you will bring a unique perspective to the Federal
bench. How has your experience working for the Cherokee Nation
prepared you for an appointment to the Federal bench?
Ms. Hill. One of the good things about working for the
Cherokee Nation, one of the things I have most enjoyed, was the
opportunity to work with lots of different types of people.
Working with State leaders on issues of common concern, working
with the U.S. Attorney's Office in the Northern District to
prosecute crime in Indian country.
So I've had an opportunity to work with lots of different
types of individuals while working for the Cherokee Nation. It
is the largest federally recognized Indian Tribe, and we have a
very large reservation. So it's created lots of opportunities
for me to learn to work with different people, and to learn the
State very well. And to learn the law of lots of different
topics, from laying pipelines and fossil fuels right up to
criminal jurisdictional matters in Indian country.
So it's given me a breadth of experience that I think is
going to be useful to a district judge in the Northern District
of Oklahoma.
Senator Hirono. I agree with you. And if confirmed, you'll
be the first Native American woman to serve as a Federal judge
in Oklahoma. Now, this Committee has had a hearing in which we
are, I think, sending to the floor, I hope--yes, we are--the
first Native Hawaiian woman to sit on the Federal bench.
So I think it's very important that we have judges who have
the kind of perspective that has to do with our Native people.
So, you know, I certainly look forward to supporting you.
Again, for you, in--I'm sorry, McGirt v. Oklahoma--the
Supreme Court held that the State of Oklahoma lacked
jurisdiction to prosecute Native Americans for crimes committed
on Tribal land. Can you tell the Committee briefly about the
process of setting up the Cherokee Nation's Criminal Division
following that Supreme Court decision?
Ms. Hill. When that case was decided, the Cherokee Nation's
criminal docket was pretty uneventful. It typically had about a
hundred cases a year that we would hear, because most of them
were serious crimes, were tried by the Northern District or the
Eastern District.
Post-McGirt, that completely changed. The jurisdictional
rules applied throughout the reservation. So we had, I think,
around 3,700 matters, criminal and traffic matters, filed that
first year post-McGirt.
So I had to go from one criminal prosecutor to nine full-
time criminal prosecutors. And that sort of ramping up included
support staff, investigators, all of those things that were
required. So that process of, you know, building that up very
quickly was something that I had to oversee as attorney
general, and it was quite the effort.
But it was--you know, that's what the law required. The
Nation's jurisdiction was larger than had previously been
understood until the opinion in McGirt v. Oklahoma.
Senator Hirono. Thank you.
Judge Manglona, since 2011, you have served as the sole
active Federal district court judge in the Northern Mariana
Islands. And as such, you performed the work of a chief judge,
a magistrate judge, and a bankruptcy judge. You wear many hats.
Can you tell us about the unique experience of being not only
the chief judge, but also the only Federal judge in a district,
and how has this experience informed your judicial approach?
Judge Manglona. Senator, it's been a wonderful challenge to
be able to do all three areas of law. I'll be candid. The
bankruptcy docket is not very vibrant right now, but there were
instances where we'd have to do some novel issues. And, as I
mentioned, I also sit by designation in Guam. So I assist in
that district, and that's where I've also had additional
experience, even presiding over bankruptcy cases.
Given the broad general jurisdiction experience that I had
in the trial court for 8 years, I think it really prepared me
to be able to do everything from beginning to end, as
magistrate judges for criminal or civil matters, from criminal
warrants, all the way to sentencing as a district judge.
So, I had that full experience, and I enjoy the full
panoply. And I am so rewarded when I am also working with other
district judges from either my neighboring district in Guam, or
elsewhere, including Hawaii.
Senator Hirono. Thank you.
Thank you, Mr. Chairman. And while I didn't have a question
for you, Mr. Russell, I look forward to supporting you also.
Mr. Russell. Thank you.
Chair Durbin. Thank you, Senator. Senator Grassley.
Senator Grassley. Yes, Ms. Hill, I'm going to start with
you. You were for 4 years, until recently, attorney general, as
we all know now. The Cherokee Nation has made contracts with
the Federal Government for services related to unaccompanied
alien children through tribally owned entities like Cherokee
Federal.
