[Senate Hearing 107-584]
[From the U.S. Government Printing Office]
S. Hrg. 107-584, Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
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JANUARY 24, FEBRUARY 26, MARCH 19, APRIL 11, AND APRIL 25, 2002
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PART 3
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Serial No. J-107-23
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
85-707 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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THURSDAY, JANUARY 24, 2002
STATEMENTS OF COMMITTEE MEMBERS
Page
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 15
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 12
PRESENTERS
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado
presenting Robert Blackburn, Nominee to be District Judge for
the District of Colorado....................................... 9
Breaux, Hon. John B., a U.S. Senator from the State of Louisiana
presenting Jay Zainey, Nominee to be District Judge for the
Eastern District of Louisiana.................................. 6
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of
Colorado presenting Robert Blackburn, Nominee to be District
Judge for the District of Colorado............................. 8
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa
presenting Michael Melloy, Nominee to be Circuit Judge for the
Eighth Circuit and James Gritzner, Nominee to be District Judge
for the Southern District of Iowa.............................. 3
Harkin, Hon. Tom D., a U.S. Senator from the State of Iowa
presenting Michael Melloy, Nominee to be Circuit Judge for the
Eighth Circuit and James Gritzner, Nominee to be District Judge
for the Southern District of Iowa.............................. 5
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona
presenting Cindy Jorgenson, Nominee to be District Judge for
the District of Arizona........................................ 11
Landrieu, Hon. Mary L., a U.S. Senator from the State of
Louisiana presenting Jay Zainey, Nominee to be District Judge
for the Eastern District of Louisiana.......................... 7
Leach, Hon. James A., a Representative in Congress from the State
of Iowa presenting Michael Melloy, Nominee to be Circuit Judge
for the Eighth Circuit and James Gritzner, Nominee to be
District Judge for the Southern District of Iowa............... 6
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Richard Leon, Nominee to be
District Judge for the District of Columbia.................... 10
Tauzin, Hon. William J., a Representative in Congress from the
State of Louisiana presenting Jay Zainey, Nominee to be
District Judge for the Eastern District of Louisiana........... 237
STATEMENTS OF THE NOMINEES
Blackburn, Robert, Nominee to be District Judge for the District
of Colorado.................................................... 90
Questionnaire................................................ 91
Gritzner, James, Nominee to be District Judge for the Southern
District of Iowa............................................... 60
Questionnaire................................................ 61
Jorgenson, Cindy, Nominee to be District Judge for the District
of Arizona..................................................... 111
Questionnaire................................................ 112
Leon, Richard, Nominee to be District Judge for the District of
Columbia....................................................... 142
Questionnaire................................................ 143
Melloy, Michael, Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 17
Questionnaire................................................ 18
Zainey, Jay, Nominee to be District Judge for the Eastern
District of Louisiana.......................................... 198
Questionnaire................................................ 199
TUESDAY, FEBRUARY 26, 2002
STATEMENTS OF COMMITTEE MEMBERS
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 306
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 419
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 241
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 299
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 434
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 309
PRESENTERS
Gramm, Hon. Phil, a U.S. Senator from the State of Texas
presenting Robert Randall Crane, Nominee to be District Judge
for the Southern District of Texas............................. 244
Hinojosa, Hon. Ruben, a Representative in Congress from the State
of Texas presenting Robert Randall Crane, Nominee to be
District Judge for the Southern District of Texas.............. 245
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona
presenting David Charles Bury, Nominee to be District Judge for
the District of Arizona........................................ 315
Murkowski, Hon. Frank, a U.S. Senator from the State of Alaska
presenting Ralph Beistline, Nominee to be District Judge for
the District of Alaska......................................... 247
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting D. Brooks Smith, Nominee to be Circuit
Judge for the Third Circuit.................................... 243
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting D. Brooks Smith, Nominee to be Circuit
Judge for the Third Circuit.................................... 242
Stevens, Hon. Ted, a U.S. Senator from the State of Alaska
presenting Ralph Beistline, Nominee to be District Judge for
the District of Alaska......................................... 246
STATEMENTS OF THE NOMINEES
Beistline, Hon. Ralph, Nominee to be District Judge for the
District of Alaska............................................. 325
Questionnaire................................................ 326
Bury, David Charles, Nominee to be District Judge for the
District of Arizona............................................ 349
Questionnaire................................................ 350
Crane, Robert Randall, Nominee to be District Judge for the
Southern District of Texas..................................... 379
Questionnaire................................................ 380
Smith, D. Brooks, Nominee to be Circuit Judge for the Third
Circuit........................................................ 250
Questionnaire................................................ 251
SUBMISSIONS FOR THE RECORD
Academy of Trial Lawyers of Allegheny County, Dennis St. J.
Mulvihill, President, Pittsburgh, Pennsylvania, letter and
attachment..................................................... 410
Ambrose, Hon. Donetta W., U.S. District Judge, Western District
of Pennsylvania, Pittsburgh, Pennsylvania, letter.............. 415
Belden, H. Reginald, Jr., Attorney, Belden Law, Greensburg,
Pennsylvania, letter........................................... 417
Carnevali, Ronald P., Jr., Attorney, Spence, Custer, Saylor, Wolf
& Rose, Johnstown, Pennsylvania, letter........................ 420
Finberg, Richard A., Attorney, Malakoff Doyle & Finberg,
Pittsburgh, Pennsylvania, letter and attachment................ 422
Gormley, Ken and Frederick W. Thieman, Pittsburgh Post-Gazette,
February 17, 2002, editorial................................... 427
Kutz, Robert K., Jr., President, Blair Bedford Central Labor
Council, AFL-CIO, Altoona, Pennsylvania, letter................ 431
Lewis, Timothy K., Attorney, Pittsburgh, Pennsylvania, letter.... 439
Mecham, Leonidas Ralph, Director, Administrative Office of the
United States Courts, Washington, D.C., letter................. 441
Miller, William N., Superintendent of Schools, Tyrone Area School
District, Tyrone, Pennsylvania, letter......................... 443
Pagac, Shelly R., Co-President, and Cynthia Reed Eddy, Co-Chair
of Judiciary Committee, Women's Bar Association of Western
Pennsylvania, Pittsburgh, Pennsylvania, letter................. 445
Rush, Mark A., Attorney, Kirkpatrick & Lockhart LLP, Pittsburgh,
Pennsylvania, letter........................................... 446
Susquehanna Valley Women in Transition, Margaret E. Gates,
Executive Director, Lewisburg, Pennsylvania, letter............ 449
Thornburgh, Dick, Pittsburgh Post-Gazette, Pittsburgh,
Pennsylvania, February 26, 2002, comment....................... 450
Washington Post, February 20, 2002, editorial.................... 452
TUESDAY, MARCH 19, 2002
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 458
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 455
PRESENTERS
Bennett, Hon. Robert, a U.S. Senator from the State of Utah
presenting Paul Cassell, Nominee to be District Judge for the
District of Utah............................................... 462
Breaux, Hon. John B., a U.S. Senator from the State of Louisiana
presenting Lance Africk, Nominee to be District Judge for the
Eastern District of Louisiana.................................. 461
Enzi, Hon. Mike, a U.S. Senator from the State of Wyoming
presenting Terrence L. O'Brien, Nominee to be Circuit Judge for
the Tenth Circuit.............................................. 465
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Legrome Davis, Nominee to be District
Judge for the Eastern District of Pennsylvania................. 463
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Legrome Davis, Nominee to be District
Judge for the Eastern District of Pennsylvania................. 468
Tauzin, Hon. W.J., a Representative in Congress from the State of
Louisiana presenting Lance Africk, Nominee to be District Judge
for the Eastern District of Louisiana.......................... 466
Thomas, Hon. Craig, a U.S. Senator from the State of Wyoming
presenting Terrence L. O'Brien, Nominee to be Circuit Judge for
the Tenth Circuit.............................................. 462
STATEMENTS OF THE NOMINEES
Africk, Lance, Nominee to be District Judge for the Eastern
District of Louisiana.......................................... 513
Questionnaire................................................ 514
Cassell, Paul, Nominee to be District Judge for the District of
Utah........................................................... 550
Questionnaire................................................ 551
Davis, Legrome, Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 597
Questionnaire................................................ 598
O'Brien, Terrence L., Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 469
Questionnaire................................................ 474
SUBMISSIONS FOR THE RECORD
Athay, D. Gilbert, Attorney at Law, Salt Lake City, Utah, letter. 660
Beloof, Douglas E., Associate Professor of Law, Northwestern
School of Law of Lewis & Clark College, Portland, Oregon,
letter......................................................... 661
Bugden, Walter F., Jr., Attorney at Law, Bugden, Collins &
Morton, L.C., Salt Lake City, Utah, letter..................... 662
Casey, Cynthia F., letter........................................ 663
Cummings, Brandon, Albuquerque, New Mexico, letter............... 664
Daniels, Charles W., Attorney at Law, Freedman Boyd Daniels
Hollander Goldberg & Cline P.A., Albuquerque, New Mexico,
letter......................................................... 665
Donaldson, L. Clark, Attorney at Law, Salt Lake City, Utah,
letter......................................................... 667
Eldridge, Kent, Attorney at Law, Oklahoma City, Oklahoma, letter. 669
Enderton, Stephen M., Attorney at Law, Salt Lake City, Utah,
letter......................................................... 670
Ferguson, Wallace T., Attorney at Law, Ferguson & Hix, Boerne,
Texas, letter.................................................. 671
Gilbert, Terry H., Attorney at Law, Friedman & Gilbert,
Cleveland, Ohio, letter........................................ 672
Gorman, Peter W., Minneapolis, Minnesota, letter................. 673
Gould, Mark H., Attorney at Law, Ogden, Utah, letter............. 674
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana,
letter in support of Lance Africk, Nominee to be District Judge
for the Eastern District of Louisiana.......................... 675
Mims, Bobby D., Attorney at Law, Tyler, Texas, letter............ 676
Nardi, Steve, Attorney at Law, Sherlock & Nardi, Kalispell,
Montana, letter................................................ 677
National Association of Criminal Defense Lawyers, Irwin Schwartz,
President, Washington, D.C., letter............................ 678
National Organization of Parents of Murdered Children, Inc.,
Nancy Ruhe-Munch, Executive Director, Cincinnati, Ohio, letter. 680
National Victims' Constitutional Amendment Network, Roberta Roper
and Robert Preston, Co-Chairpersons, Denver, Colorado, letter.. 681
Poll, Sterling James, Attorney at Law, letter.................... 682
Rogers, Kristine M., Attorney at Law, Salt Lake City, Utah,
letter......................................................... 683
Shurtleff, Hon. Mark L., Attorney General, State of Utah, Salt
Lake City, Utah, letter........................................ 684
Stuart, Diane M., Director, Office of Justice Programs,
Department of Justice, Washington, D.C., letter................ 685
Thomas, George C., III, Professor of Law, Rutgers University
School of Law, Newark, New Jersey, letter...................... 686
Thomas, Linda S., Attorney at Law, Anchorage, Alaska, letter..... 688
Thorman, Michael P., Attorney at Law, Bonjour & Thorman, Hayward,
California, letter............................................. 690
Troberman, Richard J., Attorney at Law, Seattle, Washington,
letter......................................................... 691
Twist, Steve, Assistant General Counsel, Viad Corporation,
Phoenix, Arizona, letter....................................... 693
Williamson, Bruce R., Jr., Attorney at Law, Charlottesville,
Virginia, letter............................................... 694
Yengich, Ronald J., Attorney at Law, Yengich, Rich & Xaiz, Salt
Lake City, Utah, letter........................................ 695
THURSDAY, APRIL 11, 2002
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 698
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 697
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 965
PRESENTERS
Barrett, Hon. Thomas M., a Representative in Congress from the
State of Wisconsin presenting William C. Griesbach, Nominee to
be District Judge for the Eastern District of Wisconsin........ 708
Dayton, Hon. Mark, a U.S. Senator from the State of Minnesota
presenting Joan E. Lancaster, Nominee to be District Judge for
the District of Minnesota...................................... 706
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin presenting William C. Griesbach, Nominee to be
District Judge for the Eastern District of Wisconsin........... 701
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Percy Anderson and John F. Walter,
Nominees to be District Judges for the Central District of
California..................................................... 710
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire
presenting Jeffrey Howard, Nominee to be Circuit Judge for the
First Circuit.................................................. 703
Green, Hon. Mark, a Representative in Congress from the State of
Wisconsin presenting William C. Griesbach, Nominee to be
District Judge for the Eastern District of Wisconsin........... 708
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin
presenting William C. Griesbach, Nominee to be District Judge
for the Eastern District of Wisconsin.......................... 711
Smith, Hon. Bob, a U.S. Senator from the State of New Hampshire
presenting Jeffrey Howard, Nominee to be Circuit Judge for the
First District................................................. 704
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Michael M. Baylson and Cynthia M. Rufe,
Nominees to be District Judges for the Eastern District of
Pennsylvania................................................... 703
Wellstone, Hon. Paul, a U.S. Senator from the State of Minnesota
presenting Joan E. Lancaster, Nominee to be District Judge for
the Eastern District of Pennsylvania........................... 705
STATEMENTS OF THE NOMINEES
Anderson, Percy, Nominee to be District Judge for the Central
District of California......................................... 743
Questionnaire................................................ 744
Baylson, Michael M., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 778
Questionnaire................................................ 779
Griesbach, William C., Nominee to be District Judge for the
Eastern District of Pennsylvania............................... 835
Questionnaire................................................ 836
Howard, Jeffrey, Nominee to be Circuit Judge for the First
District....................................................... 713
Questionnaire................................................ 714
Lancaster, Joan E., Nominee to be District Judge for the District
of Minnesota................................................... 858
Questionnaire................................................ 859
Rufe, Cynthia M., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 880
Questionnaire................................................ 881
Walter, John F., Nominee to be District Judge for the Central
District of California......................................... 915
Questionnaire................................................ 916
SUBMISSIONS FOR THE RECORD
American Bar Association, Rosco Trimmier, Jr., Chair, Washington,
D.C., letter................................................... 954
Bayorgeon, Hon. James T., Circuit Court Judge, Branch One,
Outagamie County, Appleton, Wisconsin, letter.................. 955
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
letter in support of Percy Anderson and John F. Walter,
Nominees to be District Judges for the Central District of
California..................................................... 956
Brown County Circuit Court Judges, Green Bay, Wisconsin, joint
letter......................................................... 957
Des Jardins, Hon. John A., Circuit Court Judge, Branch 7,
Outagamie County, Appleton, Wisconsin, letter.................. 958
Diltz, Hon. Peter C., Circuit Court Judge, Branch 2, Door County,
Sturgeon Bay, Wisconsin, letter................................ 959
Ehlers, Hon. D. Todd, Circuit Court Judge, Branch 1, Door County,
Sturgeon Bay, Wisconsin, letter................................ 960
Hoffmann, Hon. John P., Circuit Court Judge, Branch 2, Waupaca
County, Waupaca, Wisconsin, letter............................. 962
Huber, Hon. Raymond S., Circuit Court Judge, Branch 3, Waupaca
County, Waupaca, Wisconsin, letter............................. 963
Kirk, Hon. Philip M., Circuit Court Judge, Branch 1, Waupaca
County, Waupaca, Wisconsin, letter............................. 964
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania, letter in support of Cynthia M. Rufe and Michael
M. Baylson, Nominees to be District Judges for the Eastern
District of Pennsylvania....................................... 967
Schober, Thomas L., Green Bay, Wisconsin, letter................. 968
Troy, Hon. Joseph M., Circuit Court Judge, Branch 3, Outagamie
County, Appleton, Wisconsin, letter............................ 969
Warpinski, Hon. Mark A., Circuit Court Judge, Branch 2, Brown
County, Green Bay, Wisconsin................................... 970
Wisconsin Court of Appeals Judges, Wausau, Wisconsin, joint
letter......................................................... 971
THURSDAY, APRIL 25, 2002
STATEMENTS OF COMMITTEE MEMBERS
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina....................................................... 973
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 986
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 983
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 981
PRESENTERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Thomas M. Rose, Nominee to be District Judge for the
Southern District of Ohio...................................... 980
Ford, Hon. Harold E., Jr., a Representative in Congress from the
State of Tennessee presenting Julia Smith Gibbons, Nominee to
be Circuit Judge for the Sixth Circuit and Samuel H. Mays, Jr.,
Nominee to be District Judge for the Western District of
Tennessee...................................................... 1038
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee
presenting Julia Smith Gibbons, Nominee to be Circuit Judge for
the Sixth Circuit and Samuel H. Mays, Jr., Nominee to be
District Judge for the Western District of Tennessee........... 976
Gramm, Hon. Phil, a U.S. Senator from the State of Texas
presenting David C. Godbey, Andrew S. Hanen, and Leonard E.
Davis, Nominees to be District Judges for the Northern,
Southern, and Eastern Districts of Texas, respectively......... 978
Hall, Hon. Ralph M., a Representative in Congress from the State
of Texas presenting Leonard E. Davis, Nominee to be District
Judge for the Eastern District of Texas........................ 1037
Hobson, Hon. Dave, a Representative in Congress from the State of
Ohio presenting Thomas M. Rose, Nominee to be District Judge
for the Southern District of Ohio.............................. 1037
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting David C. Godbey, Andrew S. Hanen, and Leonard
E. Davis, Nominees to be District Judges for the Northern,
Southern, and Eastern Districts of Texas, respectively......... 979
Sandlin, Hon. Max, a Representative in Congress from the State of
Texas presenting Leonard E. Davis, Nominee to be District Judge
for the Eastern District of Texas.............................. 1040
Thompson, Hon. Fred, a U.S. Senator from the State of Tennessee
presenting Julia Smith Gibbons, Nominee to be Circuit Judge for
the Sixth Circuit and Samuel H. Mays, Jr., Nominee to be
District Judge for the Western District of Tennessee........... 974
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio
presenting Thomas M. Rose, Nomionee to be District Judge for
the Southern District of Ohio.................................. 987
STATEMENTS OF THE NOMINEES
Davis, Leonard E., Nominee to be District Judge for the Eastern
District of Texas.............................................. 1041
Questionnaire................................................ 1042
Gibbons, Julia Smith, Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 988
Questionnaire................................................ 989
Godbey, David C., Nominee to be District Judge for the Northern
District of Texas.............................................. 1084
Questionnaire................................................ 1085
Hanen, Andrew S., Nominee to be District Judge for the Southern
District of Texas.............................................. 1114
Questionnaire................................................ 1115
Mays, Samuel H., Jr., Nominee to be District Judge for the
Western District of Tennessee.................................. 1177
Questionnaire................................................ 1178
Rose, Thomas M., Nominee to be District Judge for the Southern
District of Ohio............................................... 1208
Questionnaire................................................ 1209
NOMINATIONS OF MICHAEL MELLOY, OF IOWA, TO BE CIRCUIT JUDGE FOR THE
EIGHTH CIRCUIT; JAMES GRITZNER, OF IOWA, TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF IOWA; ROBERT BLACKBURN, OF COLORADO, TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLORADO; CINDY JORGENSON, OF
ARIZONA, TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; RICHARD
LEON, OF MARYLAND, TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA;
AND JAY ZAINEY, OF LOUISIANA, TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF LOUISIANA
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THURSDAY, JANUARY 24, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 2:05 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Maria
Cantwell presiding.
Present: Senators Cantwell, Leahy, Kennedy, Grassley, Kyl,
and DeWine.
STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE
OF WASHINGTON
Senator Cantwell. The Senate Judiciary Committee will come
to order.
Good afternoon. I would like to welcome everyone here today
to our first Senate Judiciary Committee hearing of the year. We
are here to consider the nominations of six individuals to the
Federal Bench, one nominee for the Eighth Circuit Court of
Appeals and five nominees to the district court.
We are fortunate to have a talented group of nominees with
us, and I would like to extend my welcome to them and to their
families who are here and the friends who have joined them
today.
I am pleased to be able to chair this first hearing for
Senator Leahy, and I would also like to thank him for the
leadership that he has shown on the issue of judicial
nominations since taking over the committee last summer.
In just 6 months, we have already had 11 hearings on 34
different judicial nominees. This is more than the number of
judges who received a hearing in the entire first year of the
Clinton administration. This has required really a very
significant effort on the part of the committee and the
chairman, so I applaud him for that.
Hearings were held during the August recess; during the
week of September 11, requiring that nominees drive through the
night to be here; and hearings have been held during the period
when anthrax contamination closed the Hart Senate Office
Building. So, again, I appreciate everybody's indulgence. As a
result of those hearings, 28 qualified judges have been
confirmed and sent to the Federal courts around the country. I
am confident that we will soon confirm additional nominees now
that the Senate is back in session.
By scheduling this hearing today, just one day into the new
Senate session, this committee sends a message that it will
continue on a schedule to hold hearings and vote on judicial
nominees in a responsible manner.
I would like to make special note of two of the nominees
here today from the State of Iowa. They are here with the
support of one of the committee's longest serving members,
Senator Grassley, who I know is on his way down. They are also
here with the support of Senator Harkin--we appreciate him
being here as well--which shows that there is bipartisan
support for these nominees.
Senator Kyl, who has just joined us, another valued member
of this committee, also has a nominee to the district court
here, and it is an extra pleasure for me to be chairing this
hearing with in attendance and working to confirm this nominee
promptly from his State.
The nominees here today all have strong records that
demonstrate an ability to analyze complex and important legal
concepts in a manner befitting a Federal judge. Their records
reflect a commitment to our fundamental constitutional
protections and rights, including the advancement and
protection of civil rights and liberties for everyone.
Several of the nominees are here today with bipartisan
support from their delegations. We take that support and
sponsorship seriously. It is my opinion that the dispute over
judicial nominees could become a thing of the past if we were
to see more nominees like these, nominated after consultation
with the Senate.
As Federal judges, these nominees before us today will have
a vital role to play at a difficult time in our Nation's
history. I am confident that they will take this responsibility
seriously and ensure that the decisions that they make
demonstrate fair-mindedness and rely on a rich history of
judicial precedent.
Before we go on to have the nominees come forward, we are
going to hear from several House and Senate members who are
here.
I don't know, Senator Kyl, if you had an opening statement
that you wanted to make. If not, I will go to our various
colleagues here who have given of their time to come and speak
on behalf of these nominees.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Madam Chairman, in view of the large number of
our colleagues who are present and the importance of moving
along, I will simply note that I hope that we will indeed move
with alacrity on the nominations both for district and court
this year to fill the over 100 vacancies that currently exist.
I appreciate the chairman holding this hearing. I
appreciate your chairing the hearing today, and I will have
more to say about the nominee from the State of Arizona very
briefly.
Thank you.
Senator Cantwell. Thank you, Senator Kyl.
We will give Senator Grassley an opportunity here to decide
whether he wants to--Senator Grassley, we want to give you an
opportunity to introduce your nominees, if you are comfortable
in doing it at this time. Being the most senior member of our
committee here and a longstanding member, we want to give you
that honor of being first in expressing your thoughts.
PRESENTATION OF MICHAEL MELLOY, NOMINEE TO BE CIRCUIT JUDGE FOR
THE EIGHTH CIRCUIT AND JAMES GRITZNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY HON. CHARLES E.
GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. First of all, I apologize for being late,
but I was managing the stimulus package on the floor.
I have the pleasure today of introducing to the committee
two distinguished Iowans who have been nominated to the Federal
bench. Judge Michael Joseph Melloy has been nominated to serve
as U.S. Circuit Judge for the Eighth Circuit, and James Edward
Gritzner has been nominated to serve as a U.S. District Judge
for the Southern District of Iowa. These people are two very
qualified people for Federal judgeship positions, and I am
obviously proud to support their nominations, as I was involved
with suggesting these people to the President of the United
States.
Judge Melloy was born in Dubuque, Iowa, and married Jane
Anne Knapp Melloy. She is a counselor in the Cedar Rapids
schools. He graduated magna cum laude from Lorus College, and
with high distinction from the University of Iowa College of
Law. Before he attended law school, Judge Melloy served in the
United States Army.
Upon graduation from law school, Judge Melloy gained
extensive experience in civil litigation when he joined the
Dubuque law firm of O'Connor, Thomas, Wright, Hammer, Bertsch
and Norby, where he eventually became a partner and
shareholder. In 1986, Judge Melloy was appointed United States
Bankruptcy Judge for the Northern District of Iowa.
In 1992, Judge Melloy was appointed to the United States
District Court for the Northern District of Iowa by President
George Bush, Sr. In this position, Judge Melloy has presided
over a wide variety of criminal and civil cases. He also has
served on a number of committees, including the Eighth Circuit
Judicial Council, the Gender Fairness Task Force of the Eighth
Circuit, and the Eighth Circuit Pattern Jury Instruction
Committee. Judge Melloy also currently chairs the Bankruptcy
Administration Committee of the Judicial Conference.
Judge Melloy is accompanied today, I am told, by his
family, including his wife, Jane Anne; one of his daughters,
Bridget; and his sister, Colleen George. I am sure that they
are all very proud of the advancement that their family member
is making in the profession of law.
I would go to Jim Gritzner now, who was born in Charles
City, Iowa, and is married to Zoe Ann Gritzner, who is here
today to support her husband's nomination to the District Court
for the Southern District of Iowa.
He received a B.A. degree in 1969 from Dakota Wesleyan, a
Master of Arts degree in 1974 from the University of Northern
Iowa, and a law degree in 1979 from Drake University Law
School. While he was in law school, Jim Gritzner worked as a
law school for a Magistrate Judge with the U.S. District Court
for the Southern District of Iowa.
Upon graduation from law school, Jim Gritzner worked as an
associate attorney for the Waterloo law firm of Mosier, Thomas,
Beatty, Dutton, Braun and Staack from 1979 to 1981. After that,
he held a brief position as partner of a law firm that he co-
founded, Humphrey, Haas and Gritzner, in Des Moines. In 1982,
he joined the Des Moines law firm of Nyemaster, Goode, Voigts,
West, Hansell and O'Brien as an associate attorney, and from
1986 to the present has served as a shareholder.
In addition to his law practice, Mr. Gritzner has had a
notable record of public record. In 1980, he was appointed by
Governor Ray to be a member of the Iowa Board of Parole, where
he served through 1982. From 1985 to 1990, he was primary
prosecutor for the Committee on Professional Ethics and Conduct
of the Iowa State Bar Association and the Client Security and
Attorney Disciplinary Commission of the Iowa Supreme Court.
Because of this work, Mr. Gritzner has been recognized as an
authority on legal ethics in Iowa. He is often called upon to
resolve ethical issues for other lawyers, and serves as an
expert witness on professional responsibility.
Both Judge Melloy and Jim Gritzner have had distinguished
legal careers and have shown tremendous dedication to public
service. They will be a huge asset to the Eighth Circuit and to
the Southern District of Iowa. I am confident that these men
possess the skills, integrity, commitment, intellect, and
temperament that we expect of all good judges. So it is with
great respect and admiration that I recommend both of these
highly qualified individuals to the Judiciary Committee for
favorable consideration.
Thank you.
Senator Cantwell. Thank you, Senator Grassley, and thank
you for that timely entrance and jumping right into that. We
appreciate it.
Senator Harkin is also joining us.
Senator Harkin, did you want to give comments on Judge
Melloy and Mr. Gritzner?
PRESENTATION OF MICHAEL MELLOY, NOMINEE TO BE CIRCUIT JUDGE FOR
THE EIGHTH CIRCUIT AND JAMES GRITZNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY HON. TOM D. HARKIN,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Harkin. Thank you, Madam Chairwoman, for holding
this hearing, and I am pleased to be here with my Iowa
colleague to introduce and give my support to Michael Melloy,
who has been nominated to serve on the Eighth Circuit Court of
Appeals, and to James Gritzner, nominated for the U.S. District
Court for the Southern District of Iowa.
Senator Grassley went through all of their long resumes. I
will not do that again, just to say that Michael Melloy has a
long history in the law. He has a strong judicial background,
serving as a Federal Judge in Iowa's Northern District since
1992, and before that serving on the U.S. Bankruptcy Court, and
also as a private lawyer for 12 years in a law firm in Dubuque,
Iowa, after graduating from the University of Iowa Law School.
As I supported Michael Melloy's nomination in 1992 to the
Federal bench, I support his nomination to the Eighth Circuit
today.
Jim Gritzner also has had extensive trial experience
working in private practice since graduating from Drake Law
School in 1979. Most recently, he has been an attorney with the
law firm of Nyemaster, Goode, Voigts, West, Hansell and
O'Brien, in Des Moines, since 1982.
In addition, from 1985 to 1990, Jim Gritzner served as
counsel to the Committee on Professional Ethics and Conduct of
the Iowa State Bar Association, and counsel to the Client
Security and Attorney Disciplinary Commission of the Iowa
Supreme Court.
Again, I thank you, Madam Chair, for holding these
hearings. I recommend these two fine individuals, but, Madam
Chair, I am going to take 60 seconds. I don't get up here
before this committee very often.
Something just happened in Iowa, and Judge Melloy was the
judge on this case. There was an editorial in the paper: ``What
sort of country would put a man in Federal prison for 15 years
for possessing a single .22 caliber bullet? Ours would.''
And it did, in one of the most bizarre applications of the
Federal Sentencing Guidelines. Here was a man, 38 years old.
His former girlfriend had claimed that he had stolen some stuff
from her. The police got a search warrant and went and searched
his place and found one .22 caliber bullet in his apartment.
Because he had a previous conviction for theft, not armed
robbery--he never had a gun, never had a gun--they put in the
form and it spit out and he got 15 years for possessing one .22
caliber bullet. That came before Judge Melloy.
Well, Madam Chair, I voted for the Sentencing Guidelines. I
was wrong. I think it has turned into a nightmare. I think once
again we have got to give judges the right to judge or take the
name away from them, don't call them judges any longer. If we
are going to have someone be a judge--these two gentlemen
before you from Iowa I can say have the experience and the
ability to judge, but because of the Sentencing Guidelines a
lot of times their hands are tied.
Just think about that. Fifteen years. He possessed one .22
caliber bullet and that is all.
Thank you very much, Madam Chair.
Senator Cantwell. Thank you, Senator Harkin, for being here
and for your comments. I know that perhaps we will get into
that in some of the questions the committee is going to ask.
I know that we have such a distinguished group here, more
than we usually have at our hearings, so thank you for being
here. I don't know if you have worked out with each other the
order of process here. I know that it would be somewhat
cohesive to have Mr. Leach go next, if possible, just to get
the Iowa judges out of the way. If my colleagues would agree to
that, then we could proceed to the Louisiana nomination and
then right on down the line, if that is acceptable to people.
Given that, Congressman Leach, it is a pleasure to have you
over here in the Senate, if you would like to give comments on
the two nominees from Iowa.
PRESENTATION OF MICHAEL MELLOY, NOMINEE TO BE CIRCUIT JUDGE FOR
THE EIGHTH CIRCUIT AND JAMES GRITZNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY HON. JAMES A. LEACH,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA
Representative Leach. Thank you, Madam Chair, and I
apologize to my senior colleagues from this body. I will be
very brief.
One, I want to express my great admiration for Senator
Grassley for taking such a heavy responsibility, in particular,
for these judgeships and having put forth two sterling
individuals.
I also want to express my appreciation to Senator Harkin
for his endorsement of both of these judges, and we all know
the Senate process is it is helpful to have Senators from both
parties supportive, and that is the case.
With Judge Melloy, who is a constituent, you have an
individual who has the strong support of his community, the
strong support of his profession, and is a man that has
embellished the Federal court in two different instances, and I
am sure will ennoble it further with his elevation to a
superior court.
With Judge Gritzner, you have an individual who is not a
constituent, but as a small State we know of reputations, and
to bring forth an individual with such a background in ethics
and, I might say, arts and culture, I think is very relevant to
the judiciary. The State of Iowa is exceptionally proud of both
of these nominations.
