[Senate Hearing 118-29, Part 13]
[From the U.S. Government Publishing Office]
S. Hrg. 118-29, Part 13
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 29, 2023
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Serial No. J-118-2
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PART 13
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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
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U.S. GOVERNMENT PUBLISHING OFFICE
56-024 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........................................... 2
Padilla, Hon. Alex............................................... 3
Butler, Hon. Laphonza............................................ 4
NOMINEES
Austin, Hon. Jacquelyn D......................................... 6
Questionnaire................................................ 40
Responses to written questions............................... 104
Additional material.......................................... 150
Becerra, Hon. Jacqueline......................................... 7
Questionnaire................................................ 151
Responses to written questions............................... 225
Additional material.......................................... 273
Damian, Hon. Melissa............................................. 8
Questionnaire................................................ 274
Responses to written questions............................... 324
Additional material.......................................... 373
Leibowitz, David Seymour......................................... 9
Questionnaire................................................ 374
Responses to written questions............................... 401
Additional material.......................................... 461
Sherriff, Kirk Edward............................................ 11
Questionnaire................................................ 462
Responses to written questions............................... 498
Additional materials......................................... 550
Sneed, Hon. Julie Simone......................................... 10
Questionnaire................................................ 564
Responses to written questions............................... 613
Additional material.......................................... 661
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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WEDNESDAY, NOVEMBER 29, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse, Coons,
Hirono, Booker, Padilla, Welch, Butler, Graham, Grassley, Lee,
Hawley, Kennedy, Tillis, and Blackburn.
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.
We consider today's six judicial nominees: Judge Jacquelyn
Austin, in the District of South Carolina; Judge Jacqueline
Becerra, Southern District of Florida; Judge Melissa Damian,
Southern District of Florida; David Leibowitz, Southern
District of Florida; Judge Julie Sneed, Middle District of
Florida; and Kirk Sherriff, to the Eastern District of
California. Congratulations to the nominees, and their families
and friends who are here today.
This is an interesting day in the Committee because both
Senator Graham and I, on a bipartisan basis, have urged
Republican Senators to sit down with the Biden White House and
see if they could reach a common agreement on nominations.
It is not unheard of.
During the Trump administration, Senator Duckworth and I
filled every vacancy and negotiated with the Trump White House.
The difference in political philosophy was obvious, but we
believed that we found nominees who really would be neutral, or
at least objective, in dealing with the law. And this has
happened again today.
I'd like to thank President Biden and my Republican
colleagues, and especially my colleague, Senator Graham, for
achieving this status. Some people are skeptical of the so-
called blue slip, which gives to the Senators from the State
the ultimate word as to whether a nomination goes forward. We
both believe in it, if it is used conscientiously and fairly,
and today is evidence that it can be.
We have 35 more judicial vacancies in States with
Republican Senators. I urge every single one of them to sit
down with the White House and see if they can find some common
ground for these nominations. It's not impossible. It takes
some patience and give and take, but ultimately, we can fill
these vacancies and the American people expect us to.
I'm going to 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. The reason I'm so
supportive of the blue slip, I'd like to have a say about who's
going to be a district judge in South Carolina. And under the
current process, I have a say. I don't have a say anymore about
court of appeals, and everything's a majority vote except for
the blue slip at the district court level. I've come to realize
I'm probably not going to get everybody I want from South
Carolina, but I'll have a say and I'm just urging Democrats and
Republicans don't lose that power.
I think it's good for the judiciary to have people elected
from the State having input as to who should be a lifetime
Federal district court judge. And only way this works is for us
to recognize when you all win, and you all recognize when we
win, things are going to be different. So, I found common
ground with the White House counsel, who's been really, pretty
good to work with.
On this side to my colleagues, thank you. I know it's
always best to get the people you'd want to pick, but sometimes
that's just not possible. And there's people from the left and
the right expect you to have the same outcome as if you--if you
lose the election as if you won it. They do matter, elections.
And one of the things that matters about an election, Mr.
Chairman, is who picks judges. So, we found common ground with
the White House counsel, with Judge Austin. To my colleagues on
this side, yet again, thank you for working with the Biden
administration, to the extent you can, to keep the Senate
intact as much as possible. And I want the Senate at the end of
the day still to be the Senate, and it's going to take working
together.
Chair Durbin. Senator, why don't you introduce Judge
Austin.
Senator Graham. It is my pleasure. Judge Austin is filling
the vacancy left by Judge Michelle Childs, who's on the U.S.
Court of Appeals for the District of Columbia. ``Impressive''
would be an understatement. She graduated from the University
of South Carolina in 1989 with a degree in electrical
engineering, which blows me away----
[Laughter.]
Senator Graham [continuing]. The reason I went to law
school is you didn't have to do math, so.
[Laughter.]
Senator Graham. And sure don't have to do it being in the
Senate. So that's a very impressive start. She worked as a
nuclear regulatory engineer at Summer Nuclear Station in South
Carolina from 1989 to 1993, then decided to go back to law
school, and that, to me, is very impressive.
She clerked for Judge Matthew Perry, who's a legend in our
State. He's the first African-American United States district
judge in South Carolina. He was a true gentleman.
At the end of the day, she's had a successful career, not
only clerking, but she was in private practice. She worked as a
patent attorney in a law firm before moving over to the Womble
Carlyle law firm. I think that's right. Close enough. She
became a partner, and then she was selected to be the United
States magistrate judge in Greenville, South Carolina, where
she continues to serve.
She lives in Greenville. She's happy to be in Greenville.
She wants to stay in Greenville. We need judges in Greenville,
and she was rated unanimously ``well qualified'' by the ABA.
She has a terrific family. I think she's an outstanding choice,
and I'm glad we're able to reach an agreement. And Senator
Scott has returned his blue slip, so welcome to the Committee.
Chair Durbin. Thank you, Senator Graham. I seldom correct
you, but I've learned as a plaintiff's attorney, you have to
know enough math to divide by three.
[Laughter.]
Senator Graham. Yes. That's where I stopped.
[Laughter.]
Chair Durbin. Next is Senator Padilla, who is here to do
introduce Mr. Sherriff.
OPENING STATEMENT OF HON. ALEX PADILLA,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Padilla. Thank you, Mr. Chair. And as someone who
still likes math, one thing I'm trying to figure out is how in
the Senate, ``60'' is the new ``51,'' but that's a conversation
for a different----
Senator Graham. And you're an engineer, too. Right?
Senator Padilla. Yes, sir, mechanical----
Senator Graham. There you go.
Senator Padilla [continuing]. Because electrical is way
over my head.
[Laughter.]
Senator Padilla. Thank you, Mr. Chair, and Ranking Member
Graham, it's my privilege to join you today to introduce Kirk
Sherriff, President Biden's nominee to serve on the United
States District Court for the Eastern District of California.
Mr. Sherriff is joined today by his wife, Samya, and their
three sons, his mother, Susan, and her husband, Rick, his
sister-in-law, Samar, and brother-in-law, Dennis, and his
nephew. He's also joined by his friends and colleagues, who are
watching from back home in California.
Now, growing up in the Sacramento region, Mr. Sherriff was
raised for some periods of time by a single mother who worked
hard to support her family. An experience that he says shaped
his appreciation for both the opportunities this country
provides and the critical need for strong public institutions
in America. And it was largely because of his mother's hard
work that he was able to earn his undergraduate degree from
Columbia University, and later his law degree from Harvard Law
School.
Mr. Sherriff began his career working as an associate in
the litigation department of White & Case, where he focused on
arbitration and civil litigation. Early in his career, he also
clerked on the New Jersey Supreme Court for Chief Justice
Deborah Poritz.
But several years later, he would move home to California
and begin work in the district that would come to define his
career in public service.
In 2002, Mr. Sherriff joined the Civil Division of the U.S.
Attorney's Office for the Eastern District in California. After
5 years focused on litigating forest fire cases, civil fraud,
tort cases, and more before the district court and the Ninth
Circuit, Mr. Sherriff moved to the Criminal Division. He would
eventually work his way to serve as the chief of the Fresno and
Bakersfield Offices of the U.S. Attorney's Office for the
Eastern District, where he oversees 4 Fresno Unit chiefs and 20
attorneys, and the prosecution of crimes in the Southern half
of the District.
Before becoming chief of the Fresno and Bakersfield
Offices, he directly led prosecution of white-collar crimes,
including mortgage, investment, tax, and healthcare fraud. Over
the course of his career, he's developed an impeccable
reputation in the Fresno legal community for being fair, sharp,
and incredibly hardworking--a superbly well-qualified candidate
to sit on the bench for the U.S. District Court for the Eastern
District.
But more than that, Mr. Sherriff has a personal and nuanced
understanding of the district that he'll serve. He understands
the needs of the diverse communities and historically
disadvantaged communities of the Central Valley because for the
last two decades he's been there serving the Eastern District
and engaging in community outreach.
His deep roots in the community, his wealth of experience,
and his fundamental understanding and respect for human dignity
will make him a strong addition to the Federal bench, and I
urge my colleagues to join me in supporting his nomination.
Thank you, Mr. Chair.
Chair Durbin. Thank you, Senator.
Senator Butler.
OPENING STATEMENT OF HON. LAPHONZA BUTLER,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Butler. Thank you, Mr. Chair. It is not often that
one gets to combine Mississippi and California, and I am
honored to have the opportunity to do that as one of the few
who personify it myself.
Mr. Sherriff was born in Berkeley, California, and, as
Senator Padilla noted, attended Columbia University, but before
becoming a lawyer, he worked as a teacher for the Mississippi
Teacher Corps program, where he taught high school and two
historically underserved schools in the Mississippi Delta.
If confirmed, Mr. Sherriff would be joining one of the
busiest courts in the country. Based on most recent statistics
available from the Administrative Office of the U.S. Courts,
the Eastern District of California is currently seeing, on
average, 803 filings for each judgeship on the court. That
caseload level is the sixth highest of any Federal district
court in the country.
It is vitally important that we confirm Mr. Sherriff as
quickly as possible to ensure that the Eastern District is able
to continue its work of ensuring the people of California have
full and timely access to our justice system.
Mr. Sherriff has shown a deep commitment to public service
and the rigor of handling both criminal and civil cases
throughout his career. I believe he will be an asset on the
Federal bench in the Eastern District of California.
I thank the Chair for holding this hearing and urge my
colleagues to join me in supporting Mr. Sherriff's nomination.
Thank you, Mr. Chair.
Chair Durbin. Thank you, Senator.
It's now my pleasure to introduce the Florida nominees.
Today, we'll hear from Judge Jacqueline Becerra, for the
District Court for the Southern District of Florida. Judge
Becerra received her undergraduate degree from the University
of Miami and her J.D. from Yale Law School, served as Federal
prosecutor in the District of Columbia and the Southern
District of Florida, where she worked on a wide range of
criminal matters, including prosecutions of large drug
traffickers.
Following her time in public service, she joined Greenberg
Traurig as a shareholder, worked on a variety of commercial
disputes, internal investigations, and the Foreign Corrupt
Practices Act compliance. She also served as co-chair of the
Global White Collar Defense & Investigations Practice and the
firm's Women's Initiative.
In 2019, Judge Becerra was appointed by district judges of
the Southern District of Florida to serve as magistrate. She's
presided over 4 civil trials, and has issued over 1,100 orders
and reports and recommendations. Judge Becerra, congratulations
to you and your family. We look forward to your testimony.