And this is an issue because 85,000 children have been lost
track of by this administration. According to Cherokee Nation
law, one of the attorney general's duties is to prepare drafts
of, quote, ``contracts and other instruments in which the
Cherokee Nation government is interested.''
So, for you, do you agree that the Cherokee Nation
government would have had an interest, as according to that
law, in the multimillion dollar contract entered into between
the U.S. Government and the Cherokee Federal tribally owned
company?
Ms. Hill. I mean, the Cherokee Nation would have had the
interest of a shareholder in Cherokee Federal, which is a
business arm that's operated by the Nation. So it would have an
interest--an interest in the company. Certainly, it's the owner
of that company, but that company is operated separately from
the government. So it has its own attorneys, it has its own
infrastructure.
Senator Grassley. So you're saying that where your law
requires you and your duties as attorney general to prepare
drafts, you're saying you would not have been involved in
preparing any of those drafts?
Ms. Hill. That's correct.
Senator Grassley. Okay. As attorney general--well, maybe
you've answered this last question. Let me ask you and then
come to the conclusion if you've answered it or not. What was
your, or your office's, role with respect to these contracts
entered into between Cherokee Federal and the Federal
Government related to unaccompanied children's services? Did
you approve them? Did you observe them? And I think you just
told me, you had nothing to do with these contracts.
Ms. Hill. I did not have anything to do with those
contracts.
Senator Grassley. Okay. This next question is--you may have
the same answer, but it goes in a little different direction
because maybe as attorney general, you'd hear about any
problems.
Did you, or your office, receive any complaints related to
Cherokee Federal's, or any other entity, handling unaccompanied
alien children, and if so, what kind of complaints did you
receive and how did you handle them?
Ms. Hill. I do not recall receiving any complaints about
Cherokee Federal. The facility that--as I understand it, the
facility that Cherokee Federal operated was in California. It
was not a local facility, and I--so it wasn't on the
reservation. It wasn't within the jurisdiction of the Cherokee
Nation.
I don't recall ever receiving any complaints about it. I do
recall there being a bit of controversy about it, but it was
not as if I had a formal request for review, or anything like
that, on my desk that I can recall, Senator.
Senator Grassley. Okay. If there's anything you can supply
to us about these complaints you heard, just hear them, not
being in involved with them, I'd like that information. You
don't need to give it to me now, but you could give it to me in
writing.
For all of you: Very general question, but do you believe
that a judge should ever consider his or own values or policy
preferences when determining what the law means or what the
cases outcome should be, and if so, under what circumstances?
I'll start with you, Ms. Hill.
Ms. Hill. I don't believe that the personal values or
personal, you know, policy preferences of the judge should
affect the outcome. You know, the laws are written by Congress.
The judges should look at what the law is, they should look at
what the precedent is in the circuit that we serve in. But I
don't think that overlaying your opinion about those things is
appropriate.
Senator Grassley. If it's ditto for you, you can just say
that, Mr. Russell.
Mr. Russell. The same. Personal values are not important.
It's the rule of law.
Senator Grassley. And you, Ms. Manglona?
Judge Manglona. I agree with my co-panelists.
Senator Grassley. Okay. Maybe I will quit. I'll put the
rest in for writing.
Chair Durbin. Thank you, Senator Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Congratulations,
to each of you.
Ms. Hill, what is ``collateral estoppel'' ?
Ms. Hill. Collateral estoppel. I think collateral
estoppel--well, Senator, I will say that my practice--my 20
years of practice has primarily been dealing with issues
relating to criminal law or relating to other areas of the law.
And----
Senator Kennedy. If you don't know just tell me.
Ms. Hill. I certainly do know collateral estoppel. I'm
finding that the bright lights of the moment are making it hard
for me to recall it.
Senator Kennedy. Okay. So you don't recall it. Okay. What
is the ``amount in controversy'' requirement?
Ms. Hill. The amount in controversy requirement is $75,000,
that typically governs, in many cases, almost any case, in
diversity jurisdiction in the Federal courts----
Senator Kennedy. Okay.
Ms. Hill [continuing]. And certain other----
Senator Kennedy. That's good. What does the Thirteenth
Amendment to the Constitution do?