I thank you, Madam Chair.
Senator Cantwell. Thank you.
We will now go to Senator Breaux, from Louisiana, for his
comments.
PRESENTATION OF JAY ZAINEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF LOUISIANA BY HON. JOHN B. BREAUX, A
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Breaux. Thank you, Madam Chair and members of the
committee, for allowing us to be on what must be the most
exciting part of this program today to listen to us talk about
our constituents, but I think it is very important.
The comment has been made that it is good when you have
bipartisan support. Jay Zainey, who is nominated to be a
Federal district judge for Louisiana, has bipartisan support.
We are Democrats; he is a Republican. He has bi-gender support.
Mary and I are both pleased to be here.
I would just say all of these nominees have gone to the
right schools and made good grades and wrote good articles, but
I think--and I have said this many times before in representing
candidates from Louisiana--particularly for the Federal
district court, you want people who know people because the
district court is the people's court. They try cases. People
come before them who are lawyers and people who have been
aggrieved and been charged, and you have to understand people.
There is a role for philosophers and professors and
teachers of law, but particularly on the district court there
is a role for people who practice law. Jay Zainey is a single
practitioner in New Orleans who runs a general practice of
civil and criminal and bankruptcy and everything that you would
expect. I mean, he has seen it all. Those are the types of
additional qualifications that I think are unique and important
to the Federal district court.
I would just point out one other thing. He has used his
time both as a member of the bar and in civic activities in
some very important ways that I just would share just for a
moment.
He was president of the Louisiana State Bar Association and
inaugurated a community action committee, probably the first in
the Nation, where the bar association had a committee to help
carry out charitable projects, to say, look, we ought to give
something back. The State Bar Association, under his
leadership, initiated that community action committee.
Also, he established a special committee to devote to the
task of providing legal services for the disabled and, in fact,
has been honored by the bar association and by the Legal
Services Project Director's Award for his dedication to the
provision of legal services to disadvantaged Louisianians. He
also served on the board of directors for the Advocacy Center
for the Disabled and Elderly.
This is a person who is a totally committed citizen, in
addition to being a fine attorney and outstanding lawyer, with
all the experience and education that I think will make him an
outstanding Federal district judge.
Thank you.
Senator Cantwell. Thank you, Senator Breaux.
Senator Landrieu?
PRESENTATION OF JAY ZAINEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF LOUISIANA BY HON. MARY L. LANDRIEU, A
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you, Madam Chair. Let me just join
my colleague, Senator Breaux, in giving my hearty
congratulations to Jay Zainey for being nominated, and to
acknowledge his presence and the presence of his wife, Joy, and
his daughter, Margaret, who is here with us, and to commend the
President for nominating such an outstanding lawyer.
We have got many fine lawyers in our State, as every
Senator could claim. But as Senator Breaux has mentioned, not
only has Jay distinguished himself through his academic career,
but really in a leadership position initiating things that
never were before and creating them.
Out of his own personal experience with a child he and his
wife have who is specially challenged, he took that personal
experience and turned it into something that has been of
tremendous service to thousands of families in Louisiana who
are challenged by raising a disabled child or having someone in
their family that has those special challenges. I think that is
the kind of leadership we want on the Federal bench.
The only thing I will say is particularly at this time in
our history, our Federal bench serves as a powerful tool for
the powerless. It serves as a source of pride for all
Americans, and at this particular time a beacon of hope for the
world. I think Jay will bring more than honor and judgment to
that bench and he has my hearty congratulations.
Senator Cantwell. Well, I want to thank the two Senators
from Louisiana for showing up.
For all the nominees, the Senators who have come to speak
on your behalf have very busy schedules, and to come with such
enthusiasm shows a great deal of interest in making sure that
your nominations go through smoothly. So thank you.
Well, let's turn to Senator Campbell.
PRESENTATION OF ROBERT BLACKBURN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO BY HON. BEN NIGHTHORSE CAMPBELL, A
U.S. SENATOR FROM THE STATE OF COLORADO
Senator Campbell. Thank you, Madam Chairman. I was
interested in Senator Breaux's comments about the type of
people we look for for the Federal district court, and I
certainly agree with him that we need people that have a good,
strong law background, but are also involved in the community
and have common sense. Certainly, our candidate from Colorado
falls in that category. In fact, he has even been known to ride
a motorcycle or two.
Senator Cantwell. Is that the common sense part?
[Laughter.]
Senator Campbell. Absolutely, absolutely.
It is certainly an honor and a pleasure to introduce to the
committee today what I consider a tremendous legal mind from
the State of Colorado and an outstanding citizen from our
State, Judge Robert Blackburn, who is here with his family.
Judge Blackburn has been practicing law in Colorado now for
more than a quarter of a century and has handled all types of
cases. He has represented school districts, boards of county
commissioners, departments of social services, banks,
corporations, public officials, and private citizens in all
kinds of legal contexts. I firmly believe that he is
overwhelmingly qualified and definitely is the right person for
this job.
Over a year ago, Senator Allard and I set up a review panel
made up of a cross-section of people from the legal profession
in Colorado to help us, you might say screen, to find out who
we should recommend to the President for this post. Judge
Blackburn came out very high, if not on top, of literally every
person in that panel's recommendations.
For the past 12\1/2\ years, Judge Blackburn has served as a
district judge for the 16th Judicial District in Colorado. He
has a long and proven record of working hard on behalf of our
people. Throughout his legal career, he has been tough but
fair, and prepared and engaged in his work, and I think that
qualifies him as a definite asset to the judicial system. Those
qualities are important characteristics that have undoubtedly
served him well and will, no doubt, do so in the future.
I know we have to bounce around from person to person.
There are a lot of eminently qualified people today, but I
certainly am looking forward to seeing him serve on the bench.
Thank you, Madam Chairman.
Senator Cantwell. Senator Campbell, thank you for your
remarks.
Senator Allard.
PRESENTATION OF ROBERT BLACKBURN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO BY HON. WAYNE ALLARD, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Allard. Madam Chairman, thank you very much. I
consider it an honor and a privilege to come before you with my
colleague, Senator Ben Nighthorse Campbell, to introduce the
Honorable Robert E. Blackburn, a person who I believe has
considerable integrity and true intellect.
Judge Blackburn has been nominated by President Bush for a
Federal judgeship in the United States District Court for the
District of Colorado, and I urge the committee's acceptance of
his nomination.
Madam Chairman, I have before me a letter here from the
chief judge of the district court talking about Judge
Blackburn. He says, ``I know Judge Blackburn and I believe him
to be well qualified.''
I just would want to also point out to the committee that
the District of Colorado struggles to do the work of a
demonstrated need of 9 active judges with only 4 active judges.
So I really appreciate your moving forward with this
confirmation because it is badly needed in that particular
district.
Judge Robert E. Blackburn knows the law and he knows
Colorado. He graduated from the University of Colorado School
of Law in 1974 and received his undergraduate degree from
Western State College. His roots go deep in Colorado. He was
raised on a farm in the proud community of Las Animas,
Colorado. I feel that that keeps one foot in the real world
while he is serving on the bench.
He has practiced law as an attorney and judge for over two
decades. He comes before the committee today from State
district court, a post he has held since 1988. Previously, Mr.
Blackburn served as a deputy district attorney, Bent County
Attorney, and then municipal judge and city attorney. In
addition to that, he has extensive experience as a business
owner. I think that is an important talent that will serve him
well with the multiple demands of the Federal bench.
Judge Blackburn has the support of many people, as well,
and I would just reiterate what Senator Campbell said that we
had a committee of well-qualified, respected attorneys in
Colorado help us with the selection process and I think they
did a very good job. As a result of that, Judge Blackburn has
the support of many people in Colorado.
An editorial in the Denver Post, upon hearing of Judge
Blackburn's nomination, proclaimed, ``We are delighted by the
White House decision.'' The column went on to praise the
extensive experience of the judge, as well as his solid
knowledge of the law and reputation for fairness.
The Denver Post also noted in their editorial of support
that he is widely respected by other judges and by lawyers who
have appeared before him. The Denver Post urged the Senate
Judiciary Committee to exercise all reasonable speed with the
Blackburn nomination, saying, and I quote, ``The long
overworked federal court of Colorado needs qualified new
judges, and it needs them now.''
In summary, I think Judge Blackburn is a highly qualified
candidate and, in the words of the Post, ``eminently
qualified.'' A substantial majority of the American Bar
Association Standing Committee on the Federal Judiciary found,
as a result of an extensive investigation, that the Honorable
Robert E. Blackburn is well qualified for appointment as Judge
of the United States District Court for the District of
Colorado.
Thank you again. I urge the committee's acceptance of Judge
Blackburn's nomination.
Senator Cantwell. Thank you. Senator Allard and Senator
Campbell, thank you very much for coming and giving your
remarks on Judge Blackburn, from Colorado. We appreciate you
being here.
We are going to turn now to Senator Kyl for his comments on
Judge Cindy Jorgenson.
Senator Kyl. Madam Chairman, why don't I defer to
Representative Norton, since I am going to be on the panel
throughout the afternoon.
Senator Cantwell. We appreciate that.
Representative Norton, would you like to give comments on
the District of Columbia nominee, Richard Leon?
PRESENTATION OF RICHARD LEON, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA BY HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Representative Norton. Well, the Senator is very generous
and I appreciate it.
Madam Chair, I appreciate the opportunity to come before
you to recommend Richard Leon for the District Court here in
the District of Columbia. As you are aware, the District does
not have Senators, but the President has agreed to consult with
me, as he does with members of this body, on nominees to our
district court. I am gratified that he has kindly agreed to do
that, and I am gratified that the Chair of this committee has
also agreed to do so.
My good colleague to my right, Mr. Leach, has authorized me
to say that he too knows Richard Leon and he thinks highly of
him, and wants me to say that he recommends him. So although
there are not a lot of Republicans in the District of Columbia,
I can say that Mr. Leon has bipartisan support as well.
[Laughter.]
I am sure that my Republican constituents would be as happy
as I am with this nominee. I had the opportunity to interview
him and to look into his background. I consider Mr. Leon very
well qualified for the Federal bench.
He has had a classic career of good preparation for the
Federal bench: his work in the U.S. Attorney's Office for the
Southern District of New York; his work in the Criminal
Division at the Department of Justice, where he was recognized
for his outstanding legal work; his work as a Deputy Attorney
General in the Department's Environment and Resources Division;
and, of course, his work with House investigations, where Mr.
Leach got to see him and know him.
Now, Mr. Leon has brought his career, civil and criminal
litigation experience to private practice here in the District
of Columbia, where he is lead counsel in complex civil and
criminal cases. In addition, he has been an adjunct professor
of law at Georgetown Law School, and has been active in the
D.C. Bar Association.
There is no doubt in my mind that, by background and
experience, Richard Leon is well qualified for the U.S.
district court here and I am pleased to recommend him highly to
you.
Senator Cantwell. Thank you, Representative Norton, for
those comments.
Again, I thank the panel for being here today and giving
time out of their schedule to speak positively about these
nominees.
Senator Kyl, did you want to take an opportunity now?
PRESENTATION OF CINDY JORGENSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA BY HON. JON KYL, A U.S. SENATOR
FROM THE STATE OF ARIZONA
Senator Kyl. Thank you, Madam Chairman. Yes, now I can
truly say we will save the best until last. I can brag about my
nominee that way.
Cindy Jorgenson is a judge on the Pima County Superior
Court bench and is one of two nominees of the President. I hope
the other will soon be before the committee, as well, because
they are in the division of the district court that is the
second busiest in terms of criminal felony filings or caseload,
the second busiest out of the 94 district courts or divisions
in the entire United States. This is a court that needs the
help and, as a sitting judge, Cindy Jorgenson will be able to
hit the deck running, as it were.
She also is distinguished by the fact that she graduated
from the University of Arizona both in her undergraduate and
her law school career, exactly the same path that I followed, I
might add, quite a few years before Judge Jorgenson.
She is currently the presiding judge on the family law
bench. She served as a prosecutor in the Pima County Attorney's
office. She supervised felony sex crimes and child abuse
prosecutions. Until her appointment to the bench, she was
employed by the Department of Justice as an Assistant United
States Attorney. She worked in both the Criminal and the Civil
Divisions there, so she has both the civil and the criminal
experience.
She was assigned to a variety of cases, including Native
American and immigration matters, drug cases, civil medical
malpractice, civil forfeiture, all the kinds of cases that
would come before her as a sitting judge. She has also
represented the United States in several appellate cases before
the Ninth Circuit Court of Appeals.
Madam Chairman, to save time I won't go through her
professional activities and honors, except for a couple.
Suffice it to say they are numerous. She has served on a
variety of different commissions. She received the governor's
recognition for work on jury reform. She has been awarded the
United States Department of Justice Special Achievement Award
in four different years, and has received other commendations.
She is very well qualified. I am delighted that the
President has nominated her and I am confident the committee
will find her equally as qualified.
Senator Cantwell. Thank you, Senator Kyl, for those
comments.
We are going to move now to the nominees. We are about
ready to move to having Mr. Melloy be sworn in for his oath,
but since the chairman of the committee is here, Senator Leahy,
I don't know if you wanted to take an opportunity to give
comments on these nominees or this hearing today.
Chairman Leahy. Only this, Madam Chair: I wanted to thank
you and Senator Grassley and Senator Kyl for taking the time.
In constantly trying to move things as quickly as we do, it
means that we have hearings at times when normally we don't. I
don't know that we have ever had a hearing in the first week
back, and the reason that we are able to do it is the three of
you are willing to take the time to make it possible, but
especially you, Senator Cantwell.
I just wanted to come over and welcome the nominees. I know
you have all worked not only with the White House, but with the
Senators from your home States, and it is good to have you
here.
That is all I have to say.
[The prepared statement of Senator Leahy follows:]
Statement of Senator Patrick Leahy, Chairman, Senate Judiciary
Committee
I thank Senator Cantwell for chairing this important
hearing and also thank all of the nominees and their Senators
and Representatives for arranging to appear today.
This is the second day of this session of Congress and we
are proceeding with our first confirmation hearing for judicial
nominees. Last year I announced our first judicial nominations
hearing within 10 minutes of the Senate reorganization last
summer. We held that first hearing last session on the day
after Committee Members were assigned. In fact, in the last
five months of last year we held 11 hearings involving judicial
nominees. That is more hearings involving judicial nominees
than were held in all of 1996, 1997, 1999 or 2000 and hearings
at a more rapid pace than in either 1995 or 1998. Unlike the
preceding six and one-half years in which no hearings were held
in 30 months, since the Committee reorganized last summer, we
have held at least one hearing for judicial nominees every
month. In fact, we held two in July, two unprecedented hearings
during last summer's August recess, two in December, and three
in October.
In the last five months of last year, the Committee
considered and reported favorably to the Senate 32 judicial
nominations. We reported more judicial nominees after the
August recess than in any of the preceding six years and more
than in any similar period over the preceding six and one-half
years. And last year was no ordinary year for the country or
the Senate. Nonetheless, the Committee worked hard to make
progress with judicial nominations, and I extend my thanks to
all Senators who helped in those efforts and assisted in the
work that it takes to consider the scores of nominations that
we did in the last five months of last year.
One of the reasons that the Senate was able to confirm 28
judges in the last five months of the last session was because
they were strongly supported as consensus nominees by people
from across the political and legal spectrums. In the last five
months of last year, not only did the Senate confirm almost
twice as many judges as were confirmed in the first year of the
George H.W. Bush Administration; we confirmed more judges,
including twice as many judges to the Courts of Appeals, as in
the first year of the Clinton Administration.
Our hard work led to some success. By the time the
Committee was organized and beginning its work last summer, the
vacancies on the federal courts were peaking at 111. The
Committee has begun the process of lowering the vacancies on
our federal courts. Since I became Chairman, 25 additional
vacancies have arisen. Through our work in the last five months
of last year we were able to outpace this high level of
attrition. By contrast, when Republicans took charge of the
Senate in January 1995 until the majority shifted in the summer
of 2001, federal judicial vacancies rose from 65 to more than
100, an increase of almost 60 percent.
In spite of our short year, the need to focus our attention
on responsible action in the fight against international
terrorism; the threats and dislocation of the anthrax attacks;
the long overdue oversight of the FBI; the need to overcome a
partisan filibuster that prevented action on the measure that
funds our nation's foreign policy initiatives and provides
funds to help build the international coalition against
terrorism; and the partisan efforts to delay the organization
and then the reorganization of the Senate, we persevered and
attended to the work of the Committee.
A good part of that work can be found in the 16
confirmation hearings in the last five months of last year for
Executive Branch nominees; the confirmations of 77 senior
Executive branch officials including the Director of the FBI,
the head of the DEA, the Commissioner of INS, the Director of
U.S. Marshals, the Associate Attorney General, the Director of
ONDCP, the Director of PTO, seven Assistants Attorney General
and 59 U.S. attorneys. I regret that the White House did not
begin sending U.S. marshal nominations until very late in the
session, and that more U.S. Attorneys and U.S. marshals were
not available to be considered.
I recall soon after Judge Gregory's confirmation last July
that the White House Counsel said in a public interview that he
did not expect the Senate to confirm more than five judges
before the end of 2001. We reached that mark by September, when
the Senate confirmed Judge Prost, our third Court of Appeals
confirmation in two months. We went on to confirm more than
five times the number predicted by the White House Counsel in
just five months.
One might have thought from the constant barrage of
partisan criticism that 2001 resembled 1996, a year in which a
Republican Senate majority confirmed only 17 judges, none of
which were confirmed to the Courts of Appeals. The fact is that
the Senate can be proud of its achievements during the final
months of 2001.
I had hoped that more Senators would recognize what we were
able to accomplish and consider our record in historical
context. I have yet to hear any Republican concede any
shortcomings in the practices they employed over the previous
six and one-half years. Since that change in majority last
summer, we have been exceeding the pace and productivity that
they had maintained. If their efforts were acceptable or as
praiseworthy as some would argue, I would expect them to
acknowledge that our efforts are also to be commended. If they
did things they now regret, their admissions would go far to
helping establish a common basis of understanding and
comparison. Taking that step would be a significant gesture,
one that has not yet occurred.
We know that our work has not been completed. There are
still far too many judicial vacancies that we must work
together to fill. We begin this session with our first
Committee activity being a judicial nominations hearing, our
twelfth since the change in majority last summer. We will
continue our work to keep the confirmation numbers and the
vacancy numbers both moving in the right directions.
At the end of 1999, Chief Justice Rehnquist was encouraged
when only 34 judges were confirmed all year and 35 were left
pending. Similarly, at the end of 2000, the Chief Justice
commended the Senate for confirming 39 judges all year, a year
in which 41 judicial nominations were returned to the President
without Senate action. Last year, we were able to confirm 28
judges in only five months and the Committee reported four
additional nominees to the Senate for final action from the 65
Court of Appeals and District Court nominations sent to the
Senate during the course of the year.
More than two-thirds of last year's vacancies and this
year's continue to be on our federal trial courts. The
Administration has been slow to make nominations to the
vacancies on the federal trial courts. In the last five months
of last year, the Senate confirmed 22 of the 37 District Court
nominees it received. That is a higher percentage of the
President's trial court nominees than the prior Republican
majority had allowed the Senate to confirm in the first session
of either of the last two Congresses with a Democrat President.
Unfortunately, we ended last year without a nominee for 55 of
the current 69 District Court vacancies; i.e., almost 80
percent of the current trial court vacancies had no nominations
for the Senate to consider. The White House nominated only one
District Court nominee in the last two months of last year.
This session we have received nominations for two dozen of
the four and one-half dozen District Court vacancies that were
without a nominee. That is a start. Unfortunately, last year
the White House also acted unilaterally to change the practice
of nine Republican and Democratic Presidents to allow the ABA
to begin its peer reviews during the selection process. Those
professional peer reviews for judicial nominees cannot even
begin now until after the nomination and may take several
months to complete. The ABA peer reviews on the nominations
being made this week, for example, are not likely to become
available until late March or April. If the nominees have the
support of their home State Senators, and after the Committee
has received ABA peer reviews, these nominees will then be
eligible to be included in Committee hearings, but not until
sometime this spring. And even then, over two dozen of the
current federal trial court vacancies, 31, almost half of all
current federal trail court vacancies, will still be without
eligible nominees.
To make real progress will take the cooperation of the
White House. The most progress filling judicial vacancies can
be made most quickly if the White House would begin working
with home State Senators to identify fair-minded, non-
ideologue, consensus nominees. One of the reasons that the
Senate was able to confirm 28 judges in the last five months of
the last session was because they were strongly supported as
consensus nominees by people from across the political and
legal spectrums. In the last five months of last year, not only
did the Senate confirm almost twice as many judges as were
confirmed in the first year of the first George H.W. Bush
Administration and more judges, including twice as many judges
to the Court of Appeals as in the first year of the Clinton
Administration, but the Committee held more hearing for more
nominees and favorably reported more nominees after the August
recess than in any of the preceding six years of Republican
control.
I will continue my effort to work with all Senators to
schedule nominations for hearings considering a number of
actors, including the consensus of support for the nominee, the
needs of the court to which the person is nominated, the
interests of the home state Senators, and the work load and
legislative schedule of the Committee. We have a number of
persisting vacancies that should have been filled by qualified
candidates nominated from 1995 through 2000. Over the six and
one-half years that preceded the Democratic Senate majority, a
total of only 46 judges were confirmed to fill vacancies on the
Courts of Appeals, an average of approximately seven a year.
This has resulted in multiple vacancies in a number of
Circuits. There are many problems that have grown and even
festered over time and they cannot all be remedied immediately.
In the last five months of last year, the Senate proceeded to
confirm six Court of Appeals judges. Indeed, last year the
Senate confirmed the first new member of the 5th Circuit in
seven years, the first new judge to the 4th Circuit in three
years, and the first new judge to the 10th Circuit in six
years.
I again urge the White House to redouble its efforts to
work with home state Senators from both parties, Democratic
Senators as well as Republican Senators. I urge the White
House, as I have for years, to work with home State Senators of
both parties to identify, select and nominate strong,
consensus, fair nominees for these important vacancies. Today
we demonstrate, again, that consensus nominees with widespread
and bipartisan support are more easily and more quickly
considered by the Committee.
As some indication of the bipartisan manner win which we
proceeded last year, I note that the Senate confirmed 11
nominees from States with two Republican Senators, nine from
States with a Democratic Senator and a Republican Senator, five
from States with two Democratic Senators, and three for courts
in the District of Columbia which is without Senate
representation. That is a decidedly bipartisan record. Today's
group of nominees reflects that bipartisanship as well. Two are
from States with two Republican Senators, two are from a State
with a Democratic Senator and a Republican Senator, one is from
a State with two Democratic Senators, and one is for a vacancy
in the District of Columbia.
Last year, the Senate acted promptly to confirm all of the
judges in an average of fewer than 60 days from the time we
received a peer review from the ABA. This stands in sharp
contrast to recent years in which the average time for
consideration had risen to historic levels, about 200 days from
nomination to confirmation and more than a year on average for
the few lucky Court of Appeals judges to be considered.
We have also completed work on a number of judicial
nominations in a more open manner than ever before. For the
first time, this Committee is making public the ``blue slips''
sent to home State Senators. Until my chairmanship, these
matters were treated as confidential materials and restricted
from public view. We have moved nominees with less time from
hearings to the Committee's business meeting agenda, and then
out to the floor, where nominees have received timely roll call
votes and confirmations. Over the preceding six and one-half
years, at least eight judicial nominees who completed a
confirmation hearing were never considered by the Committee and
simply left without action. Additionally, the past practices of
extended unexplained anonymous holds on nominees after a
hearing were not as evident in the last five months of last
year as they were in the past.
Throughout last year, in particular, in the wake of the
terrorist attacks on September 11, some of us have been seeking
to join together in a bipartisan effort in the best interests
of the country. For those on the Committee who helped in those
efforts and assisted in the hard work of reviewing and
considering the scores of nominations the Committee reported in
the last five months of last year, I commend them. As we
demonstrated last year and again today at this hearing, we are
moving ahead to fill judicial vacancies and consider nominees
with strong bipartisan support.
Senator Kyl. Madam Chairman.
Senator Cantwell. Yes, Senator Kyl.
Senator Kyl. While the chairman is still here, I thank him,
as well, for helping to fill the vacancies on this very busy
court. Senator Leahy, I mentioned just before your arrival, the
second busiest in the country.
Also, I had forgotten to mention that Senator McCain, from
Arizona, is also very supportive of Judge Jorgenson's
nomination and regretted that he couldn't be here at the
hearing, but wanted me to be sure and make that point for the
record.
Chairman Leahy. Thank you.
Of course, Senator Grassley has talked to me about this
agenda on numerous occasions before now and I was delighted we
were able to--I wish we could have worked out his nominees
before we recessed, but I am glad we are able to do it now.
Senator Grassley. Madam Chairman?
Senator Cantwell. Yes, Senator Grassley?
Senator Grassley. Two things. I would like unanimous
consent to put a statement on these judges in from Senator
Hatch.
Senator Cantwell. Without objection.
[The prepared statement of Senator Hatch follows:]
Statement of Senator Orrin G. Hatch, Ranking Republican Member
I am pleased that we are considering today the nominations
of six exceedingly well qualified candidates for the federal
bench. The convention of this hearing on the first full day of
the new congressional session is a step in the right direction.
Moreover, our consideration of six judges at this hearing
represents the most judges we have considered at a single
confirmation hearing during this Congress, which is another
positive step.
I sincerely hope that we maintain this pace at future
hearings, because we have plenty of work to do. There are 101
vacancies in the federal judiciary, a vacancy rate of nearly
12%. Yesterday, the White House submitted 24 new nominations to
the Senate for confirmation. Since we have 38 nominees still
pending from last session, we now have a total of 62 nominees
awaiting action from the Senate.
In 1994, the second year of President Clinton's first term,
the Senate confirmed 100 judicial nominees. I am confident that
Republicans and Democrats can work together to achieve, or even
hopefully exceed, this number in 2002, particularly the many
circuit court nominees that are pending to fill emergency
vacancies in appellate courts around the country. To do this,
however, we must keep up the pace of hearings and confirmation
votes so that we do not fall further behind in filling the
vacancies that plague our federal judiciary. I look forward to
working with my Democratic colleagues to accomplish this goal.
As I stated earlier, today's hearing is a step in the right
direction. We have the privilege of considering six outstanding
lawyers to be federal judges. Our only circuit nominee on the
agenda is Michael Melloy, who has been nominated to be a judge
on the U.S. Court of Appeals for the Eighth Circuit. Judge
Melloy has already sat by designation on the Eighth Circuit in
his present capacity as a federal district court judge in Iowa,
so he comes to this hearing with more than a passing
familiarity of what his future role will require.
Robert Blackburn has been nominated to be a District Court
Judge for the District of Colorado, and he will bring a great
deal of legal experience to the Federal bench. Judge Blackburn
has practiced law for 13 years in private practice, served as a
Deputy District Attorney for 6 years, as a County Attorney for
8 years, as a Municipal Judge for 3 years, and as a state court
judge since 1988.
Our next nominee is James Gritzner, who has been nominated
to the District Court for the Southern District of Iowa.
Although Mr. Gritzner began his legal career in a general
litigation practice, it really exploded--so to speak--when he
began specializing in cases concerning catastrophic fires and
explosions. From his office in Des Moines, he has handled such
cases in 23 states and, in the process, developed a national
reputation. He is also known as an expert in legal ethics,
having prosecuted over 100 attorney disciplinary cases before
the Grievance Commission of the Iowa Supreme Court.
Next, Cindy Jorgenson is the nominee for the District of
Arizona. Judge Jorgenson's legal experience includes serving as
a deputy county attorney, an Assistant U.S. Attorney, and as a
Superior Court Judge--all in the State of Arizona. She
supervised the felony sex crimes and child abuse prosecution
unit in Pima County for several years. Then, as an Assistant
U.S. Attorney handled both criminal and civil cases. Since
1996, Judge Jorgenson has served with great distinction on the
state trial court bench in Tucson, Arizona.
Richard Leon has been nominated to be a district judge in
the District of Columbia. Mr. Leon has had a remarkable career
that has spanned both public service and private practice. He
has served as a judicial law clerk, as counsel to U.S. House
committees and task forces, and as a Deputy Assistant Attorney
General at the U.S. Department of Justice. Despite the present
demands of his private practice, he teaches a class on
congressional investigations right up the street at Georgetown
University Law Center.
Jay Zainey is today's nominee for the district court in the
Eastern District of Louisiana. Mr. Zainey has maintained a
successful private practice and has garnered the respect of his
colleagues, as reflected in his election as President of the
Louisiana State Bar Association. One remarkable achievement
during his tenure as president was the creation of the first
state bar committee in the nation to provide legal referral
services for the disabled.
I welcome each of our nominees to the Committee this
afternoon, and commend the President on his choices for the
federal judiciary. I look forward to working with my Democratic
colleagues to ensure your swift confirmation.
Senator Grassley. And then could I also thank Senator
Leahy, just so people know that when a Senator says they are
going to do something, they do it. Senator Leahy told me before
the holidays that the first hearing we had in the new year, Jim
Gritzner and Judge Melloy would be on the agenda. I thank you
very much for delivering.
Thank you very much.
Chairman Leahy. We tried to do it within 24 hours of coming
in. We almost made that 24 hours. I think it was like 26 hours
of coming into session.
Senator Grassley. Thank you.
Senator Cantwell. Well, I am sure Mr. Melloy would, even at
26 hours, like to come forward now.
Before you sit down, if you could raise your right hand, do
you swear that the testimony you are about to give before the
committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Judge Melloy. I do.
Senator Cantwell. Thank you. Welcome to the committee, Mr.
Melloy.
STATEMENT OF MICHAEL MELLOY, OF IOWA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE EIGHTH CIRCUIT
Judge Melloy. Thank you, Senator.
Senator Cantwell. If you would like to introduce your
family that is here, this is an appropriate time.
Judge Melloy. I would, and I would like to first thank you,
Senator Cantwell, for taking the time to chair this hearing and
Senator Leahy for scheduling the hearing.
I have with me my wife, Jane Anne, and my daughter,
Bridget. Our two oldest daughters--Jennifer, who is working in
Paris at this time, could not come, and my second daughter,
Kate, just started a new job last week and didn't think she
could ask for time off the first week of her employment, and so
she couldn't make it either. I also have my sister, Colleen
George, here, and her husband, David, and their two daughters,
Anne and Sarah.
I also have a lot of friends here, and I am not sure who
all is back there, but I just want to recognize Dan McDermott,
who has been a good friend. I know others who have come in.
Members of the Administrative Office of the U.S. Courts who I
have worked with are here. Frank Sabak, Ralph Avery, Bill Rule,
Kevin Gallagher, Mark Evans are all here, and I very much
appreciate their attendance and their support.
Senator Cantwell. If you would like to make an opening
statement?
Judge Melloy. I don't have any opening statement other than
to again extend my appreciation for the opportunity to appear
before you.
[The biographical information of Judge Melloy follows:]
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Senator Cantwell. Well, with that, I think that what we
will do is give members an opportunity to ask questions, maybe
alternating, since the Senator from Iowa is here. But I think I
will start, Mr. Melloy, with a question about personal privacy.
Prior to September 11, this issue was really one of the top
issues of concern for Americans on a variety of issues. They
were concerned about the intrusion of people into their most
personal decisions and information. They were concerned about
government maybe intruding. They were concerned about how
businesses handled their consumer information. They were
concerned about how information might be attained about them.
Could you describe for me what you think the key elements
of the Federal right to privacy are?