Next, I'd like to introduce Judge Melissa Damian, nominated
to the Southern District of Florida. A graduate of Princeton
and the University of Miami School of Law, Judge Damian clerked
for the Honorable Ursula Ungaro, the very seat to which she's
now nominated to fill.
After working in private practice, Judge Damian was an
assistant U.S. attorney in the Southern District of Florida for
over 10 years. Thereafter, she returned to private practice,
representing plaintiffs in asbestos and tobacco product
liability cases and later focusing on litigating complex issues
of business and commercial law.
Over the course of her legal career, Judge Damian tried
more than 30 cases to verdict. Since 2022, she served as
magistrate on the Southern District. Judge Damian, welcome to
you, and your family.
Next, we have David Leibowitz, nominated to the Southern
District of Florida. Born in Miami, received his undergraduate
degree from the University of Pennsylvania, his Ph.D. from the
London School of Economics and Political Science, before
earning his J.D. at the Pennsylvania Law School.
After clerking for Associate Justice Robert Flanders on the
Supreme Court of Rhode Island, Mr. Leibowitz started his legal
career as an assistant district attorney in the Middlesex
District Attorney's Office in Cambridge, Massachusetts.
In 2003, he began serving as assistant U.S. attorney in the
Southern District of New York, where he investigated and
prosecuted Federal crimes. In 2012, he moved to Miami and
joined the Braman Management Association, the group's secretary
and general counsel and chief legal officer. I congratulate Mr.
Leibowitz, and his family, on this nomination.
Finally, we have Judge Julie Sneed, nominated to the U.S
District Court for the Middle District of Florida. Judge Sneed
received her undergraduate degree from the University of
Florida and her J.D. from Florida State University College of
Law. After clerking for Judge Chris Altenbernd of the Second
District Court of Appeals of Florida, she went on to private
practice and served as law clerk for Judge James Whittemore of
the U.S. District Court for the Middle District of Florida.
Judge Sneed returned to private practice, where she
represented large corporations in civil, business, and
commercial litigation, both State and Federal. During this
time, she tried 10 cases to verdict.
Since 2015, she has served as magistrate judge for the same
district to which she's nominated, and issued more than a 1,000
orders and opinions. I look forward to hearing more about Judge
Sneed's breadth of experience. Congratulations to you, and your
family. With that, I ask the panel to approach the witness
table and be sworn in.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that all of the
nominees, thank goodness, have answered in the affirmative.
[Laughter.]
Chair Durbin. Judge Austin, we're going to give you 5
minutes, and each on the panel will have the same amount of
time. Please proceed.
STATEMENT OF HON. JACQUELYN D. AUSTIN, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA
Judge Austin. Chairman Durbin, Ranking Member Graham,
Members of the Senate Judiciary Committee, I appreciate the
opportunity to be here today. First, I want to thank President
Biden for nominating me to serve as a district judge in the
District of South Carolina. It is an honor to be nominated.
I want to thank my home State Senators, Senator Graham and
Senator Scott, for their support. I especially appreciate
Senator Graham's remarks this morning.
I'd also like to thank my family today for their love and
support and for my family members that can't be here today. My
parents are not able to be here today, they're watching online.
My niece, Lauren, and her fiance, are with them to help them
get online to manage the technology.
[Laughter.]
Judge Austin. My father is retired Army and a minister. So,
I grew up a preacher's kid and an Army brat, which makes me
well-rounded and grounded. My mother stayed home to raise me
and my four siblings and to keep us in line, and I think she
did a pretty good job of that.
All of my siblings are here today. My brother, Dr. Samuel
Graham, is here today. He is the dean of the engineering school
at the University of Maryland--so more engineers in our
family--with my sister-in-law, Shalonda, and my niece, Camryn,
who is also a biomechanical engineer. My brother, Shaun, is
here with my sister-in-law, Kristen. My sister, Maxine, is also
an engineer and a lawyer. She's an IP lawyer with Wells Fargo.
And my sister, Shannon, is here, as well. I appreciate them
taking the time out of their busy lives to be here today.
I'd also like to thank my husband of 26 years, who is
always so gracious in his support of our family. He owns a
couple of businesses of his own, so I know he's probably
missing about a 100 phone calls during this hearing, but I
appreciate his support today.
I'd especially like to also thank my children for watching
this hearing online today. My son, Trey, is a graduate student
at the University of Miami, and is hoping to attend UM Law next
year. My daughter is a sophomore at Nova Southeastern
University in Florida, as well. So my kids are enjoying the
fact that I'm on this panel with some Florida lawyers.
[Laughter.]
Judge Austin. They're both right now in the middle of
projects and exams, so they're watching online today.
In addition to my immediate family, I'd like to thank my
very best friend from law school for being here today, Veleka
Peeples-Dyer. She's here to support me. Also, my cousin, Kelvin
Williams, is here to support me. He lives here in DC, and I'm
also thankful to the judges of the District of South Carolina.
A lot of them who texted me this morning about 5 o'clock to
make sure that--to let me know that they were thinking about
me. And last, I'd like to thank my current law clerks, Heath
Beard and Matthew Fitzer, who are sitting behind me, for their
support. I would not be here today without them.
Again, thank you, to the Committee, for your time today,
and I look forward to hearing your questions.
Chair Durbin. Thank you very much, Judge. Judge Becerra.
STATEMENT OF HON. JACQUELINE BECERRA, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
FLORIDA
Judge Becerra. Thank you, Chair Durbin, and Ranking Member
Graham, for scheduling this morning's hearing. I also want to
thank all the Members of the Committee and their staffs for
their diligence and consideration of my nomination. I would
like to thank the President for this honor, as well as my home
State Senators, Marco Rubio and Rick Scott, for their support.
I am beyond blessed and delighted to be joined this morning
by many family members and friends. I'm not going to name them
all, but I am joined by two of my closest friends from
childhood; I am joined by my friends from law school; friends
from my time at the Justice Department. I have colleagues from
Greenberg Traurig who are here, and five of my former law
clerks are with me today.
I'm also joined by nieces, nephews, cousins. Two of my
sisters are here this morning. And the pride and joy of my
entire life, my 14-year-old daughter is here. I know that there
are a few watch parties in Miami, including one in my chambers
where my court family has assembled.
But my strongest support might be sitting in my childhood
home back in East Hialeah, where more of my nieces and nephews,
also there to help my parents, and my new baby grandniece have
joined my mom and my dad to watch this morning's hearing.
Along with my grandparents, my mom and my dad left Cuba
shortly after the Communist Revolution. In the face of
immeasurable loss, they worked tirelessly to rebuild their
lives, rooted in faith, love of family, and a deep respect for
the country that welcomed them.
But today, Senators, brings me back to my very first trip
to DC. I was 10 years old and my grandfather, who was a
janitor, saved up money to bring me to DC. He was sure that if
I saw how beautiful and grand this city was, I would be
inspired to become a lawyer, or maybe even a judge.
My grandfather was a man with a fifth-grade education. He
didn't speak a word of English, and yet, this country gave him
the courage to dream that his granddaughter could be before you
today. It is an honor to be here living out that dream, and I
look forward to your questions.
Chair Durbin. Thank you very much. Judge Damian.
STATEMENT OF HON. MELISSA DAMIAN, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Damian. Chair Durbin, Ranking Member Graham, good
morning. It is such an honor to be here and I thank you for
scheduling this hearing. I'd like to thank my home State
Senators, Senator Rick Scott and Senator Marco Rubio, for their
unwavering support of my nomination throughout this process.
And a very special thank you to President Biden for having the
faith and confidence in me and for this nomination, which is
truly the honor and pride of my professional career.
I'd like to take this opportunity to introduce you to some
very special people in my life who are here today. First and
foremost, the most important people in my life: my two kids,
John and Giovanna, are here. John's a senior in high school,
Giovanna's a junior in high school. So it's a very busy time
for them, and I am so grateful that they were able to come and
share in this experience with all of us. They're the loves of
my life, and they make me proud every day to be able to call
myself their mom.
Also here are my parents, Carol and Vincent Damian, and my
big brother, Chris Damian. I should tell you, I was raised in
an Italian-American household. That meant that we were always
surrounded by an abundance of love and support, and, of course,
lots of great food. And with that great food came many big
meals filled with lively debates about every subject matter you
can imagine.
I think it was from all of those lively debates around the
dinner table that I got my interest in the law. My parents are
brilliant. Their brilliance is only exceeded by their love and
support for me. And for that I am always grateful. And my
brother, Chris, is one of my biggest cheerleaders, and I'm so
happy he could be here with us today.
Also here are some very dear friends. My very close friends
and lawyers, Melanie Damian and Michelle Suskauer, are here to
make sure that, as they told me, I don't mess up. And I have a
little cheering squad that made it up from South Florida. I
cannot name everyone, but I am very excited to have our little
cheering squad back there for me.
And last, but absolutely not least, I told you that I think
my interest in the law probably came from those lively Italian-
American family dinners. I am certain that my interest in
becoming a judge came from my good fortune in clerking after
law school for Ursula Ungaro. She is brilliant, and she was an
excellent role model. She has turned out to be my mentor and
very dear friend. Judge Ungaro recently retired. And as Chair
Durbin mentioned, I am overjoyed that I am here because I've
been nominated to fill her seat on the Southern District of
Florida, and I'm so happy she could be here with us today.
Last, I just want to say thank you to all of my colleagues,
who I know are watching in Judge Becerra's chambers, who are on
the bench at the Southern District of Florida. They welcomed me
to the court family with open arms, and for that, I am
grateful, particularly to my court staff, Olivia, Christian,
and Johanna, and Manny. I know they're all watching, and I'm so
grateful for all of them. Thank you, all. I look forward to
your questions.
Chair Durbin. Thanks, Judge Damian. Mr. Leibowitz.
STATEMENT OF DAVID SEYMOUR LEIBOWITZ, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
FLORIDA
Mr. Leibowitz. Thank you, Chairman Durbin, and I'd like to
thank the Ranking Member, and all the Senators of this
Committee for convening this hearing. I'd first like to thank
President Biden for this nomination. I'm truly humbled and
grateful. I'd like to thank my home State Senators. Senator
Marco Rubio has placed his trust and confidence in me
throughout this process, and I'd like to thank Senator Scott,
as well, for his support of my nomination.
I've been extremely fortunate during my entire legal
education and professional career to be surrounded by the best
role models. Judges that I clerked and appeared before,
brilliant students and professors, wonderful prosecutors at the
State and Federal level, and law enforcement agents, and
esteemed members of the bar, and friends in South Florida for
the last 12 years.
But it is my family that has given me everything, and I
cannot adequately express my love for them in words. Some of
them are here with me today, and I'd like to briefly introduce
them to the Committee.
First, my parents, Blossom and Edward Leibowitz. My
attitude, my basic sense of justice, kindness, comes from them.
My sister, Susie, and her husband, Seth, are also here. And
their boys--their young men, my nephews, are watching on their
screens.
Sitting with my mother is her older sister, my Aunt Irma.
Mrs. Irma Braman and her husband, Norman, have been like a
second set of parents to me throughout my life. Every major
twist in the road, they have been there with me, and for me, to
be a part of their lives and the lives of their daughters,
sons-in-law, grandchildren, and great-grandchildren, it means
the world to me.