Ms. Hill. It outlaws slavery.
Senator Kennedy. What does the Seventh Amendment do?
Ms. Hill. It ensures that all civil jury trials--that all
civil cases in the United States are done by jury trial. That
you have a right to a jury trial in a civil case.
Senator Kennedy. Okay. What is the difference between a
stay order and an injunction?
Ms. Hill. A stay order would prohibit--sorry. An injunction
would restrain the parties from taking action. A stay order--
I'm not sure that I actually can give you the--that.
Senator Kennedy. Okay. Tell me about--you'll see a lot of
this in Federal court. Tell me about the multi-district
litigation statute.
Ms. Hill. So I'm not extremely familiar with the multi-
district litigation. I do know that multi-district litigation
is often consolidated into a particular court.
So all of the cases involving a particular type of issue,
if there is a multi-district litigation, those will all be
referred to one court and one judge who will then oversee the
MDL. But I will confess, I'm not super familiar with all the
ins and outs of that.
Senator Kennedy. Okay. What kind of constitutional claims
are subject to intermediate judicial scrutiny?
Ms. Hill. Cases involving certain types of classes, such as
gender or illegitimacy, are subject to intermediate scrutiny.
Some types of speech, like commercial speech, would be subject
to intermediate scrutiny.
Senator Kennedy. Okay. Tell me what a 12(b)(6) motion is?
Ms. Hill. It's a motion to dismiss a claim--or, I mean,
motion to dismiss an issue for failure to state a claim.
Senator Kennedy. Okay. And what's the standard for granting
a summary judgment in Federal court?
Ms. Hill. It's if there are no issues of material fact, and
that the issue can therefore be decided as a matter of law.
Senator Kennedy. Okay. What's the standard for deciding
whether a particular punishment is cruel and unusual under the
Eighth Amendment?
Ms. Hill. So the particular standard, the court has said,
and I cannot recall the case, but it says that you have to look
at not only whether it is--would be shocking to an individual--
to the individuals at the time that it was written, so it's not
purely a historical review, as some of them are purely
historical, but also you have to look at how it has changed,
how those values have changed with time. It's one of those
cases--circumstances where the court says it's appropriate to
look at how values have changed with time.
Senator Kennedy. Okay. Well our right against cruel and
unusual punishment is a fundamental right. Is it not?
Ms. Hill. It is.
Senator Kennedy. Okay. How do you square what you just told
me about the Eighth Amendment with the case, after case, after
case, by the U.S. Supreme Court that says the definition of a
fundamental right is one that's explicitly stated in the
Constitution, or deeply rooted in our history and tradition?
Ms. Hill. Yes. I think that it is--I think it is deeply
rooted in our history and tradition. The----
Senator Kennedy. Yes, but, certain forms of punishment are
not. If a form of punishment, it existed at the time of our
founding, and it's deeply rooted in our history and tradition,
you're telling me that makes it automatically constitutional
today? I thought you just told me, no?
Ms. Hill. No. I'm certainly not saying that. The Supreme--
I'm not. What I say is, about it, is really quite irrelevant,
but the Supreme Court has said we look at it with a view to the
changing values on these issues.
Senator Kennedy. Why the difference? I thought----
Ms. Hill. Well, I----
Senator Kennedy [continuing]. They're both fundamental
rights. Why the difference?
Ms. Hill. Yes. I think that's a question that the Supreme
Court's going to have to answer. Whether or not they have----
Senator Kennedy. I think it has. I'm just asking if you
know.
Ms. Hill. I think I've answered the question to the best of
my ability, Senator.
Senator Kennedy. Okay. Thank you, all.
Chair Durbin. Senator Hawley can, if you return. Oh. I
think that all the Senators have appeared who are going to
question today.
Ms. Hill, I congratulate you on surviving the John Kennedy
6-minute bar exam.
[Laughter.]
Ms. Hill. My contracts teacher is going to be appalled,
and----
[Laughter.]
Ms. Hill [continuing]. I'm going to have to live with that,
Senator, but thank you--Chair, thank you.
Senator Kennedy. [Speaking off microphone.]
[Laughter.]