Judge Melloy. Well, I think the key elements, Senator, are,
first of all, that a person have knowledge about what is being
put on the Internet, if that is what we are talking about, or
being disseminated through some type of clearinghouse; and,
secondly, that they not only have notice about what is being
put out there and being made available to the general public,
but then they have some meaningful opportunity to file
objections or make some type of statement that would allow them
to have that information not disseminated.
I have had some experience in this issue through our
Bankruptcy Administration Committee that I chair. We have been
very concerned about confidential information that goes out on
the Internet when we post court documents. Much of that
information contains some pretty sensitive information.
We have been concerned about identity theft that might
result from posting that type of information on the Internet
and we have taken some measures to address those concerns, and
it is something that, as I say, I have had some experience with
and I think we have addressed it in that context.
Senator Cantwell. Thank you.
Senator Grassley.
Senator Grassley. Yes, thank you very much.
At times, Federal judges' deeply-held personal views or
their views of the law and the Constitution can conflict with
the constraints of judicial precedent. How should a judge
resolve the differences between his personal views and stare
decisis?
Judge Melloy. Senator Grassley, stare decisis should always
control. If I am fortunate enough to be confirmed for the
position on the Eighth Circuit, I will be bound by my oath to
follow the decisions and dictates of the United States Supreme
Court, and I fully intend to do that.
Senator Grassley. Could you define judicial activism for
me? I know it is a pretty elementary question, but I always
like to get judges' views on that.
Judge Melloy. Well, I suppose everybody looks at it
somewhat differently, Senator, but basically I think judicial
activism can be best summarized as looking beyond the text of
the statute or the Constitution, whatever it is the court may
be interpreting, and to then try to superimpose one's own
personal philosophy or views or what a person may believe is an
appropriate social policy onto the case and, as I say, take it
outside the text of the statute.
Senator Grassley. Thank you.
Senator Cantwell. Senator Kyl, do you have any questions?
Senator Kyl. Thank you. Just one, Madam Chairman. Having
graduated from both junior high school and high school in Davis
County, Iowa, I should be an advocate of the two Iowa
candidates here.
Judge Melloy. I appreciate that, Senator.
Senator Kyl. I just had one follow-up question to Senator
Grassley's. As a member of the court of appeals, of course, the
precedent of the U.S. Supreme Court is controlling in all
situations, except some.
What circumstances, if any, do you think are appropriate
for an appellate court judge to overturn precedent within that
judge's circuit?
Judge Melloy. You are not talking about--I am not sure I
understood the premise of the----
Senator Kyl. I am talking about the appellate court's--the
Eighth Circuit's precedent, I should say.
Judge Melloy. An appellate court should overrule the
precedent of its own circuit, I think, very sparingly, but if
the circuit has gotten it wrong before, then we clearly have a
duty to revisit the issue.
In our circuit, the rule is that one panel is not allowed
to overrule the decision of another panel. If a panel believes
that another panel has incorrectly decided a case, then the
judges can at that point call for a rehearing en banc, have the
entire circuit revisit the issue, and if the case was
originally decided incorrectly, overrule the decision. I think
that is an appropriate approach and it is the one that I
certainly would follow.
Senator Grassley. May I ask one more question?
Senator Cantwell. Go ahead, Senator Grassley.
Senator Grassley. I am a believer and have promoted
legislation and got some of it adopted that would promote
alternative dispute resolution. To what extent have you had
experience with alternative dispute resolution, and do you
believe in it, that you would use it more? I don't know exactly
from the Eighth Circuit promotion as opposed to district
judges, but the extent to which you would use that.
Judge Melloy. Well, maybe I could answer the second part
first, Senator. It is my understanding that there is much
utilization of alternative dispute resolution at the circuit
court level.
The Eighth Circuit does have a settlement mediator and does
try to see if there is any opportunity to settle a case even
after it is on appeal. But, by definition, by the time a case
gets on appeal, there has already been a trial, so the
opportunities are much less for alternative dispute resolution
at that point.
Going to the first part of your question, we do have an
alternative dispute resolution plan in our district. We make
extensive use of magistrate judges as settlement mediators or
settlement judges. We use outside mediators. We encourage the
lawyers to hire private, or go to private mediation, if they
prefer that. And so we do provide a number of different
opportunities, and I think it is something that is very
worthwhile and is something that should definitely be
encouraged both in terms of the efficiency of the court's
ability to handle cases as well as costs and delay to the
litigants.
Senator Grassley. And as a judge, you have done that?
Judge Melloy. Yes, on many, many occasions.
Senator Grassley. Thank you.
Senator Cantwell. Mr. Melloy, as a district court judge--
and this is an issue that Senator Harkin brought up, but I am
sure you will be familiar with--as a district court judge, you
have handled numerous criminal matters and are familiar with
the Federal Sentencing Guidelines and mandatory minimum
sentences.
Do you believe that there are particular cases where
Federal judges should have more discretion to diverge from the
guidelines than is currently being allowed by statute?
Judge Melloy. Well, if I could break that down into two
parts, Senator, let me say this. The case that Senator Harkin
made reference to in his comments actually was a mandatory
minimum case. The individual who was charged and convicted of
the single bullet had been convicted on six prior occasions of
burglaries, three of which were of post offices. And under the
armed career criminal statute, there was a mandatory 15-year
minimum which was what I was required to impose, and the Eighth
Circuit upheld that sentence.
Having said that, I think there are certainly cases where
mandatory minimums have been imposed where I wish I had more
discretion, and Yurkowsky is probably one of them, quite
frankly.
As far as the Sentencing Guidelines are concerned, however,
there is much more discretion within the guidelines to depart,
and there have been cases where I have felt somewhat
constrained, but I have also found that in most cases where I
really felt there was a compelling need to go outside the
guidelines, there was sufficient latitude to depart.
So I don't have any serious problems with the guidelines.
There are some things that I might change. There are probably
some things a lot of judges would change, but basically I don't
have a big problem with the guidelines. I think it is the
mandatory minimums that become more difficult when you
superimpose those onto the guidelines.
Senator Cantwell. Thank you. As a district court judge, you
have served on the Eighth Circuit's Gender Fairness Task Force.
Judge Melloy. Yes.
Senator Cantwell. I don't know if there is any correlation
to all the women in your family in that.
Judge Melloy. There is, as a matter of fact. [Laughter.]
Senator Cantwell. The task force issued a report in 1997
that outlined the challenges and opportunities that would
ensure equal opportunity for women judges and attorneys and
court personnel.
Could you tell the committee what you learned in the
process on the task force about the recommendations of getting
more women in the judiciary and in and around our circuit
courts?
Judge Melloy. That was a very, very worthwhile project for
me and one I enjoyed very much and I think I learned a lot
from.
On the plus side, we found that things had dramatically
improved for female attorneys over the 10 or 15 years prior to
the date we were doing the study. We heard many, many female
attorneys who would tell the horror stories of the old days
when they first got out of law school 10 or 15 years before we
did our report. So there had been dramatic improvements, and
that, of course, was the positive side of the report.
The report and the study also showed, however, that there
were definitely some areas that we needed to improve. One of
them was in the area of accommodations to women--all attorneys,
but particularly female attorneys. Many attorneys were
concerned that judges were not as sensitive to the needs of
issues such as pregnancy leave, child care responsibilities;
that sometimes hearings had to be rescheduled because of sudden
emergencies with day care providers, and that judges needed to
be more sensitive to those issues.
We also found that there were some real problems with what
female attorneys felt were civility within the legal system,
more so outside the courtroom in the deposition and discovery
setting than within the courtroom, but that was also an area
that we found some definite problems.
Senator Cantwell. Thank you.
Any other questions from my colleagues?
Senator Grassley. I might say one thing. A person maybe you
overlooked or he wasn't here when you acknowledged friends of
yours that were in the audience, former Iowa Representative Tom
Talke, is here.
Judge Melloy. Well, I am sorry I did. I didn't realize Tom
was here, but he is a very, very good friend of mine and I
appreciate very much his attendance. I did not realize he had
come in and I very much appreciate his being here.
Senator Grassley. That is all I have.
Senator Cantwell. Well, Mr. Melloy, thank you for time
before the committee. I know that we will have an open record
for other members to submit questions, if they have them, and I
know you will submit your answers back quickly to those.
We appreciate your time and your family's time in being
here today.
Judge Melloy. Thank you again, Senator.
Senator Cantwell. Thank you.
Let's move now to the district court nominees, if they
could all come up together--Richard Leon, Jay Zainey, James
Gritzner, Robert Blackburn, and Cindy Jorgenson. If you could,
before you sit down, stand up so I can swear you in.
If you will raise your right hands, do you swear the
testimony you are about to give before the committee will be
the truth, the whole truth and nothing but the truth, so help
you God?
Mr. Gritzner. I do.
Judge Blackburn. I do.
Judge Jorgenson. I do.
Mr. Leon. I swear.
Mr. Zainey. I do.
Senator Cantwell. Please be seated.
I think maybe by our seating arrangement there that we have
determined the process of individuals. So if the nominees would
like to take the opportunity to introduce their family members
that are here and any other special guests, why don't we start
with you, Mr. Gritzner.
STATEMENT OF JAMES GRITZNER, OF IOWA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA
Mr. Gritzner. Thank you, Madam Chair. My wife, Zoe, is here
with me today. Our son, Zack, is a student at Central College,
in Pella, Iowa. He is impressing his father by not missing any
classes today.
And I am also pleased that Michael Pratt is here. Michael
Pratt is the son of Judge Robert Pratt, who, if I am fortunate
enough to be confirmed by the committee, will be a colleague of
mine, and I am pleased that Michael is here as well.
Thank you for that opportunity.
[The biographical information of Mr. Gritzner follows:]
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Senator Cantwell. Mr. Blackburn, would you like to
introduce anyone?
STATEMENT OF ROBERT BLACKBURN, OF COLORADO, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLORADO
Judge Blackburn. I would. Before that, I would like to take
this opportunity to personally thank you and Senator Leahy,
Senator Grassley and Kyl and other members of the Senate
Judiciary Committee for affording us this unique and privileged
opportunity, after what has been certainly a humbling,
sobering, and deliberative process.
I am pleased to have with me today my wife and partner of
now near 25 years, Connie Blackburn. Connie was born and raised
for a time in Iowa and she wanted me to go on the record for
her in support of the two Iowa nominees, as well. [Laughter.]
Judge Blackburn. Seated with her is my father, Ed
Blackburn, who is more than just my father, certainly a friend,
and for the last 10 years he and I raised beautiful registered
Black Angus cattle together and survived economically to talk
about it. He is here.
Deeper in the audience is a friend and former colleague of
mine, Scott R. Foncannon, Esquire, and his daughter, Sarah.
Until recently, Scott practiced law in southeastern Colorado
and appeared frequently before my court. He has recently
transitioned with his family to the State of Maryland, and I
can truly say that if all judges had the kind of attorney that
Mr. Foncannon is before them, they would indeed be blessed and
their jobs made much easier.
[The biographical information of Judge Blackburn follows:]
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Senator Cantwell. Ms. Jorgenson.
STATEMENT OF CINDY JORGENSON, OF ARIZONA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA
Judge Jorgenson. Yes. First of all, I want to thank you so
much for the opportunity to be here today.
I have many family members here from various States and I
really appreciate their support. First, my husband, Don, and my
two children, Tyler, who is 16, and Andrew, who is 13. They are
reluctantly dressed in their shirts and ties and they are here
today. It is their first visit to Washington, so we are going
to spend the next few days touring around.
Also, my parents are here, Richard and Annamaria Kelly, and
this is a very special place for them because they met in
Washington, D.C. My father is a graduate of Annapolis and my
mother worked at the Italian embassy, and they were in those
situations when they met here.
I also have numerous cousins. Here, on the far right, my
aunt--first, my aunt, Francis Kelly. She is here from New York.
Marty Kelly Patel and her husband, Bhogi, they are here from
New Jersey. Alice Kelly Enright; she is here from Washington.
Jack Kelly is here from Philadelphia. Mary Kelly is here from
Connecticut, and then Dr. Steve Kelly is here from New York. So
I really appreciate the support of all my family members.
[The biographical information of Judge Jorgenson follows:]
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Senator Cantwell. Thank you for those introductions. Mr.
Leon.
STATEMENT OF RICHARD LEON, OF MARYLAND, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLUMBIA
Mr. Leon. Thank you very much, Madam Chairwoman. I
appreciate----
Senator Cantwell. I hope you are not going to be outdone
because you are here in the District of Columbia. [Laughter.]
Mr. Leon. No, I can't even approach Judge Jorgenson in that
regard, but I certainly want to join with her in thanking you
for agreeing to chair this hearing today, and thank Senator
Leahy and Ranking Member Hatch and the other Senators who have
come out today to make it possible for us to have this hearing.
Certainly, I think it is fair to say that the process we go
through is an arduous one, and it is a relief to get to this
point and we are very grateful to be here.
I am pleased to have with me here today my wife of 28
years, Christine Leon, and my son, who is 10 and about to
become 11, Nicholas Leon, seated here. He is getting a
firsthand lesson in the civics process, so I think that was
enough of a justification for his fifth grade teacher to let
him go early today.
I also have some of my former partners here, Fred Graefe
and Dick Hauser, and a number of other friends who have been
nice enough to come out today to join with me here today.
So, again, thank you all very much and I appreciate the
opportunity to be heard.
[The biographical information of Mr. Leon follows:]
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Senator Cantwell. Thank you.
Mr. Zainey.
STATEMENT OF JAY ZAINEY, OF LOUISIANA, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA
Mr. Zainey. Madam Chair, again I would like to also extend
to you my deep appreciation for having this meeting today,
along with Senator Grassley and Senator Kyl for being here.
Obviously, this has been the most important thing in, I am
sure, everyone at this table's lives. And I know that you all
have many, many, many other things going on in your lives, but
for you all to share this day with us, we greatly appreciate.
I would also like to thank the members of your staffs. The
Senate staff members have been very, very patient with myself
and I am sure with my colleagues. And to all of you that I have
discussed things with, I greatly appreciate what you have done.
I am very honored to have with me today a number of people
from the New Orleans area, especially my wife, Joy; my
daughter, Margaret. Margaret is working now in Birmingham,
Alabama, as a freelance writer. Margaret had the honor of
serving as an intern a couple summers ago for Senator Breaux
for one month. But, again, because of the bipartisanship that
we have discussed, Senator Breaux being a Democrat, she also
served for a month as an intern with Congressman Billy Tauzin,
Republican from Louisiana. Margaret loved her experience and
she wanted to come here to visit with her old friends, and I am
glad she took time out from her busy schedule to be with me for
this next hour-and-a-half or so.
I am also very fortunate to have, but not with me today,
two beautiful sons. Christopher, who is 19, is a freshman at
the University of Mississippi, Ole Miss, and he swears to me
that he is studying this week because otherwise he would have
loved to have been here. And my angel, Andrew. Andrew is our
special ed student back home and I know that Andrew's thoughts
are with us today.
I am also very blessed to have with me four very close
friends that have--three of whom have traveled with me from New
Orleans to be here today and one of whom is working here with
the Committee on Aging.
Guy Leaf is in the audience. Guy is from New Orleans and he
has been working in Washington for the past number of months on
the Committee on Aging. He has been doing a wonderful job and I
am very grateful that Guy is here with us today.
Also, my three musketeer friends from back home, John
Litchfield, Jim Barkate, and Kevin Heigle, are also with me
today, and I thank them for their support.
Thank you.
[The biographical information of Mr. Zainey follows:]
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Senator Cantwell. Well, the committee wants to thank all
the family and friends who have traveled to be with us today at
this special hearing. Thank you very much. I am sure the
nominees very much appreciate your attendance.
I am going to start with a general question similar to what
I asked Mr. Melloy about the right of privacy, and if each of
you could answer, that would be most appreciated.
Obviously, this committee in its work on anti-terrorism,
passing major legislation last year concerning issues of
information attainment--there were concerns about, and there
are by many Americans, about how information is collected and
stored either by government or by businesses or by other
individuals.
Could each of you describe what you think are the elements
of a fundamental right to privacy, and also comment on how to
balance the need for individual privacy against these issues of
information collected by government or in other criminal
investigations?
Mr. Gritzner. Thank you, Madam Chair. I think that there
are essentially two issues involved here. One would be a social
issue and an expectation issue of individuals. The other would
be a legal issue.
Certainly, on the social issue I agree with the statement
that you made, Madam Chair, that people have an expectation of
privacy. Whether that has actually been provided to them in a
constitution or in a statute, they do have that expectation,
and so they come to the Congress or to the courts expecting
that kind of protection.
With regard to the legal expectation of privacy, certainly
we know from constitutional law that there have been cases
involving the concept of privacy from the Constitution. Whether
they would apply to this kind of situation is still something
that has not been a resolved issue, but people are looking, I
am certain, to the courts for a high degree of vigilance in
protecting their privacy.
The concept of being left alone, the concept of being able
to maintain the integrity of your own personal records and your
own personal lifestyle--they are looking to both the courts and
the Congress, I think for assistance in protecting them not
only under the current circumstances, but I think they felt
that way on September 10 as well.
Senator Cantwell. Thank you.
Judge Blackburn.
Judge Blackburn. Senator, certainly an interesting and a
topical question, one that juxtaposes two of our most important
concerns: on the one hand, our fundamental right to privacy,
perhaps one of the most cherished civil liberties that we
enjoy, and on the other side, of course, our growing and
burgeoning concerns for national security.
And I think it is going to be exciting and challenging, if
confirmed through this process, to be working at the district
court level because that is going to be the first line of
defense, really the first opportunity to balance those weighty
and competing interests.
But we won't be doing that in a vacuum because on the side
of both of those issues, there is a well-developed body of law
and jurisprudence, and we will be looking to that relevant and
sometimes dispositive precedent as we reconcile those competing
interests.
Senator Cantwell. Judge Jorgenson.
Judge Jorgenson. Madam Chair, if I am fortunate enough to
be confirmed, I would, of course, follow the law of the United
States Supreme Court and the Ninth Circuit relating to the
parameters of the rights to privacy.
I can say my own personal experience is, as an Assistant
U.S. Attorney we dealt often with the Freedom of Information
Act and, as you said, it is a balancing act. We are balancing
the extremely important rights to privacy with the interests of
other people's needs to know, also with the interests of
government's attempts to engage in law enforcement endeavors.
So I agree that it is a very important balancing act that
many times at the trial court level, we will be the first ones
to meet those challenges and to make sure that it is properly
performed.
Senator Cantwell. Mr. Leon.
Mr. Leon. Yes. Madam Chairman, I would align myself with
the comments of my colleagues, particularly Judge Jorgenson's
last remark about applying the law as it is, as set forth by
the Supreme Court, and in my case the D.C. Circuit. I would be
extremely sensitive to ensuring that the law as set forth there
would be applied, and applied fairly and consistently.
As a criminal defense counsel, I am particularly sensitive
to ensuring and protecting the individual rights of various
individuals and companies. And so I am particularly sensitive,
by virtue of my 13 years in the private bar as a criminal
defense counsel, to those kinds of concerns.
However, I have also served as a prosecutor and served on a
number of occasions as counsel to Congress in national
security-type matters, and am well aware of the competing
concerns to protect the national security of this country and
the need sometimes for information in order to do so.
So I think, as Judge Jorgenson just said, it will be a very
interesting and difficult challenge to make sure that those
interests are weighed carefully and fairly, and, of course, at
all times consistently with what the Supreme Court has held and
what the statutes of the country as you set forth in Congress
state.
Senator Cantwell. Thank you.
Mr. Zainey.
Mr. Zainey. Madam Chair, I agree with my colleagues that
the Fourth Amendment right to privacy is very, very important.
And, of course, it must be balanced, of course, with the public
good. The fact that one is more important than another is not
the case. It is a balancing that we must look at very, very
closely, and, again, if I have the good fortune of being
confirmed by you, to look at the Constitution, look at the laws
of the United States, and I will apply those laws to the facts
of the particular case.
Senator Cantwell. Thank you.
I am going to see if my colleagues either have questions
for individuals or for the panel as a whole.
Senator Grassley. I think I am going to ask most of my
questions of Jim Gritzner. I am interested in, Mr. Blackburn,
though, how you could make money in cattle. [Laughter.]
As a farmer, I would think you would want to be a judge so
you could keep on farming.
Judge Blackburn. I needed that second day job to finance
the other. [Laughter.]
Senator Grassley. I understand. You make money like the
rest of us do farming, off the farm.
Where was your wife born in Iowa?
Judge Blackburn. In Sioux City, Iowa.
Senator Grassley. Very good, very good.
Judge Blackburn. Which I mispronounced for the first 10
years of my efforts.
Senator Grassley. You heard me ask Judge Melloy about
alternative dispute resolution. I have never discussed
alternative dispute resolution with you, even though we have
been friends for a long time. What is your view of alternative
dispute resolution, and would you seek to use that?
Mr. Gritzner. Senator, thank you for that question. I think
it is an important one. Alternative dispute resolution is
amazingly successful, and for that reason alone we should be
doing everything we can to foster that as an avenue to resolve
the disputes that are in our court systems.
In my practice, I have had a great deal of experience with
alternative dispute resolution, both arbitration and mediation.
I have found it to be a very successful means to resolve
disputes at lesser expense, at lesser use of court time, and
therefore less expense to the public as well. I would be very
much inclined to encourage in any way that we can the use of
ADR in the courts.
Senator Grassley. Again to Mr. Gritzner, if there were no
controlling precedent dispositively concluding an issue with
which you were presented in your court, and that would be true
of the circuit as well as your district, to what sources would
you turn for persuasive authority in settling a case?
Mr. Gritzner. If there is no controlling precedent,
Senator, we would carefully look to see if there is something
similar to give us some guidance in the law. To the extent that
we are looking at a constitutional or statutory provision, we
would look very carefully to the language of the document
itself to resolve any issues with regard to what is actually
said, but look for collateral or similar jurisprudence that
would be of some assistance in helping us through that process.
But it would be a careful consideration of the facts and any
relevant law that applies, if not directly, at least indirectly
to the issue.
Senator Grassley. If I could ask each of you for just a
short answer to this question, I believe you can give a short
answer, starting with Jim.
Do you believe that judges should disclose their financial
assets so litigants can assess whether there would be an actual
or apparent conflict of interest?
Mr. Gritzner. I have no objection to that concept, Senator.
Judge Blackburn. Neither do I, Senator. I have been doing
that for so long, I have lost all sense of financial modesty.
[Laughter.]
Judge Jorgenson. I also have no objection to that concept,
Senator.
Mr. Leon. I agree with my colleagues, Senator.
Mr. Zainey. I have no objection whatsoever, Senator.
Senator Grassley. I thank you all very much, and once again
I want to congratulate my two Iowa constituents, Judge Melloy
and Jim Gritzner, for their rise in the profession. Hopefully,
as I know, you will serve well in your capacities as judges.
Senator Cantwell. Senator Kyl.
Senator Kyl. Thank you, Madam Chairman. I don't have a
question, but I would like to make a brief comment perhaps as
much for the benefit of those in the audience as the nominees
here.
You might have expected that this process would resemble
something you have seen on television where very nasty Members
of Congress ask very difficult and probing and penetrating and
unfair questions of witnesses and get them squirming, and so
on.
Well, first, that isn't the kind of people you see up here.
But, secondly, the reason these hearings perhaps are not as
difficult or as probing as you might have thought is because of
the work that goes into the nominations preliminarily.
First of all, as has been alluded to here, each of us on
the committee and other Senators have processes and people by
which recommendations are made to the President for
nominations, and that is a very time-consuming and careful
process.
Then the executive branch, the President's office, the
Counsel for the President, goes through a very careful vetting
process before a nomination is made. And in that process or
shortly thereafter, the Attorney General and Department of
Justice people are brought in as well.
One of the nominees alluded to the work of the staff here,
and I appreciate that reference because they then, our staff,
does all of that all over again and they look carefully through
volumes of records. And if there is anything about the nominee
that might be the least troublesome, that is brought to our
attention.
I have sat through a lot of meetings where the appropriate
staff person comes and says, I just thought you should see this
one thing about this nominee's background, because I have let
it be known all of the kinds of things that I want to be
apprised of, in addition to the ordinary material I would read.
And then we review the material itself and then the
chairman makes a decision. He doesn't waste time. If there is
somebody that is not going to get through the process, he will
be disinclined to hold a hearing. So when the nominees are
presented to us on this panel, it is after a lot of vetting and
there is a great presumption that all of these nominees are
qualified for the job, will acquit themselves well, and will,
in fact, be confirmed.
So we don't have to ask a lot of really tough questions to
try to show how smart we are and demonstrate how smart the
panelists are. That has already been well-established. I think
it is important for us, however, to see the nominees perform. I
especially always like to see the family members and to see the
reference to the family members because as was alluded to, I
think, by Senator Breaux earlier, we are also looking for--and
certainly this is part of our political life--we are looking
for people whom we know can relate to others before them. I
practiced law for 20 years and there were some judges I didn't
like to appear before because I didn't think they were very
nice; they didn't have judicial temperament.
When you are a district court judge and you have got all
manner of people appearing before you, you need to make a good
impression on them. They need to understand and appreciate the
rule of law. They need to understand that they are being given
a fair hearing in whatever situation it might be. So the
temperament, the things you bring to that to demonstrate that,
are very, very important. And we see that by having you appear
before us and to answer some of the questions, which are, in
fact, usually relatively pro forma, as you have noted.
So for those who might be a bit disappointed that this
isn't a more lengthy or grueling process, that all occurred
before, out of the camera's sight, and what we have before us
are a group of superbly qualified nominees who I hope will
quickly receive consideration by the committee and then move on
to the full Senate for its deliberations.
For that reason, I don't have any questions of this panel,
Madam Chairman, but I compliment all of them for what they have
achieved so far and congratulate them on the expectation that
they will be confirmed soon.
Thank you.
Senator Cantwell. Thank you, Senator Kyl, and thank you for
that statement.
I do have a couple of questions for each individual on the
panel here, and I think I will start with you, Ms. Jorgenson,
about the committee that you served on for the Arizona Supreme
Court. It was for more effective juries, and you were involved
in drafting recommendations and the adoption of several jury
reforms, including amending the criminal rules to allow the
judge and counsel to respond more effectively to jurors'
questions during deliberations.
Now, as a Federal judge, how would you intend to use that
experience and knowledge in your questions during
deliberations?
Judge Jorgenson. Well, my understanding of the Federal
courts, at least when I have practiced there, is that they were
not--they had the more traditional rules. When I went to State
court and was on this committee, we created some interesting
new rules that I have actually been able to practice in court
because I have handled a lot of criminal trials in State court.
So what I would propose to do if I am confirmed to the
district court is perhaps be on a committee relating to jury
reform and propose some of these new ideas to the district
court level. And the one you particularly mentioned was the
issue of when a jury is at an impasse and they need additional
information.
Traditionally, we would just tell them no, rely on the
information that has already been presented to you. But what
the rules in Arizona, the State courts allow us to do now is
have either the lawyers maybe make some additional remarks to
the jury, perhaps even present some additional evidence at that
point, the idea being is we want finality, we want hopefully
for the jury to reach a verdict.
So those are the kinds of ideas that I could bring to the
district court and propose. Another idea is that we allow
jurors to actually ask questions during the trial. I mean, they
don't just blurt out questions to the witness, but they write
them down and the trial judge reviews them, and if they are
appropriate, then asks them of the witness. And I think that
that greatly also increases the chance of not having a mis-
trial because a juror maybe didn't understand or didn't have
full information. It also lets the lawyers know what the jury
is thinking during the process.
So the bottom line is we try to get jurors a little more
involved in the process, since they are the ones that are going
to be making the ultimate decision. So I would hope that I
could bring some of those ideas to the district court and
propose them as possible jury reforms.
Senator Cantwell. Thank you.
Mr. Leon, in reviewing some of the speeches and articles
and comments that you have made, you have talked about how the
media spotlight has played a somewhat disturbing role in
congressional investigations. Obviously, one of the questions
that we have been dealing with here is the use of cameras in
Federal courtrooms. There is currently a rule in place that
prohibits the use of cameras in Federal courtrooms, and the
Senate recently passed a bill that gives Federal judges the
discretion to determine on a case-by-case basis whether to
allow cameras in the courtroom.
Do you believe that there are instances where cameras in
Federal courtrooms can enhance public confidence in the system
and can help assure the community of fair treatment in the
proceedings?
Mr. Leon. Well, thank you for the question, Senator. I
think that is a very challenging and difficult issue to wrestle
with, I think, frankly for this body and for the Federal
judiciary as a whole.
There has been an awful lot of experience that has
accumulated over many years with not having cameras in the
courtroom, and I gather, listening to the judges, they feel
much more comfortable keeping it that way. We have also had
some experiences in recent years with different cases in State
courts around the country where the presence of cameras in the
courtroom was felt by lawyers and judges who analyzed it after
the fact that it had a negative impact. Also, there have been
people who have said it had a positive impact.
So on the whole, it is one of those close-call questions
that I think is a difficult one for a judge to wrestle with.
Having been now for 13 years a criminal defense counsel, I am
of the opinion, on balance, that it is probably preferable not
to have cameras in the courtroom, but to help make special
accommodations for the press under those circumstances.
Part of my concern also is a security concern for the
jurors in that situation, and the witnesses who appear in that
situation. But I think the judges can go out of their way to
try to accommodate the media and give them, you know, special
access, special seating opportunities, and perhaps even other
things to make their job easier.
Senator Cantwell. Thank you.
Do any of the other nominees want to comment on that?
[No response.]
Senator Cantwell. If not, Mr. Gritzner, I know you had a
question from Senator Grassley, but I wanted to ask, you have
extensive litigation experience and your questionnaire
indicates that following your clerkship, you have also engaged
in the practice of civil litigation.
How do you prepare for the challenge of presiding over
criminal cases, especially the multi-defendant, complex cases
involving statutes that may not be as familiar to you? How do
you prepare for those?
Mr. Gritzner. An excellent question, of course, for someone
who comes from a civil practice. Madam Chair, I think the
answer to that question is a lot of hard work at the earliest
possible time, but there is a great deal of support available
in this process.
In our particular district, I would have tremendous
support, if fortunate enough to be confirmed, by both the chief
judge and the other judge, the active judge in the district.
The probation office provides invaluable support in the process
and working through the complex issues of the guidelines. There
is also tremendous support in the bar itself in our
jurisdiction, where both the prosecution and the defense bar
are very capable people who behave in a civil and very
professional fashion, and I would expect a lot of support from
them as well. But the bottom-line answer to that question is a
lot of hard work, which I am fully prepared to do.
Senator Cantwell. Thank you.
Judge Blackburn, on occasion lawyers sometimes choose not
to disclose pertinent information to the court that bears on a
juror's impartiality, as was the situation in a case that you
presided over, People v. Archuleta. In that case, you deemed
that the prosecution's decision not to disclose that a juror
knew a witness was trial strategy and you did not dismiss the
juror.
How did you come to that decision and what are the
considerations in making similar decisions?
Judge Blackburn. Well, what I actually focused on, Senator,
in that case is I attempted to circumvent the issue altogether
because of the tenuous relationship between the sitting juror
and a prospective defense witness.
I first conducted in limine proceedings to determine the
relevance of the prospective defense witness. At the conclusion
of the hearing, I sustained the people's objection to the
testimony in toto of that witness, and therefore the witness
was no longer in the calculus. Therefore I assumed, wrongly,
according to the court of appeals, and I think so, that that
obviated the necessity for a dismissal of the juror.
For future reference, I am, of course, going to insist that
parties for both sides make all relevant disclosures of
prospective jurors. As a matter of fact, as a result of the
decision in that case, I have included and incorporated in my
standard pre-trial checklist that I use in each such trial a
question about prospective jurors, and do counsel have any
information bearing on the qualifications of those prospective
jurors.
Senator Cantwell. Thank you for that answer.