My mother- and father-in-law--now that Senator Booker, I
think, has come in the room, I--the timing is perfect--from New
Jersey are here, and their children, and my wonderful nieces,
and nephews, and cousins on the Bucholtz New Jersey-New York
side, are all watching this.
My youngest son, Louis, is here, and he is representing his
older sister and brother, Sophie and Mack, who are watching me
from Texas and Arizona. I am so lucky and so proud to be their
father.
Last, my best friend, my amazing wife, Stacey, is here. She
has always been here since I've met her in Philadelphia so many
years ago. She's a wonderful mother. She's a wonderful
physician. She's a great friend to many across the country.
None of this happens, none of this matters without her.
I want to conclude by noting that I'm the beneficiary of
the sacrifice of previous generations who arrived in this
country in the late 1800s and the early 1900s--Eastern European
Jews who came from places like Poland, Lithuania, and the Pale
of Settlement. America is a miracle. America is a blessing.
Mr. Chairman, the grandson of Jean and Seymour Leibowitz,
of Sophie and Harry Miller, appears before the Committee today.
President Biden's nomination honors them, most of all, and I
thank the Chair.
Chair Durbin. Thank you, Mr. Leibowitz. Judge Sneed.
STATEMENT OF HON. JULIE SIMONE SNEED, NOMINEE TO SERVE AS
UNITED STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Sneed. Good morning, Senators. It is an honor to be
here with you today. I want to thank President Joe Biden for
the honor of this nomination. I want to thank my Senator,
Senator Marco Rubio and Senator Rick Scott. Thank you, Chairman
Durbin, as well as Ranking Member Graham, and this Committee
for holding this hearing. This is really the honor of a
lifetime. I'm very grateful to have my family here with me
today.
My husband, Dr. Kevin B. Sneed, dean of the College of
Pharmacy at our university in Tampa, Florida. My husband has
been my biggest supporter and my partner in everything since
our days in high school together. Go Eagles. My son, Ryan
Sneed, a recent college graduate who I am so proud of, is here
with me today, and our daughter, Asha Sneed, a junior in
college who took time away from presiding over her own honor
council meeting to be here with me today. I'm very proud of
you, as well.
I'm very thankful also to have all of my siblings here with
me: my brothers, Darryl and John Woods; my sister, Sonja
Cambridge, as well as my sister-in-law, Kassandra Woods; and my
nieces, Julia Cambridge, Kamryn Woods, as well as Joshua Woods,
are all here with me today.
I do want to thank my family members who are also watching
from home, and all of my friends who are watching from online.
Thank you for your support. Thank you for your friendship, and
thank you for your prayers. Keep them coming.
I also want to recognize my wonderful court family in the
Middle District of Florida, my law clerks Drew Domina, as well
as Paige Tucker, and all of my prior law clerks. I appreciate
all that you do to help the administration of justice.
Senators, thank you, again, for this opportunity.
Chair Durbin. Thank you, Judge Sneed. Mr. Sherriff.
STATEMENT OF KIRK EDWARD SHERRIFF, NOMINEE TO SERVE AS UNITED
STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA
Mr. Sherriff. Thank you, Chairman Durbin, Ranking Member
Graham, and the other Members of the Committee, for the
privilege of appearing before you today. I would like to thank
President Biden for the confidence placed in me through this
nomination. I would be honored to serve in the Eastern District
of California where I grew up, and where I've raised my family,
and practiced for over two decades.
I would like to thank Senator Padilla for recommending my
nomination, and for his kind words of introduction. I thank
Senator Butler, also, for her support of my nomination and her
kind introduction. And I also acknowledge my appreciation for
the late Senator Feinstein's support.
I would like to introduce and thank the family members who
are here with me today. My mother, Susan, is joined by her
husband, Rick. She and my father became parents at 18 when I
was born, and I saw their efforts over many years to obtain
their educations. She taught my sisters and me the importance
of hard work and the value of education.
I would like to thank my wife, Samya, who has been my
partner for the past 30 years since we met in law school. I'm
filled with gratitude for her support and encouragement. Our
three sons, Zain, Rumi, and Zerin, are here today, taking time
from work, graduate school, and high school. And they know how
proud I am of each of them. My sister-in-law and brother-in-
law, Samar and Dennis, are also joining us today with my
nephew.
I would also like to acknowledge and thank those watching
remotely: my father, Jim, and his wife, Rona, my sisters and
their families, and other family, friends, and colleagues.
It has been an honor to represent the United States for
over 20 years. I would like to thank my current and former
colleagues at the U.S. Attorney's Office and partner agencies,
and recognize their commitment to public service.
I also acknowledge and thank Chief Justice Deborah Poritz,
from New Jersey, and my former colleagues in private practice,
for the opportunities they provided to me early in my career.
And with that, I welcome the Committee's questions.
Chair Durbin. Thank you, Mr. Sherriff.
I'm going to start by asking questions--5 minutes has been
allotted. And I'm going to tell you what the question is
that'll be asked of each of you. And the toughest part is, you
have to answer in a brief manner. That's hard for--almost
impossible for Senators, and I'm sure very difficult for
judges, as well.
But the question is: Who's the one person in your life who
is an inspiration, a role model, or a mentor, that you think is
more responsible than anyone for your sitting at this table?
And while you're thinking about your answer, it has to be
brief. I just want to add, I'm not going into a long question
about the cases that you've presided over or clients you've
represented.
You have gone through not only the White House scrutiny,
you've gone through the American Bar Association scrutiny. They
have found every single one of you ``well qualified,'' and I
accept that decision and don't quarrel with it. Then you went
through the scrutiny of both Democrats and Republicans on this
Committee that brought you to this table. So, congratulations
for sitting in those chairs. I wish you the best.
And Judge Austin, your answer to my question.
Judge Austin. Yes, Chairman Durbin. Judge Matthew Perry
would have to be my biggest influence in my legal career. He
was not only a consummate jurist, he was the epitome of grace,
dignity, respect, thoughtfulness on the bench. He made sure
that everyone that came before him understood that they were
going to have a fair trial, fair hearing in front of him, and
that he was going to give them his full attention and make
whatever decision he made with all due diligence. And I hope
that I can replicate his characteristics as a judge, if I'm so
confirmed.
Chair Durbin. Thank you, Judge. Judge Becerra.
Judge Becerra. Thank you, Senator, for the question. I'm
going to beg your indulgence and not make it just one person.
I'm going to say that my parents certainly are the greatest
influence. I think when you grow up with people who believe
that you can do anything, at some point you start believing
that maybe you can. So for me, it's my mom and my dad.
Chair Durbin. Thank you. Judge Damian.
Judge Damian. Thank you, Chair Durbin. Well, this is hard
because I have all these people behind me and I feel bad if I
don't name one of them.
[Laughter.]
Judge Damian. Certainly, professionally, as I already
mentioned, and she's here, so I'm not, you know, going to say
otherwise. But it is true that, professionally, Judge Ungaro,
for whom I clerked and who is my mentor, was really my
inspiration to get to this point. And just briefly, I always
tell everybody, on my first day of clerking--this tells you
about her breadth of knowledge and my experience there. On my
first day of clerking, she was death qualifying a jury for the
first death penalty--Federal death penalty trial in the
Southeast United States, for which five defendants were on
trial at the same time. We were preparing. And that's what I
walked into, for a 6-month-long commodities fraud class action
trial. Somehow, she managed to understand and master both at
the same time. That was my inspiration for being here today.
Chair Durbin. Thank you. Mr. Leibowitz.
Mr. Leibowitz. Chair Durbin, my answer starts the same way
Judge Becerra's did. It would be my parents. I was raised--I
was born in Miami. I was raised in Tampa, Florida. And in all
my life, complete strangers would come up to me in Tampa and
just say, ``Oh, well, you're Blossom Lebowitz's son. She's the
nicest person I've ever met.''
And I'm obviously biased, Mr. Chairman, but I mean, that
happened to me regularly. And her sense of kindness, her sense
of decency, if I am so fortunate to be confirmed, it is her
decency, and it is her disposition that would take the bench.
And my father, it's a pretty similar story, but a different
trait. Anyone that dealt with him in business, he was straight,
he was honest, he was candid, and he didn't suffer fools, but
he did things a certain way. But you knew where you stood with
Ed Leibowitz. And as a son, that teaches you something about
how you proceed in the world. So I thank you for letting me say
that to you, Mr. Chairman.
Chair Durbin. Thank you for saying it. Judge Sneed.
Judge Sneed. Yes. I would say my mother, my grandmother,
and my great-grandmother. I know that's three people, but, you
know, they each really were just such strong individuals. I was
raised by a family of matriarchs. None of them attended
college, and, you know, they weren't wealthy, but they were
full of passion, determination, and optimism. They worked
incredibly hard and really provided a stable foundation for
their family, and gave us family values that I carry with me
here today.
Chair Durbin. Thank you. Mr. Sherriff.
Mr. Sherriff. Thank you, Senator. Unequivocally, my mother.
I, growing up, saw how hard she worked to support the family
while earning her education over many years. And the value of
that, that she put into, or demonstrated, for me and my sisters
was unequivocally a motivation for me to go on and do the
things that I have done.
Chair Durbin. Thank you. Senator Graham.
Senator Graham. To all of you who have children, who's your
favorite?
[Laughter.]
Senator Graham. And why?
[Laughter.]
Senator Graham. No, we won't do that.
So, Judge Austin, Thanksgiving must be interesting with
your clan, you know, all these engineers. Very impressed by
your family history. It's just amazing. What made you want to
be a lawyer?
Judge Austin. I'll make this story short. I was working as
an engineer at V. C. Summer Nuclear Station, and when I
started, SCE&G was suing Westinghouse for problems with steam
generators with the warranties, and none of the engineers
wanted to work with the lawyers on the discovery issues that
they needed. So they stuck me with the lawyers, and I ended up
absolutely loving it and felt like I could, you know, help with
knowing what they needed.
And a lot of times I would bring them information that they
didn't even ask for. So, they told me, you know, ``You're
pretty good at this. Why don't you go to law school? '' So
that's how I ended up applying to law school.
Senator Graham. Well, I'm glad you did, and congratulations
to your family, and all your families.
Mr. Sherriff, you present a dilemma for me. You seem like
really a qualified guy. You served in the U.S. Attorney's
Office for how many years?
Mr. Sherriff. Over 20 years, Senator.
Senator Graham. You've been a prosecutor. Right?
Mr. Sherriff. Yes.
Senator Graham. You did civil litigation?
Mr. Sherriff. Early in the career I did 5 years in the
Civil Division, and since then, I've been a prosecutor in the
Criminal Division.
Senator Graham. You've been in Federal court a lot, I would
take it?
Mr. Sherriff. Yes, Senator.
Senator Graham. How many jury trials do you think have been
involved in?
Mr. Sherriff. I've tried, I believe, approximately 10
criminal trials, and 2 Federal civil jury trials.
Senator Graham. Yes. Most things get settled, but you've
been in the courtroom. Right? Why'd you join the ACLU in 2019?
Is that right or not right?
Mr. Sherriff. So, Senator, I've given small contributions--
--
Senator Graham. Which is fine.
Mr. Sherriff [continuing]. Starting that year, and my
understanding is they consider contributors to be members, and
that's why I listed it accordingly.