Chair Durbin. If you promise to spare Ms. Hill, I'll----
Senator Kennedy. Did the White House give any of you any
written materials to use to prepare?
Ms. Hill. They gave----
Senator Kennedy. Or digital materials?
Ms. Hill [continuing]. They gave us, you know, questions--
previous questions that had been asked by the panel.
Senator Kennedy. And answers?
Ms. Hill. I think we had to go find the answers ourselves.
I think we had to go watch----
Senator Kennedy. Okay.
Ms. Hill [continuing]. The various----
Senator Kennedy [continuing]. May I----
Ms. Hill [continuing]. Committees.
Senator Kennedy [continuing]. Have a copy of that?
Ms. Hill. I don't have one, but I am sure that it's just--
it is literally just a list of questions.
Mr. Russell. I don't have a copy.
Judge Manglona. I don't have any of the copies.
Senator Kennedy. Would you send me a copy? I'm easy to
find. Would you send me a copy, Ms. Hill?
Ms. Hill. I will.
Senator Kennedy. Okay. Would you each send me a copy?
Judge Manglona. Yes, Senator.
Senator Kennedy. Then I can compare and make sure they're
all the same. Okay. Thank you.
Chair Durbin. Senator, can we have a copy of your list of
questions to share with----
Senator Kennedy. Sure.
Chair Durbin [continuing]. Other Members?
Senator Kennedy. I'll even give you the answers.
[Laughter.]
Chair Durbin. It's like a bar review course.
Ms. Hill. Yes.
Chair Durbin. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for being here.
Ms. Hill, I'd like to start with you, if that's all right.
As you know, in 2020, in the McGirt case, the Supreme Court
held that in unique circumstances, major crimes committed in
Indian country can be prosecuted only by Tribal or Federal
courts. This ruling removed the State's ability to prosecute
those crimes in those circumstances.
Now, you strongly support the McGirt decision, and it's
important to keep in mind that in Oklahoma v. Castro-Huerta in
2022, the Supreme Court clarified States retain the authority
to prosecute non-Indians who commit crimes against others, even
if those crimes take place in Indian country.
Now, in one of your many critiques of that decision, you
called Castro-Huerta, quote, ``a very negative decision.'' And
you said that, quote, ``Kavanaugh's opinion''--which, of
course, was the opinion of the Court, ``Kavanaugh's opinion, it
was terrible.''
To justify that critique, you came up with a hypothetical.
A hypothetical in which you stated that, quote, ``A non-Indian
steals a car from an Indian, and that person can be prosecuted
by the State. That person can also be prosecuted by the United
States. They can be convicted twice for the same act, and serve
two sentences.'' That was part of your critique.
My concern is that your critique here demonstrates a
fundamental misunderstanding of how the Double Jeopardy Clause
of the Fifth Amendment works. I think most first-year law
students can tell you that double jeopardy prevents separate
prosecutions for the same offense when those prosecutions are
brought by the same sovereign.
A non-Indian who steals a car from a non-Indian, for
example, in Utah, is properly subject to prosecution by both
State and Federal authorities. By the State government, and by
the Federal Government, because they are separate sovereigns in
our system, just as in any other State in the United States.
State governments are unique. They're unique, independent
sovereigns, separate and apart from the Federal Government. And
the Federal Government is a completely different sovereign.
This has been a line of authority. This has been a principle
that's been clearly established ever since our Nation's
inception, certainly ever since we adopted the Double Jeopardy
Clause in 1791 as part of our Constitution.
So yes, McGirt represents--presents a unique set of
circumstances. An Indian committing a crime against an Indian
in Indian country, but nothing in the Constitution prevents a
State from prosecuting a non-Indian for their crimes,
regardless of who the victim is.
So, in your view, do you disagree with the characterization
of double jeopardy, as I've just stated it. Do you disagree
that the States are separate sovereigns from the Federal
Government for purposes of the Double Jeopardy Clause?
Ms. Hill. I certainly don't disagree with that.
Senator Lee. And if confirmed, would you follow the
majority opinion in Oklahoma v. Castro-Huerta?
Ms. Hill. I absolutely would. And given the practice that
I've had, I've been following it for some time.