Mr. Zainey, I wanted to ask you a question similar to Mr.
Gritzner's because you have been operating as a sole
practitioner in Louisiana. As a sole practitioner, you have
been accustomed to working by yourself.
How do you plan to overcome that challenge of working more
broadly with other judges in the district, and how do you
prepare yourself going from being a sole practitioner into the
particular skills and knowledge that will help you do this job?
Mr. Zainey. Well, thank you, Madam Chairman. In 1995 and
1996, I was State bar association president, Louisiana State
Bar Association president. And, of course, I had the
opportunity to work with many, many lawyers, not necessarily on
the substantive law as much as on the procedural law, but
actually even more important, on the legal profession, in
general, as it relates to ethics, as it relates to
professionalism, as it relates to pro bono work. So I have
worked with many people in the legal profession on various
aspects as it relates to the law.
In particular, however, I have done a lot of work in the
criminal field. I know the question to my colleague was in the
criminal arena. I do have extensive trial experience. I have
tried a number of cases in both the civil and criminal arenas.
I have been a member of the Federal public defender panel in
Federal district court for, I think, the past 12 years or so,
and I have had a number of cases, some of which went to trial,
some of which had not gone to trial.
What I will do is--I have a very good relationship with the
judges--I will sit down with each of the judges, speak with
them about the pluses and minuses, what I need to learn and
what I don't know, certainly read law review articles.
Certainly, I will work very diligently at studying what I do
not know, and as a sole practitioner and as bar president I am
very used to working sometimes 18, 20 hours a day.
And, of course, with the good fortune of being confirmed by
the Senate, I would look forward to delving into the Federal
guidelines, of which I am familiar, having done criminal
defense work, of course, and other aspects of the practice of
law in Federal court.
Senator Cantwell. Thank you for your answer, Mr. Zainey.
I want to thank all the panelists for your comments and
your answering of those questions. As Senator Kyl mentioned,
this is a long process which this is one step in, so we
appreciate you being here.
I am going to excuse this panel and we have one more person
who would like to give some comments, and so I am going to ask
him to come up. So thank you for your testimony.
Senator Cantwell. We have been joined by one of our
colleagues, Representative Tauzin, who would like to come up
and give some comments on Mr. Zainey's nomination.
Representative Tauzin, it is good to see you here.
PRESENTATION OF JAY ZAINEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF LOUISIANA BY HON. WILLIAM J. TAUZIN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Representative Tauzin. It is good to see you, Senator.
It is my great pleasure to join you particularly to come
and say a few, I believe, very highly complimentary words about
the nominee from our State, Jay Zainey. I was listening to your
questions of him and I thought I might add some personal
touches to the character of the man and to the quality of
himself and his family and how well he is suited to be a
Federal judge and how well I think the nomination should be
received by the Senate, as well as by the White House.
He is obviously a long-time friend of mine. You should know
that first. Jay Zainey and his wife, Joy, have been friends and
associates. Joy's family in New Iberia, Louisiana, where they
make those great tabasco peppers and all that wonderful stuff--
the Haik family have been friends and associates of mine
through my days in the State legislature, when I served with
one of their family members in the State House. So we have been
long-time friends.
Their daughter, Margaret, who is here with Joy, his wife,
for this hearing, was an intern in my office one summer. So I
have had the pleasure of working with her on a professional
basis as well.
Jay's reputation in the New Orleans area is so solid, and
the State of Louisiana, that it is very easy for me to be here
to recommend him because I know I carry with that
recommendation the recommendation of all the folks I know in
Louisiana who have come to know him and love him and respect
him.
As he told you, he served not only on ad hoc committees on
ethics and professionalism, and as president of the bar
association and the Jefferson Parish Bar Association and, I
believe, on the National Council of State Presidents of the
Bar, but he has also done ad hoc trial work as an ad hoc trial
judge in Jefferson Parish, even traffic court work.
But it is to another area of his life that I want to point
as I think a great recommendation of him as a person. He has
three children. One of his children is disabled, and he has
paid particular attention in his life and in his career to the
needs of others around him who were less fortunate, just as he
experienced the problems of disability in his own family.
He established, for example, a committee of the State bar
association to provide legal services for the disabled in our
State. He created a community action committee that is now
doing extensive, numerous charity projects throughout our
State, with the lawyers of our State being the principal
components of that organization, literally telling our bar in
Louisiana you have got a bigger responsibility than just to go
out and practice law and make a hard dollar, but you have got
an obligation to personally commit your time and your attention
to the needs of those around you.
He has been involved in the board of directors of the
Advocacy Center for the Disabled and Elderly in our State. He
is the past president of The Extra Mile organization, which
provides services to the mentally ill in our State, and he is a
past board member of the Jefferson Parish Performing Arts
Society, as well as a past member of the President's Committee
on Mental Retardation Task Force.
You get a picture here of a guy that is deeply committed
not only to his family and to his law practice, but to the
whole business by which attorneys in this country should
ethically provide service and counsel to American citizens when
they need legal counsel and services.
I am just delighted, frankly, to be able to come to you and
recommend him personally. I know that you all do a thorough
job, as the White House tries to do every time we have a
nominee, in ensuring that the caliber of the candidates for our
judiciary are not only capable, but quality people dedicated to
improving the quality of our judiciary and to working hard to
make sure that we are proud that we not only sponsored them,
but in your case that you approve the nominations.
Jay Zainey is one that I believe you are going to be very
proud of as the years go forward. He is going to be an asset
not just to our State and our Federal bench in Louisiana, but
to the national bench, and I predict you haven't seen the last
of him. He has got every quality that I think is going to make
him a great Federal judge and perhaps even advance him
somewhere along the line.
Again, Madam Chairwoman, I am delighted to see you again
and to be with you both, Mr. Kyl, and to recommend a dear
friend and I think a great nominee to you for confirmation.
Senator Cantwell. Thank you, Representative Tauzin. We do
appreciate you coming over, both the committee and I am sure
Mr. Zainey does as well, and giving your comments about a long-
time friend. We appreciate those comments. Thank you.
Representative Tauzin. Thank you very much.
Senator Cantwell. That concludes our hearing. I want to
thank my colleagues, Senator Kyl and Senator Grassley, for
attending most of the hearing, and Senator Leahy for his quick
participation. These hearings are important for us to move
along on, but they only happen when colleagues show up to make
them happen, so we appreciate that.
Again, to all of those who have attended this hearing, we
appreciate the nominees' open and honest answers to our
questions.
This hearing of the Senate Judiciary Committee is
adjourned.
[Whereupon, at 3:30 p.m., the committee was adjourned.]
NOMINATION OF D. BROOKS SMITH, OF PENNSYLVANIA, TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT; RALPH BEISTLINE, OF ALASKA, TO BE DISTRICT JUDGE FOR
THE DISTRICT OF ALASKA; DAVID CHARLES BURY, OF ARIZONA, TO BE DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA; AND ROBERT RANDALL CRANE, OF TEXAS,
TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
----------
TUESDAY, FEBRUARY 26, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 10:00 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, presiding.
Present: Senators Feingold, Biden, Edwards, Hatch, Specter,
Kyl, and Sessions.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. The hearing will come to order. We have a
vote that has already started and I would like to get at least
some of the witnesses taken care of before we have to leave for
a vote.
Good morning. Welcome to this nominations hearing of the
Senate Judiciary Committee. We have on the agenda one of
President Bush's nominees to the United States Court of Appeals
and three nominees to the U.S. District Court. As I said, we
have a complicated bit of scheduling this morning, at least
initially, because the Senate is now voting on a judicial
nominee on the floor, but I would like to begin the hearing now
and hopefully make some progress on our first panel before I
have to vote myself. Depending on whether another Senator is
here and able to chair the hearing and whether our Senatorial
witnesses are here to testify, we may continue the hearing when
I leave or we may take a short recess.
At any rate, in an effort to move to questions for the
nominees as soon as possible, I will not make any additional
opening remarks, and since Senator Specter is here, I will turn
to him for an opening statement.
PRESENTATION OF D. BROOKS SMITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT BY HON. ARLEN SPECTER, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. Thank
you for convening these hearings. I will use my opening
statement to present the nominee for the Court of Appeals for
the Third Circuit, who is Judge D. Brooks Smith. Senator
Santorum and I have recommended him to the President and the
President has submitted his name to the Senate.
He comes to this hearing with an extraordinarily
distinguished record as a practicing lawyer and as a judge. He
practiced privately in the firm led by Robert Jubelirer, a
longtime Pennsylvania State Senator and now Lieutenant Governor
of Pennsylvania, who has known Judge Smith all his life and has
brought forward a very, very strong recommendation.
Judge Smith served as District Attorney of Blair County,
where Altoona is located. He was the special prosecutor coming
in to replace the District Attorney on some very highly
sensitive matters. He was a judge of the Court of Common Pleas
of Blair County for four years. Senator Heinz and I recommended
him to President Reagan, who appointed him to the United States
District Court for the Western District of Pennsylvania. Judge
Smith has served there since confirmation in 1988. He has been
the Chief Judge of the Western District Court now for about 18
months.
He has a very, very distinguished record. In taking over
the judgeship in the Western District, he sat in Johnstown.
Senator Heinz and I felt that there ought to be a station in
Johnstown to accommodate the litigants and the lawyers in that
area of Western Pennsylvania and there is a little competition
between Johnstown and Altoona. It is present in every State. We
picked an Altoona lawyer to be judge. We picked Johnstown as
the seat, and it is a lot easier to sit in the big city, but
Judge Smith sat in Johnstown, where he performed a great
service.
Some issues have been raised, and I have reviewed the
record in detail and I am satisfied that Judge Smith has
complete responses and answers to any questions which have been
raised. They have been publicized. He brings an extraordinary
record. I could talk at greater length, but I am going to leave
the bulk of this presentation to my colleague, Senator
Santorum, and I am going to be--it is too late now to be brief,
but relatively brief in light of our crowded schedule this
morning.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator Specter.
I am now going to turn to the junior Senator from
Pennsylvania, and if Senator Specter would allow, I am going to
go proceed to vote and come back as soon as I can and then we
will go to Senator Gramm. If you have to leave in order to vote
on time, you can just recess the hearing and we will go as fast
as we can. Senator Santorum.
PRESENTATION OF D. BROOKS SMITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT BY HON. RICK SANTORUM, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you very much, Mr. Chairman. Mr.
Chairman, I just want to submit my statement for the record. I
just want to make a couple of comments.
Judge Smith has incredible support of an incredibly broad
variety of individuals and organizations in Western
Pennsylvania. Every single judge and senior judge of the
Western District of Pennsylvania supports his nomination. I
want to submit also for the record, I will not go through an
incredibly long laundry list of individuals as well as every
U.S. Attorney from the Western District, going back to Jimmy
Carter's time, Federal judges from the circuit level, 17
members of Congress, including every member of Congress, most
of whom are Democrats, from Western Pennsylvania support his
nomination, heads of bar associations, women's bar
associations, Supreme Court justices, the ones that are listed
here are all Democrats.
This is a nominee without--I have not seen anyone come
forward who has practiced before him or served with him who has
come out and opposed him. There have been some national
interest groups who have tried to weigh in and raise a case
which I know Senator Specter alluded to.
I want to submit for the record an article by the
plaintiffs' attorney who was supposedly adversely affected by
Judge Smith's ruling. He wrote an op-ed last Friday on this
issue. I would like to put that in the record. The headline is,
``Judge Smith's Rulings in No Way Hint at Favoritism Toward
Bank in Black Case,'' and then today, the trustee in the case,
who happened to be the former Attorney General and former
Governor of Pennsylvania, Dick Thornburgh, wrote a letter
saying, ``Setting the Record Straight on Judge D. Brooks
Smith.''
There is a lot of misinformation out there on one
particular case. It is misinformation. I think this sets the
record straight. The bottom line is, I have never encountered a
nominee in my time in the Senate who has a broader base of
support and more positive things to be said about him than
Judge Smith and I hope for a very quick confirmation of his
nomination. Thank you, Mr. Chairman.
Senator Specter [presiding]. Thank you very much, Senator
Santorum. Without objection, all of those documents will be
included in the record.
[The prepared statement of Senator Santorum follows:]
Statement of Senator Rick Santorum on the Nomination of the Honorable
Brooks Smith for the U.S. Court of Appeals for the Third Circuit,
February 26, 2002
Mr. Chairman and members of the Committee, Thank you for the
opportunity to introduce Judge D. Brooks Smith and speak on behalf of
his nomination. Judge Smith is extraordinarily well qualified to be a
Circuit Court Judge. It is my honor to introduce him to the Committee
and strongly recommend him as a dedicated public servant. Judge Smith
is now Chief Judge of the U.S. District Court for the Western District
of Pennsylvania. He has more than 17 years of judicial experience at
the federal and state levels and is widely respected throughout
Pennsylvania. Judge Smith was rated ``Well Qualified'' by the ABA and
rated ``Highly Recommended' by the Allegheny County Bar Association and
the Somerset County Bar Association. The Tribune-Democrat of Johnstown,
Pennsylvania [2/16/02] has written that ``Many lawyers who appear
before Smith would characterize him as intelligent, conscientious and
of high personal integrity. . . . He's been a shining star in the
Western District Court system.''
Judge Smith is from Altoona, Pennsylvania. He graduated from
Franklin and Marshall College in Lancaster, Pennsylvania and Dickinson
School of Law in Carlisle, Pennsylvania. Judge Smith previously served
the public as an Assistant District Attorney and District Attorney of
Blair County. He served for four years as a Court of Common Pleas Judge
before becoming a federal District Judge in 1998. For more than a year,
Judge Smith has been the Chief Judge of the United States District
Court for the Western District of Pennsylvania.
I am pleased to inform the committee that Judge Brooks Smith's
nomination has broad support--from both parties and all quarters of
Pennsylvania. Smith is supported by former Attorney General and
Pennsylvania Governor Dick Thornburgh as well as Mark Singel, the
former Lieutenant Governor and Acting Governor of Pennsylvania, a
Democrat. Seventeen Members of Congress from Pennsylvania--including
eight Democratic Representatives--have signed a letter supporting
Smith. He is also supported by every U.S. Attorney for the Western
District of Pennsylvania who served under Presidents Jimmy Carter,
Ronald Reagan, George H.W. Bush, and Bill Clinton. In addition, Judge
Smith is supported by all ten of this District Court colleagues--
including seven judges appointed by Democratic Presidents.
Judge Smith is supported by prominent women and women's groups.
These include the board of the Women's Bar Association of Western
Pennsylvania, its Co-President, Shelly Pagac, and the President of the
Allegheny County Bar Association, Amy Greer. Judge Smith is also
supported by prominent African-Americans, including former Third
Circuit Judge Timothy Lewis and Judge Anne Thompson of the U.S.
District Judge for the District of New Jersey, who worked with Judge
Smith on the Third Circuit Task Force on Equal Treatment in the Courts.
Judge Smith is also supported by the President of the Pennsylvania Bar
Association (PBA), Reginald Belden, and three former PBA Presidents,
Thomas Cooper, Vincent Grogan, and Marvin Lieber. Judge Smith is
supported by the Dean of the Duquesne Law School, Nicholas Cafardi; the
Dickinson Law Schools, Peter Glenn; and the Pittsburgh Law School,
David Herring. I can provide a more comprehensive list of endorsements
by those who know his character and the quality of his work.
In closing, I would like to thank my colleagues for scheduling this
hearing and ask for your support for his nomination. I am confident
that you will be impressed with Judge Smith's qualifications and his
commitment to serving the public in the judiciary. I look forward to
the Senate's consideration of his nomination and his confirmation to
the United States Circuit Court of Appeals for the Third Circuit. Thank
you.
Senator Specter. I now have the pleasure to turn to our
distinguished colleague, Senator Phil Gramm. It is the first
time I have had an opportunity to cross examine Senator Gramm
and I am looking forward to it. [Laughter.]
PRESENTATION OF ROBERT RANDALL CRANE, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY HON. PHIL GRAMM, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Gramm. Thank you, Mr. Chairman. I can be brief. I
am here to introduce Randy Crane, who is one of the outstanding
young lawyers in my State. He graduated from the University of
Texas with a degree in economics when he was 19 years old. He
was an honor graduate of the law school. He was awarded an
editorial staff position on the Harvard Journal of Law and
Public Policy based on his record in law school.
In his third year in law school, in an extraordinary
action, he was made a temporary member of the bar so that he
could do work for the indigent in the Austin area. He has been
president of the Young Lawyers Association. Anything you can
name that is good, productive, and contributing toward the
well-being of the people of the valley of Texas, he has done
it.
I am very happy to be here with my dear friend, Ruben
Hinojosa, who is also going to make a statement on Randy Crane,
and you are not going to consider people with more brainpower
and more integrity than this young man.
Senator Specter. Senator Gramm, if you make a
representation of brain power, the committee accepts it.
Senator Gramm. Thank you.
Senator Specter. Is this to be your last nominee for the
Federal bench, Senator Gramm?
Senator Gramm. I hope not. I hope to make many more.
[Laughter.]
Senator Specter. Well, had it been, we would have just
waved him on through. [Laughter.]
Since it is not, we will consider him carefully.
Senator Gramm. Thank you. And he has a lot of his kinfolks
here, so I hope he will be given a chance to introduce them, 14
in all. I want to be sure when he gets up here he is given a
chance to introduce them. Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Gramm.
Congressman Hinojosa.
PRESENTATION OF ROBERT RANDALL CRANE, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY HON. RUBEN
HINOJOSA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Representative Hinojosa. Thank you very much, Senator
Specter. It is a pleasure to be here before you and to be able
to be joined by my good friend, Senator Phil Gramm from Texas.
I want to say that I am honored to be here on behalf of one
of my constituents. This young man, Randy Crane, is a real
standout and I want to talk a little bit about him and his
family. I believe that what I am going to say about this young
man is from the heart. I know a great deal about his family,
his parents and grandparents, and so I am very pleased to be
able to know him and the entire family as I do.
I am also pleased that Senator Phil Gramm preceded me and
said a few things about his support as well as I know that Kay
Bailey Hutchison also has a great deal of respect and support
for Randy Crane. If I were to tell you and list the broad
support that he brings from both Democrats and Republicans,
regional leaders from my area, it would be a pretty long list.
I represent the 15th Congressional District of Texas, which
includes 11 counties, Hidalgo County being the largest one of
the 11, and that area is located----
Senator Specter. Congressman, I am sorry to interrupt you,
but there are a little over three minutes left in our vote, so
Senator Sessions and I are going to have to excuse ourselves.
It is unusual, but we are leaving you in charge of this Senate
hearing. [Laughter.]
Representative Hinojosa. I will be very pleased to
represent you, Senator Specter.
Senator Specter. We have total confidence in your candor
and integrity, so we will accept your statements, but why do
you not just proceed and finish your statement and we will
return just as soon as we can.
Representative Hinojosa. Thank you, Senator. Would you have
any objections if I wait until you return? I want to have the
opportunity to have a dialogue and answer any questions that
you might have. This is something that is very important to my
area.
Senator Specter. We thought we would accommodate you the
other way, but we would be glad to hear your testimony when we
return. The hearing is now recessed.
Representative Hinojosa. Thank you.
[Recess from 10:13 a.m. to 10:38 a.m.]
Senator Specter. Senator Feingold, chairman of this
hearing, has asked me to proceed in his absence. He is on the
floor where there are some comments about campaign finance
legislation.
I see we are joined by Senator Stevens. Congressman, would
you mind if we interrupted your testimony to hear from Senator
Stevens?
Senator Stevens. I would be perfectly willing to wait,
Senator. You are the chairman.
Senator Specter. It is your choice and I choose you.
Senator Stevens. Thank you very much.
Senator Specter. Senator Stevens has been here since 1966-
67 and he is a very senior member of our body and I know he has
got some pressing obligations on the Appropriations Committee,
so let us take Senator Stevens at this time. Is it all right
with you, Congressman?
Representative Hinojosa. Absolutely.
Senator Specter. Okay. Senator Stevens.
PRESENTATION OF RALPH BEISTLINE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ALASKA BY HON. TED STEVENS, A U.S. SENATOR
FROM THE STATE OF ALASKA
Senator Stevens. Thank you very much, Mr. Chairman. As I
said, seeing as you are assuming the chair, I thought maybe
there had been a revolution around here.
Senator Specter. There has been. [Laughter.]
It is called the Jeffords revolution.
Senator Stevens. Senator Murkowski and I are here. I will
be brief. We are here to recommend to the committee the
confirmation of Ralph Beistline. He is an eminent lawyer, a
member of the Superior Court bench in Alaska. I have known his
family for as long as I have been in Alaska and it is a great
honor, really, to be able to introduce him to you.
He is the former president of the Alaska Bar Association.
He was a member of the Board of Governors of the Bar
Association. He has been our representative for Alaska
attorneys to the Ninth Circuit Court of Appeals Judicial
Conference and has been the editor of the Alaska Bar
Association newspaper. He has a distinguished history in terms
of his participation in the Boy Scouts movement of our State.
He was on the executive board of that and he is a graduate of
our university, so we are very proud of him and I am delighted
that the President has nominated him to be a Federal District
judge. I thank you for your time.
Senator Specter. Thank you very much, Senator Stevens.
Thank you for coming to introduce him.
Senator Murkowski.
PRESENTATION OF RALPH BEISTLINE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ALASKA BY HON. FRANK MURKOWSKI, A U.S.
SENATOR FROM THE STATE OF ALASKA
Senator Murkowski. Thank you very much. Good morning. I am
pleased to see you in the chair, at least temporarily, but we
do the best we can around here. [Laughter.]
Senator Specter. We are going to move the confirmation of
Judge Pickering in another five minutes. [Laughter.]
Senator Murkowski. I am honored to join my senior colleague
to introduce Judge Ralph Beistline to your committee. I
certainly unconditionally support his nomination to the Federal
bench in my State of Alaska.
I know your committee has reviewed the qualifications of
the judge and even a cursory review of his credentials reveals
a jurist that is eminently qualified to serve our nation and my
home State. Judge Beistline has dedicated his life to advancing
the legal profession, serving the clients diligently, and as a
Superior Court judge, provided reasoned and prudent legal
judgments.
But I am here to tell you about Judge Beistline, the man.
Judge Beistline is a true Alaska born, Fairbanks, Alaska, to be
precise. Now, I am not the type of person that goes around
telling people how old they were, but he has been living in
Alaska for about 52 years and I think he was two years old when
he came there, so from the standpoint of residency, he is
certainly well qualified.
Such tenure is important in our State. We are unique. We
have complex issues, as most of our membership is aware, and I
firmly believe that a judge must understand the history of a
community and Judge Beistline certainly reflects that
experience and expertise. He has always served the people of
our State well, in part because he has spent most of his life
working for and living with Alaskans.
Judge Beistline will be the first to tell you that his
primary job is as a husband and father. His wife, Peggy Ann,
who is here this morning, runs a floral shop in Fairbanks. They
have five children, Carrie, Daniel, Tamara, Rebecca, and David,
and throughout their years in Alaska, the Beistlines have
always worked to improve their community and the community is
better off because of it. Their professional endeavors, their
civic work, and their family values have been an asset to the
Fairbanks community.
Again, as I have stated before, I enthusiastically support
the nomination of Judge Ralph Beistline to the Federal Court in
Alaska. I encourage the committee to act quickly on the
nomination. Upon your review of his qualifications, I am sure
you will see the appropriateness of his nomination and the
benefit he will bring to the Federal judiciary and the people
of Alaska.
I appreciate the opportunity to support his nomination this
morning.
Senator Stevens. I might add for the Senators, we run a bar
poll in Alaska and our judicial nominees are selected really by
the bar itself in terms of their nomination to people who are
qualified. Judge Beistline was really selected, in effect, by
the bar itself, so I do commend his nomination to you.
Senator Murkowski. On the other hand, we had something to
do with it.
Senator Feingold [presiding]. I thank all the panel very
much for being here to testify on behalf of these nominees.
Senator Stevens. Any questions, Chairman Feingold?
Senator Feingold. We have no questions that I know of.
Senators Specter, Sessions, Biden, any questions for the panel?
[No response.]
Senator Feingold. Thank you for taking the time.
Senator Specter. Mr. Chairman, Congressman Hinojosa was in
the midst of his testimony.
Senator Feingold. I did not realize he had not finished.
Excuse me. Congressman, please finish your testimony.
Senator Stevens. Thank you very much for the courtesy you
extended us.
Representative Hinojosa. It is my pleasure.
Senator Biden. You will return the favor on the House side,
will you not?
Representative Hinojosa. We certainly will. We will
certainly be asking for that.
Senator Feingold, thank you for allowing me the opportunity
to address you and all the other members of the Senate
Judiciary Committee. I am here to introduce my constituent,
Randy Crane, whose nomination for the U.S. Southern District
judge is under consideration. I am also pleased that Senator
Phil Gramm, senior Senator from Texas, was here earlier and
spoke on Randy's behalf.
I said earlier that Randy had broad support, both from
Democrats and Republicans in my area. Many of the regional
leaders are all rooting for Randy.
I represent the 15th Congressional District of Texas, which
includes Hidalgo County along the United States-Mexico border.
The 2000 census figures published this last year show that the
population of Hidalgo County increased by 48 percent over the
past ten years before, making it the third-fastest growing
region of the country.
With this enormous population growth has come a
corresponding increase in the caseload of the already
overloaded Federal Courts in the Southern District of Texas. In
fact, the Southern District has the third highest number of
criminal case filings in the nation. Judicial relief for my
constituents is desperately needed.
Randy Crane is well qualified for the position of Federal
judge. Senator Gramm gave long detail about his educational
background and I will not repeat it. Not only does he have the
legal experience and academic qualifications necessary, but as
a native South Texan and Mexican-American, he understands the
unique cultural and socio-economic character of the region. He
was born and raised in South Texas and understands the
importance of being bilingual and bicultural.
Although he currently has an active practice as a partner
with the law firm of Atlas and Hall, he still finds the time to
serve the community through his work with the American Cancer
Society, the McAllen International Museum, and countless
charities and organizations. He is an active member of the
Hidalgo County Young Lawyers Association. He is very active in
the State Bar of Texas and he is active in the Texas and Mexico
Bar Association.
I have known Randy and his family for many years. His
father, Bob, is also a highly respected member of the South
Texas legal community. He has served as Vice President of the
University of Texas-Pan American at Edinburg. His mother
graduated Summa Cum Laude from the University of Texas-Pan
American and went on to become a teacher. She raised two boys
and girls. The family tradition of public service and love for
the law will serve Randy well as a Federal judge.
In closing, I want to say that Randy's nomination has the
support of Senator Kay Bailey Hutchison and he has been
unanimously approved by the American Bar Association. I am
confident that as today's confirmation hearings continue, you,
too, will realize what a fine candidate Randy Crane is and how
suited he is for this position in South Texas.
Thank you for allowing me to address the committee and
present Randy Crane for your consideration.
Senator Feingold. Congressman, thank you for your testimony
and your patience. I am sorry to delay your testimony.
Representative Hinojosa. Are there any questions, Mr.
Chairman?
Senator Feingold. I have no questions. Are there any
questions from anybody on the panel?
Senator Specter. No questions.
Senator Feingold. Senator Biden.
Senator Biden. Thank you.
Representative Hinojosa. Thank you very much.
Senator Feingold. Let me also recognize Congresswoman
Melissa Hart of the Fourth District of Pennsylvania. She has
not chosen to speak, but I understand she is here in support,
as well, of Judge Smith for his appointment to the Third
Circuit Court of Appeals.
Ms. Hart. Thank you.
Senator Feingold. Welcome, and it is good to see you here.
I would like to insert into the record a statement from
Senator Leahy.
I would also like to include a statement from Senator
Cantwell.
Now we can go to the first nominee, Judge D. Brooks Smith
of Pennsylvania, who has been nominated to fill a vacancy on
the United States Court of Appeals for the Third Circuit. If
you would come forward, please, and please stand to be sworn.
Do you affirm that the testimony you are about to give
before the committee will be the truth, the whole truth, and
nothing but the truth?
Judge Smith. I do.
Senator Feingold. Thank you, Judge.
Judge Smith is a graduate of Franklin and Marshall College
and Dickinson School of Law. He is currently judge on the
United States District Court for the Western District of
Pennsylvania. Judge Smith served as the District Attorney in
Blair County, Pennsylvania, and as a judge on the Blair County
Court of Common Pleas before being elevated to the Federal
bench in 1988.
Judge, if you have introductions to make or a statement you
would like to make before we begin the questioning, I will
recognize you for that purpose at this time.
STATEMENT OF D. BROOKS SMITH, NOMINEE TO BE DISTRICT JUDGE FOR
THE THIRD CIRCUIT
Judge Smith. Thank you very much, Mr. Chairman. I do not
want to prolong these proceedings with a statement, but I would
be remiss if I failed to do three things. One is to introduce
my wife of 25 years, Karen, who is with me.
The other is to also note that Congressman Coyne was
present earlier. I believe he has since departed.
Senator Feingold. That will be noted on the record.
Judge Smith. But I thank him. And also to generally,
without introducing everyone by name, thank those friends and
supporters who are present from Pennsylvania and elsewhere to
be with me today. Thank you, Mr. Chairman.
[The biographical information of Judge Smith follows:]
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Senator Feingold. Thank you, sir.
In order to move this hearing along and, I think, provide
for the most efficient questioning, we will have ten-minute
rounds of questions and I will now begin the first round.
Judge, I would like to ask you about the large number of
expense-paid trips you have taken since becoming a Federal
judge. According to your financial disclosure reports, between
1992 and 2000, you reported going on 12 separate trips
sponsored by either the Foundation for Research on Economics
and the Environment, known as FREE, or the George Mason
University Law and Economics Center, known as LEC. Only four
Federal judges in the whole country out of a total of over
1,000 active and senior Federal Article III judges took more of
these trips than you did during this period.
As I understand it, the trips were for educational seminars
put on by these organizations. The seminars were held at
resorts in Montana, Hilton Head, South Carolina, Amelie Island,
Florida, and Palm Springs, California. The value of the trips
you took over the last eight years is estimated at over
$30,000, although it appears that you did not disclose some of
these trips on your annual financial disclosure forms.
FREE, one of the organizations that sponsored the trips you
went on, promotes what it calls ``free market
environmentalism.'' They emphasize property rights, market
processes, and responsible liberty, in their own words. LEC
teaches economics from a ``property rights perspective.'' These
groups are well known for their opposition to many of the major
environmental laws of our country, and not surprisingly, their
financial support comes from large corporations such as General
Electric, Texaco, and Monsanto, and very conservative
foundations funded by Richard Mellon Scafe and Charles Koch.
But more important for what I am about to ask you, these
groups freely admit that the purpose of the judicial education
trips they sponsor is to influence Federal judicial decision
making. For example, the Dean of the George Mason Law School
told ABC News ``20/20'' in April 2001 that LEC is ``out to
influence minds.'' He said, ``If court cases are changed, then
that is something we are proud of, as well.''
My concern about these judicial junkets is twofold. First,
and I will ask you a couple questions about that first, it
seems to me that going on all these trips makes it look like
you are taking advantage of your public office for private
gain, and the seminar topics seem to be repetitive sometimes,
by and large, the same.
So in fairness, let me ask you, did you learn much new from
the LEC law and economics seminar that you went to in March
1994 in Hilton Head, South Carolina, after having gone to the
LEC law and economics seminar in Hilton Head in June 1993, the
year before?
Judge Smith. Senator, my recollection of the agendas is
that there were different speakers at both of those programs,
there were different topics, and there were always different
readings. One thing I would emphasize is the intensity of these
programs. They are the most intellectually stimulating courses,
CLE courses or any other educational course, I have engaged in
since I was in college and law school and they demand not only
participation at the sessions themselves, but they demand
preparation by the readings.