Senator Graham. Okay. So AC--I could ask you everything
about the ACLU and we'd be here all day. I don't agree with a
lot of it. Some of it I actually do. Like, the idea of not
having police officers in schools seems to offend the ACLU. Do
you know why that is?
Mr. Sherriff. I don't, Senator.
Senator Graham. Does it offend you. You're a parent.
Mr. Sherriff. Well I--no, it does not offend me. I've
spoken actually at a--I've given introductory remarks at a
school safety symposium that brought together educators and law
enforcement on the topic of dealing with active shooter
situations and other school safety situations. I believe I've
specifically commented on the importance of coordination in
that area, in any event, between law enforcement and educators.
Senator Graham. And I think the ACLU openly advocates for
people to try to avoid interacting with ICE agents who are
doing their job to enforce immigration laws. I mean, the idea
of obeying the law, whether you agree with or not, does that
make sense to you?
Mr. Sherriff. It does, Senator. I completely believe in the
rule of law. That's fundamental, and obviously our immigration
laws, like other laws, should be fully enforced.
Senator Graham. What would you want to say to the ICE
agents and their families out there right now? How do you view
them in our society?
Mr. Sherriff. Well, our office works closely with them on
criminal immigration cases under 8 U.S.C 1326. And like other
Federal law enforcement officers, I greatly respect the work
that the officers do every day, putting themselves on the line,
and working a lot of hours that aren't compensated to do what
needs to be done in public service.
Senator Graham. You're from Berkeley. Right?
Mr. Sherriff. I grew up in the Eastern District of
California. I was born in Berkeley, but that's in the Northern
District, and I never really----
Senator Graham. Well, that was a good answer.
[Laughter.]
Senator Graham. I mean, there's nothing wrong with
Berkeley, I'm sure.
[Laughter.]
Senator Graham. Just on our side, it doesn't ring a lot of
good bells, but that's okay, you know.
[Laughter.]
Senator Graham. Tell the conservative Members, given who
you are and where you come from, why would you be a good judge.
Mr. Sherriff. Senator, I've committed to over 20 years in
public service upholding the rule of law. And one of the things
that is fundamental and been important, clearly, in that has
been evaluating cases fairly and objectively.
In the Office, both as a line prosecutor and as a
supervisor, I've reviewed north of 1,000 indictments, many of
them multi-defendant indictments. And I have absolute
commitment to the rule of law and following precedent, and
would do that rigorously in any case that came before me.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Congratulations to
all of you, and welcome to your families and friends.
I ask the following two initial questions of all nominees
who come before any of the Committees on which I sit. I am sure
you are aware already. So, we'll just start with Judge Austin
and go 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?
Judge Austin. No, Senator.
Judge Becerra. No, Senator.
Judge Damian. No, Senator.
Mr. Leibowitz. No, Senator.
Judge Sneed. No, Senator.
Mr. Sherriff. No, Senator.
Senator Hirono. Have you ever faced discipline, or entered
into a settlement, related to this kind of conduct?
Judge Austin. No, Senator.
Judge Becerra. No, Senator.
Judge Damian. No, Senator.
Mr. Leibowitz. No, Senator.
Judge Sneed. No, Senator.
Mr. Sherriff. No, Senator.
Senator Hirono. For Judge Sneed, you have spoken a number
of times on the importance of diversity on the bench, and
you've stated, ``Diversity in the judiciary can help eliminate
disparities that exist in sentencing and in the disposition of
cases generally.'' Can you tell us why diverse representation
on the bench is necessary for a fair judicial system?
Judge Sneed. Diversity is really an important foundation to
help promote fairness and equity, as well as the administration
of justice. It also just gives individuals that come before the
court confidence in the court when the court is representative,
and it looks like the people that come before the court that
increases confidence in the judiciary and the judicial process.
Senator Hirono. Well, clearly, you know, I am a person who
understands how important representation is, and the
expectation that I have for each of you is that regardless of
your background, et cetera--well, of course you bring your life
experiences to the bench--but that you will address the cases
before you fairly and objectively.
For Judge Damian, in the early 2000s, you volunteered to
help children in foster care, which led to your co-founding a
program called Educate Tomorrow. I understand that this program
has helped place more than 1,000 foster care youth in education
programs, including college and vocational programs. Can you
tell us more about the philosophy behind Educate Tomorrow and
how it works?
Judge Damian. Sure. And thank you for recognizing the
organization, Senator Hirono.
Educate Tomorrow really started--well, it started because
my sister-in-law, who is here, was the guardian ad litem for
some children who had been removed from their mother. And she
was trying to assist the family in helping these kids with
educational opportunities, and she got a few of her friends
involved, including me.
We learned, as we studied the predicament of those kids,
the staggering number of people who are in the foster care
system when they age out of foster care, and there is no
support for them, they end up in homelessness. And, you know,
unfortunately, in the criminal justice system we were really
just, in a negative way, impressed by those dramatic numbers.
And we started working to assist kids who are in the foster
care program to find opportunities when they aged out of the
foster care program, specifically focusing on education.
And, you know, just to jump through a very long story, at
the end of the day, we found that the State of Florida has a
scholarship fund set up for kids who are in the foster care
system to go to college at a State school, completely funded by
the State of Florida Scholarship. And that is why we have such
great numbers of kids who have now gone on to college with a
full ride.
Senator Hirono. Do you know if there are any other
jurisdictions that have created this kind of program? Because I
agree with you that when foster kids age out, there's very
little continuity of support.
Judge Damian. So, the program has been working with people
in other States to kind of broaden--the nice thing is, because
we've had so many graduates, those kids--then they're kids,
they turn into adults, right--they go on wherever they are, and
they try and create the same sort of program.
Specifically, I know that we're working in Colorado to set
up a similar program. And yes, they've spoken to
representatives in many other States to try and encourage them
to do the same thing.
Senator Hirono. Thank you very much for your commitment.
I was intrigued, I am running out of time, Mr. Leibowitz,
about your Ph.D. dissertation on how judges should behave
sincerely, not strategically. Can you explain very briefly in 4
seconds what you meant by that?
[Laughter.]
Mr. Leibowitz. Yes. It's actually a welcome invitation to
be very short, because otherwise it could be a cure for
insomnia, Senator.
So, it was an opportunity to study how appellate courts
behave in England and in the United States. Very briefly, there
was a big change in 1801. Up until 1801, in the United States,
when an appellate court issued an opinion, it issued the
opinion seriatim. It's still done that way in the House of
Lords.
In 1801, Chief Justice Marshall changed it to the opinion
of the court, and therefore institutional rules developed as a
result of that. And at that point--I think I'm too long. Thank
you, Senator.
[Laughter.]
Senator Hirono. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hirono. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for being here.
Mr. Lebowitz, I'd like to start with you. I assume you'd
agree with me that the Federal Government is one of limited
enumerated powers. Correct?
Mr. Leibowitz. That's correct, Senator Lee.
Senator Lee. And to the extent that any one of the
enumerated powers granted to Congress is limitless, then the
Tenth Amendment is meaningless. Right? I mean, Congress can do
everything, then there's not much reserved for the States.
A few years ago, you wrote a law review article criticizing
the Supreme Court's opinion in United States v. Morrison. As
you'll know, it's one of only two instances in which the
Supreme Court has struck down a statute as being enacted in
excess of Congress' authority under the Commerce Clause. It did
so based on a conclusion that the activity regulated in that
case, acts of violence, were non-economic in nature. They were
bare intrastate, non-commercial activity occurring in one State
at one time, not part of any interstate commercial transaction,
and not part of any channel or instrumentality of interstate
commerce.
You derided that decision as an instance of conservative
judicial activism. You also said that it was a problem. You
strongly disagreed with it. Can you tell me, if you disagreed
with the holding in Morrison, and the holding specifically that
the Commerce Clause power can't apply to bare intrastate, non-
commercial acts, acts of violence in that instance, what's--
what remains beyond Congress' reach under the Commerce Clause?
Mr. Leibowitz. Senator, I thank you for the question. As
you know from the question--let me start with the article. The
article was written in 2000. It was written after Morrison and
after Lopez. Those were the first two decisions since 1937.
Senator Lee. The only two.
Mr. Leibowitz. Yes, sir. Yes, Senator, the only two since
1937 where the Court struck down Acts of Congress as beyond the
Commerce power. Lopez in 1995 was a very important decision
because it was the first one. And to supplement what you said,
Senator, there were three grounds why they struck down Lopez.
There was non-economic activity. There was, does it invade a
traditional State function? There was, what are the findings of
Congress? Well, in Morrison--so, there were three reasons why
they struck it down in Lopez.
Morrison, viewed by everyone, whether you agreed with the
decision or not, really relied on the first one because
Congress made explicit findings, voluminous findings in
Morrison. The statute itself that was struck down was a civil
rights statute, a civil liability statute, not something
traditionally reserved to the States. So, although you used the
word that I criticized with my co-author--Morrison--we really
didn't.
Senator Lee. Wait, you're saying acts of violence are not--
not historically reserved, covered by State law--I mean, tort
law----
Mr. Leibowitz. Senator, you're certainly correct. The way--
--
Senator Lee [continuing]. Criminal law?
Mr. Leibowitz. Yes, Senator, you're certainly correct the
way you just stated it. That is State law. But the Violence
Against Women Act, the provision that was struck down, was a
civil liability provision that was akin to civil rights laws
that were passed by this body. Civil rights laws like cases
that were upheld in Katzenbach v. McClung and others. My only
point, Senator, is that I don't think it's fair to say that my
co-author and I were criticizing Morrison, we wrote at a time--
--
Senator Lee. Well, it's generally regarded as criticism
when you call it an act of judicial conservative activism.
That's not a compliment.
Mr. Leibowitz. I don't think--I don't think that phrase is
in keeping with the article. What I would agree with you,
Senator, in saying is that the Supreme Court in 1995 and the
Supreme Court in 2000 started to get more formalist in their
categories. And in 2005, after we wrote the article in Gonzales
v. Raich, the Court did not go that far. They did not continue
on the path that we were talking about.
Senator Lee. Yes, but Gonzales v. Raich involved a
different category. It involved something--exchange of a
contraband item for which there's an established interstate
commercial market, and therefore it couldn't be regulated
adequately absent comprehensive control by national authority.
That's very different.
By contrast, here's what you said in the article. This is
an excerpt from it, quote, ``If the Court finds that all
Federal regulations of non-economic activity are equally
precluded from the Constitution's limitations on congressional
power, then such a decision would so violate social
expectations and needs that it would likely require the Court
to turn to a different approach in order to define Commerce
power in a way that's consistent with the four corners of the
Constitution and the pressing needs of growing national and
international society.''
I'm not sure what that means. I'm not sure what provision
of the Constitution allows us to modify the terms of the
Constitution based on social expectations and needs, or on the
pressing needs of a growing national and international society.
Moreover, the minute you open up the Commerce Clause to
being applicable to bare intrastate, non-commercial activity
outside the scope of civil rights legislation enacted in 1964,
which just as easily could have been defended as an exercise of
Section 5 of the Fourteenth Amendment, you're in dangerous
territory.
And NFIB v. Sebelius doesn't count because the Court went
on to rewrite the law, not just once, but twice in order to
save it from an otherwise inevitable finding of
unconstitutionality. I don't understand what your approach is.
How would you have written Morrison?