Senator Lee. Your apparent desire to remove the State's
authority to prosecute non-Indian offenders would, in my view,
only weaken law enforcement's ability to remove violent
offenders from the streets.
And it's dangerous to place loyalty to any particular group
over your loyalty to long-established principles of law or of
the Constitution. So when--am I misreading your statement
regarding Castro-Huerta or the hypothetical?
Ms. Hill. I think that the full context, maybe, is not
really reflected there. The full context of my comments, I can
say, certainly, I, on behalf of my client, I was critical of
the decision in Castro-Huerta because it was a decision that
had other ramifications in Indian law outside----
Senator Lee. Right. But I'm not talking about the other
ramifications. I'm just talking about the--about double
jeopardy here.
Ms. Hill. Right. I understand that. And the--but those
ramifications, that was the--some of the context of my
criticism of it. I certainly believe and understand that I'm
required to follow--will be required to follow the law, if I'm
so fortunate as to be confirmed to serve in the Northern
District.
And I understand the distinctions that, you know, you
have--if you have three sovereigns, that all three sovereigns
could bring those claims and there would not be a double
jeopardy issue.
Senator Lee. Okay. While you were--while serving as
attorney general of the Cherokee Nation, did you state that you
have--had no intent to enforce the law post-Dobbs?
Ms. Hill. I never said that.
Senator Lee. Did you, at any point, say, ``I expect, and I
think everyone expects, massive constitutional challenges to
that law,'' just for your awareness, referring to those laws?
Ms. Hill. I was not referring to Dobbs, that was the
decision of the Court. I was talking about the Oklahoma law
that had been passed relating to abortion, post the decision in
Dobbs, and that that law was being challenged, had already been
challenged, in the courts. There was--it was significantly
newsworthy in Oklahoma at the time that the Oklahoma law was
being challenged.
Senator Lee. Challenged post-Dobbs on grounds that you
believed were legitimate challenges post-Dobbs.
Ms. Hill. I couldn't say that they were legitimate. I just
knew that there were likely to be many challenges to it. It was
very contentious.
Senator Lee. Okay. I see my time's expired. Thank you, Mr.
Chairman.
Chair Durbin. Thank you, Senator Lee. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman. Thank you, all,
for being here.
Mr. Russell and Ms. Manglona--did I get that right? I
intend to support you-all's confirmation. And even if I was
leaning against you, I would've done it after your answer to
Senator Graham's question about how your job could be made
easier. I've been watching the proceedings in my office.
Ms. Hill, I've got some questions for you. You probably
know I'm from North Carolina, and I have a history with the
Eastern Band of the Cherokee. And up until a couple of years
ago, it was pretty positive. I was the speaker that negotiated
the new compact for the Eastern Band that gave rise to live
gambling and the additional casino that they had there. But
we've had a parting of the ways that hopefully sooner or later
we get back on track.
This week, the Eastern Band are in the middle of the
National Congress of American Indians, doing their best to
disenfranchise State-recognized Tribes as either voting members
or members of the organization. Which, of course, is just
another example of where they want to shut the door behind
their recognition.
But I've got some questions I just need to clear up very
quickly.
On March 12th, the U.S Department of the Interior agreed to
put 17 acres in Cleveland County in North Carolina in a trust
for the Catawba Nation.
On May 1st, 2020, as attorney general, your team filed a
motion to intervene in the Eastern Band of Cherokee Indians v.
United States Department of the Interior.
The motion backed the Eastern Band of the Cherokee, and
claimed that the DOI willfully violated the National Historic
Preservation rights, National Environment Policy Act, and
Administrative Procedure Act. Do you believe the DOI got the
decision right or wrong?
Ms. Hill. You know, that case was some time ago. I remember
that there was an issue regarding the NHPA in that particular--
--
Senator Tillis. Okay. I'll let you--actually, if you'll
submit that answer in writing. Just a----
Ms. Hill. That would be helpful.
Senator Tillis [continuing]. Straightforward, whether or
not you think the DOI got it right or wrong.
Can I get your commitment that you'll recuse yourself from
cases involving Tribal issues, which you have had a degree of
involvement that would create at least the appearance of
lacking impartiality?