With your indulgence, Senator, I would like to just state
one matter, and that is in your introductory remarks, I believe
that you said that I had not reported all of these and I, to
the best of my knowledge, I have always complied with the
reporting requirements. That is my understanding, sir.
Senator Feingold. You are saying, did you report the value
of these trips?
Judge Smith. I am saying I complied with the reporting of
attendance at these trips. Perhaps I misunderstood.
Senator Feingold. Let me follow on that in a minute, but
let me just clarify your last answer. Do you view these trips
mainly as educational or recreational?
Judge Smith. I view them mainly and almost entirely as
educational. I am aware, Senator, that in my case in
particular, there have been suggestions that we attend these
seminars and engage in activities and I read that I have
engaged in the activity of golf and horseback riding. I have to
concede with some embarrassment, I suppose, that my friends
have gotten a great deal of amusement at my expense out of that
report. I have not held a golf club since I was in junior high
school, and at that point in time, I did not do a very good job
at it, either. So I can assure you that my time and my efforts
and my energies have been directed toward doing the readings
and attending the courses.
Senator Feingold. Thank you, Judge. Let us get back to the
financial disclosure issue. Now, you suggested that perhaps you
have reported all the trips, and we will, in fairness, follow
up on that. My understanding was that you did not necessarily
report all the trips. But at a minimum, it appears that the
value of the trips has not been included in every case on your
forms. Their value has been estimated by looking at the
disclosures made by other judges who attended these same
seminars. Now, why would you not have included the value of
some of these trips?
Judge Smith. Again, Senator, I have believed in every year
that I have complied with the reporting requirements that are
required of Federal judges on an annual basis. That is
something that, indeed, I will check after this hearing. But I
have never been made aware of any inadequacy or any omission in
my reporting, and in fact, the Administrative Office of the
United States Courts, I think, very assiduously checks these
reports for any possible omissions or deficiencies or
inconsistencies.
Senator Feingold. Judge, we will in good faith follow up
with you on those matters.
The second part of my concern about these trips is that
they appear to be part of an intentional and well-funded effort
by corporations to ``educate'' judges and convince them outside
of the adversary process of the courtroom that their view of
the law is the correct one. Do the comments of George Mason's
Law School dean that I quoted a moment ago concern you at all?
Is it appropriate for corporate interests to try to influence
the Federal judiciary in this way?
Judge Smith. Well, certainly, the remarks concern me and,
certainly, it is inappropriate for corporations or anyone else
to attempt through some ex parte forum or manner to influence a
Federal judge. I would say, however, that my experience with
the programs I have attended is that they have been extremely
balanced in their presentation.
The second point I would like to make, Senator, is that
Federal judges are accustomed by training and by experience to
hearing on a day-to-day basis different points of view. It is
what we do. It is what we are about. I have confidence that I
and confidence that my colleagues in the Federal judiciary can
hear these various points of view without being influenced one
way or another by them.
I realize that your concerns, Senator, about these programs
go beyond that, however, to the funding of them----
Senator Feingold. That is correct.
Judge Smith [continuing]. And I realize that is another
issue entirely.
Senator Feingold. It is an area of concern. Are you
familiar with Advisory Opinion No. 67 from the Judicial
Conference Committee Codes of Conduct concerning the issue of a
judge's participation in a privately-funded education seminar?
Judge Smith. I am familiar with it. I have studied it and I
have been guided by it in my attendance at these seminars.
Senator Feingold. Did you inquire into FREE's or LEC's
sources of funding before attending any of these privately-
funded seminars?
Judge Smith. My recollection is that, with respect to
FREE's seminars, which I attended in 1996, 1997, and 1998, I
did indeed. I had not heard of FREE and so I did make more than
one telephone call upon receiving the first invitation. I was
informed that these programs were funded by foundation monies.
In fact, it was described at one point as dead people's money,
dead people's foundations. The foundations were named to me,
and then I would later see them on program agenda. They were
foundations which I knew had not been parties to litigation
before me, are not now parties to litigation before me, and I
have no familiarity really beyond that with those foundations.
Senator Feingold. How did you comply with your obligations
under Advisory Opinion 67 to make sure it would not be improper
to attend the seminar?
Judge Smith. I thought that that was what the funding
requirement question implied. Because I knew of no personal or
political connection in any way with these foundations that
funded the programs, because I was aware of no litigation that
had ever taken place before me involving those programs, I was
satisfied that under 67, it is left to the judge to determine
whether or not it is appropriate to attend.
Senator Feingold. Thank you very much, Judge. That
completes my first round.
Now I will turn to the ranking member of the committee,
Senator Hatch. Senator?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Senator Feingold, and welcome,
Judge Smith. We are happy to have you with us and look forward
to your confirmation.
Judge Smith. Thank you very much, Senator Hatch.
Senator Hatch. I am exceedingly pleased that the committee
is considering the nominations of four exceedingly well-
qualified candidates for the Federal bench and I want to
welcome all of you to the committee.
Our only Circuit Court nominee, of course, is you, Judge
Smith, who, of course, has been nominated to be the Third
Circuit Court of Appeals judge. Judge Smith is currently the
Chief Judge for the Western District of Pennsylvania. He has
compiled an impressive record as a judge since 1988, when at
age 36 he became one of the youngest Federal judges in the
country. Prior to that, Judge Smith has served as a State Court
judge, as a prosecutor, and as a private practitioner with a
law firm in Altoona, Pennsylvania, and, of course, has good law
school credentials, as well.
Of course, anyone who has been reading the newspapers in
the past few weeks knows that it would be impossible to comment
on Judge Smith's credentials without mentioning the attacks he
has come under from the usual liberal lobbyist special interest
groups in Washington. As President Reagan would say, there they
go again.
A story in yesterday's Pittsburgh Post Gazette noted,
``Critics of Smith, many aligned with Democratic Party
interests, say he has been too quick to dismiss valid lawsuits
brought by individuals against corporations and too eager to
travel to conferences paid for by businesses with interests in
Federal litigation. But outside Washington's world of partisan
politics, Smith seems to have no enemies, only admirers. Those
who have watched him work say an exemplary 14-year record on
the Federal bench in Western Pennsylvania is being twisted by
political opportunists. His popularity outside the capital
extends even to members of the opposing political party, who
describe him as fair, hard working, and respectful to all.'' I
think that is a pretty good editorial from the paper that has
not always been known to support Republican politics.
Well, it is an election year and we know that some on the
left of the mainstream groups in our society will not miss an
opportunity to flex their muscles. Now, those groups who are
working to discredit Judge Smith apparently believe that
President Bush's Circuit Court nominees deserve to have their
records distorted and their reputations dragged through the
mud. I think that no judicial nominee deserves such treatment
and that was something that I practiced as chairman for six of
President Clinton's eight years in office.
I strongly agree with the Washington Post editorial of
February 19, 2002, that ``opposing a nominee should not mean
destroying him.'' Referring to our last confirmation hearing,
the Post pointed out, ``The need on the part of liberal groups
and Democratic Senators to portray a nominee as a neanderthal,
all the while denying they are doing so in order to justify
voting him down, is the latest example of the degradation of
the confirmation process.''
I look forward to hearing from you, Judge Smith, but I hope
that all my colleagues in the Senate will be sensitive to the
dangers to the judiciary and to the reputation of this body
that will certainly result from the repeated practice of
degrading honorable and accomplished people who are willing to
put their talents to work in public service.
Now again, I do support a thorough and genuine review of a
nominee's record and temperament and in no way do I think we
should shy away from our constitutional role of providing
advice and counsel. But, Judge Smith, there have been some
questions raised concerning your attendance at certain judicial
seminars and these are legitimate questions. It seems that the
criticism is not so much that you have attended some seminars,
at least the outside criticism, but rather that you attended
the wrong seminars. It is a terrible thing to do that, I am
sure. Of course, I am being sarcastic. People are supposed to
laugh at that. [Laughter.]
If we are asking any specific questions, I would like to
read what the American Bar Association Advisory Committee on
the Code of Judicial Conduct has to say about judges'
attendance at such seminars. This is what they say. ``The
education of judges in various academic disciplines deserves
the public interest, that a lecture or seminar may emphasize a
particular viewpoint or school or thought does not in itself
preclude a judge from attending. Judges are continually exposed
to competing views and arguments and are trained to weigh
them.'' That is Advisory Opinion No. 67, which was revised July
10, 1988.
I would also like to share what Chief Justice Rehnquist has
said about the notion of somehow restricting or censoring the
seminars that judges attend. He said, the ``notion that judges
should not attend private seminars unless they have been vetted
and approved by a government is contrary to the public interest
in encouraging an informed and educated judiciary, and contrary
to the American belief in unfettered access to ideas.''
One sponsor of judicial seminars is George Mason
University's Law and Economics Center, known as the LEC.
Although some have criticized the LEC for teaching legal
theories related to the social science of economics, others
have praised the LEC. For example, Justice Ruth Bader Ginsburg
wrote that, ``As a student of two seminars, I can confirm that
the instruction was far more intense than the Florida sun. By
lifting the veil on such mysteries as regressional analysis and
for advancing both learning and collegial relationships among
Federal judges across the country, my enduring appreciation.''
Another sponsor is the Foundation for Research on Economics
and the Environment, known as FREE. Several judges appointed by
Democratic Presidents participate in the management of FREE and
two of President Clinton's judicial appointees sit on FREE's
board of advisors.
Judge Smith, given the bipartisan praise that these
seminars have received, I wonder whether you share the fears of
some that attendance at such seminars has a negative effect on
the ability of judges to act in a fair and impartial manner
when deciding the cases before them.
Judge Smith. It is my strong view, as I said a few moments
ago, Senator Hatch, that attendance at these seminars by
Federal judges who are accustomed day in, day out, and by
training and by temperament to hear varying points of views and
sometimes points of views that are out of the mainstream are
matters we are able to handle without being influenced unduly,
and I am satisfied that I have been able to do just that.
I am not sure to this day that attendance at one of the
seminars for me, as it did for Justice Ginsburg, has raised the
veil on regression analysis, but I may keep trying. But these
are seminars, these are educational experiences which are
intended to introduce us to subject matter and issues which we
do not always otherwise see. For some judges, there was no
economic background in their educational experience, and with
respect to the LEC, the George Mason programs, I am sure those
programs have been quite valuable.
But I do not want to concentrate only on the programs
offered by the two that have been the subject of questions
concerning my participation. There are various entities and
organizations, bar associations and law schools across the
country, which offer programs on an ongoing basis for Federal
judges. So one of the concerns, I think, we judges need to keep
in mind always is the paramount concern raised by the
chairman's question that we not be attending anything that
might bear some taint by virtue of funding and funding by an
entity with an interest before us, but also that we not be so
inhibited in our attendance at educational programs which may
be entirely appropriate and not bear any taint whatsoever.
Senator Hatch. Thank you, Judge. I would like to take a
moment to comment upon your remarks during a 1993 speech about
the ``Violence Against Women Act.'' Now, that happens to be a
bill that both Senator Biden and I take a special interest in
and Senator Biden deserves a lot of credit for working on that,
but I worked alongside him in passing that bill. So, naturally,
I took a particular interest in following your speech. I have
to say up front that I could not disagree more with your
characterization of, I will call it VAWA to save time.
While the Supreme Court did strike down the civil remedy
portion of VAWA, I am firmly convinced that there is nothing
unconstitutional in the remainder of the Act. Its criminal
remedies do not seek to strip State and local law enforcement
of their authority as the primary protectors of women's safety.
Rather, these provisions expressly pertain to crimes that cross
State lines, an area where State and local governments have
traditionally had difficulty prosecuting cases and, of course,
where the Federal Government has long rendered its assistance.
Furthermore, the majority of the Act creates grant
programs, provides training for State and local law
enforcement, and establishes funding for community groups.
Congress does have a history of providing such assistance to
State and local governments and communities on matters of
national crisis such as what we believe is violence against
women, and I believe that the provision of such assistance is
not only completely appropriate, but also necessary.
Judge Smith, I respect your view that law enforcement is a
primarily local matter. To some extent, I believe basically
everybody shares that view. But your criticisms of VAWA simply
misconstrue, in my opinion, the nature and scope of the Act.
VAWA does not federalize every crime pertaining to domestic
violence or other violence targeting women.
So I will begin my questions on VAWA with a very
straightforward question. Are you committed to following the
Violence Against Women Act as enacted?
Judge Smith. Absolutely. I am committed to adhering to the
Violence Against Women Act as a statute as I am to any other
Act of Congress.
Senator Hatch. Mr. Chairman, since I did not make my
opening statement, could I just have a few minutes to finish
one more question?
Senator Feingold. Go ahead, Senator Hatch.
Senator Hatch. This is a matter that really concerns, I
know, Senator Biden and me.
Senator Feingold. Go ahead.
Senator Hatch. Senator Biden and I have walked arm-in-arm
on this bill.
Senator Biden. This is called inoculating you. [Laughter.]
Senator Specter. This precludes Senator Biden from asking
questions on this?
Senator Hatch. I certainly hope so. [Laughter.]
Call it whatever you will, but it is important. Having
expressed my disagreement with your characterization of VAWA, I
have to note that in your speech, you never discounted the
problem presented by violent acts perpetrated against women. In
fact, you describe the purpose of VAWA as ``commendable'' and
observed that ``domestic violence, of course, deserves our
strongest reprehension.''
Now, you stated in your speech that you have personal
experience in observing the difficulties associated with
prosecuting domestic violence. Could you tell us a little bit
about your personal experience in that regard?
Judge Smith. Senator Hatch----
Senator Hatch. And especially talk about the one case where
you were put at personal risk.
Judge Smith. Senator Hatch, I go back at this point, I
think, a fair number of years. I just turned 50 recently and
can look back on over 25 years in the law. In my private
practice and as a prosecutor, I had personal experience with
many cases involving violence against women. I represented
women in my private practice, and often women of very, very
modest means who could not afford to pay or could not afford to
pay a normal fee to be represented. I faced the problem as a
prosecutor, as well. I saw the problem most frequently in my
four years as a judge of the Court of Common Pleas.
I share, respectfully, with both you and Senator Biden, a
deep concern for what cannot simply be described as a problem
but what can only be described as a problem of such enormity as
to constitute a national tragedy. My experience included being
a member of the Domestic Abuse Advisory Board of our first
domestic abuse project in Blair County, where I used to preside
as a State Court judge, served as district attorney, and where
I continue to reside today. My interest in the subject, my
concern about doing something about it as a citizen, as a
public official, extended to that.
The matter that you referred to, the specific matter, is
something of an irony in life. Much of my experience as a
lawyer was as a prosecutor. I was a district attorney. I was an
assistant district attorney. I served as a special prosecutor
for two years in an investigating grand jury effort in our part
of Pennsylvania. I realize that you do not generally associate
central Pennsylvania with organized crime, but we had some
very, very serious organized criminal activity there, and
during that period of time, I was one of the two prosecutors
who handled that investigating grand jury.
At no time in my entire prosecutorial career, at no time
while I was in this two-year grand jury investigation, which
went into the activities of at least one made member of the LCN
and involved his enforcer, who was even more dangerous--at no
time was my life ever threatened, did I ever receive
information that suggested my security was at risk, or did I,
in the small city in which I reside, have any great concern in
that regard.
The only time in my life, in my entire career in the law,
that I have had my life threatened was when I represented a
woman in a divorce, a woman of very modest means, who had an
abusive husband. I can vividly recall, as Karen can, a bump at
our house one night which we did not know the providence of,
but learned quickly when we walked to our porch and saw red
enamel paint all over our window and all over our porch. When
we returned to the house, within minutes, the phone rang. It
was an unidentified caller who said, ``That is just the
beginning. If you do not get off this case, we will burn your
house down and then will kill you.''
For the ensuing week or two, and this has been 20 or 21
years ago, Senator, so I do not recall exactly how long it was,
but I moved Karen out of the house. She resided with her
parents during that period of time, and I and my house were
under police protection. There was a police car parked across
the street in our neighbor's driveway every night affording us
protection.
They were never successful in determining who made the
call, who committed the vandalism. There is one ironic, perhaps
amusing to some, final twist to that story. Despite the fact
that there was never a perpetrator found, a culprit found,
there was another effort to vandalize my house. Unfortunately
for my neighbor, the vandal, the folks who were involved
apparently in these threats, as well, had some difficulty
telling their right from their left and the house that was
vandalized was not mine on the left side on the street but my
neighbor, who received a concrete block through a window in his
house on the right-hand side of the street. But it was all
related to this one case.
Senator Hatch. Let me just finish with just this comment.
Senator Biden. Senator, I am late and----
Senator Feingold. I am going to have to----
Senator Biden. I will stipulate, he is a wonderful man.
Senator Feingold. Senator Hatch----
Senator Biden. He is a great guy.
Senator Feingold [continuing]. I am going to have to move
on here.
Senator Hatch. All I want to do is put the letter of
Margaret Gates in the record, who does say that you have a deep
concern for the plight of battered women.
Senator Feingold. Without objection.
[The prepared statement of Senator Hatch follows:]
Statement of Senator Orrin G. Hatch
I am pleased that the Committee is considering the
nominations of four exceedingly well-qualified candidates for
the federal bench, and I would like to welcome you to the
Committee.
Our only circuit nominee on the agenda is D. Brooks Smith,
who has been nominated to be a judge on the Third Circuit Court
of Appeals. Judge Smith is currently the Chief Judge for the
Western District of Pennsylvania. He has compiled an impressive
record as a judge since 1988, when, at age 36, he became one of
the youngest federal judges in the country. Prior to that,
Judge Smith had served as a state court judge, as a prosecutor,
and as a private practitioner with a law firm in Altoona,
Pennsylvania. He is a 1973 graduate of Franklin and Marshall
College and a 1976 graduate of the Dickinson School of Law in
Pennsylvania.
Of course, anyone who has been reading the newspapers in
the past few weeks knows that it would be impossible to comment
on Judge Smith's credentials without mentioning the attack he
has come under from the usual liberal lobbyist interest groups
in Washington. As President Reagan would say, there they go
again. A story in yesterday's Pittsburgh Post-Gazette noted,
``Critics of Smith, many aligned with Democratic Party
interests, say he has been too quick to dismiss valid lawsuits
brought by individuals against corporations, and too eager to
travel to conferences paid for by businesses with interests in
federal litigation. . . . But outside Washington's world of
partisan politics, Smith seems to have no enemies, only
admirers. Those who have watched him work say an exemplary 14-
year record on the federal bench in Western Pennsylvania is
being twisted by political opportunists. His popularity outside
the capital extends even to members of the opposing political
party, who describe him as fair, hard-working and respectful to
all.'' Well, it is an election year and we know the left of
mainstream groups will not miss an opportunity to flex their
muscles.
Those groups who are working to discredit Judge Smith
apparently believe that President Bush's circuit court nominees
deserve to have their records distorted and their reputations
dragged through the mud. I think that no judicial nominee
deserves such treatment, and that was something I practiced as
Chairman for 6 of President Clinton's 8 years in office. I
strongly agree with the Washington Post editorial of February
19, 2002, that ``opposing a nominee should not mean destroying
him.'' Referring to our last confirmation hearing, the Post
pointed out, ``The need on the part of liberal groups and
Democratic senators to portray [a nominee] as a Neanderthal--
all the while denying they are doing so--in order to justify
voting him down is the latest example of the degradation of the
confirmation process.'' While I look forward to hearing from
Judge Smith, I hope that my colleagues in the Senate will be
sensitive to the dangers to the judiciary and to the reputation
of this body that will certainly result from the repeated
practice of degrading honorable and accomplished people who are
willing to put their talents to work in the public service.
Again, I fully support a thorough and genuine review of a
nominee's record and temperament, and in no way do I think we
should shy away from our constitutional role of providing
advice and consent.
Turning to our three district court nominees, let me start
with Ralph Beistline, who has been nominated for the District
of Alaska. Judge Beistline began his legal career as the first
law clerk for the Superior Court in Fairbanks, after which he
maintained a litigation practice for 17 years. Since then,
Judge Beistline has presided over a state trial court of
general jurisdiction, and has earned a stellar reputation for
fairness and hard work among lawyers and judges in his
community.
Our next nominee, David Bury, attended the University of
Arizona College of Law, and since then has gained experience in
almost every area of civil trial practice. He is a Fellow of
the American College of Trial Lawyers and an Advocate in the
American Board of Trial Advocates. He is also listed in the
``Best Lawyers in America.'' He has served as a lawyer
representative to the Ninth Circuit Judicial Conference, on the
Commission on Trial Court Appointments for Pima County, and on
the disciplinary Committee for the State Bar of Arizona.
Last, but certainly not least, is Robert Randall Crane, who
has been nominated to the Southern District of Texas. Mr.
Crane's trajectory towards a prodigious career could be seen
very early because he graduated from high school with honors at
age 16--and then completed an economics degree at the
University of Texas at Austin at age 19. Since graduation from
the University of Texas School of Law, Mr. Crane has put his
considerable talents to work at the law firm of Atlas & Hall,
as well has devoting a truly remarkable amount of time
volunteering for a number of important charitable and legal
organizations.
I am very impressed with the accomplishments and
credentials of each of these four nominees. I congratulate the
President for selecting you for one of the most noble and
honorable public postiiton, and I welcome you to the Committee.
I look forward to this hearing, and to working with my
Democratic colleagues to ensure your swift confirmation.
Senator Feingold. Let me just say briefly, before I turn to
Senator Biden, I have tremendous affection for the Senator from
Utah. In fact, he was a very fair and effective chairman and I
like working with him. Usually, he----
Senator Biden. Do not get carried away.
Senator Feingold. Just hold on. [Laughter.]
Just be patient. He usually makes a statement at the
beginning and there is usually some pretty tough language about
who is going after this judge and the liberal groups that are
involved, but he almost always absolves the Senators that are
present. He almost always says that this does not apply to
Senator Biden or Senator Feingold. Well, he did not do that
this time.
Senator Hatch. So that means you are going to--[Laughter.]
Senator Feingold. So let me simply say that my record on
this issue of these judicial trips existed long before Judge
Smith was appointed or nominated. I have introduced legislation
with Senator John Kerry to do something about these judicial
trips. We have tangled with the Chief Justice on this issue and
I think it is fair enough and important for this committee to
ask about these and to consider the possibility not only of
whether these are fair or whether these are appropriate but
also whether it is possible to use them to an excessive degree.
I think the Senator knows me well enough to know that that is
my record and that is the nature of my questions.
Having said that, I will turn to Senator Biden.
STATEMENT OF HON. JOSEPH R. BIDEN, JR, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you very much. Welcome, Judge. Let me
begin by stipulating a couple things. I do not have any doubt
about your sensitivity or concern about battered women in the
individual sense, as individuals. And I do not have any
question about your character nor your temperament because
Senator Specter vouched for you, and literally, I mean this
sincerely, that is enough for me. I need no more than Senator
Specter telling me that.
I do not care whether you traveled. I do not care what you
do. I do not care about any of the things that have been raised
so far. I care about your judicial philosophy, your
jurisprudence. I might note parenthetically, had you gone to a
conference sponsored by NARAL, I assure you the Senator from
Utah would never have raised it. He would have never raised
that. He would never have said----
Senator Hatch. You are absolutely right. I would not have
raised that.
Senator Biden. Nor would anyone else. But I do not care
where the heck you went. I care where you are going. I am
worried about where you are going.
You made, and I will in the second round, if possible, get
back to the Violence Against Women Act, but I do not have a
personal investment in that in the sense that you turned out
your prediction to be right. The Supreme Court did rule the
provision that the Senator initially did not support and no one
else supported which was a civil rights cause of action for an
individual woman in Federal Court who had been battered and you
were correct. You pre-saged the court's decision and the Fifth
Circuit prior to that saying that, hey, that is beyond the
scope of the Commerce Clause or Section 5 of the 14th Amendment
or even, arguably, the 13th Amendment, and you turned out to be
right, and you were very candid in your speech to the
Federalist Society.
Now, you are a sitting Federal judge. I want to make
something clear to you now. To the degree to which you are
equally candid with me about the questions I am going to ask
you on substance, I will maintain an open mind. If you suggest
to me that you cannot respond in the same way you responded as
a sitting Federal judge on the Violence Against Women Act, then
I will do everything in my power to defeat you, including
moving to the Senate floor to take an action I have never taken
in my life as a United States Senator, a filibuster, okay?
So as long as we have got the ground rules straight here,
and if you think I am trespassing beyond what you trespassed or
what you went in terms of your speech as a sitting Federal
judge, commenting on something that was clearly going to come
before the Federal Courts at some point, just do not give me
that argument. Do not say, it may come before me, because the
Violence Against Women Act could have become before you, okay?
Now, let us start, if I can, and I am not going to get a
chance to get through this all in one round, but let me speak
to, and let me tell you straight up because you know, and I am
sure they prepped you very clearly on my views and my
jurisprudence. Well, I hope they did. They should have. I do
not say that in a negative way. I hope they have told you,
because it has been in every paper that your biggest problem
might be the guy named Biden from Delaware, and so if you did
not read that, then you are not a very informed judge.
[Laughter.]
So they have to have prepped you. I hope they have prepped
you on the substance of the law on Section 5 of the 14th
Amendment, on the Commerce Clause, and whether or not, as
Justice Souter has said, and let me quote from Souter. He says,
``The resemblance of today's State sovereign immunity to the
Lockner era industrial due process is striking. The court began
this century by imputing immutable constitutional status to a
conception of economic self-reliance that was never true to
industrial life and grew incessantly frictional with every
year, and the court has chosen to close the century by
confirming like status on a conception of State sovereign
immunity that is true neither to history nor to the structure
of the Constitution. I expect the court's latest assay into
immunity doctrine will prove to be equal to its earlier
experiment in laissez faire, the one being unrealistic as the
other, indefensible and probably as fleeting.''
Now, that was in the dissent that Souter wrote in Florida
Pre-Pay. You understand in Boren v. Flores, the progeny cases
that followed from that, the court has taken increasingly--the
Supreme Court has taken an increasingly active role, as your
article pre-saged. And by the way, as usual, the Senator from
Utah, who is one of the most worthy advocates in this place and
a good friend, did not accurately characterize your speech in
violence against women when he said that you did not in any way
disparage the nature of the problem. You said, based on your
personal experience, the States have proven neither unwilling
nor unable to address violence against women. Yet there is
study after study after study, including 21 State task force
reports, that scrupulously documented systematic barriers to
women when trying to bring criminal and civil cases against
their assailants. So your personal experience may have been
that, but it was clearly proscribed and limited, your personal
experience.
And you further went on to say--and I am paraphrasing, I
will find the exact quote--that you did not know how this could
be characterized as a national problem, a national problem,
violence against women. You said this class of activities falls
into activities that have a substantial national consequence.
You do not understand how that could apply to violence against
women. And you have argued, as this court has, and I tell you
what, I am not being facetious when I say this, you could have
been a clerk in the Supreme Court writing this decision because
the rationale you offered in your Federalist Society speech
relating to federalism was literally right in line with the
majority of the Supreme Court.
So I am not arguing with your intellectual competence. I am
arguing and my concern relates to your constitutional
methodology, and it matters to me a lot, and I suspect Senator
Hatch did not read today's Washington Post or yesterday's
Washington Post which says that, if not stopped, Senators
should ask him how such understanding can be squared, if it
can, with the modern civil rights and environmental statutes,
because people like me are concerned, and you know, most people
do not, that the Supreme Court has already ruled the Older
American Act is unconstitutional as it applies to States.
Patent laws as applies to States, unconstitutional.
This is a literal and defensible revolution that is going
on in the way in which we are looking at--that this Supreme
Court is looking at the Commerce Clause and the categorization
they now use, as was used prior to Lockner in the 1920s, in the
1930s, in the Alden case, the famous case we all learned in law
school where the Congress passed a law saying that, by the way,
we have a problem with our national rail system. They are
unsafe and morale is bad. So they passed two laws saying there
has to be a pension provided for railroaders and mandatory
retirement.
And the Supreme Court came along and said, no question,
rail is in interstate commerce, not a problem. And then they go
on to say, but, famous phrase, ``we do not think that,'' and
then they went on to say, the prescription of providing for
early retirement and for a pension would either affect morale
or safety. Now, that rationale has been rejected for the last
70 years except it has been taken up now by the Federalist
Society, by you in your speech, by some of the rulings I want
to get to with you, and by the Supreme Court.
So my argument is not that you have an irrational judgment
about these things. My problem is that you think like these
guys do, you are going to be on the Circuit Court of Appeals,
and I am very worried about that, to put it to you straight up,
bluntly.
Now, since I used probably half my time so far, I am going
to get into this in more detail, but let me begin with you, if
I may, and work with the least consequential question that I
have for you, and that is matters relating to the Takings
Clause. You again have pre-saged your colleagues on the
District Courts and your views on the Takings Clause, which has
been used by property rights advocates who use it to threaten a
wide range of health--in my view, threaten, or render
unconstitutional, a wide range of health, safety, and
environmental protections.
In Utility Real Estate v. Hudson, you held that the Coal
Industry Retiree Health Benefit Act, a law passed in 1992 to
enforce the coal industry's promise to provide coal workers
with lifetime health benefits, commonly known as the Coal Act--
and I am from Scranton, Pennsylvania, and I understand the Coal
Act--was unconstitutional. Under the Act, each retiree's
benefits were paid by the company for whom the coal worker was
most recently working. Even though various courts held that the
Coal Act was more like a tax than anything else, you found that
it violated the Takings Clause. After the Third Circuit
disagreed with you, you reversed your opinion.
Subsequently, however, the Supreme Court issued a very
confusing opinion, Eastern Enterprise v. Apfal--I think I am
pronouncing it correctly--in which four justices said the Coal
Act violates the Takings Clause. Four said the Coal Act is a
fine. And one justice says the Act does not violate the Takings
Clause, but it unconstitutionally denies substantive due
process. So it is still a live issue even after the Third
Circuit case law on the issue.
What are your current views on the constitutionality of the
Coal Act? Does it violate the Takings Clause, and if so, why
does it violate the Takings Clause? I am not going to take time
to explain the Takings Clause to everybody, but you and I know
what we are talking about. At least, I hope we do.
Judge Smith. I understood, Senator. First of all, let me
address the Unity Real Estate case because----
Senator Biden. No, do not do that. You can get back to
that. Please respond specifically to my question, if you could.
My time is up. What I will do is I will come back. I have got a
lot of questions, so this is going to go into the event and so
I have plenty of time.
Senator Feingold. All right, Senator Biden.
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
Judge Smith, you may--if I might have your attention,
Senator Biden, before you walk out, Senator, I just want to say
to Judge Smith he might not have to decline to answer questions
on ground that matters may come before him because your time is
expiring.
Senator Biden. That is true, but the day is long and we are
the majority right now. [Laughter.]
Senator Specter. The day may be long, Senator Biden, but
not as long as our train rides from Washington to Delaware,
where I will have a chance to tell Senator Biden more about
you, Judge Smith.
I want to take part of my ten minutes on this round to
introduce a number of people who are here in your support,
Judge Smith. You did not do so, but I think it is relevant to
the committee to know the number of people who have come from
Pennsylvania to support you here.
We have Congresswoman Melissa Hart, who has already been
introduced, and Congressman Bill Coyne, who has already been
noted as having been present.
We have former Circuit Judge Tim Lewis, who is here. Tim,
would you stand? He was a judge on the Western District Court
and later on the Court of Appeals for the Third Circuit. We
have Professor Ken Gormley from Duquesne University School of
Law, author of a distinguished book, Archibald Cox: Conscience
of Nation. We have Ms. Amy Greer, president of the Allegheny
County Bar Association, partner in the distinguished Pittsburgh
firm Klett, Rooney.