Mr. Leibowitz. Mr. Chair, if I'm allowed to answer--
Senator, if I'm allowed to answer with the time, I appreciate
the question. I think I would've said this. There's a lot in
your question, Senator. Let me first assure you that there is
nothing in that article that should give, I believe, any Member
of this Committee any pause that I will follow the law. If
Morrison's the law, I'll follow it.
Senator Lee. Yes, I'm not doubting that. I want to know----
Mr. Leibowitz. Yes.
Senator Lee [continuing]. The answer to my question.
Mr. Leibowitz. Yes, sir. So let me take that, and that's
why I thought it was important that I said that we wrote it in
2001. After cases like Gonzales v. Raich in 2005 and others, as
you know, part of your question is that the Court was seriously
considering abandoning--Justice Thomas and others were thinking
about abandoning the Substantial Effects Test, that part of the
Commerce Clause. I know, just having heard your question,
Senator, that the Substantial Effects Test bumps up against the
Tenth Amendment all the time. What I would say is----
Senator Lee. But it swallows a Tenth Amendment.
Mr. Leibowitz. I take your----
Senator Lee. But they didn't get rid of that. That's why
I'm trying to understand what your analysis is here.
Mr. Leibowitz. That's right. So, what I would say is, is
that after 2005 and other cases, the Court has not abandoned
the Substantial Effects Test.
And if I was so fortunate to be confirmed as a district
court judge, I would follow what the Supreme Court and the
Eleventh Circuit say. They allow, in certain cases when
evaluating Acts of Congress, to determine whether they
substantially affect interstate commerce. That is currently my
understanding of the law, and I would follow it.
But let me assure you, Senator, I think my background as an
assistant United States attorney for 12 years, I think my
background, just as a lawyer in Miami, I don't think that you
should have the--that your question, if it has a concern, that
I would be some roving judge that would take the Commerce power
and swallow the Tenth Amendment whole. I would respectfully
suggest that I would do nothing of the sort.
Senator Lee. I get that. I just don't want somebody
interpreting the Constitution based on growing societal needs
instead of the text of the Constitution. Thank you.
Chair Durbin. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. And greetings to all
the nominees today.
I'll begin my questions by asking as I do for all nominees
that come before us by asking about diversity in our Federal
courts, and specifically, diversity amongst law clerks, for all
the same reasons we value, and are working to improve,
diversity of those who sit on the bench are broadly diverse.
Right?
I want to make sure we're inclusive of life experience and
professional experience. It makes for a stronger judiciary. But
when I speak specifically about clerks, it's because, as most
of you know, a quality clerk experience is an opportunity for
young lawyers to not just do some good learning on the job, but
to receive some high-quality mentorship.
And often, a quality clerkship experience is a first step
toward a very successful career in top levels of the legal
profession, whether it's in public service or in private
practice.
But too often, if data is--if history is any indicator, too
often, these opportunities are not equally available to people
of color or to women, despite these young lawyers having equal
qualifications for jobs as clerks and beyond.
So, I'd like to hear from each of you, if you agree with my
premise, that diversity in all those forms helps strengthen the
Federal judiciary, number one. If you don't, give me your
reasons, but if you do, then please share, if you're fortunate
enough to be confirmed, what you might do proactively to
advance diversity in your courtroom.
And we'll start with Judge Austin.
Judge Austin. Yes, Senator Padilla. I absolutely agree that
diversity is important, particularly in chambers. The diversity
of ideas, thought, just thinking of things differently.
My two law clerks are here with me today, and they're a lot
younger than I am. So, a lot of times their thoughts are, you
know, more in line with what's going on in the world today than
maybe mine are. So just having conversations and being able to
allow them to disagree with me. They have no problem
overturning me in chambers, and I have no problem with that
either.
But I do also agree that having diverse candidates as
clerks, is important. I know it was important in my life. I got
to clerk for a district judge, and from there I know
opportunities opened for me that probably would not have been
open if I had not clerked for a judge. So I'm definitely
committed to opening up that opportunity to minority clerks--
diverse clerks in my chambers, as well.
Senator Padilla. Thank you. Judge Becerra.
Judge Becerra. Thank you very much, Senator Padilla. I
don't have a lot of regrets in my career, but one of them is
that I never clerked. And I didn't even realize how important
clerking was, and how much it could shape your career until I
was a judge and hired law clerks.
I do think that diversity in all aspects is important in
your chambers, because I do think that it enhances public
confidence in the judiciary. I also think it's important to
have diverse experiences. Just like Judge Austin, my clerks are
younger, and they have different perspectives, and have
different life experiences, which I always appreciate.
And I also think it's important not just with the law
clerks. I have lots of interns. I have interns every semester.
I have interns in the summer. The more people in chambers, I
think, the better. I reflect that.
I think it's difficult to become something you've never
seen. I, for example, in my entire career, only appeared before
a judge that was like me once, and that was in 25 years of law
practice. So, the more that, as a chambers, we can be out there
touching the community and touching young lawyers, I think
that's very important.
Judge Damian. Thank you, Senator Padilla. I do agree that
diversity in chambers and on the bench is important. I did
clerk and it was a springboard to a very successful career. And
I certainly believe that my experience clerking not only opened
doors for me because it's impressive on your resume, there's no
question, for law firms. And, you know, your judge usually is
able to--people take the call when the judge calls. So, they're
able to help you through your path.
For me, I want to make sure that all different individuals
from different backgrounds--and when I have a different
background, I mean, not just racial, socioeconomic, you know,
ethnicity, but also I like to see law clerks from different,
you know, with a business degree, with a philosophy degree,
from a different law school, from a different State. All forms
of diversity enrich my chambers, my practice, and also
hopefully enriches the legal practice in our community, because
now we've got these individuals with this background going into
these, hopefully, very successful careers.
Mr. Leibowitz. Senator Padilla, I completely agree with the
prior comments, in whole. And I would also add, during the last
12 years, I've been the general counsel and chief legal officer
of a very large business that operates in two States. And I
think that not only do I agree with everything that you said,
Senator, I think that my own practice, what I've seen, we would
hurt our company if we did not consider everything that you
said.
And, I think--I hope, that if people evaluated my last 12
years, they would say that I actually acted that way in the
importance of diversity and giving everyone a fair shot. And
not just racial diversity or national diversity, but all kinds
of diversity.
Let me add one last thing, which is I think that your
comments not only apply to clerkships and interns, if I am so
fortunate to be a judge, I think it also applies to
receiverships, special masters.
I think the public doesn't--at least when I was in New York
practicing as a prosecutor, judges have a tremendous amount of
power to simply anoint someone and say, you're the head of the
class. And I think that when you're thinking about the kinds of
things that your question asks, I think that it applies to
that, as well. Thank you, Senator.
Judge Sneed. I totally agree. I am very supportive of
diversity in the legal profession. I've given a lot of talks
throughout the course of my professional career talking about
the importance of diversity--diversity on the bench, and also,
again, diversity in the legal profession.
It is important to not only have the idea that you want to
promote diversity, but to go out into the classrooms, to go out
into the universities, and to go out into the law schools,
specifically to talk about the importance of diversity, and
also having those clerkships.
I don't think, in my experience, the clerkship
opportunities are promoted as much as they could possibly be
among people who are diverse. And so that is something that I
do make a point to do, to go out and work to real--sadly, sell
the importance of clerkships.
It is a wonderful experience. I, too, am the beneficiary of
clerkships: Judge James Whittemore and Judge Chris Altenbernd.
Those are now my lifelong mentors, and they really, you know,
have just given me so much in terms of my professional career,
and I work to do the same thing. I try not to meddle too much
into my law clerks' lives, but I just, you know, I adore them,
and I really want to see them be successful, and it's something
that I think is unique to clerkships.
And the only other thing I'd add is, it's important to have
those interns as well, not only the law clerks. But you do need
to have the interns so that they can groom their professional
career, groom their experience in law school, and work to
tailor it so that they can be competitive in getting a
clerkship.
Mr. Sherriff. Senator, I also entirely agree with your
premise. I think diversity of backgrounds and experiences
makes--having folks from diverse backgrounds and experiences
makes our institutions, including the judiciary, stronger. I
think it enhances public confidence in the judiciary.
And in terms of law clerks--and I benefited from the
opportunity to have a clerkship early in my career, and I saw
how much that helped me, and I recognize how that can advance
folks. I certainly feel, first, the diversity background and
experience among law clerks would be important and contribute
in an extremely positive way to the work of chambers. I also
think that outreach to students and schools to ensure that
we're getting the wide range of applicants from different
backgrounds and experience would encourage diversity in that
context with law clerks.
Senator Padilla. Thank you, all, very much. Thank you, Mr.
Chair.
Chair Durbin. Thanks, Senator Padilla. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Mr. Sherriff, I'm a little confused by some of the answers,
but let me ask Senator Padilla's question a different way. In
choosing a law clerk, do you believe that a law clerk
applicant's race should be used to harm that person?
Mr. Sherriff. Neither to harm nor benefit, Senator. I
believe that applicants should be considered based on their
background and experience.
Senator Kennedy. So you don't think a person's race should
be used to harm them?
Mr. Sherriff. Correct, Senator.
Senator Kennedy. Do you think a person's race should be
used to help them?
Mr. Sherriff. Not in that context, Senator. No.
Senator Kennedy. Okay. Raise your hand please for me if
you're a member--a dues-paying member of the American Bar
Association. So, two out of six are members? Why--Judge
Becerra, why aren't you a member?
Judge Becerra. Senator, I was a member for many years of
the American Bar Association.
Senator Kennedy. Why'd you get out?
Judge Becerra. Honestly, Senator, when I was a member, my
law firm paid the dues----
Senator Kennedy. Yes.
Judge Becerra [continuing]. And so, I don't pay the dues
for the America Bar Association anymore, but I was very
involved in----
Senator Kennedy. You found it irrelevant and not worth the
money?
Judge Becerra. No, sir. As you know from my record, I
actually co-chaired the section of litigation----
Senator Kennedy. Right.
Judge Becerra [continuing]. For a number of years, and I
thought it was very beneficial as a lawyer----
Senator Kennedy. But it wasn't important enough to you to
pay yourself?
Judge Becerra. It wasn't so much that, Senator. It's just
that many of the benefits of the American Bar Association, at
least for judges--I'm already participating in what the
Administrative Office provides with training, which is really
what----
Senator Kennedy. So it was----
Judge Becerra [continuing]. I was doing as a lawyer.
Senator Kennedy [continuing]. Beneficial to you if somebody
else paid for it?
Judge Becerra. No, sir. It's just that as a lawyer, I used
it primarily for legal education----
Senator Kennedy. Okay.
Judge Becerra [continuing]. And as a judge----
Senator Kennedy. I don't want to spend too much time on
this. Just for the record, 2 out of 6 of our nominees today
have chosen to be dues-paying members of the American Bar
Association.
Mr. Sherriff, how long have you been a member of the ACLU?
Mr. Sherriff. Senator, I believe I first contributed in
2019.
Senator Kennedy. And how much money have you given them?
Mr. Sherriff. I believe it's approximately a $100--$120.
Senator Kennedy. And----
Mr. Sherriff. A year, I'm sorry.
Senator Kennedy. A year?
Mr. Sherriff. Yes.
Senator Kennedy. Okay. And why did you first decide to
contribute to them?
Mr. Sherriff. Senator, I contribute to----
Senator Kennedy. Just briefly.
Mr. Sherriff [continuing]. Charitable organizations. They
work on First Amendment issues.