Ms. Hill. Yes, I would certainly recuse myself, you know,
as in any circumstance where the rules would indicate I should,
including----
Senator Tillis. So it's a maybe. If it's an appearance
thing, it's a maybe. Do you agree that the Eastern Band of
Cherokee Indians, that there should be three congressional
delegates?
Ms. Hill. I----
Senator Tillis [continuing]. I know that you know that UKB
and Eastern Band of the Cherokee may have differing opinions,
here. I'm kind of curious about your opinion.
Ms. Hill. Right. I mean, I certainly represented on behalf
of the Cherokee Nation, that it was the treaty holder, and that
it had a right to have the treaty that--the delegate on behalf
of the Cherokee Nation. That was the position that I took on
behalf of the Cherokee Nation.
Senator Tillis. If the case regarding the potential
Cherokee delegate to Congress comes before you, would you
recuse yourself?
Ms. Hill. I think I would recuse myself on that case.
Senator Tillis. Do you believe that you should consider
other cases regarding Lumbee Tribe of North Carolina
impartially, given your background, should a case go through
the courts and be in your jurisdiction related to Lumbee
recognition?
Ms. Hill. I can only follow the rules of judicial conduct
on any matter that comes before me, and if there was an issue
raised that demanded my recusal, I would certainly recuse
according to the rules.
Senator Tillis. Okay. I'm trying to do a lightning round
here. I'm sorry. I really hate interrupting people, even when I
appear to be hostile. This has nothing to do with you, Ms.
Hill. It has to do with a profound issue and disagreement that
I have with the Eastern Band of the Cherokee. So, please accept
my apologies.
There have been reports that the Cherokee Nation has made
millions of dollars from immigration contracts to process
individuals who enter the United States illegally, specifically
unaccompanied children. As the former attorney general for the
Cherokee Nation, were you involved in any of the immigration
contract negotiations?
Ms. Hill. I was not.
Senator Tillis. Okay. And in your private practice? I
believe that they have done some representation on this matter?
Ms. Hill. I have never--I've never been involved, you know,
in that in any real way.
Senator Tillis. We've got a couple of--you know, it's
unfair to hit you in the lightning round and ask you to recall
all of that. We will be submitting a question for the record
that's very concise with respect to the matter, and a couple of
other things.
Mr. Chair, I'm going to yield back time so Senator Padilla
can speak, but I did have one document that was the filing
[holds up a document]. If I may, I'd like to seek unanimous
consent to have the Eastern Band of Cherokee Indians v.
Department of the Interior case into the record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Tillis. Thank you, Mr. Chair. I yield back.
Chair Durbin. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. Welcome to all three
nominees. Congratulations on being here today, and for your
willingness to serve.
My first question is a question I ask to every nominee that
comes before this Committee for the Federal bench. And that's a
two-part question.
Number one, do you agree with the following? I believe one
of our country's greatest strengths is our diversity. Not just
ethnic racial diversity, but the diversity of our economy, the
diversity of cultures, the diversity of life experiences and
professional experiences that I believe our Federal judiciary
should represent. Hasn't always.
Working with President Biden, this Committee, we have
considered and confirmed a historically diverse group of
Federal judges at all levels over the last two-plus years. Do
you agree that diversity is good for the courtroom, and for the
judicial system? And I'm not just talking about diversity on
the bench, by the way.
Here's the part B of the question. If you agree with that
statement, I'd love to hear it. If you disagree, I'd love to
hear why. But if you do agree, then what would you do to work
toward more diverse staff in the courtroom, not just on the
bench, particularly when it comes to law clerks? I think you
may each be able to speak to your experience as law clerks and
what that did to support your career trajectory, whether it's
been in public or in private practice.
So two-part questions starting with Ms. Hill.
Ms. Hill. I certainly, you know, do agree with the value
statement that you gave, Senator. And as it relates to the
hiring of court personnel, including staff, I was not a clerk.
And I will say that growing up in the rural community that I
grew up in, I just was not--didn't have any exposure to this
world that clerks--or that I even understood exactly what
clerks did or what that pathway looked like.