We have Mr. Paul Titus, former chair of Senator Wofford's
judicial nominating commission, of counsel to the distinguished
law firm Schnader, Harrison, Segal and Lewis. We have Ms.
Cynthia Reed Eddy, chair of the Judiciary Committee's Woman's
Bar Association of Western Pennsylvania and partner in the
distinguished firm Johnson and Eddy. We have Ms. Maureen Kelly,
board of directors of the Pennsylvania Legal Services, from
Babst, Calland, Clements and Zomnir, another distinguished
firm.
We have former U.S. Attorney for the Western District J.
Alan Johnson, partner in the also distinguished firm of Johnson
and Eddy. We have Mr. Frederick Thieman, former U.S. Attorney
for the Western District of Pennsylvania, partner in Thieman
and Kaufman. Mr. Harry Litman, immediate past U.S. Attorney for
the Western District of Pennsylvania, Litman Law Firm.
We have Mr. William Manifesto, member of the Pennsylvania
Supreme Court's Criminal Procedural Rules Committee and a
partner of the Manifesto Law Firm. Mark Rush, counsel for the
trustee, Richard Thornburgh, in the case of SEC v. Black. Dr.
William Miller, superintendent of the Tyrone area school
district. Ms. Christine Wichers, partner of the distinguished
firm Choate, Hall and Stewart.
We have others who have asked that their support be noted
for the record, a former Attorney General and Governor Dick
Thornburgh; United States District Judge Donetta Ambrose;
Robert Byer, a former judge of the Commonwealth Court; and a
very important recommendation from the Chief Judge to the Third
Circuit, Edward Becker, one of America's most distinguished
judges; and the support of Lieutenant Governor Robert
Jubelirer, who, as I noted earlier, has known you for, I
believe, your entire life.
Judge Smith, following up on the question which Senator
Feingold asked you, did anyone from the Judiciary Committee
alert you to or raise the question that the trips which you
made should have had a value attached to your financial
disclosure statement?
Judge Smith. I do not believe so, Senator Specter.
Senator Specter. Did anybody from the Department of Justice
raise that issue with you?
Judge Smith. I do not believe so, Senator.
Senator Specter. In your reading of the applicable rules
and regulations, did you note any requirement that you itemize
the value?
Judge Smith. I believe at all times that I was meeting the
requirements and the guidelines provided for filling out our
annual ethics disclosure form.
Senator Specter. You checked those rules and you thought
you were meeting the guidelines?
Judge Smith. I did.
Senator Specter. Judge Smith, there has been a question
raised about a reversal rate and I would like to make a part of
the record a document which summarizes that. We are on a
crowded schedule and there are many people who are going to be
heard after you, and in a few minutes, Governor Schweiker is
going to be at a delegation meeting with the Secretary of
Transportation and I am going to have to go to that meeting and
battle for some highway funds for Pennsylvania. We have Blair
County entirely paved with Congressman Schuster, but we are
going to have to do some other paving, so I am going to have to
attend that meeting. [Laughter.]
Senator Sessions. Save a little for Alabama.
Senator Specter. But these statistics show that you had
5,298 closed cases. Five-hundred-and-twenty-six cases were
appealed to the Third Circuit. You have been reversed 53 times.
On 12 of those occasions, you were reversed in part and
affirmed in part on complicated matters. So your reversal rate
is at approximately ten percent of the appeal cases and the
reversal rate is one percent of the closed cases. And while you
were reversed 29 percent of the time in your first year on the
bench, 1989, your reversal rate declined so that in 2001, you
were reversed less than six percent of the time, and overall,
your reversal rate is less than the Third Circuit reversal rate
of 11.7 percent. May I have this entered in the record, Mr.
Chairman?
Senator Feingold. Without objection.
Senator Specter. Do those statistics sound right to you,
Judge Smith?
Judge Smith. They do, Senator. I have----
Senator Specter. I do not want that to be a leading
question, but we cannot go through it year by year and case by
case.
Judge Smith. I understand, Senator. They sound correct to
me as I have reviewed them personally in the past.
Senator Specter. There has been an issue raised about a
complicated case involving an allegation of late recusal on
your part, and I am going to give you an opportunity in a
moment to discuss the matter yourself. I ask unanimous consent,
Mr. Chairman, that an op-ed piece by former Attorney General
and Governor Dick Thornburgh be included in the record.
Senator Feingold. Without objection.
Senator Specter. Governor Thornburgh was the trustee in
this case and has intimate knowledge, and getting right to the
heart of the matter, Governor Thornburgh, in supporting your
nomination, noted in his op-ed piece that over 100 Democrats
and Republicans have signed letters of support, and then
getting to this case, he served as trustee for the defrauded
schools and had a fiduciary duty to safeguard their funds. Your
wife was an employee of Mid-State Bank and you had some stock
or financial interest which you will have a chance to comment
about.
But Governor Thornburgh notes that Mid-State was not a
party to the case and that you issued an initial order before
recusing yourself distributing 50 percent of the frozen funds
to the defrauded school districts on an interim plan which was
proposed by Governor Thornburgh as trustee and the Securities
and Exchange Commission. That initial order was entered while
the case proceeded.
This is Governor Thornburgh writing. ``When Judge Smith
later received information that Mid-State could in the future
conceivably play a role in the litigation, out of excessive
caution, he immediately recused himself sua sponte,'' meaning
on your own, ``without being asked by either party.'' And going
on, ``Judge Donetta Ambrose, who obtained the case after Judge
Smith's recusal, agreed,'' that ``nothing that occurred between
this order and Judge Smith's recusal days later benefitted Mid-
State Bank.'' The U.S. Attorney's office never sought recusal
and defense counsel did not seek recusal until four months
later, when Judge Smith immediately recused himself.
After you have been on this committee a while, Judge Smith,
you learn to use up all the time until you have to yield the
floor for a witness, and my time is about up, and now on the
committee's time, will you explain that case and what you did
and why your submission is that there was no breach of ethics?
Judge Smith. Thank you, Senator Specter. The case of SEC v.
Black was filed, I believe, on September 27 of 1997 and it is a
case that would have been filed in the Johnstown bailiwick,
which is where I sit as the only judge. Because I was
unavailable that afternoon, it and its emergency motions went
to the motions judge, Judge Standish. Judge Standish at that
time entered the orders proposed by the SEC, which were to
freeze the assets of Mr. Black and his businesses and to
appoint a trustee.
The case first came to my attention, then, I believe on
September 30, and in the review of the papers to the case that
I gave at that time, it was obvious to me that Mr. Black was
the defendant, as were several of his enterprises, and that in
the complaint itself and also in a declaration filed by someone
with the SEC, Mid-State Bank was a depository. That was how I
read those papers at that time. My wife is an employee, or was
at that time, I should say, is no longer, an employee of Mid-
State Bank and later at Keystone Financial, and yes, we were
shareholders and are at this time of the succeeding
organization. Mid-State Bank and Keystone Financial no longer
exist.
I deemed at that time that as a mere depository, that was
not sufficient basis to recuse, that it did not implicate the
mandatory recusal provisions of Section 455(b) and I also did
not think at that juncture that I was required to recuse under
455(a). I was also satisfied that Governor Thornburgh, acting
as trustee, had fully within his authority as a fiduciary the
power to control all of these assets and to see that they were
properly secured and that he would do so. He was also
authorized to place those moines in another institution and was
authorized to provide to the court a 30-day report. So I looked
to the trustee to provide information to me along the way with
respect to this lawsuit.
That interim report was filed and filed on October 27. It
unfortunately was filed very much at the last minute before a
hearing that had been scheduled, a hearing which, among other
things, was to approve a recommended distribution, recommended
by both the trustee and by the SEC to the various school
district victims. I read the report immediately prior to the
hearing. I was also aware that these school districts were
alleged victims at that time. The trustee was making no
determinations as to anyone's liability or fault or wrongdoing,
but what was clear was that the money belonged to the school
districts.
And Governor Thornburgh, as fiduciary, along with the
certified public accountants and other employees he had hired
to carry out his work, had determined that the most appropriate
step to take at that time to alleviate the financial
circumstances of these victim districts was to provide them
with 50 percent of their monies. That distribution was proposed
to me by him jointly with the SEC and I approved it.
It was apparent during the hearing we had that morning, on
the 27th, that there was dire need. I recall one of the
representatives or lawyers for the SEC saying that some of the
school districts were within a day or days of being unable to
make bond payments with all of the financial implications that
might flow from that. I believe there were other school
districts that made me aware of the fact that they might be
unable to make payment just on their regular bills.
So with that information and relying upon, looking to the
fiduciary, the court-appointed trustee and the joint
recommendation of him and the SEC, I approved that interim
distribution.
I also, at the same time, really, conducted a hearing that
day on a request by Mr. Black for certain living expenses and
for attorneys' fees, interim attorneys' fees. The interim
attorneys' fees request was turned down. It was clear under the
law he had no such right and I made a determination as to
certain, what I thought were modest living expenses that he
would be entitled to because all of his assets, not only his
entities, but as I understood it, all of his personal assets
were tied up at that time. All that, I did, again, with the
understanding, with my belief that Mid-State Bank was nothing
more than a depository.
I ruled on the Black disbursement of expenses, I believe,
on October 30 and wrote that memorandum myself. I had then
during the ensuing days, that is following the 27th and during
the course of the preparation of this memorandum, order with
respect to Black's expenses, occasion to spend more time with
Governor Thornburgh's report and to spend more time, also, with
its attachments. It became----
Senator Feingold. Judge Smith, I am going to be asking you
some additional questions about these matters later. You will
have more chance to discuss them. If you could possibly
summarize at this point.
Judge Smith. All right. I determined, again, that at that
point in time, I could see, and I read nothing in the report
suggesting liability or fault on the part of Mid-State Bank,
but I became concerned. I became uneasy by the repeated mention
of Mid-State as a depository. I could foresee the prospect of
their future involvement through witnesses, through records,
and it seemed to me that the most appropriate course at that
point would be to recuse under 455(a) and I did so on the 31st.
Senator Specter. Mr. Chairman, I think summarizing is fine,
but I want to be sure that Judge Smith feels he has adequately
covered the matter before he terminates at this point. Have you
adequately covered the matter, Judge Smith?
Judge Smith. I think that adequately covers that aspect.
Senator Specter. Thank you.
Senator Feingold. Thank you, Senator Specter. Thank you,
Judge Smith.
Senator Edwards.
Senator Edwards. Thank you, Mr. Chairman. Good morning,
Judge. How are you?
Judge Smith. Good morning, sir. Thank you, sir. Fine.
Senator Edwards. I apologize. I am going to have to try to
be brief because I have to preside at 12 o'clock and I have to
get over there, so bear with me.
I know that you have already been asked about your 1993
speech regarding the power of Congress to regulate under the
Commerce Clause. I have two or three specific areas I want to
ask you about because your speech is troubling to some of us
and I just want to see what your thoughts are about it.
One example I wanted to ask you about is I am a sponsor of
a bill that deals with terrorist hoaxes, an example of somebody
who puts an envelope on a coworker's desk and says, ``This
envelope contains anthrax,'' something in that sort of
category, where you could certainly argue about the impact that
that may have on commerce. Can you comment on whether you
believe we have the power, we, Congress, have the power under
those kind of circumstances, similar circumstances, to regulate
terrorist hoaxes?
Judge Smith. Absolutely, Senator. Congress has vast power
under the Commerce Clause to legislate in all sorts of areas
and I never intended by my speech to suggest anything to the
contrary. Furthermore, I am certainly well aware, as is any
Federal judge, of the strong presumption of constitutionality
that attaches to any legislative enactment of Congress and to
the findings that Congress makes in any legislative enactment.
Senator Edwards. Okay. Can I ask you about a couple of
other specific areas very quickly, please. So your answer on
that one was, absolutely, Congress would have that power?
Judge Smith. Yes, sir.
Senator Edwards. Second, drug use often takes place within
a private home. But, of course, we regulate drug use under the
Commerce Clause. Do you have any question about our power to
regulate and criminalize drug use, even though some would argue
that is a State function, our power to do that under the
Commerce Clause?
Judge Smith. I have no questions about that.
Senator Edwards. Under that specific example, people who
are using drugs within a private home.
Judge Smith. I have no question or hesitation about that
because I have seen those cases and had those cases before me,
Senator.
Senator Edwards. And the third specific area I want to ask
you about has to do with environmental laws and endangered
species specifically. There certainly could be circumstances
where a particular species that we may attempt to protect under
an endangered species law under the Commerce Clause may, in
fact, exist only within a particular State or within the
boundaries of a particular State. Would you have any question
about our power to regulate under the Commerce Clause under
those circumstances?
Judge Smith. To regulate endangered species?
Senator Edwards. Yes.
Judge Smith. I have no question about that, Senator.
Senator Edwards. Even if the particular species involved
only exists within a particular State?
Judge Smith. I have no question about your authority to do
so.
Senator Edwards. Thank you, Judge. That is all I have.
Senator Feingold. Thank you, Senator Edwards.
Senator Kyl.
PRESENTATION OF DAVID CHARLES BURY, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA BY HON. JON KYL, A U.S.
SENATOR FROM THE STATE OF ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
I would like to, as a matter of personal indulgence, take a
moment in my time to introduce an Arizona District Court
nominee who is here. Particularly given the suggestion that we
were going to be here all day and all night, and would maybe
ask that the Chairman consider possibly, if those three
District Court nominees would not take a great deal of time,
accommodating their interests, given travel plans and the like.
You might want to----
Senator Feingold. Let me just say that Senator Biden has
indicated that he has more questions. I would like to ask
another round of questions. But what I think we may do is when
we complete this round of questions and whoever wants to do the
second round is that we will move to the second panel, without
excusing Judge Smith so Senator Biden can come back and ask him
some more questions.
Senator Kyl. I know they would appreciate that very much
and that is a good accommodation.
The nominee from Arizona is David Bury and he is here with
his wife and his daughter and I just wanted to say a few words
about him since I did not take the dais at the time the other
Senators were here.
He is a graduate of Oklahoma State University and the best
law school in the world, my alma mater, the University of
Arizona College of Law, and is a founding partner in a firm in
Tucson. He has practiced for 34 years as a trial lawyer in the
private practice of law. He tried cases in most of the counties
in our State as well as, of course, in the Federal Courts.
His clients have included private citizens, lawyers,
doctors, insurance companies, corporations, Pima County, where
he lives, as well as the State of Arizona, and he has defended
medical and legal malpractice cases, product liability, and
construction site cases, governmental entities and false arrest
cases, assault and battery, U.S. Code Section 1983 actions, as
well as a lot of others. He has also defended school teachers
and school districts.
He is a fellow in the prestigious American College of Trial
Lawyers and an advocate of the American Board of Trial
Advocates. He has also been listed in The Best Lawyers in
America for the last seven years.
I will not recount all of the various commissions on which
he has served except one. He has been a lawyer representative
to the Ninth Circuit Judicial Conference and served on the
Disciplinary Committee of the State Bar of Arizona during his
time as a practicing attorney.
Senator McCain wanted me to note that he could not be here
this morning but asked that I express his strong support for
David Bury's nomination, as well.
I appreciate that and did simply want the members who are
here to know how strongly I support David Bury's nomination. He
will make a superb Federal District Judge in Arizona.
Now, with that, Mr. Chairman, let me just make two
comments, one, and I wish Senator Biden were here--if he is out
there, I am going to give him a little bit of warning I am
going to say something here, but I will tell him this
personally if he is not here.
First, with respect to your concerns, Senator Feingold, you
are one of the few Senators who probably has appropriate
standing to raise the issue with regard to junkets that you
did, and I had that noted before you and Senator Hatch had your
little colloquy, but you are one of the more serious Senators,
so I say this with all respect to the issue that you raised.
I would hope that with regard to the standards that we
apply to judges attending continuing legal education
conferences that even though you might have in mind making
those standards more strict or enhancing them--I have not seen
your legislation--that current judges would be judged based on
the existing requirements of judges and that if they have
complied with those requirements and have not abused their
position, that they not be judged on some higher standard that
we may want to impose in the future.
Secondly, if the concern is with junkets, I would suggest
that a much more fertile area for our reform would be
Congressional junkets. I know from personal experience that we
take a pretty liberal view of those things and I do not think
with a lot of the trips that are taken we could answer with the
same degree of certainty that Judge Smith did about getting
more out of it from a continuing legal education point of view
than a recreational point of view. That is not always the case,
but it certainly frequently is.
To the concern that Senator Biden raised, it seems to me
that his problem, Judge Smith, seems to be that you might rule
the way the Supreme Court is tending to rule these days,
especially in Commerce Clause decisions. Given the fact that we
demand that nominees tell us in response to our questions that
you would apply the U.S. Supreme Court's interpretation and not
make up the law yourself, it seems to me that it would not be a
disqualification that you are tending to view the law the way
the Supreme Court appears to be viewing it these days.
I will bring this up with Senator Biden when I speak with
him, but I would hope that he would not take the position that
he would be voting against a nominee because they would not be
joining the dissenting group of U.S. Supreme Court justices in
Commerce Clause cases. I do not necessarily expect you to
respond to that, but I do think we have to be careful about how
we apply our own personal views or personal political views to
the attitudes of nominees.
Let me just ask you, as far as you can, will you apply the
law enunciated by the United States Supreme Court in all
rulings if you are confirmed to the Circuit Court of Appeals?
Judge Smith. I always have and I always will, to my utmost,
Senator Kyl, follow the precedent that binds me, whether it be
the precedent of the Supreme Court of the United States or of
the Court of Appeals.
Senator Kyl. Thank you very much, and thank you, Mr.
Chairman.
Senator Feingold. Thank you, Senator Kyl.
We will now begin the second round of questions for the
nominee. Returning to the judicial seminars just briefly,
Judge, are you aware that Bethlehem Steel was a funder of LEC
during 1992 and 1993 when you attended two LEC seminars and
that you sat as the judge in two age discrimination cases in
which Bethlehem Steel was a defendant during that time?
Judge Smith. I was not aware of that, Senator Feingold. Mr.
Chairman, my understanding, and I have checked on this, is that
George Mason will not release its contributors. They are not
available. That is, individual contributors are not available.
So I did not and would not have known of that.
Senator Feingold. Would you agree that there is at least an
appearance problem with your going on these trips funded by
defendants in the cases you are hearing?
Judge Smith. I would agree that with that knowledge, that
creates an appearance problem.
Senator Feingold. If you are confirmed to the Third Circuit
Court of Appeals, will you continue to attend judicial seminars
sponsored by organizations such as FREE and LEC?
Judge Smith. Mr. Chairman, I have not attended a FREE
seminar since 1998. I have not attended an LEC seminar since
the spring of the year 2000. I have been well aware of the
increased attention being given to this issue by you and by
Senator Kerry and the ongoing discussion among the Judicial
Conference. It concerns me greatly.
I want to be very careful in the answer that I give you
because I do not want to foreclose participation in something
in the future that I would deem to be appropriate. But under
present circumstances, I am troubled by the amount of attention
that has been given to these seminars. I am also troubled by
the issue that you have just raised. And until I can be
satisfied that, indeed, funding does not come from a source
that is somehow implicated in a case before me or with a
likelihood of coming before me, the answer is no, I will not
attend them.
Senator Feingold. Thank you, Judge.
I had indicated that I would ask you some more questions
about the Black case and related matters, some more specific
questions. You note in your letter to the committee that Mid-
State Bank was mentioned in the SEC complaint. You say it was
mentioned as nothing more than a repository for some of the
assets involved in Black's fraudulent scheme. Now, even if the
involvement was that small, why did you not at least disclose
your financial interest to the parties immediately upon
learning that Mid-State Bank was involved in the proceeding?
Judge Smith. I did not see a reason for it at that point,
Senator Feingold, and beyond that, I was awaiting the report of
the trustee within the 30-day period. That was my main concern.
And while I know this may not sound like an adequate
justification, but it was, of course, not the only case that I
was dealing with at that time, and so the procedural status of
it was such that the monies were frozen. They were unavailable
to Mid-State. They were in the hands of the trustee who had
fiduciary responsibilities over them I was thereby awaiting his
30-day report which would, hopefully, shed light on whatever
next steps needed to be taken.
Senator Feingold. You obviously did not forget that you
owned over $100,000 in Keystone Financial stock?
Judge Smith. No, sir, I did not.
Senator Feingold. You stated in your letter that Mid-State
was not a party to the litigation and was mentioned only once
in the SEC's complaint. But the complaint attaches a
declaration from the SEC auditor who discovered Black's
wrongdoing and the declaration mentions Mid-State five times.
It also includes a schedule of assets that lists Mid-State Bank
repeatedly. Is it your testimony that you believe Mid-State
Bank played such a minor role in this case that your financial
interest in it was irrelevant?
Judge Smith. I continued to believe at that point, Senator,
that my investment as well as my wife's employment at Mid-State
Bank were such that the role of the bank as a mere depository,
which is what I saw it, was not sufficient to trigger the
requirements of the recusal statute.
Senator Feingold. Did you have any single investment at the
time that was greater than your investment in Keystone
Financial?
Judge Smith. My government thrift plan was probably
greater. My wife's 401(k) was probably greater. My house was
undoubtedly greater.
Senator Feingold. Those three items?
Judge Smith. To the best of my knowledge.
Senator Feingold. In SEC v. Black, you issued at least one
ruling that specifically dealt with Mid-State Bank, pooling
assets that Black had placed at Mid-State with those that were
at other banks. Even if you did not realize that Mid-State may
have been a participant in the fraud, given your financial
interest in Mid-State Bank, why did you not view this
particular order as presenting at least the appearance of a
conflict of interest?
Judge Smith. Because I, at that point, did not see any
basis by which Mid-State was implicated. Once again, Mr.
Chairman, they were not a party. Not only was the money frozen,
but by that point, the monies had been moved to another
depository and were no longer in the hands of Mid-State Bank.
Further, there was no suggestion in the report of the trustee
of liability on the part of anyone. So I could not see any
basis, again, for Mid-State's status to have changed. That, I
think, order that you are referring to is the September 27
order of distribution, which was recommended jointly by the SEC
and the trustee.
Senator Feingold. According to Mark Rush of Kirkpatrick and
Lockhart, who is representing the trustee, former Attorney
General Richard Thornburgh, the trustee informed you on October
27 in a meeting in chambers that there was information being
developed that might change his view as to Mid-State's
involvement in the case, and at the time, you indicated an
intention to consider recusing yourself based on your wife's
employment. Yet you subsequently issued more orders in the case
and did not actually recuse yourself until October 31. Would
you like to explain why?
Judge Smith. Mr. Chairman, I have a recollection of having
met with General Thornburgh and with Mr. Rush on the 27th. I
cannot recall, quite honestly, if it was before or after the
hearing. I believe it was probably before the hearing and
probably at the point when they presented the report to me. I
was still satisfied at that point that there was no
information, no specific information presented to me that was
sufficient to suggest a basis for recusal.
Senator Feingold. Well, when the recusal occurred, you said
that, ``The wife of the undersigned judge is an officer of the
aforementioned bank,'' and concluded that, ``The relationship
of the undersigned's wife to the aforementioned bank could
cause a reasonable observer to question the impartiality of the
undersigned judge.'' You did not mention your significant
investments in the bank. In your letter to the committee, you
say you had no obligation to give a reason, yet you discussed
your wife's employment. Why did you not mention your financial
interest?
Judge Smith. I did not mention the financial interest
because it was, again, my view of the case that Mid-State was
not a party whose liability was at issue. I was continuing to
look at this case as Mid-State, if playing a part, and which
upon recusal it certainly looked to me as if they would, would
be as a witness, as a party that would be required to produce
documents, as an entity whose employees or officers might have
to appear as witnesses.
I do want to emphasize for the benefit of the members of
the committee and for the record that my wife's employment was
in a completely different part of the bank and had absolutely
nothing to do with the transactions that were at issue here.
Senator Feingold. Fair enough. A couple of years later, in
1999, you presided over the criminal case that arose out of
John Gardner Black's fraud, United States v. Black, after
having recused yourself in 1997 in the civil case. By this
time, Mid-State Bank had been sued repeatedly in this matter.
Why did you feel it was proper to preside in this case when you
had recused yourself in the related case?
Judge Smith. The case of United States v. Black was
originally filed and placed with Judge Ambrose of our court.
According to the docket, she met with counsel and the docket
indicates that counsel and the court agreed that this case was
unrelated to SEC v. Black. Because the case arose out of the
Johnstown vicinage where I am the only judge, Judge Ambrose
transferred the case to Johnstown, where it became my case.
My first contact with it, to the best of my recollection,
Senator, was when I met with counsel on the case following
arraignment. I believe the defendant was arraigned, and as a
courtesy to counsel, I sat down with them in my chambers
because there was a suggestion from both sides that this case
would require extensive discovery, more discovery than is
ordinarily the case in a criminal case, and we had an informal
discussion at that time.
My specific recollection is that I made known to them at
that time my prior recusal in the case of SEC v. Black. I
believe they already knew that. Certainly, Mr. Black already
knew that and my recollection is his attorney knew it, as well,
as did the prosecutor. But I brought that to their attention
and at that point in time, because this was a criminal case
which did not involve civil liability, because it was a case
that only involved criminal liability on the part of Mr. Black,
I deemed that I could proceed with it and simply issued a
discovery schedule, which I believe permitted discovery for
approximately four months.
At some point during that discovery process, counsel for
the defendant filed a motion for recusal, which I granted
immediately, again, for the same grounds.
Senator Feingold. Senator Hatch, to avoid the necessity of
a whole another round, I am just going to ask one more question
and then turn to you.
Senator Hatch. Sure.
Senator Feingold. Your recusal order in the criminal case
stated that you had been aware of the potential conflict from
the beginning of the case. In your letter to the committee, you
state, ``When I initially met with counsel to schedule
discovery for the criminal case, I reminded them of my earlier
recusal and my wife's employment at Mid-State Bank. But neither
the United States Attorney's office nor Black suggested that I
recuse myself.'' Did you inform the parties of your financial
interest in Mid-State Bank? If not, why not?
Judge Smith. I do not have a recollection of it, Mr.
Chairman. Probably, I did not, but I do not have a specific
recollection of that.
Let me say, because I would like to make this statement,
that with respect to United States v. Black, with the benefit
of hindsight, I wish I had recused earlier. But I did recuse
and I did it because I knew it was the right thing to do.
Senator Feingold. I appreciate that answer, Judge.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman.
Judge Smith, Senator Biden asked you about the case of
Unity Real Estate v. Hudson in which you faced a constitutional
challenge to the Coal Act. But ultimately, you did not find the
Coal Act unconstitutional. You did not finally find that. This
was an injunction case. Is it not true that you merely enjoined
enforcement of the Coal Act pending resolution of the case on
its merits and your ultimate decision in Unity was upheld on
appeal, was it not?
Judge Smith. That is correct, Senator. The reason I wanted
to discuss Unity is it is a rather extraordinary case. What I
did, as you have pointed out, was to issue a preliminary
injunction, and, in fact, that followed a recommendation to me
from a magistrate judge to whom the case had been assigned. He
rendered a report and recommendation to me which upheld the
substantive due process but which found a potential takings
violation as to this small company, Unity Real Estate. I then
wrote my own opinion but came to the same results.
This was a preliminary injunction involving a very small
company, and what was, I believe, unique about this case is I
think it had about two employees, an extraordinarily small net
worth, and both sides in the case, both sides stipulated that
if the reach-back for this company applied, it was immediately
bankrupt. So that seemed to me to be an appropriate basis for
preliminary injunctive relief.
But as you point out, Senator, when the case developed,
when it returned to me on motions for summary judgment, with
the benefit of additional discovery or with the benefit of
discovery, I upheld the Act, and let me emphasize that the
takings determination at the preliminary stage was merely an
``as applied'' takings determination as to Unity Real Estate.
But you are correct. I found neither a takings violation
nor a substantive due process violation in my ultimate
dispositive motion opinion and was affirmed.
Senator Hatch. On appeal?
Judge Smith. On appeal.
Senator Hatch. Judge Smith, some have alleged that you
should have known from the complaint and declaration filed in
SEC v. Black that Mid-State was culpable, despite the fact that
it was not named as a defendant in the case. Now, my review of
these pleadings leads me to a different conclusion. It looks to
me that it is a real stretch to claim that the complaint and
declaration put anyone on notice that Mid-State was actively
involved in or even complicit in the fraud.
In fact, during an interview several days after the
trustee's report was filed, the court-appointed trustee himself
said that it was too premature to determine any culpability by
Mid-State. Referring to a discrepancy in funds reported by the
bank, the trustee said, ``I would not characterize it as
wrongdoing at this point. We clearly want to get some answers
as to how that disparity came to exist.''
Now, the trustee made that statement on the very day that
you recused yourself from the case, so I find it difficult to
understand how any critics, how any of them are saying that you
should have known prior to that date that Mid-State was
culpable. Instead, it seems to me that you should be commended
for recusing yourself out of an abundance of caution instead
of, as some are doing it, instead of castigating you for it,
being castigated for it.
Now, most of the criticism that I have seen of your
handling of SEC v. Black resolves around the distribution order
that you issued. This order distributed roughly half of the
assets frozen by a previous judge's order to the victim school
districts in the case, is that right?
Judge Smith. That is correct.
Senator Hatch. Okay. Now, is it not the case that the SEC,
and more significantly, the independent trustee for the victim
school districts both requested this order?
Judge Smith. That is correct, Senator.
Senator Hatch. Did any party oppose the request?
Judge Smith. The--several of the school districts sought
intervention along the way up to the ultimate distribution of
that amount. I believe there were several school districts who
wanted some alternate distribution. Understand, at this point
in time, as I have described, what the school districts were
facing were large amounts of money that belonged to them that
was tied up that thereby precluded them from even potentially
carrying on their operations and everybody wanted all their
money now.
Senator Hatch. But my point was, did any party oppose the
request by the----
Judge Smith. I do not recall that anyone refused the 50
percent distribution. I cannot recall that any party opposed
the actual distribution of the 50 percent. I cannot recall
that, Senator.
Senator Hatch. I find it hard to follow the logic of the
argument that some have propounded that you intended to benefit
Mid-State Bank when your order was jointly requested by the
trustee for the victims and the prosecuting agency. That is my
point, and I am satisfied that your issuance of the order
involved absolutely no wrongdoing and I think anybody who
fairly looks at it would have to conclude the same.
But let me go a little bit further here. Some have
criticized your method of recusal in SEC v. Black. Now, these
critics maintain that it was not enough for you to recuse
yourself sua sponte. Instead, they argue that you should have
disclosed your ownership of stock in Keystone Financial, the
parent company of Mid-State Bank, and, of course, you have
answered those criticisms.
But I would like to point out that in the case of Hampton
v. City of Chicago, the Court of Appeals noted that a judge
``is under no obligation to provide a statement of reasons for
recusal.'' The court continued, ``in addition, a District judge
may disqualify himself on his motion since, for example, he is
probably best informed about his minor children's financial
interests but may choose not to identify these interests in
such a context.'' The court concluded that the judge could have
chosen not to file a memorandum explaining his reasons for
recusal along with his recusal order.
Now, your actions in SEC v. Black present an analogous
situation to that described by the court in the Hampton case.
You chose to cite as a ground for recusal your wife's
employment by Mid-State when, in fact, you did not need to cite
any grounds at all. I find it ironic that some of your
critics--I find it that your citation, rather, of some grounds
for recusal would bring you under fire when you were under no
obligation to cite any grounds for recusal in your order.
I also have to note that the criticisms of your action in
Black v. SEC, these criticisms emanate primarily, if not
exclusively, from a Washington-based special interest group.
Those persons who were directly involved in the case have
vigorously defended your actions, as far as I can see, is that
correct?
Judge Smith. That is my understanding, Senator.