Senator Kennedy. Yes. Now, you're a member of the ACLU of
Southern California.
Mr. Sherriff. That's correct.
Senator Kennedy. All right. A couple years ago, the ACLU of
Southern California put out a statement. They said that U.S.
policing has, quote, ``historical roots in slave patrols,''
closed quote. And the ACLU Chapter of Southern California went
on to say that police presence has, quote, ``devastating and
discriminatory impacts on tens of thousands of California
students,'' closed quote. Do you agree with that?
Mr. Sherriff. Senator, I'm not familiar with that letter. I
have never seen that letter.
Senator Kennedy. But I just read it--read it to you. Do you
agree with what that letter said?
Mr. Sherriff. I don't--I don't have information relevant to
that.
Senator Kennedy. You don't agree with it or you do agree
with it?
Mr. Sherriff. I can talk to my experience in law
enforcement----
Senator Kennedy. No, sir. I'm asking you if you agree or
disagree with the statement of an organization that you chose
to join----
Mr. Sherriff. Right. Senator, I----
Senator Kennedy [continuing]. As an assistant United States
attorney.
Mr. Sherriff. I understand, Senator. I would have to know a
lot more about that--where that comes from----
Senator Kennedy. Another----
Mr. Sherriff [continuing]. In order----
Senator Kennedy [continuing]. Another letter said----
Mr. Sherriff [continuing]. To evaluate it.
Senator Kennedy. Well, you're not doubting that I'm reading
it to you accurately, are you?
Mr. Sherriff. No, I'm not, but I don't know what the
basis----
Senator Kennedy. Okay.
Mr. Sherriff [continuing]. For that information is in the
letter----
Senator Kennedy. The ACLU of Southern California also put
out another statement. They said, quote, ``ICE is not welcome
here,'' closed quote. Do you agree with that statement?
Mr. Sherriff. Senator, over--well over--well, nearly 20
years in my practice in the Eastern District of California, the
office has worked closely----
Senator Kennedy. Yes, but----
Mr. Sherriff [continuing]. With ICE, and----
Senator Kennedy [continuing]. Do you agree with that
statement?
Mr. Sherriff. Certainly, in terms of Federal law
enforcement, ICE is welcome and we----
Senator Kennedy. But----
Mr. Sherriff [continuing]. Work closely with----
Senator Kennedy [continuing]. Maybe I'm not being clear. Do
you agree or disagree with the statement that ICE should be
welcome in California?
Mr. Sherriff. I believe that ICE carries out a legitimate
law----
Senator Kennedy. You don't want to say. You don't want to
answer----
Mr. Sherriff [continuing]. Function under Federal law.
Senator Kennedy [continuing]. My question. I understand.
Give me one more minute, Mr. Chairman. Let me ask Mr.
Leibowitz, I want to ask your--it's a constitutional question.
I think we now understand that there's some people in America,
and I dare say many of our college students and college
professors, who believe--my words, not theirs, but this is what
I see--who believe in diversity, equity, inclusion, and the
right to kill Jews.
To what extent is that point of view protected by the
Constitution? And what, if any, limits are there on that point
of view?
Mr. Leibowitz. Senator, I very much appreciate the
question, especially the times that we're living in.
First, as your former colleague, and now the president of
one of the great universities in this country, the University
of Florida, said, ``The First Amendment gives people the
absolute right to be abject moral idiots.'' And Senator Ben
Sasse, now President Sasse----
Senator Kennedy. So does the Senate.
[Laughter.]
Mr. Leibowitz. So, I take part of your question that since
October the 7th, I think part of what you are saying is that
people are taking full advantage of their First Amendment
rights. And the basic dividing line in answering your question,
as I understand the Court's precedence and the First Amendment,
is that there's a very big difference between speech and
conduct. There's a very big difference between things like
Title VI, Title VII, and----
Senator Kennedy. Well, let me stop you because I don't want
to go too far over.
Mr. Leibowitz. Yes, sir.
Senator Kennedy. I think you've made the correct
distinction between speech and conduct. If I could have just 30
more seconds? Could the U.S. Department of Education, if a
college professor crosses that line between speech and conduct,
could President Biden's Department of Education withhold their
Federal funding?
Mr. Leibowitz. Senator, I'm going to only be able to
quickly answer part of your question.
First of all, I do believe that part of the way you phrased
it, I'm precluded from answering it because of the Canons of
Judicial Ethics, because there are live cases now and live
statements now. As I understand it, there are live cases being
brought under Federal law tracking exactly what you're saying.
And I'm not sure if the President's Department of Education
wants to weigh into that or not, but if they did and that case
came before me, I wouldn't want those--my comments today to be
viewed as prejudging them.
Senator Kennedy. Thank you, Mr. Chairman.
Mr. Leibowitz. Thank you, Senator.
Chair Durbin. Senator Whitehouse.
Senator Whitehouse. Let me start by thanking the Chairman
and the Ranking Member for guiding us to this successful
operation of the Senate district court blue slip. When we undid
the circuit court blue slip, I predicted that we would regret
that decision. And obviously, I've heard expressions of regret
in this hearing about that decision.
For the blue slip to work, there has to be good faith,
there has to be some degree of reciprocity, and there has to be
willingness to work together from the White House and the
Members of the Senate. So, it's not always easy. And to have
this success today, I think, is significant, and worth
mentioning, and putting a [gestures with a pencil to make a
vertical line] highlighter mark by.
The topic that interests me with respect to district judges
is the jury, and particularly the civil jury. Criminal cases
come with a pretty solid jury requirement. Civil jury cases,
it's a little bit more difficult. So many of them are
encouraged to settle. Magistrates very often exist for the
purposes of fending off trials for the judge.
But the observation of people much smarter than me has been
that the civil jury is not just a fact-finding appendage to a
trial judge, but is actually an important part of the American
constitutional system of governance.
And we've seen it--we've seen honest courtrooms come
through for people in very important ways recently, where
people with loud megaphones and bullying voices have used those
forces to harm people who really couldn't push back until they
got into an honest courtroom. And then suddenly there were
major awards against big corporations and major awards against
people who had assaulted individuals. And I think a very
important part of that is having a civil jury.
You can't really get to a civil jury. They're only there
for that one case, and then they disappear again. If you try to
get to them in that one case, it's actually a crime. And that
means that there's a fresh, untainted government decider, not
subject to massive amounts of influence, political
contributions, super PAC pressures, and all of the rest of it.
So, I just would like to take a quick minute with each of
you to emphasize that point and to see if you have any quarrel
with that notion.
And right now, there are judges who are kind of taking it
on as their cause to try to save and protect the civil jury. We
went through a period in Rhode Island where our district court
went 3 years without a civil jury trial. Mercifully, that's
passed.
But I think it's very important that we protect that
institution by use. And just want to make sure you're all on
board with that. And if you can just go quickly across, I've
got 1 minute and 20 seconds to--that gives you 20 seconds each.
[Laughter.]
Judge Austin. Yes, Senator. I actually--I absolutely
believe that juries are a basic tenet of our justice system.
Just the diversity of ideas, the jury of your peers coming to a
decision, just is absolutely important to our system of
justice.
Senator Whitehouse. Judge Becerra.
Judge Becerra. Senator, I was a civil litigator for many
years, and both as a lawyer and a judge, I have the utmost
respect for the protections of the Seventh Amendment of the
Constitution, which guarantee a jury trial and civil
proceedings.
I think that what we can do as judges, and I think I do
this already as a magistrate judge, is try to give the parties
some predictability on scheduling, which often is an issue for
private parties. They can't get to the trial quickly enough,
and so, I think that's something that we can do as a
magistrate.
For example, when I handle discovery matters, I handle them
on a motionless calendar to try to deal with the expense of
litigation and the time of litigation. And so, I do think there
are things that we can, and should, be doing within the bounds
of the rules to make sure that people who want to go to trial,
in a civil case, can.
Senator Whitehouse. I think in the service of the clock,
I'll have to close out with Magistrate Damian.
Judge Damian. Thank you. Well, I will say that I agree
wholeheartedly with Magistrate Judge Becerra. I also was a
civil litigator. I think that part of the issue may very well
be the expense and the timing. And I am very interested in the
issue.
There's been a lot of committees formed in the Southern
District of Florida to try and figure out why more civil cases
are not going to jury trial. The Seventh Amendment provides for
it.
And I will tell you this, every time that I've been
involved in a jury trial, if you talk to the jurors afterwards,
all those people who tried to get out of their jury service
with some silly excuse, afterwards they are all so grateful
that they did it. They love the experience. And, you know, I'm
with you. If we can find a way to try and make jury trials more
common in civil cases, we should--we should work on that.
Senator Whitehouse. Well, that's been my experience with
jurors and grand jurors alike. So, thank you, Chairman.
Chair Durbin. Thanks, Senator Whitehouse. Senator
Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. Congratulations
to each of you, and to your families and friends that are all
here. I know it's a big day and we appreciate your time.
Judge Becerra, I want to come with you. You had a
membership in the American Constitution Society from 2009 to
2010. Correct?
Judge Becerra. I did.
Senator Blackburn. Great. I've asked a previous nominee
about their membership, so I'd like to ask you to get you on
the record about this. I want to read you a portion of the
mission statement from the ACS website. It states that ACS's
mission includes redressing, and I quote, ``the founding
failures of our Constitution and enduring inequities in our
laws in pursuit of realized equality,'' end quote.
So, in your role as an advocate, and now as a magistrate
judge, do you subscribe to that part of the mission statement,
and what do you see as the enduring inequities in our laws that
need to be redressed?
Judge Becerra. So, thank you for the question, Senator
Blackburn. As you noted, I'm no longer a member of the ACS. I
was a member of the ACS for a short period of time. It may not
surprise you to know that I was a high school debater, and some
friends of mine who are old high school debaters, wanted to
start a chapter in Miami to encourage debate and debate on
legal questions. That didn't really go so well. We weren't very
successful. And then after that, I went back to tend to the
business of my----
Senator Blackburn. Do you subscribe----
Judge Becerra [continuing]. Of my law firm.
Senator Blackburn [continuing]. To the mission statement?
That's what I'm asking you.
Judge Becerra. So, Senator, I'm not familiar with their
mission statement today. I haven't kept up with it.
Senator Blackburn. So, you joined but did not notice the
mission statement?
Judge Becerra. Senator, I'm not even sure if that was the
mission statement----
Senator Blackburn. Okay.
Judge Becerra [continuing]. Back, 15 years ago.
Senator Blackburn. Right? We will--that is their recorded
statement. So, do you see enduring inequities in our laws?
Judge Becerra. Senator, what I know is enduring about our
laws is the Constitution, and the values and the rights that
are in the Constitution----
Senator Blackburn. Okay.
Judge Becerra [continuing]. And as a sitting magistrate
judge, that is what I honor.
Senator Blackburn. All right. Let me move on with you. I
want to ask you about some comments that you defended, comments
that Justice Sotomayor made. And Justice O'Connor once said
that a wise old man and a wise old woman would reach the same
conclusion in deciding cases. And I agree with that. Justice
Sotomayor did not. So in response to Justice O'Connor, she went
so far as to say, and I'm quoting her, ``I would hope that a
wise Latina woman with the richness of her experiences would
more often than not reach a better conclusion than a white male
who hasn't lived that life,'' end quote.