And so I think that a lot of the work that perhaps needs to
be done is just giving people that come from rural communities
where you just don't have lawyers in your life--I didn't grow
up in a world where there were lots of lawyers. And so that
world is very opaque to me, even though I wanted to be a
lawyer, I wasn't exactly sure how to understand that world.
And so, I think one of the ways to do that is to reach out
into communities where, you know, where there are people from
rural areas, especially in the communities in the Northern
District. And let people understand those opportunities, make
people aware of what clerking is and what it can do for you,
and so that people understand the value of it, and understand
what the pathway is, would be one of the things I think would
be valuable. And I would, you know, want to be able to
contribute in some way to helping that happen.
Senator Padilla. Beautifully said. Thank you. Mr. Russell.
Mr. Russell. Senator, I agree with your value statement,
and believe that diversity is important on the bench as well as
in the staff at chambers of any judge.
From my part, I, like Ms. Hill, I did not clerk. But in the
many firms that I have worked at, we have seen the value of
clerkships as we have had and hired clerks that have come in.
And having the diversity is important because we are seeing
talent coming from all different places. And so, if I'm
fortunate to be confirmed, I would cast as wide of a net as
possible to try to get clerks from as many places as possible,
from diverse backgrounds, as well as racial diversity--in all
types of diversity, I think, are important so that it's never
an echo chamber. Thank you.
Senator Padilla. Thank you.
Judge Manglona. Senator, in my 20 years as a judge, I have
seen the value of diversity. Speaking from the bench, I think
it's nice for the community to see that people who are aware of
them, all walks of life that are represented, are also on the
bench. In the superior court that I was sitting at, there were
only five trial court judges. Now with one district judge in my
district, I am the only one representing, and I think it's
something that is valuable for the perception of the community.
In regards to hiring law clerks, for example, I do agree,
as well, for diversity. I've hired from throughout the country.
Unfortunately, we don't have a law school in my region. And so
there aren't much in our district. But the ability to listen
and hear different perspectives from--I have a law clerk from
the East Coast and a law clerk from the West Coast, and having
discussions about different issues or matters, it's really
enlightening. And I think that's one reason why, as a judge,
when we keep an open mind and then listen to the different
perspectives, it would really keep--make us, enable us to make
an informed decision.
Senator Padilla. Thank you.
Thank you, Mr. Chair. If I may, just one follow-up question
for Ms. Hill. As Senator Lankford and Senator Hirono noted, and
we all recognize, if confirmed, to be the first Native American
woman to serve as a Federal judge in Oklahoma, where I think
the Native population represents more than 10 percent of the
State population. Your resume is clearly impressive. You are
clearly more than qualified for this role, but this is a
milestone that many would consider long overdue.
I know a thing or two about being the first, but I'd like
to hear from you. What would it mean to you and the people of
Oklahoma, if you were to be confirmed, to be the first Native
American woman on the District Court for Oklahoma?
Ms. Hill. Yes. Oklahoma is such an amazing place. It's my
home State, and I can't say enough great things about it. One
of the great things about it, though, is its Native population.
It's just--just brings something to the State that makes it
utterly unique, and it's very valuable.
And I think that having such a large Native population in
the State, you know, it's--I think everybody will feel--I
certainly feel like, you know, having a Federal bench that
reflects the community that serves it, is a sign that your
Government is thriving, that the community is thriving, that
things are working well.
And so I think that from that point of view, it will be a
good thing to see and it's meaningful to me in that way. It's
an opportunity to reflect the community that is served by the
Northern District, and, you know, it's a very humbling thought
to be the first.
Senator Padilla. Thank you very much. Thank you, Mr. Chair.
Chair Durbin. Thank you, Senator.
At this point, I'm going to adjourn today's hearing after
making this logistical note. Questions for the record will be
due to the nominees by 5 p.m. on Wednesday, November 22nd,
which is the day before Thanksgiving. So you'll be given time
to celebrate Thanksgiving after 5 p.m. So I suggest everyone
plan accordingly.
The record will likewise remain open until that time to
submit letters and similar materials. With that, and the
gratitude of the Committee to the nominees, their families, and
friends, this Committee stands adjourned.
[Whereupon, at 11:10 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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