Senator Hatch. For example, Judge Donetta Ambrose, your
colleague on the District Court, inherited the case after your
recusal. In a letter to the committee, Judge Ambrose writes,
``There was never any suggestion by me or the Court of Appeals
that Judge Smith acted inappropriately or unethically. Rather,
he acted prudently and cautiously and at a time when no one
knew the extent of the involvement of any or all of the
defendant's clients.''
Now, regarding her ruling to release all of the frozen
funds, Judge Ambrose explains, ``My decision came only after
seven months of investigation by the trustee. If I were
presiding in October 1997, I would have ruled the same way
Judge Smith ruled. The allegations of unethical conduct in the
context of this case are without foundation.''
Now, as Senator Specter has pointed out, the court-
appointed trustee in the case, former Pennsylvania Governor and
U.S. Attorney Richard Thornburgh concurred with Judge Ambrose's
conclusion in an op-ed that appears in today's Pittsburgh Post
Gazette. Mr. Thornburgh explained, ``I served as the trustee
for the defrauded schools and bore a fiduciary duty to
safeguard their funds and I can say with front row, firsthand
knowledge that Judge Smith acted with absolute integrity,
independence, and honor.''
Now, Mr. Thornburgh continued, ``First, Mid-State Bank was
not a party to the case and nothing at the outset suggested
Mid-State was complicit in any fraudulent scheme. It was,
therefore, unlikely that Judge Smith's wife, who worked in an
unrelated part of the bank, would become a material witness.
Since the complaint did not allege any wrongdoing by the bank
holding the defendant's funds, any stock the Smiths owned in
its parent company was immaterial. When Judge Smith later
received information that Mid-State could in the future
conceivably play a role in the litigation, out of an excess of
caution, he immediately recused himself sua sponte, without
being asked by either party. The actions that Judge Smith took
prior to his recusal in the civil case did nothing to limit
Mid-State's eventual liability, exposure, or impact the
victims' rights of recovery.''
Similarly--I know my time is up, Mr. Chairman, but if I
could just finish--similarly, Mark Rush, who served as counsel
to Trustee Thornburgh in SEC v. Black, he observed in a letter
to the committee, ``On October 27, 1997, and for that matter,
on October 31, 1997, when Judge Smith recused himself, it was
not known what Mid-State Bank's eventual involvement would be
or would be determined to be. It is, therefore, clear that if
the trustee and the investigators who were charged in
conducting the forensic audit and the investigation were
unaware beyond a developing suspicion of the extent and nature
of Mid-State Bank's involvement prior to October 31, 1997,
Judge Smith certainly would not have had that knowledge.''
Now, the committee has also received letters in support of
you, Judge Smith, from persons who represented school districts
victimized by Mr. Black. Richard Finberg, who has served as
plaintiffs' counsel in multiple litigations relating to Mr.
Black and his company since 1997, advised the committee, ``In
sum, from our extensive involvement in this litigation, we are
not aware of any impropriety or even appearance of impropriety
on the part of Judge Smith and Judge Smith has made no rulings
in these proceedings that would even hint that he favored Mid-
State.''
Another school district attorney, Ronald Carnivale, Jr.,
wrote the committee, ``At no time did I believe that Judge
Smith acted with respect to this case in any manner
inconsistent with his usual high degree of integrity,
forthrightness, and insight. His recusal from the case and its
transfer to Pittsburgh occurred in a timely way when the
appearance of the potential conflict first became evident.
Judge Smith's rulings in the case prior to his recusal were
entirely appropriate,'' and I am just about through.
Yet another letter echoed these sentiments. This letter
from Tyrone Area School District Superintendent William Miller.
He declared, ``At no time, in my opinion, did the Honorable D.
Brooks Smith commit any impropriety in his handling of the
case. Furthermore, when the possibility first arose, Judge
Smith immediately recused himself from the case. As the Tyrone
Area School District stood to lose over one-seventh of the
total loss of $71 million, I would have been extremely
concerned of any impropriety and/or conflict of interest. At no
time during his brief involvement in the case did I ever
question the ethics, integrity, and judicial propriety of the
Honorable D. Brooks Smith.''
Finally, a recent Washington Post story quotes an attorney
for the FCC in the Black case as having agreed that, ``It was
not clear at the time what role Mid-State Bank would play in
the case.''
So, Judge Smith, it appears that virtually everyone
involved in the case agreed that you conducted yourself
appropriately and ethically and my review of the matter leads
to exactly the same conclusion.
Mr. Chairman, I ask that the letters to the committee in
support of Judge Smith and the articles that I have cited be
included in the record.
Senator Feingold. Without objection.
Senator Hatch. Thank you, sir.
Senator Feingold. Let me just be clear. I am not arguing
that you are required to say why you are recusing yourself.
What I am suggesting is that you had a duty to inform the
parties of your financial interest in the bank, particularly
when you are going to issue orders that would affect Mid-
State's financial interest, and having not done that, I do not
think it was sufficient to tell the parties in the criminal
case that you had recused yourself. My sense is that you would
have done better to have told them about your stock holdings.
At this point----
Senator Hatch. He had no obligation to do that. The fact
is, he did and he did recuse himself when he realized that he
should. That is the important point. And I did not find any
fault with your questions. I thought they were good questions.
Senator Feingold. Judge Smith, as I indicated, Senator
Biden is still interested in asking more questions later, and
at the suggestion of both Senator Biden and Senator Kyl, we
will not dismiss you but ask you to come back later. I do not
know the exact time yet. It will depend on the schedule. But we
will try to let you know as soon as possible, but I would like
to move to the second panel at this point.
Judge Smith. Thank you, Mr. Chairman.
Senator Feingold. Our next panel will be the three District
Court nominees, Ralph Robert Beistline, David Charles Bury, and
Robert Randall Crane. I want to thank all of you for being here
and congratulations on your nominations. I would ask you all to
come forward.
Mr. Beistline, Mr. Bury, and Mr. Crane, will you please
stand to be sworn. Do you swear that the testimony you are
about to give before the committee will be the truth, the whole
truth, and nothing but the truth, so help you, God?
Judge Beistline. I do.
Mr. Bury. I do.
Mr. Crane. I do.
Senator Feingold. I thank the witnesses. It is an honor to
welcome you here today. We will begin with Ralph Robert
Beistline, who has been nominated to the United States District
Court for the District of Alaska. Mr. Beistline graduated from
the University of Alaska and the University of Puget Sound
School of Law and currently serves as a Superior Court judge
for the State of Alaska presiding in Fairbanks.
I welcome you and ask that you take a moment to introduce
members of your family or anyone else who may be here to
support you today. If you have any opening remarks, this would
be the time to make them.
STATEMENT OF RALPH BEISTLINE, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF ALASKA
Judge Beistline. I thank you, Mr. Chairman. I have with me
today my wife, Peggy, from Fairbanks, Alaska. I have five
children. Four of them are attending college and are involved
in exams and my youngest is a senior in high school. He had a
choice of coming here today or taking part in a wrestling
tournament. He had spent the last three months trying to make
weight, and so the decision was not difficult. So I am here
without children, but with the support of my wife.
Senator Feingold. I think the committee can ratify his
choice. [Laughter.]
Judge Beistline. In terms of opening comments, I really do
not have anything to say other than the fact that Senator
Murkowski indicated that I came to Alaska when I was two years
old. Actually, it was my grandfather that came to Alaska when
he was two years old. My parents and I were both born in
Alaska. Thank you.
[The biographical information of Judge Beistline follows:]
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Senator Feingold. Thank you.
Next, we will hear from David Charles Bury, nominee to the
U.S. District Court for the District of Arizona. Mr. Bury is a
graduate of Oklahoma State University and the University of
Arizona College of Law. Mr. Bury is currently an attorney in
private practice in Tucson, Arizona.
I thank you for being with us today. Are there members of
your family or other supporters here today whom you would like
to introduce to the committee, and also, if you would like to
make any opening remarks, you may proceed.
STATEMENT OF DAVID CHARLES BURY, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Mr. Bury. Yes. Thank you, Mr. Chairman. I would like to
introduce my wife, Debbie, my daughter, Amanda. Mandy is a
school teacher in Tucson and left her fourth graders for a
couple of days to come here. I have two sons who are not able
to be here, Christopher and Jordan.
I have no opening statement to make other than to thank the
chairman for convening this meeting and giving me the honor of
being here. Thank you, sir.
[The biographical information of Mr. Bury follows:]
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Senator Feingold. Thank you, Mr. Bury.
Our final nominee today is Robert Randall Crane, named to
the U.S. District Court for the Southern District of Texas. Mr.
Crane graduated from the University of Texas at Austin and the
University of Texas School of Law. He is currently an attorney
in private practice with the Texas law firm of Atlas and Hall,
LLP.
Mr. Crane, I welcome you here today. I note that you have a
very patient family, well behaved young man there, and I invite
you to introduce any members of your family or others who may
be here to support you and then make any opening remarks you
would like.
STATEMENT OF ROBERT RANDALL CRANE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF TEXAS
Mr. Crane. Thank you. First, I would like to introduce my
son, who I think has set a new eight-year-old record for
sitting still so long----
[Laughter.]
Mr. Crane. And that would be Cameron, and my wife, Joanna.
Senator Feingold. How do you do?
Mr. Crane. My parents, Bob and Baudelia Crane, are also
here. My brother, Scott, acting as photographer. My sister-in-
law, Sasha, who is also here, and their 18-month-old child
Taylor. I think that is her out in the hall that we hear.
My sister, Debbie Crane, and her husband, Ernest Aliseda,
and their four children, Cristina, Nicolas, Allie, and Sophie,
who's asleep on her shoulder, and my other sister, Audrie
Crane, is here, as well. I think that is everyone.
[The biographical information of Mr. Crane follows:]
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Senator Feingold. We welcome all of your guests and the
guests of the other nominees and I will begin with questioning.
Rest assured it is not likely to be as long as the previous
session.
Judge Beistline, you are a member of the Executive Board of
Boy Scouts of America. On February 6, 2002, the Boy Scouts of
America Executive Board voted to ``reaffirm its view that an
avowed homosexual cannot serve as a role model for the
traditional moral values espoused in the Scout oath and law and
that these values cannot be subject to local option choices.''
Did you participate in the decision as a member of the
Executive Board?
Judge Beistline. No.
Senator Feingold. If so, how did you vote? You did not?
Judge Beistline. No. In fact, it sounds like I was more
involved--I was on the executive committee for the Fairbanks
organization. I was not on any national committee at all.
Senator Feingold. And there was no such vote----
Judge Beistline. There was no vote, no discussion, frankly,
ever on that subject in Fairbanks.
Senator Feingold. Do you support the decision of the Boy
Scouts of America to use sexual orientation as a basis for
determining whether an individual is qualified to be a leader?
Judge Beistline. Well, I will say this, that I do not
believe in discrimination of any type. I have not truly given--
I was not involved in that decision and, frankly, cannot give
you an exact description of what exactly the program even is,
whether it is a ``don't ask, don't tell'' type of program or
whatever. I can say that, as a judge, regardless of what the
position would be, I would uphold the law as indicated by the
Supreme Court. But I do want to make it clear. I really have
no--I do not have any bias towards any group based on race,
religion, sexual preference, or anything of that nature.
Senator Feingold. All right, Judge. In Brooks v. Wright,
which you decided in 1999, various citizens and community
organizations sought to remove an initiative prohibiting the
use of snares in trapping wolves from the November 1998 ballot.
Given your experience in that case, what deference do you think
courts should give to citizen efforts to manage natural
resources through direct democracy ballot initiatives? Do you
feel that Federal natural resources trustees, such as Fish and
Wildlife Service, have exclusive jurisdiction over the natural
resource that they manage?
Judge Beistline. I have a strong belief in and support for
the initiative process. It is something used frequently in
Alaska in a wide variety of subjects. I guess it is part of the
Alaska psyche. We have initiatives all the time. It makes the
politics exciting and keeps people involved, so I strongly
support that process.
In this particular case, I was confronted with a conflict
between the initiative process, on the one hand, and a
constitutional provision that appeared to make management of
fish and game exclusive or place it exclusively with the
legislature, and I agonized back and forth, actually did not
have a great deal of time, but at the time I made the decision,
my conclusion was the legislature could not fulfill its mandate
if others were involved in setting rules and regulations. The
Supreme Court told me I was wrong, and it is real clear now.
I understand and I think all the judges--I talked to
colleagues as I was trying to make that decision. We have got
the initiative. You hate to get involved in that. On the other
hand, you have got the Constitution that says the legislature
is the one involved in this. What do you do when they conflict?
I made a decision. The Supreme Court made it real clear it was
the wrong decision, but they agreed with me in two areas. First
of all, they agreed that the legislature was responsible for
the management of fish and game, (A), and (B) that it required
expertise. They disagreed with me and said it was not an
exclusive area, and so I now understand.
I will say two things. That helped illustrate that judges
are not perfect, because we are corrected from time to time and
I was corrected in that case. But the second thing I want to
point out is that, generally, I do not make the same mistake
twice. If that issue is ever presented, I will not be ruling
the same.
Senator Feingold. Fair enough, Judge.
Mr. Bury, you have an extensive career as a civil litigator
but you appear to have had no experience handling criminal or
immigration cases. Federal Court dockets, particularly in the
Southwest, are overflowing with complex criminal cases, many of
which are immigration related. Please tell us what steps you
have taken or will take to prepare yourself for handling
criminal and immigration cases.
Mr. Bury. Well, thank you, Mr. Chairman. One of the
attractive parts of this job was that I would be a student of
the law again and I plan to do that. Hoping not to sound
presumptuous, I have already started doing that by a study of
the criminal rules and code. I have also been offered
graciously mentorship from two presiding District Court judges
in the District of Arizona to help me and to mentor me. But
primarily, it would be an educational process that I am excited
about and looking forward to.
Senator Feingold. I notice that your long professional
career as a lawyer has focused apparently exclusively on civil
matters with a concentration of work for insurance carriers and
large corporations defending against medical and legal
malpractice, product liability, and other tort claims. Now,
judges often get reputations as being pro-defense or pro-
plaintiff based on the kinds of clients they had before taking
the bench. What assurances can you give the committee that if
you are confirmed, you will be fair to both plaintiffs and
defendants in all types of civil claims?
Mr. Bury. I will pledge to that. I have served as an
arbitrator decision maker in personal injury cases primarily
and I do not think in that capacity I have been considered
defense-minded, as you put it. I think I was considered fair-
minded and would hope to take that to the bench.
Senator Feingold. Thank you, Mr. Bury.
Mr. Crane, in your questionnaire, you reported to the
committee that only two percent of your legal practice
experience has focused on criminal matters. As you know, a
significant portion of the Federal judicial docket,
particularly in courts located in border towns, deals with
criminal matters. In fact, in a September 22, 2001, article in
the Houston Chronicle, you were quoted as saying that the new
judgeship position to which you have been nominated is needed
to handle the ``greater number of drug and immigration cases
flooding the courts.'' Can you discuss your experience with and
familiarity with criminal law and procedure, and if confirmed,
how do you plan to prepare yourself for this new type of
workload?
Mr. Crane. As I mentioned in my questionnaire,
approximately two percent of my practice has been in the
criminal area. I have handled several criminal cases, one of
which was a very large case in Federal Court, a large drug
case.
I intend to study the criminal law further. I certainly do
not claim to be an expert in it. I have, again, not to sound
presumptuous, but I have already been invited and have been
mentoring with the current sitting judge within the Southern
District. I have also undertaken some continuing legal
education in the criminal background to further learn criminal
procedure. I have sat in the courtroom and tried to observe and
already commenced learning that area.
With respect to the immigration, I am blessed that my
father is the only board-certified immigration lawyer within
South Texas and so I have been raised all my life around the
immigration issues and I am fairly familiar with them.
Senator Feingold. Fair enough. I am going to ask one more
question of all three of you. Some of the most beloved judges
in our history are judges who have stood up to the popular
sentiment to protect the rights of minorities or people whose
views made them outcasts or pariahs. Please tell us one
instance in your professional career where you took an
unpopular stand or represented an unpopular client and stood by
it under pressure.
Judge Beistline?
Judge Beistline. I can think of several, but I had an
occasion fairly early in my career to take a pro bono case
where I did not have a--actually, it was a criminal case where
I did not have a great deal of experience in that, but I was
appointed by the presiding judge to represent this young man
who had been charged with murder. I had not at that time had
much experience in criminal defense work and I called the
presiding judge up and I said, ``Why did you appoint me?'' And
he said, ``Do not worry about it. This fellow is guilty.'' And
so there I went, and that was the motivation I had to go
forward.
Six months later, after a very intense trial, the young man
was acquitted of the charges, and that involved issues that I
would not take the time to explain to you, but it was a shoot-
out on the Canadian border that had all the excitement you can
imagine, and it was not a popular position to take. It taught
me a great deal about life, about people, and about the legal
system, and it is something that has been part of my experience
ever since that time.
Senator Feingold. Thank you, Judge.
Mr. Bury?
Mr. Bury. Thank you. I think one of the most difficult
cases I had in that connection would have been representing pro
bono my church in the removal of an individual from its
property. This individual continued to demonstrate and it
involved issues of freedom of speech, freedom of religion and
expression and was somewhat controversial. I think I got a lot
out of that experience.
Senator Feingold. Mr. Crane?
Mr. Crane. I can think of two, and I guess I will pick the
one that is probably less controversial and that is I currently
represent some defendants in a large toxic tort case where the
community and various neighborhoods have corralled public
support, have made a big media effort in the problems that
exist in that neighborhood and there has been a lot of
attention in the newspaper and TV about what the alleged
defendants did to contaminate that neighborhood. My client is
not a popular one, but every client is entitled to a defense
and I have been and continue to defend my client vigorously in
that matter.
Senator Feingold. Thank you.
I want to congratulate all of you. Although nothing is ever
absolutely for sure in this place, your prospects for
confirmation are very bright and I appreciate your coming.
At this point, we will recess this hearing subject to the
call of the chair. This panel is excused and we will resume
probably around 2:30 with Judge Smith and Senator Biden and any
other Senators who have additional questions. The hearing is
recessed.
[Whereupon, at 12:42 p.m., the committee recessed, subject
to the call of the chair.]
[Submissions for the record follow:]
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NOMINATION OF TERRENCE L. O'BRIEN, OF WYOMING, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT; LANCE AFRICK, OF LOUISIANA, NOMINEE TO THE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA; PAUL CASSELL, OF
UTAH, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF UTAH; AND
LEGROME DAVIS, OF PENNSYLVANIA, TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
----------
TUESDAY, MARCH 19, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, chairman of the committee, presiding.
Present: Senators Leahy, Kennedy, Durbin, Hatch, Specter,
Kyl, and Sessions.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Good morning. I should note that because of
a couple of conference committees going on, one in Agriculture,
we are going to try to urge members--of course, everybody ought
to feel free to speak as long as they want, but to keep the
statements relatively briefly if we can, because I may well
have to leave for that. If I do, I can assure you we will
recess and try to get back, if not today then during this week.
I am glad to see so many members here. We have Cajun bookends
this morning, Senator Breaux and Mr. Tauzin.
Before everybody wonders what in the heck that is all
about, we welcome you because we have nearly every region of
our Nation here--the West, the Midwest, the Northeast, and the
South. And I know a lot of the nominees' families have traveled
with them. I see Senator Bennett and Senator Thomas, Senator
Santorum--I know Senator Landrieu is on her way--Senator Enzi.
I would point out to Terrence O'Brien, who has been nominated
to the Court of Appeals for the Tenth Circuit, that I am glad
he is here today because we have the situation--I couldn't walk
on the floor of the Senate without Mike Enzi grabbing me,
reminding me of my Irish half; for an earlier nominee, he kept
reminding me of my Italian half. And, Mike, we have used up all
our ethnics here. But as I told Senator Enzi earlier to remind
me, we would get this on, and Senator Thomas, of course, so I
appreciate that.
Lance Africk, who is the nominee to the U.S. District Court
for the Eastern District of Louisiana; Paul Cassell, who is the
nominee for the United States District Court for the District
of Utah; and both Senator Bennett and Senator Hatch have urged
me to put them on. Legrome Davis, who is the nominee to the
U.S. District Court for the Eastern District of Pennsylvania.
Actually, Judge Davis was first nominated to a vacancy on the
District Court for the Eastern District of Pennsylvania on July
30, 1998. The Senate took no action on his nomination, and it
was returned to the President. Then on January 26, 1999,
President Clinton renominated him. The Senate again failed to
hold a hearing for him, and his nomination was returned.
I know that Senator Specter worked very, very hard to have
at least a hearing for him during the 868 days that he was
before us and was unable to, so I congratulate Senator Specter
in getting him renominated in January of this year. And we
received his ABA peer review last week, and so I wanted to get
him on as quickly as we can.
Because we may have to stop this during the middle of the
morning, I will put my full statement in the record.
[The prepared statement of the Chairman follows:]
Opening Statement of Senator Patrick Leahy
I would like to welcome the nominees to today's hearing. The
nominees before us represent nearly every region of our great nation:
West, Midwest, Northeast, and South. Many of the nominees' family
members have made the long journey with them, and I extend the welcome
of this Committee to the friends and families in attendance. Today, we
are holding the confirmation hearing for Terrence O'Brien, nominee to
the Court of Appeals for the Tenth Circuit; Lance Africk, nominee to
the United States District Court for the Eastern District of Louisiana;
Paul Cassell, nominee to the United States District Court for the
District of Utah, and Legrome Davis, nominee to the United States
District Court for the Eastern District of Pennsylvania.
I am particularly pleased to welcome Judge Davis to this hearing,
because it has been a long time coming for this well-qualified and
extremely patient nominee. Judge Davis was first nominated to a vacancy
on the District Court for the Eastern District of Pennsylvania by
President Clinton on July 30, 1998. The Senate took no action on his
nomination and it was returned to the President on October 21, 1998. On
January 26, 1999, President Clinton renominated Judge Davis for the
position. The Senate again failed to hold a hearing for Judge Davis and
his nomination was returned to the President on December 15, 2000. I
apologize to Judge Davis that in spite of my best efforts and those of
Senator Specter, we were unable to have Judge Davis included in a
hearing during those 29 months, those 868 days, between his initial
nomination and the end of the last Administration.
I congratulate Senator Specter on the President's renomination of
Judge Davis in January of this year. When we received his ABA peer
review last week, I wanted to be sure to include Judge Davis in the
earliest hearing possible in recognition of his extended wait from 1998
until today.
The Judiciary Committee has continued to hold regular judicial
nominations hearings throughout this session, as we have since the
shift in majority last summer. We held the first January confirmation
hearing in seven years on the second day of this session. Today, the
Judiciary Committee holds its 15th judicial confirmation hearing since
the change in majority last summer and the fourth hearing for judicial
nominees so far this year. We have held more hearings in fewer than
nine months than the Republican majority ever held in any year in which
it was recently in the majority. This is no ``illusion of movement;''
it is real progress.
Today's hearing includes a Court of Appeals nominee, as well as a
number of District Court nominees. Unfortunately, because the White
House has been slow to send nominations to the many vacancies in the
federal district courts, the federal trial courts across the country,
today's hearing includes fewer District Court nominees than the
Committee would have been willing to consider if paperwork for
consensus nominees had been forwarded in a timely manner. I noted my
concerns that ABA peer reviews might not be completed until after the
Easter recess for the two dozen District Court nominations not sent to
the Senate until January of this year and those fears have proven well-
founded. Only three other district court nominees have been received
ABA peer reviews and two of those were received less than a week ago.
That leaves 21 district Court nominees awaiting ABA peer reviews as
well as the nominee to the International Trade Court.
Unfortunately, the Administration has chosen not to act on my
suggestion to accelerate the notice to the ABA of those being selected
for nomination and several weeks were lost recently while the
Administration objected to nominees cooperating with the ABA peer
review process. Of course more than two-thirds of the federal court
vacancies continue to be on the district courts and more than half of
the district court vacancies, 35 to 63, are still without a nominee.
The Administration has been slow to make nominations to the vacancies
on the federal trial courts.
After today, 41 of the 44 district court nominees with ABA peer
reviews and completed files will have participated in hearings. In the
last five months of 2001, the Senate confirmed a higher percentage of
the President's trial court nominees, 22 out of 36, than a Republican
majority had allowed the Senate to confirm in the first session of
either of the last two Congresses with a Democratic President.
In 2001, the President failed to make nominations to nearly 80
percent of the federal trial court vacancies. As we began the 2002
session, 55 out of 69 District court vacancies were without a nominee.
In last January, the White House finally sent up names for some of
those trial court vacancies. It has been fewer than two months since we
received these nomination and we have already scheduled hearings for
some of them, within days of receiving ABA peer reviews and blue slips
from their home State Senators.
Last year, the White House unilaterally changed the 50 year-old
practice of nine Republican and Democratic Presidents by no longer
allowing the ABA to begin its peer reviews during the selection
process. As a result, the ABA peer reviews for many of these
nominations are not likely to become available for some time. We remain
at the point where the lack of available nominations for district court
vacancies is holding back the number of judicial nominees the Judiciary
Committee and the Senate could be considering. We experienced the same
problem when the majority shifted last summer and there were not enough
district court nominations ready for hearings in July, August and
September. That has proven to be a problem again at the beginning of
this session since we completed work on so many of the nominations last
year.
In order to make more progress, we need the cooperation of the
White House, as I have been urging since the shift in majority. That is
what I called for when I addressed the Senate on January 25, 2002. Yet,
the requested cooperation has not been forthcoming from the White House
or from the Repubican Senate leadership. Instead, those on the other
side of the aisle have unjustifiably attacked the Committee process and
the Democratic members of the Judiciary Committee personally. They have
obstructed unrelated nominations, legislation and oversight activities.
That is most unfortunate.
We will make the most progress most quickly if the White House
would begin working with home state Senators to identify more fair-
minded, moderate, consensus nominees to fill the vacancies in the many
federal courts. One of the reasons that the Committee has been able to
work as quickly as it has and the senate has been able to confirm 42
judges in less than nine months, is because many of those nominations
were supported by home state Senators and those across the political
spectrum as qualified, consensus nominees.
I have heard of too many situations in too many states, involving
many moderate home state Senators, in which the White House has
demonstrated no willingness to work with these Senators to fill the
judicial vacancies. As we move forward, I continue to urge that the
White House show a greater spirit of inclusiveness and flexibility so
that the nomination process becomes a truly bipartisan enterprise.
Logjams exist in a number of settings. To repair the damage that has
been done over previous years, and to build bridges with the Democratic
majority, there is much the White House can do in terms of cooperation
with all senators, including Democratic Senators.
Last year we achieved results that were five times greater than the
White House Counsel had predicted. Since the change in majority, the
Senate has proceeded to confirm more judges faster than during the
preceding six and one-half years of Republican control. Already this
year, in the short time that the Senate has been in session, we have
confirmed 14 judges. In only three months, we have confirmed just a few
less than were confirmed in the entire 1996 session, the second year of
the Republican control. Rather than work with us, some seem intent on
creating controversy and obstructing the process. That is a shame.
As Chairman, I have sought to work with all Senators. In scheduling
nominations for hearings, the Chair traditionally considers a number of
factors, including the consensus of support for the nominee, the needs
of the court to which the person is nominated, and the interests of the
home state Senators. We have a number of nominees about whom individual
Senators have expressed personal interest. I will continue to take that
into account and seek to accommodate Senators as much as possible.
Judicial nominees have never been scheduled for hearings based
solely on the date of their nomination, contrary to recent claims and
demands made by the Republican leadership. Certainly there was no
``first-in, first-out'' rule during the six and one-half years that
preceded my chairmanship--a time when it could take years for nominees
to get a hearing and more than 50 judicial nominees were never included
in a nominations hearing at all.
I hope to integrate a number of nominations received before I
became Chairman into hearings throughout this session. I anticipate
that no all those nominations will be regarded as consensus candidates.
We should expect and understand that the more controversial nominees
will require greater review. This process of careful review is part of
our democratic process. It is a critical part of the checks and
balances of our system of government that does not give the power to
make lifetime appointments to one person alone to remake the courts
along narrow ideological lines.
The scorched-earth campaign in which unrelated nominations and
bills and oversight responsibilities of this Committee are being
obstructed by Republican objections since last Thursday stands in sharp
contrast to the way the Senate acted in the immediate wake of the
disappointing party-line vote rejected the nomination of Judge Ronnie
White in 1999. As I recall, even in our disappointment after the floor
vote on that nomination, I proceeded to vote for the confirmation of
Judge Ted Stewart of Utah.
Despite the harsh statements of some since last Thursday, today we
are holding a hearing on another nominee for the District of Utah, Paul
Cassell, a law professor from the University of Utah College of Law.
This nomination is not without controversy. I would hope that my
continuing goodwill is not lost on others in the Senate.
Today I continue to try to accommodate Senators from both sides of
the aisle. Indeed, the court of appeals nominees scheduled for hearings
so far this year have been at the request of Senator Grassley, Senator
Lott, Senator Specter and now Senator Enzi. I extend my thanks to all
of the Senators who have worked with the Committee to schedule this
confirmation hearing today.
Chairman Leahy. I will yield to the Senator from Utah, who
I hope will also help us move forward.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I will put my
statement in the record, too. I just want to welcome all of our
colleagues here from both the House and the Senate. I also want
to welcome all of those nominees and their families who are
here. We have four excellent nominees here today. I think they
should all go through this process, and as quickly as we can.
Each of them will serve, I think, with distinction. Each of
them has tremendous background and tremendous qualifications.
We are particularly pleased with Paul Cassell from Utah,
who is a law professor at the University of Utah, was first in
his class at Stanford, was editor of the Law Review there, and
who has been a leading authority in so many areas. We are very
pleased with him, and we hope that soon we will have Michael
McConnell, who has more bipartisan support than almost anybody
I have seen come before this committee, from the left to the
right, Democrats, Independents, Republicans. And I have been
informed by the chairman that you will get him up pretty soon
as well.
We are pleased with both of you, and, frankly, we are
pleased with the other nominees who are here today, and I will
put the rest of my statement in the record.
[The prepared statement of Senator Hatch follows:]
Statement of Senator Orrin G. Hatch
I am pleased that the Judiciary Committee is considering a few more
nominations today. We have before us four exceedingly well-qualified
candidates for the federal bench, and I would like to welcome all four
of you to the Committee, and also welcome our distinguished witnesses
who have come here to support you.
Our only circuit court nominee on the agenda is Terrance O'Brien,
who has been nominated to the Tenth Circuit. Judge O'Brien comes to
this nomination after a distinguished 20 years of public service as a
state district judge in Wyoming. In that capacity, he has heard
approximately 13,000 cases and has also managed to find time to serve
on task forces and commissions to help develop the practices and laws
of Wyoming in areas which are of great interest to me, including the
use of drug courts, child support, judicial ethics, and split
sentencing. He also supervised a complete rewriting of the criminal
rules of procedure of Wyoming to make them more compatible with federal
rules. No small achievement. Judge O'Brien has served the public in
other ways, too--even before he reached the bench. He wore the uniform
of the United States Army from 1966 to 1969, rising to the rank of
Captain, and also served in the Justice Department as a staff attorney
where he continued building his expertise in Land and Natural Resources
Law.
Our three district court nominees are similarly outstanding.
Paul Cassell, our nominee for District of Utah, needs no
introduction to most members of this Committee. If I may be excused for
a little bit of home-state pride, I'd like to say that Professor
Cassell is one of the most qualified people ever nominated to the
District Court bench. He graduated from Stanford University Law School,
where he was Order of the Coif and President of the Stanford Law
Review. He served as a law clerk for then-Judge Antonin Scalia on the
D.C. Circuit Court of Appeals, and then for Chief Justice Warren Burger
on the Supreme Court. He has worked as an Assistant U.S. Attorney in
the Eastern District of Virginia and as an Associate Deputy Attorney
General at the Department of Justice. Presently, as a professor at the
University of Utah College of Law, he enjoys not only a devoted
following by adoring students, but also a national reputation for his
scholarship which includes over 25 published law review articles. It is
indeed a special pleasure to welcome Professor Cassell and his family
here today, and to see him on his way to putting his considerable
talents and energy to work for the District of Utah.