So, you defended those comments by saying they were taken
out of context, but I've given you the full sentence. So, I'd
like to know, do you think the law is subjective? Do you think
that you should be ruling on the rule of law? Do you think that
a judge's experiences should weigh into the decision that they
make?
Judge Becerra. Senator, I think that a judge's role, and
the role that I have played for the last 5 years, is to look at
the facts honestly and scrupulously, to be a student of the law
and to apply the facts to the law in an impartial way. I don't
believe a judge's personal opinion----
Senator Blackburn. Okay.
Judge Becerra [continuing]. Or personal opinions should
affect that.
Senator Blackburn. Okay. Do you regret having defended that
statement?
Judge Becerra. I don't believe I defended the statement. I
think what was happening at the time is she had just been
nominated. I had been asked----
Senator Blackburn. Right. Let me move on. I've got 1
minute. Then, I want to ask you about sentencing guidelines,
and reading some of these things in the background. I was a
little bit concerned if you had felt things should be
subjectively done, if you felt like there were inequities in
the law. See--you can see, looking at your background, where I
would come up with some of that.
So, we had a nominee recently, a judge, Mr. Aframe, and he
had refused to follow sentencing guidelines in a horrific child
pornography case. The guidelines recommended a life in prison
sentence, and he chose to go for a 60-year sentence. And to me,
that would be a disqualifier. It is a disqualifier. This is
someone I will not vote for. Is there any scenario where you
would deviate from sentencing guidelines recommendation of life
imprisonment for a lower sentence?
Judge Becerra. So, Senator, the factors of 3553 are very
clear, and those are what I will follow. The sentencing
guidelines, of course, are no longer mandatory, but how we
apply them is guided by the precedent of the Eleventh Circuit,
and that is what I would follow.
When I was a prosecutor many years ago here in the District
of Columbia, there were no--the guidelines didn't apply here.
And so, I saw firsthand what some of the inequities could be
when you didn't have the guidelines.
And then, of course, I was a prosecutor in Miami for many
years when the guidelines were mandatory. And so, I've been a
prosecutor in both of those scenarios. And so from my
perspective, I think you follow the factors that you are
allowed to follow, that you were told to follow by this body,
and then you are guided by Eleventh Circuit precedent in how
you determine those factors.
Senator Blackburn. Okay. Thank you, very much. Thank you,
Mr. Chairman.
Chair Durbin. Thank you, Senator Blackburn. Senator Coons.
Senator Coons. Thank you, Chairman Durbin.
Thank you, to all the nominees who are before us today, and
to my colleagues who've engaged in a robust confirmation
hearing process. I won't have time to question all of you, but
I welcome and appreciate all of you.
And Mr. Chairman, I understand you opened by referencing
how this shows how the blue slip process can work, even in
States where there are two Senators who are of the opposite
party as the President.
I had a similarly positive experience in my home State
under the previous administration. I'm glad that we are moving
forward these nominees today, and I look forward to questioning
a couple of you, if I might.
Mr. Leibowitz, during your tenure as assistant U.S.
attorney, you prosecuted racketeering, insider trading,
securities fraud cases among many others. If confirmed, how
would your experience as a Federal prosecutor inform your
approach to the bench?
Mr. Leibowitz. Thank you for the question, Senator. I was
very fortunate to be a part of that office for 9 years. And I
was very fortunate to be trusted by different U.S. attorneys to
handle very serious and, in some instances, very high-profile
investigations and prosecutions.
For the last 2 years, your question mentioned, I prosecuted
insider trading that really, you know, were signature cases for
U.S. Attorney Preet Bharara. And I can tell you that that's why
I started, in my introduction, by saying Felix Frankfurter was
right: The best job that you can have coming right out of law
school, or shortly thereafter, is to be an assistant United
States attorney in the Southern District of New York. Because
you come across the finest people, the best examples--people
that say that United States v. Berger really means something.
And, I think, I would leave it there, you know. I know you
know the Berger case. I can tell you we lived the Berger case
in that office. I'm sure they do in other offices, but that was
a really, really important part of my training.
Senator Coons. Well, you're exceptionally well qualified,
and I look forward to supporting your confirmation.
Judge Becerra, some would say, the best experience would be
being an AUSA in the Southern District of Florida.
Judge Becerra. That's correct.
[Laughter.]
Senator Coons. Having served as a Federal prosecutor both
here in the District of Columbia and in the Southern District
of Florida, I was interested in hearing you answer the same
question, how your time as a Federal prosecutor might inform
your service on the bench. I also know you have taught at two
different law schools, and you've taught legal writing, often
considered an oxymoron.
[Laughter.]
Senator Coons. How would that best prepare you for an
important Federal district courtship role where you would be
interpreting, and applying the law, and hopefully writing
accessible, concise, and important rulings in Federal law?
Judge Becerra. I appreciate that question, Senator. And I
will tell you, one of the experiences that I think goes hand in
hand even more with being a prosecutor is having been a partner
at a large law firm with clients. Because I've had the
experience of having turned to a client and tried to explain
what it is that the judge did, and not have the ability to do
so in a clear fashion because the opinion perhaps wasn't as
written with the kind of clarity that the client would expect.
And so I think those experiences have helped me and shaped
me in terms of the kind of judge I've been, and the kind of
judge I hope to be on the district court. Certainly, being an
assistant United States attorney is a great honor. And doing it
both in the District of Columbia--that has very unique
challenges when you're a prosecutor here because you're
essentially the role of a State prosecutor. So you're really,
really in the day-to-day of how crime and how law enforcement
is interacting day-to-day with people.
And then I had almost the other experience in Miami, where
I was a major narcotics prosecutor, and I am doing wiretaps and
looking at much more sophisticated cases from a legal
perspective. So, I think that that experience will help me
because certainly as a district court judge, I'll have a wide
range of matters before me.
And again, as to the writing, both being a professor and as
well as being a partner at a law firm, I think, teaches me that
we're not just writing for each other. We're writing for the
parties, and we're writing for the public.
Senator Coons. Thank you, your Honor.
If I might, one last question. So, Judge Austin, one of the
things I find compelling about this very diverse panel is your
legal experiences. That is, in my view, also a critical part of
how we contribute to representing. You're a remember of the
patent bar. Is that correct?
Judge Austin. Yes, I am.
Senator Coons. And you have also issued around 25,000
orders during your tenure as a magistrate judge?
Judge Austin. I have.
Senator Coons. If you would just briefly speak to the
importance of having the skill, the discipline, and the
training required to be a member of the patent bar, and your
experience as a magistrate, and how that prepares you to be a
Federal judge.
Judge Austin. Yes, Senator. Well, to be a member of the
patent bar, you have to have a scientific degree. And you also
have to take an additional bar exam, patent bar. And the year I
took the patent bar, I think the pass rate was like 30 percent.
I passed it the first time. Thank God, I didn't have to take it
again.
But prosecuting patent applications, I think, gave me a
strong foundation for practicing law because it's a lot of
attention to detail and being able to explain to a patent
examiner in DC what your client in Greenville, South Carolina,
is trying to claim as an invention, and what the bounds of that
invention are, and how it works, and how it's different from
prior precedent, prior art.
And so I believe that background gave me a strong
foundation to be able to move into practicing law, which, when
I moved into practicing law, I was doing complex civil
litigation as well as patent litigation. And I do believe that
one of the main reasons that I was selected to be a magistrate
judge 12 years ago is because I had the patent background, and
I could help the judges on the district court with the patent
cases.
And just interestingly, a lot of patent cases that are
filed there, the parties tend to consent to having me handle
their cases, so--to my law clerks' chagrin, but I enjoy them.
[Laughter.]
Senator Coons. As you may know, Judge, Delaware is one of
the very busiest patent jurisdictions in the country. So, I'm
encouraged to see a member of the patent bar ascend to the
Federal bench.
Judge Austin. Thank you.
Senator Coons. Whether it's as in-house counsel, as a
Federal prosecutor, as a professor, as a member of the patent
bar, I just wanted to take a moment and highlight the
remarkable range of qualifications and experiences all of you
have. Thank you, for your willingness to serve. Thank you,
Madam Chair.
Senator Butler [presiding]. Thank you, Senator Coons.
Senator Hawley.
Senator Hawley. Thank you, Madam Chair. Congratulations to
all the nominees. Thank you for being here. Congratulations to
your families.
Mr. Sherriff, if I could just start with you. I wanted to
follow up on a question or two that Senator Kennedy asked you
because I wasn't sure that I understood your answers, but I bet
you can clear it up for me. Let me just come back to questions
he asked you related to your membership in the ACLU in the
Southern California Chapter.
I think we've established that you're a member there. You
said you contribute $120 a year. It's fine. I just want to go
back to these various statements that that chapter has made.
And my question is not why did they make the statements? I'm
sure that we can look up what the ACLU of Southern California
said in which context. I just want to know your own views on
it. I'm basically--I'm trying to figure out, do they speak for
you on these matters? That's what I'm trying to ascertain here.
So here, let's try this again. They have written, the ACLU
of Southern California, that ``U.S. policing has historical
roots in slave patrols and in the forced dislocation of
indigenous youth.'' Now, that's a pretty strong statement. I
just want to know, does that represent your viewpoint?
Mr. Sherriff. Senator, I do not have knowledge or
background in terms of the origins, and I don't know what they
were referring to there. I can speak to my experience with
Federal law enforcement, and I have tremendous respect for, and
have worked closely with, Federal law enforcement, who I
believe uphold the rule of law and serve the public interest
every day.
Senator Hawley. Well, so, are you telling me you think that
U.S. policing, the U.S. police forces--I think the first
standing U.S. police force was in my State, I think it was in
the City of St. Louis--are you saying that you think they might
have historical roots in slave patrols?
Mr. Sherriff. That I don't know. I know the U.S. Marshal
Service likes to state that they're the first Federal law
enforcement agency founded in the initial Judiciary Act.
Senator Hawley. My question is, do you think that U.S
policing has historical roots in slave patrols?
Mr. Sherriff. I'm not aware of that, Senator.
Senator Hawley. You don't think that it does. What about
this: The same letter says that, ``the presence of police has
devastating and discriminatory impacts on tens of thousands of
California students.'' Do you agree with that?
Mr. Sherriff. Senator, I don't know the context in what's--
what that's specifically describing or talking about. I----
Senator Hawley. Well, but in your own experience, I mean,
does that--are they speaking for you here? Do you agree with
that?
Mr. Sherriff. In my experience, in Fresno and the Fresno
Division of the Eastern District of California, on balance, I
believe that the police, including the police departments which
our office works with closely, and certainly Federal, and
State, and local law enforcement, are a positive influence.
Senator Hawley. Okay. Good. Let's talk about ICE for a
second, because I know you testified that you've worked with
ICE. So the same chapter, the ACLU that you're a member of, has
said that, ``ICE is not welcome here.'' They've gone on to say,
as part of a package that they devised for children, they
released door hangers, posters, and coloring sheets for
children that included guidelines for how to use them. The
guidelines said, ``ICE agents resort to trickery and
deception.'' Do you agree with that? Has that been your
experience, that ICE agents resort to trickery and deception?
Mr. Sherriff. My experience, Senator, is with working with
ICE agents on cases under 8 U.S.C 1326 and other related
criminal immigration cases, and I have found them to be
diligent, hardworking, and ethical law enforcement officers.
Senator Hawley. Okay. Good. So, I think we've established
that, that the ACLU of Southern California, at least, as to
these statements, they don't speak for you. I mean, you have
the views that you've just articulated.
Mr. Sherriff. My views are not, are--I'm not familiar with
all of the ACLU's views, but certainly I have independent
views.
Senator Hawley. Okay. Good. Let me just ask you about this.
You've also been a frequent contributor to the group, ActBlue.
This is a group that, as my colleagues on this panel have
emphasized of late, have supported fundraisers with the theme,
``All Cops Are Bastards.'' Have you contributed to any of those
fundraisers through ActBlue, ``All Cops Are Bastards''
fundraisers?
Mr. Sherriff. No, Senator.
Senator Hawley. And does that represent your view or
experience with law enforcement?
Mr. Sherriff. That does not represent my view of law
enforcement.
Senator Hawley. Okay. I think that those are helpful
answers. I think we maybe could have gotten there a little bit
earlier with my colleagues. But I'm glad to hear you distance
yourself, frankly, from these statements because, I think--
frankly, I think those statements are pretty outrageous.
And it concerns me a little bit that you're a member of a
chapter that regularly--and we're not talking about one thing.
We're talking about multiple, multiple letters, multiple
projects, multiple issues over years from this particular
chapter. But I'm gratified to hear you say that they do not
represent you on these matters. Thank you, Madam Chair.
Senator Butler. Thank you, Senator Hawley.
Mr. Sherriff, just quickly, I just want to pick up on my
colleague's point here, for just the sake of clarification and
simple language. You've been asked now several times about your
membership and small contributions to the ACLU. Is it fair to
say that making small contributions to an organization does not
mean you espouse every position that that organization
endorses?
Mr. Sherriff. That is certainly correct, Senator.
Senator Butler. Thank you.
Judge Becerra, Judge Damian, Mr. Leibowitz, Mr. Sherriff,
you each spent several years serving as Federal prosecutors.
Thank you, all, for that work and that service. During that
time, you've each played an important role in sentencing
decisions in criminal cases, making recommendations about
sentences to judges hearing the case.
Can you each speak to the process and considerations that
you used in making sentencing recommendations during your time
as a Federal prosecutor? Ms. Damian, do you mind beginning?
Judge Damian. Sure, and thank you, Senator Butler. So as a
prosecutor, when I started, the guidelines were mandatory, and
then eventually they became advisory. So as a prosecutor, one
of the first places you do, or at least I did look, was to the
sentencing guidelines to get a sense of what the range could,
or should, be.
And, of course, there's whatever the charging statute that
the person is charged with, usually also contains a statutory
maximum, perhaps a statutory minimum. So you look to the
charging statute, and then also 18 U.S.C. 3553(a) also contains
different considerations that you know that the court will be
taking into consideration.
Now, as the prosecutor, obviously, you're making the
recommendations. As the court, you're making the ultimate
determination. But I would look to all of those places to get a
sense of where the defendant should fall, and in making--
considering and making a determination of what sentence I would
recommend with all of that.
And, of course, this is really built into 3553(a). To me,
it was always important to consider fairness and balance. I
tried a lot of cases. I prosecuted a lot of cases. I was aware
of where some people fell where my colleagues' cases,
defendants fell. I liked to see, if possible, that people that
were charged with the same thing, who may have equal
backgrounds, were falling somewhere similar in their
recommended guidelines ranges.
Senator Butler. Thank you for that, Ms. Damian.
I think the issue of sentencing is, and the process that
our judiciary uses, is incredibly important to unpack and help
the public to understand. For those of you who also have been
Federal prosecutors, is there anything that you would offer
different in your process and/or considerations that Ms. Damian
has outlined?
Judge Becerra. So, I would only add, Senator, and this is
going back, because I haven't been a prosecutor for many years
now. But one of the things I also considered, and I think
prosecutors still consider today, is the charging decision.
Because so often what you charge and how you charge the case
affects the sentence.
And so, as a district court judge, I'm bound to what
recommendations will be before me, in large part, based on the
charges. So, I think prosecutors have enormous obligations with
respect to charging decisions, because, I think, in many cases
that ultimately will affect the choices, if any, that a judge
might have in sentencing someone.
Senator Butler. Thank you.
Just with one last quick question. Mr. Sherriff, I noted
that there are not very many of us who bring together
Mississippi and California, and I just can't let the
opportunity pass me. Can you talk about your experience at the
Mississippi Teacher Corps, and what led you to choose to be a
part of this program?
Mr. Sherriff. Senator, I've seen in my own family how
important education was to advance folks. And even before I
went to law school, I had tremendous appreciation for the
opportunities that I've been afforded through education, and
more generally, in this country. And I'm also--and was aware,
and I became even more aware through teaching in Leflore
County, outside of Greenwood, Itta Bena, and a school right
outside of Greenwood, in two locations, of the disparities in
education across this country.
And I believe firmly that there are students all over this
country, including in very small towns, who have tremendous
capabilities and tremendous potential. And we have one of the
greatest higher education systems in the country--in the world,
I'm sorry, in the world. I believe it is the best in the world.
And I don't know that our public education is, as I would like
to see it be, at that same level.
Senator Butler. As would many of us. Thank you, Mr.
Sherriff. Senator Welch.
Senator Welch. Thank you, Madam Chair. Mr. Leibowitz, among
the many areas of effort as a prosecutor, you did some work
with Guantanamo, as I understand it?
Mr. Leibowitz. That's correct, Senator. I was very
privileged to be part of a team that reviewed cases to
determine whether they would be suitable for Article III
prosecution.
Senator Welch. Right. And there's a number of us here led
by the Chair, Senator Durbin, who've called for, really,
closure of Guantanamo. It's been, you know, it's millions of
dollars. People are there, 19 of them, without any trial
whatsoever.
And a recent U.N. report found that 19 of the men who
remain there have never been charged with a crime, which is a
continued violation of their rights, but of the rights of
victims and their families.
Can you tell us about your work on that team and what you
concluded about the ability to try a suspected terrorist in
Federal court?
Mr. Leibowitz. Senator, I believe two things would preclude
me from answering much of your question. One is the classified
nature of what I reviewed, but also the second is, part of your
question, I think goes to the Canons.
But I can answer this part of it, which is, we were
privileged as part of a team in the Southern District of New
York, during a critical period of time, where the office was
going to determine if cases were suitable for Article III
prosecution. Which means that, no matter how bad you are, no
matter what you're charged with, you get the full rights and
remedies that all--that all Americans get.
And there was one case, that I'm sure, Senator Welch,
you're aware of, that was tried in the Southern District of New
York while I was there. It was the case against Ahmed Ghailani.
And my colleague, who this panel and the Senate recently
confirmed to be a United States district judge in New York--
excuse me, in New Jersey--he tried that case, and that was
deemed suitable for Article III prosecution. It was determined
by people, much above my pay grade, that many of those cases
would not be suitable for Article III prosecution.
Senator Welch. Well, so just setting aside the policy
debate--and I know this is, you know, the policy set here is
not by you. What's your understanding of the law as it relates
to the indefinite detention of suspected terrorists without
charging them with a crime?
Mr. Leibowitz. Senator, there's two short answers to that.
First, it's been so long since I've been close to it that I
really don't know. And second, I would say, you know, there are
habeas cases that are brought, you know, all the time in
Article III courts. And, if I was so fortunate to be confirmed,
I would be in the Southern District of Florida, which is not
that far away. So, I would not want to comment upon even a
possible habeas case that could come before me.
Senator Welch. Judge Austin, I just want to--I know you've
done some work in drug courts----
Judge Austin. Yes.
Senator Welch [continuing]. Right? And that's a big deal in
Vermont. Matter of fact, our senior status revered Judge
Sessions wants to spend a lot of time on drug courts. I happen
to be a big believer in them. They save money, but it's more
than that. It really has had a real impact on recidivism. And
most of the people there have a real substance abuse problem
that sometimes then morphs into a criminal situation.
So, I just want to ask you about the BRIDGE Program, and I
know you preside over that as a magistrate judge. And can you
just discuss your experience with that program in South
Carolina, and how you see that program being beneficial to the
justice system?
Judge Austin. Yes, Senator. I actually--really, I mean,
that's one of the fun parts of my job as presiding over BRIDGE
Court. I call it fun part of my job. The individuals that are
entered into BRIDGE Court, there's been a determination by the
U.S Attorney's Office and the probation office that the
foundation of the reason why they're in Federal court is their
drug use.
And so, in drug court, what we try to do is give them tools
and resources. We provide them with mentors to try and help
them address the drug use issue----
Senator Welch. Mm-hmm.
Judge Austin [continuing]. And any other issues that might
be kind of forcing them or pushing them in that direction.
Sometimes it's education, sometimes it's homelessness. Issues
like that. If we can help them address that, help them find
jobs, help them----
Senator Welch. So, you have the resources----
Judge Austin. Absolutely.
Senator Welch [continuing]. That are available through the
court process----
Judge Austin. Yes.
Senator Welch [continuing]. To assist and follow up?
Judge Austin. Yes, sir. So, our probation office assigns
each individual to a drug counselor. They're assigned mentors.
There's also mentors in the legal community. We have attorneys
who come in and act as mentors, as well----
Senator Welch. Mm-hmm.
Judge Austin [continuing]. To these individuals. We help
them find jobs.
And then we have meetings, every 2--we call them meetings.
Every 2 weeks they come into court, and the first thing I ask
them is, tell me something good----
Senator Welch. Mm-hmm.
Judge Austin [continuing]. Tell me something good that
happened to you in the past 2 weeks. And it's interesting
because the first time they come in, it's like, you know, I
don't know anything that happened that was good. But I'm like,
you made it 2 weeks without using drugs----
Senator Welch. Yes----
Judge Austin [continuing]. You know----
Senator Welch [continuing]. It is good.
Judge Austin [continuing]. So, let's start there. And then,
you know, by the end, they're talking and they're telling me
everything that's going on. But I really enjoy the drug
program. I believe that the majority of our individuals who
graduate are successful. And I think it just helps them when
they return back into the community, they have tools that they
can use to make sure that they stay on the right track.
Senator Welch. Thank you, very much.
Judge Austin. Thank you.
Senator Welch. And I thank all the nominees. I yield back.
Senator Butler. Thank you, Senator Welch. And as we are
bringing today's hearing to a close, I have the honor of being
number 100, which gives me the privilege to close us out by
just saying thank you, to all of our nominees, for your
commitment to public service, for the leadership that you've
offered the legal community in your time, and frankly, for your
leadership.
It is not lost on any of us the leadership required to
stand in your places and do the work that you are doing in
making our communities stronger and strengthening public
confidence in our judiciary.
Senator Coons noted the incredible diversity, professional
diversity, of this panel, and I can't help but to echo that you
all are a remarkable representation of the pipeline of legal
scholars that will serve in our judiciary to come.
I want to also close by thanking all of your families, your
friends, that are here to support you. It is also appreciated
the time that they take to make sure that you are able to be
the best that you can for the community that you serve.
And I have the honor of being the youngest Senator and
adjourning today's hearing. I want to do a quick logistical
note. Questions for the record will be due to nominees by 5
p.m. on Wednesday, December 6th, and the record will likewise
remain open until that time to submit letters and similar
materials.
With that, this hearing is adjourned.
[Whereupon, at 11:58 a.m., the hearing was adjourned.]
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