While I'm gloating over the excellence of Utah judicial nominees, I
can't resist mentioning the other extraordinarily qualified Utahn
pending before the Committee, Professor Michael McConnell. Professor
McConnell may well be the most bipartisan nominee currently pending--
his nomination has been applauded by legal scholars and lawyers from
across the political spectrum, including Professors Laurence Tribe,
Charles Fried, Cass Sunstein, Akhil Amar, Larry Lessig, Sanford
Levinson, Douglas Laycock, and Dean John Sexton. Professor McConnell
also enjoys the strong support of both of his home-state senators, and
broad support among the bar and the academy in his home state of Utah.
And he earned the ABA's highest possible rating, Unanimous Well
Qualified. I look forward to welcoming him here soon, too.
Our other two district nominees today are no less deserving of
gloating--even though they are not from Utah. Judge Lance Africk, our
nominee for the Eastern District of Louisiana, has an impressive record
in both the public and private sectors. Upon graduation from the
University of North Carolina School of Law, Judge Africk clerked for
the Louisiana Fourth Circuit Court of Appeal, then joined a New Orleans
law firm. Soon after, he joined the Orleans Parish District Attorney's
Office in New Orleans and became director of the Career Criminal
Bureau, where he prosecuted criminal cases. After a brief stint in
private practice, he became an Assistant U.S. Attorney in New Orleans
and served as Chief of the Criminal Division until 1990. Since then,
Judge Africk has served as U.S. Magistrate Judge for the Eastern
District of Louisiana.
Last but not least, Judge Legrome Davis, our nominee for the
Eastern District of Pennsylvania, earned his B.A. from Princeton and
graduated from the Rutgers School of Law in Camden. For the past 15
years, he has been a Judge on the Pennsylvania Court of Common Pleas.
During this period, Judge Davis has not only earned the great respect
of judges, lawyers, and litigating parties alike, but has also labored
as a tireless reformer of the structure and workings of the
Philadelphia court system. He has made significant contributions to the
law, and I know he will continue to do so in his new role as a federal
district court judge.
I am obviously very impressed with the accomplishments and
credentials of each of these four nominees, and I again welcome you all
to the Committee. I look forward to this hearing, and to working with
my Democratic colleagues to ensure your swift confirmation.
Chairman Leahy. We will go, as we normally do, by order of
seniority. The first person would be Senator Specter. I
understand he is coming from another meeting, so we will go
next to Senator Breaux.
PRESENTATION OF LANCE AFRICK, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF LOUISIANA BY HON. JOHN B. BREAUX, A
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman and
members of the committee. I have a short 30-minute speech that
I would like to give on behalf of Lance Africk. [Laughter.]
However, I will follow your lead----
Senator Hatch. We would like to hear that.
Senator Breaux. I bet you would.
Chairman Leahy. French and English or Cajun and English?
Senator Breaux. Simultaneous translation by my other
bookend over there.
Thank you very much. I am delighted. This is a great day
for the Africk family. It is also a very good day for the
people of this country, and particularly the people of the
Eastern District in New Orleans where Judge Africk is going to
be serving after his confirmation, hopefully, as the Federal
District Judge for the Eastern District of New Orleans.
I think everybody that comes before the committee, if they
have gotten this far, really has been carefully researched and
their qualifications have been very closely looked at to
determine their ability to serve. But, you know, we have to
recognize that I would imagine a number of the nominees have to
have a little bit of on-the-job training when they assume the
robes and the gavel of the Federal district judgeship.
I think with Lance Africk this is not going to be needed,
not going to be necessary. He is a person who is uniquely
qualified to be elevated from a position of a Federal
magistrate up to the position of a Federal district judge. He
will hit the ground running. He has, in fact, served in the
capacity of acting judge on a number of cases. As a Federal
magistrate, he has been involved in all the things a Federal
district judge is called upon to do.
In addition to that, I think it is very important to not
that he has a very extensive legal background, having served in
the United States Attorney's Office for the Eastern District
where he gained a great deal of actual on-the-ground experience
as chief of the Criminal Division for the U.S. Attorney's
Office. So it is rare that you have a person with all the
qualifications that he possesses in a nominee, from a
prosecutor standpoint, from an acting magistrate standpoint. He
is ready to go.
He has a wonderful family. His wife, Diane, and his two
children are here. We are pleased to be with them, as well as
his wonderful parents who are also here to see this very great
day in their family's career.
There is bipartisan support from the Louisiana delegation,
Republicans, Democrats. Senator Landrieu is on her way to
express her support as well, and I strongly recommend his
favorable consideration.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very, very much, Senator Breaux.
Senator Bennett. I might mention that Senator Bennett and I
had lunch, I think it was Friday, and again, the Senator was
speaking strongly in favor of Mr. Cassell. Please go ahead,
Senator Bennett.
PRESENTATION OF PAUL CASSELL, HOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF UTAH BY HON. ROBERT BENNETT, A U.S. SENATOR
FROM THE STATE OF UTAH
Senator Bennett. Thank you, Mr. Chairman. I usually don't
have much to say with respect to judicial nominations because
the senior colleague from my State has been chairman of this
committee and now is ranking member of this committee, and he
has the credentials to vet nominees here.
As I have said, I am unburdened with a legal education, and
so I view these issues from the standpoint of a layman. But I
do look forward to the opportunity to comment about Paul
Cassell because I have heard so many good things about him from
so many people whose judgment that I trust. Starting, of
course, with Senator Hatch, but going on through the Utah legal
community, I hear over and over again how qualified and
intelligent Professor Cassell is.
I use the term ``professor'' because his current employment
is as a professor at the University of Utah Law School, where
he is recognized not only for his ability as a scholar, but for
his ability as a teacher to make sense. All of us have had the
experience of sitting in a classroom with brilliant scholars
who required a translator. And Professor Cassell is clearly not
one of those. He speaks clear English. He makes it clear where
he stands. People understand what it is he is saying.
I think that is a very excellent qualification for a
Federal judge, to be able to issue a ruling that is
understandable, that is in clear language, and that the layman
can understand.
So I join with a wide range of Utahns in saying to this
committee, we hope you confirm Paul Cassell quickly, we hope
you put him on the bench as soon as possible. We need him on
the bench in Utah, and we look forward to a long and
distinguished career there on his part.
So, with that, Mr. Chairman I will urge the committee to
act and move on to my next assignment.
Chairman Leahy. Senator Bennett, I appreciate that, and I
know, like the others, you also have several different meetings
going on at this time. But I appreciate you taking the time to
come here.
Senator Thomas, always a delight to have you here. Go
ahead.
PRESENTATION OF TERRENCE L. O'BRIEN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. CRAIG THOMAS, A U.S.
SENATOR FROM THE STATE OF WYOMING
Senator Thomas. Thank you, Mr. Chairman. I want to thank
you and Senator Hatch for holding this meeting today. It is an
honor for me to join in introducing Judge O'Brien. He is a
person, of course, that we have known in Wyoming of highest
character and integrity.
When a previous judge in the Tenth Circuit took senior
status, I, along with Senator Enzi, put together a committee to
take a look at qualified and seek out qualified candidates.
Following that process, the committee selected three candidates
who would be qualified to serve. We forwarded those to the
White House, to President Bush, and we were very pleased when
he formally nominated Judge O'Brien. And so I think he is an
outstanding selection for Wyoming's seat on that court.
Judge O'Brien is a distinguished former State court judge
with decades of legal service. He sat for 20 years in the
district court for the Sixth District in Wyoming. He was
appointed by merit selection in 1980 by Governor Ed Herschler,
who, by the way, is a Democrat, has been retained by the voters
every 6 years since that time.
He is experienced in Federal law, having served as an
attorney for the Appellate Section of the Land and Natural
Resource Division of the U.S. Department of Justice. He has
argued and briefed several cases involving public lands,
environmental issues before the Tenth Circuit. He has also
practiced in the private sector. He is a native of Wyoming,
legal affairs, served on the State Judiciary Supervisor
Commission, Chair of the Wyoming Judicial Conference, the
State's Criminal Rules Advisory Committee, and also very active
in his local efforts to create a drug court.
So certainly, in our view, there is no one more qualified
for this job. We do need to move forward to fill those
vacancies, as you know, in the Tenth Circuit. So I will take no
longer except that we wholeheartedly endorse and urge your
support for Judge O'Brien.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I might say, Senator Thomas, with Judge O'Brien, one of the
things that has been very helpful to me is that you and Senator
Enzi have been able to bring forward a nominee who has a great
deal of consensus of support. He certainly would not be
considered an ideologue of either the right of the left by any
means, but a judge that has this strong, not only bipartisan
support but substantive support, and I appreciate the efforts
that both of you made to make sure there is that type of
consensus nominee. So thank you very much for being here.
Senator Thomas. Thank you, sir.
Chairman Leahy. Senator Santorum.
PRESENTATION OF LEGROME DAVIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. RICK SANTORUM, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. We also have a
nominee for the Third Circuit Court of Appeals, Judge Smith,
who I think meets the exact criteria that you just articulated,
and I look forward to his----
Chairman Leahy. I believe he has his hearing, has he not?
Senator Santorum. I look forward to his vote here in the
committee and the opportunity to have----
Chairman Leahy. Are you here to speak for Judge Smith or
the other nominee?
Senator Santorum. I will get to that in a second here.
The nominee that I am here to speak for today I am very
excited about. He, as you mentioned, was nominated by President
Clinton and, unfortunately, was a victim of, frankly, a
squabble between the local political party in Philadelphia,
Democratic Party in Philadelphia, and the President, President
Clinton.
This is an outstanding nominee and someone who I have been
very, very strongly supportive of for several years. And I can
tell you the White House is a very enthusiastic supporter, even
though he is a Democrat. He is someone who has distinguished
himself greatly in both his work as a district attorney in
Philadelphia, has been a common pleas court judge for 15 years
in Philadelphia. The President, I can tell you--and I related
this to Judge Davis--was very, very excited about his
nomination and putting him back before the United States
Senate. And I am hopeful, since he is the first of eight
pending nominees for district court in Pennsylvania before this
committee, that he will move quickly. He is most deserving.
Senator Specter and I have a panel that reviews nominees,
and he scored the highest of anybody in our process. So he is
most distinguished, most worthy, and hopefully he is the first
of many of the district court nominees that will move through
this committee this year.
Thank you, Mr. Chairman.
Chairman Leahy. It is your understanding that somehow the
political party in Pennsylvania decided that he wouldn't get a
hearing during those hundreds and hundreds and hundreds of days
here?
Senator Santorum. Mr. Chairman, if you would like to review
that, I would be happy to----
Chairman Leahy. Just based on what you just said, there was
a dispute there, and as a result, he was unable to--I was not
chairman at the time, but because those parties told the--
Senator Santorum. The administration----
Chairman Leahy. Are you suggesting the party told the
committee not to hold a hearing?
Senator Santorum. The administration and the leaders of the
Democratic Party in Philadelphia did not have a meeting of the
minds, unfortunately, with respect to several nominees in
Pennsylvania.
Chairman Leahy. So they stopped----
Senator Santorum. And as a result of that, with respect to
Democrats, Senator Specter and I have always had the opinion
that when the President and the Democrats cannot get along,
then we sort of let that stand. We saw it with the local
Democrats, and that is what we did in this case. And that is
why we are very excited, with that friction now being broken,
that Judge Smith can come forward on his own merits and be
nominated by a Republican President and be confirmed.
Chairman Leahy. So do you mean by that you supported not
holding a hearing?
Senator Santorum. I think I have been very, very clear
about that. I was very clear about it at the time, that there
was that controversy, and it was very unfortunate. It was
something that we tried to broker through, but it was
unfortunate at the time that it was not able to be worked out,
as we try to accede, as we have in the past, with Democratic
nominees and a Democratic President to the Democratic
congressional delegation and the Democratic leaders of the
party.
Chairman Leahy. I am not sure I understand. You have to
help me. I just come from a small town in Vermont.
Senator Santorum. I don't think I need to help you very
much, Mr. Chairman. I think you understand it very well.
Chairman Leahy. No, I don't.
Senator Santorum. I don't think you should be facetious in
dealing with these----
Chairman Leahy. Did you support not holding a hearing?
Senator Santorum. Mr. Chairman, I think the process was as
I think I articulated, and I think I did say that when there is
a situation where there is a controversy within my delegation,
the Democrats in my delegation, in the Democratic Party, with
the White House, that I will side with folks from my State.
Chairman Leahy. Senator Enzi, again, I am delighted to have
you here, and I do appreciate--and I want to emphasize this, I
appreciate the work you have done to get your nominee before
us, as you did with a previous nominee. And I want to say I
appreciate that very, very much. You have done a service not
only for Wyoming and the circuit and your nominee, but you have
been extraordinarily helpful to this committee, and I do want
you to know I appreciate that. Please go ahead, sir.
PRESENTATION TERRENCE L. O'BRIEN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT BY HON. MIKE ENZI, A U.S. SENATOR FROM
THE STATE OF WYOMING
Senator Enzi. Thank you, Mr. Chairman. I want to thank you
for holding this hearing today and for all the consideration
that you have given me and how you have put up with my letters
to bug you, as you suggested. I still have a couple of those
left, but I guess I can throw them away.
Chairman Leahy. No, it has been helpful, very, very much,
and also the facts that you put in there have been extremely
helpful to me. Thank you.
Senator Enzi. And hearing your earlier admonition, I would
ask that my full statement be a part of the record and would
like to highlight some of the personal information.
I have known Terry for 22 years. Actually, I knew him
before that, but that is when he moved to Gillette, and I had
the opportunity to work with him on a number of things. He came
as a judge and worked just up the street from my shoe store, so
I got to talk to people occasionally that had just been in his
court. And I can tell you that he is a no-nonsense judge, he is
fair, and that is recognized even by the people that have been
before him and have lost, which is quite a criteria, I think,
for a judge.
He made decisions that were based squarely on the law, the
facts, and did careful consideration, and he always explained
the reasons for what he was doing, and he was able to explain
those clearly and concisely, and I think if you have looked at
some of his decisions, you will find out that they were
effective, professional, and efficient. And they aren't full of
legal jargon or unnecessary words. He does explain the law so
people can understand it.
We have watched each other's kids grow up, but we have had
a more personal relationship than that. Besides being in a
number of organizations together, we specifically got together
with the Italian friend that you helped me with earlier for
regular dinners. And we had three different branches of
government recognized at that point, and we would come up with
a list of topics to discuss. One person would host dinner, one
would provide the refreshments, and one would select the topics
for the evening. And we solved the problems of the world. We
had no idea that someday we might actually have a chance to
solve some of the problems of the world. They were a delightful
opportunity for discussion, but more so to find out more about
each other and increase the bonds of friendship.
I can also tell you that my wife, Diana, served on one of
Terry's juries, and she found the experience interesting and
she liked the way that Terry handled the proceedings. And after
she served on the jury, my children noticed that she started
doing better cross-examining skills, too.
I know that the country will benefit from having Terry
O'Brien as one of our circuit court judges, and, again, I thank
you for your consideration of this and hope that we can put him
through promptly so we can fill that gap.
Thank you, Mr. Chairman.
Chairman Leahy. Tell your wife she is fortunate. I have
presented hundreds of cases to juries, but I have never had a
chance to sit on one, and I would have loved to. But thank you
very much, Senator Enzi, and I know you have another
commitment, and I appreciate you being here.
Senator Enzi. Thank you.
Chairman Leahy. Congressman Tauzin, Chairman Tauzin, I do
appreciate you coming over here. We talk about committees in
conference. You have as busy a schedule as anybody on Capitol
Hill, and it is an honor--all joking aside, it is an honor to
have you here. You and I have been friends for decades, and I
am delighted you are here. Go ahead, sir.
PRESENTATION OF LANCE AFRICK, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF LOUISIANA BY HON. W.J. TAUZIN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Representative Tauzin. I want to thank you and Senator
Hatch for inviting me to be here. Let me first tell you, Mr.
Chairman, that I often say that I taught Senator John Breaux
everything he knows--not everything I know, of course, but
everything he knows. [Laughter.]
And this is the exception. This is the one exception. I
came to know Lance Africk, our nominee, through his father,
Jack Africk, who is here today. And I came to know Jack through
John Breaux. In fact, Jack was working then with a project that
Nick Buonoconti runs in Miami called the Miami Project to try
to find a cure for spinal injury, disabling injuries. His own
son, as you know, was injured in a football game.
I came to know the Africk family through those tournaments,
those charity tournaments we participated in together to help
that project. And as I came to know them, I also came to know
not just Jack but his family, and Lance, and later on had the
honor of recommending Lance for the magistrate position in New
Orleans.
John said it best. I can't tell you how proud we are of
this nominee. We always stand together with our nominations--
you will notice that--the House and the Senate, across party
lines. We bring----
Chairman Leahy. I have got to tell you, that makes our life
a lot easier up here.
Representative Tauzin. I know it does. And John and Mary
and I and the House delegation wholeheartedly concur in this
one again. And we are particularly honored to speak for Lance
Africk here.
John mentioned he has hit the ground running because of his
experience as a magistrate. What is amazing about his
background is that, you know, he has touched so many bases. He
has worked in the district attorney's office, the U.S.
Attorney's Office. He is an instructor at the University of New
Orleans right now in civil and criminal procedure, the two
courses, I think, that gave us the biggest ulcers in law
school. Really tough courses. He has lectured at Tulane, at
Loyola, and also at the FBI Academy at Quantico. So he brings a
wealth of experience in practice, in prosecutorial work, in
civil work, in the intellectual side and teaching and
understanding the nuances of the law and the procedures by
which justice is obtained in our country.
I want you to know that, on behalf of the people of the
Eastern District, we are delighted, Senator Specter, Senator
Hatch, and Mr. Chairman, that you will take up his nomination
and hopefully speedily approve it.
He is going to add immeasurably to the sense that we have
in the Eastern District that justice is real, that is alive,
that it works, and that it works well.
Lance is also married to a physician, a noted pediatric
neurologist, and I want you to know that your elevation of
Lance to the position of Federal judge is going to help him
immeasurably, because he is frankly tired of being introduced
as his wife's husband, and this will give him some credibility
on his own in terms of his standing in the community.
His entire family are just so genuine and they are so good
that it makes some sense that this young man reared in a family
like that is so solid and so exemplary, both in his
professional life and his personal life. He is just a joy to
know, and the family is a joy to know. And he will make an
extraordinary judge, and he will literally add, I think, a real
star to the chamber of stars that is our Federal judiciary.
Mr. Chairman, on behalf of the entire House delegation, I
am extraordinarily pleased to join my two friends, John Breaux
and Mary Landrieu, in urging you to speedily approve Lance
Africk as a Federal judge for the Eastern District of
Louisiana.
Chairman Leahy. Well, thank you very much, Mr. Chairman,
and I do appreciate you coming here. As I said, the kind of
bipartisan support that you put together and the effort you put
together to have somebody who has strong consensus is very,
very helpful. And I realize also you have to get back to
another hearing, but thank you.
Representative Tauzin. Thank you, Mr. Chairman.
Chairman Leahy. I will put a statement by Senator Landrieu
also in the record praising Lance Africk, and that will be
added.
I see that Senator Specter is here, and so I will yield to
him. We noted before that you were tied up in another meeting
and could not be at the earlier introduction, but go ahead.
PRESENTATION OF LEGROME DAVIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I am pleased to join my colleague, Senator Santorum, who I
know has already been here, to introduce to the committee Judge
Legrome Davis, who has been nominated by President Bush for the
United States District Court for the Eastern District of
Pennsylvania. Judge Davis had been previously nominated in the
last Congress by President Clinton for the same position.
Judge Davis has an outstanding academic background. He is a
Princeton graduate, Rutgers University School of Law in 1976.
He has worked with a prestigious Philadelphia law firm, the
Ballard, Spahr office. He was in the general counsel's office
at the University of Pennsylvania. He was in the district
attorney's office from 1981 to 1987 and handled many very
complicated prosecutions. I know from my own experience in that
office that the trial work and the experience that you gain
there is extraordinary, a very, very difficult line of
lawyering.
Most importantly, Judge Davis has been on the Philadelphia
Court of Common Pleas for some 14 years, and he has been an
administrator, has had very extensive experience as a trial
judge in both the civil and criminal fields. He has
extraordinary qualifications. I think that Judge Davis' record
and background would match anyone who has been submitted for
the United States district court for many, many years. So I am
very pleased to recommend him to the committee. From my
experience here, he will go through with flying colors.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you very much, and I must say to the
nominee that Senator Specter has also said very good things
about you privately before, too, and I appreciate you doing
that.
Senator Specter. Mr. Chairman, I think it is also worthy of
note that Judge Davis is a product of an arrangement which we
have to share confirmations with a Republican President with
Democrats. We have an arrangement worked out that we share. We
had a period of time where there were, out of 24 years, 20
years of one party occupancy of the White House, and during
that period many very fine young lawyers from the other party
were denied access to the Federal bench. And we have an
arrangement now to correct that, regardless of which way the
White House goes.
Chairman Leahy. Well, I applaud the Senator for that, and,
again, that kind of arrangement makes life a lot easier for
this committee, too.
Chairman Leahy. If we could start with Judge Terrence
O'Brien, if you could come forward, please, Judge. Would you
raise your hand? Do you swear that the testimony you shall give
here shall be the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. O'Brien. I do.
Chairman Leahy. Judge O'Brien, I know you have got members
of your family here. I wonder if you might want to introduce
them to the committee.
STATEMENT OF TERRENCE L. O'BRIEN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT
Mr. O'Brien. If I may, I would like to introduce my son and
my daughter-in-law, Sean and Shanna O'Brien, and my good
friend, Sandra Napier. My daughter, Heather, lives in Lawrence,
Kansas, and was unable to attend today, but she is here with me
in spirit.
Chairman Leahy. Well, that is going to help you right off
the bat, I would hope, with Senator Specter, who was born in
Lawrence, Kansas. Am I right?
Senator Specter. I am sorry. I didn't hear that.
Chairman Leahy. You were born in Lawrence, Kansas, were you
not?
Senator Specter. Correct, yes.
Chairman Leahy. That is where you daughter is. The reason I
like to have that on the record, someday in the O'Brien family
archives, when they go back to the record, you can all point to
the fact that you were there.
Judge O'Brien, did you wish to make an opening statement,
sir?
Mr. O'Brien. I have no statement except to thank the
committee for the hearing.
Chairman Leahy. Well, thank you.
You know, I look at your record as a state trial court
judge, and the two Senators from your State have referred to it
already. I believe it was 20 years. It is a distinguished
record. And I assume as a trial court judge, you derived a
great deal of satisfaction out of that position. I am one who
always feels that trial courts are in many ways the most
interesting, even though I did a lot of appellate work. But I
am wondering why you left the bench in the year 2000, I
believe, but are interested now in coming back to the bench.
Mr. O'Brien. Well, Senator, I have had an abiding interest
in the Federal judiciary since law school. The time that I
spent on the----
Chairman Leahy. Pull the microphone a little bit closer.
Mr. O'Brien. The time that I spent on the trial bench in
Wyoming was rewarding for me, but there comes a time when there
is a certain sameness to that, and also there comes a time, I
think, when you need to yield to new blood and new ideas. And
that time came for me after 20 years on the trial bench.
I retreated from direct dealings with the law and involved
myself with a small Internet service provider, a small company
in my hometown. The opportunity presented itself with respect
to the Tenth Circuit, and I felt that calling rather strongly
and applied.
Chairman Leahy. You delivered a number of speeches on the
criminal law and criminal defendants. You stated that some
criminal defendants are not educable, they need to be trained.
You then made a comparison as to how to train dogs.
Now, I love dogs, and I believe in the old--people say you
can't teach an old dog new tricks and all. But is it really
right to be comparing criminal defendants, human beings, to
dogs? Do you want to say more about that, please?
Mr. O'Brien. Well, Senator----
Chairman Leahy. And I was a prosecutor. I prosecuted a lot
of people, but I just found the comparison a tad troubling.
Mr. O'Brien. It was for dramatic effect, and the caveat
that I expressed in that talk, prior to making that remark, I
think said precisely what you said. That is not--that people
are not like animals. And the point that I was trying to make
is that, regardless of your motivation, you need to try
everything that is possible in order to bring all members of
society within societal norms.
Chairman Leahy. Well, let me add, though, on the other
side--and, of course, you have made a number of what I consider
very positive contributions to the Wyoming State court
procedures over the years. I hope the people of Wyoming feel
the same way. You established or helped to establish State drug
courts along with alternative sentences, something now more and
more States are looking at, including States much larger than
your State of Wyoming or my State of Vermont, the two smallest
in population, two smallest States in the country.
But given that kind of leadership, would you be reluctant
to apply the Federal Sentencing Guidelines, including where
there are tough mandatory minimum sentences in cases involving
drug crimes?
Mr. O'Brien. Senator, as part of a continuing interest that
I had almost from the inception of my appointment to the trial
bench and throughout my career was an interest in effective
criminal administration. And I can tell you that I was one of
the few voices in the Wyoming judiciary that favored sentencing
guidelines.
There are, I know, those who think that the Federal
Sentencing Guidelines are harsh in some respects. I had a
reputation in Wyoming, I think, of being a rather stern judge.
The sentences that I imposed for drug offenses I think were
typically not as rigorous as those that may be imposed under
the Federal Sentencing Guidelines.
Nevertheless, I believe that the guidelines are appropriate
to bring regularity and evenness to the process. I have no
compulsion following the sentencing guidelines.
Chairman Leahy. You decided a case entitled Brown v.
Wyoming in 1987. You declined to suppress evidence that was
obtained in a protective sweep of a house. The person arrested
actually was not arrested in the House, was arrested outside
the house, but the police still did a protective sweep of the
house.
You did not suppress the evidence obtained there, and you
were overturned. You actually had a couple other reversals that
referred to cases where you refused to suppress evidence that
was obtained, as the appellate court said, in violation of the
law. Are you reluctant to suppress evidence obtained in a case
where it might be in violation of the law even when such a
result is required by precedent?
Mr. O'Brien. Absolutely not. As a matter of fact, I have
done that. Those cases typically don't get appealed. The case
that you are referring to, State v. Brown, was reversed 3-2 by
the Wyoming Supreme Court. There was no independent Wyoming
standard at the time. I think I applied Federal standard and
applied it correctly. The Supreme Court announced further
protections under the Wyoming Constitution.
Chairman Leahy. As a Federal court of appeals judge, you
are going to be called to interpret case law as it applies to
cases before you, and I am sure you have no difficulty with
stare decisis as it applies to cases of the U.S. Supreme Court.
You certainly accept that they are controlling. Is that not so?
Mr. O'Brien. Absolutely.
Chairman Leahy. What do you do when you get into a case of
first impression? Because you probably will if it gets all the
way up to the court of appeals.
Mr. O'Brien. You first look, of course, to the decisions of
the United States something and would follow any precedent that
is there. Next, of course, I would look at any precedent that
may have been established in the Tenth Circuit by a panel of
that circuit. Following that, I would apply the generally
accepted rules of construction that statutes are presumed to be
constitutional, that the findings of Congress with respect to
statutes are entitled great deference, that a decision on a
constitutional basis is a decision of last resort, that you
look for other possibilities before you come to a decision of
constitutional magnitude; and if you must, you decide it as
narrowly as possible.
Chairman Leahy. And even then it is not an exact science.
Mr. O'Brien. I think not.
Chairman Leahy. I was thinking of Metropolitan Mortgage,
which was a contract case. Do you think the Wyoming Supreme
Court was correct in that case? I am not trying to put you on
the spot. I am just curious because they really go into this
question of a judge's role in interpreting a contract, which
also could be said, the same thing, about statutes and the
Constitution.
Mr. O'Brien. I looked at that case last night. It involved
a contract for deed. I had interpreted the instrument as being
unambiguous, that it provided that if the payments were made,
the land would be delivered, but only if the payments were
made.
The mortgage company was arguing for a deficiency judgment.
It did go to the Supreme Court. One of the justices of the
court agreed with me that the contract was unambiguous and that
it was a unilateral contract. One of the justices thought that
it was unambiguously a bilateral contract, and another justice
concurred with him. Two of the justices thought that it was
ambiguous. And it was remanded, but I think it settled.
I think I did say in----
Chairman Leahy. You have a lot of people looking at it all
different ways, is what you are saying.
Mr. O'Brien. Yes, sir, and I did emphasize in that opinion
that--and it has been, I think, one of the hallmarks of my time
on the district bench that I had strong feelings about what I
intuitively thought the parties had agreed to. I tried to make
it clear in that decision that I couldn't base my decision upon
what intuitively I thought, but based upon the written language
of the Constitution and my understanding of the law. That is
what I tried to do, apparently unsuccessfully.
Chairman Leahy. I appreciate that. You also back about 8
years ago, before it was really a popular thing to start doing,
you got the Rotary Club to admit women. Am I correct in that?
Mr. O'Brien. Yes, sir, you are.
Chairman Leahy. Was that a heavy lift or did people go
along with you right away?
Mr. O'Brien. There was opposition in the club. There were
some of the moss-backs who liked it the way it was, who
resisted change. Fortunately, there were other members of the
club who were more progressive. We did prevail upon the
membership to admit women, and I am pleased to say that, while
I am no longer a member of the club, it has a number of women
members. In fact, it has three women members on the board at
this time.
Chairman Leahy. I suspect you had the same difficulty that
some of my friends in Vermont did doing the same thing. And
now, of course, everybody looks back and says how--I mean, why
shouldn't it be that way? But it took some--it took people like
you to turn a light on and say let's go forward, so I applaud
you for that.
Mr. O'Brien. Thank you.
Chairman Leahy. Senator Hatch?
Senator Hatch. I am going to support the nomination. I have
looked over your record and what you have been able to do, and
I just want to congratulate you on being nominated by the
President. So I tend to support you.
Mr. O'Brien. Thank you, Senator.
Senator Hatch. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. With those tough questions from Senator
Hatch, I yield to Senator Durbin of Illinois.
Senator Durbin. I am going to pass and thank Judge O'Brien
for being with us today.
Thank you very much, Mr. Chairman.
Chairman Leahy. Senator Specter, did you have any
questions?
Senator Specter. Well, thank you, Mr. Chairman. I have
reviewed Judge O'Brien's record, and I think he is a very, very
experienced judge. I notice you have had a number of
interesting cases. When I was practicing law, I had one of
these cases involving a challenge by an employee to a discharge
in a jurisdiction which had employment at will. You can fire
anyone for no reason, but you can't fire someone for a bad
reason.
Did the case of Drake v. Cheyenne Newspapers give you some
pause before coming to your conclusion, Judge?
Mr. O'Brien. It struck me as anomalous that a newspaper
championing freedom of speech sought to suppress the free
speech rights of one of its employees. Nevertheless, I believe
the law was clear.
Senator Specter. You thought the newspaper was within its
rights in terminating the individual?
Mr. O'Brien. Yes, sir, I did. That was affirmed by the
Wyoming Supreme Court.
Senator Specter. I was about to reminisce with you about
the case I had, but I think I won't in the interest of time.
Chairman Leahy. Go ahead. [Laughter.]
You know, one of the things about people who come on this
committee who have practiced law before, in whatever form, we
all have great war stories, and we all have to resist, the
chairman especially, the temptation to tell them. But I applaud
the Senator for----
Senator Specter. I may change my mind.
Chairman Leahy. I enjoy listening to them. I enjoy
listening to them, so you feel free to go ahead.
Senator Specter. But I am not going to change my mind
because it is in the book I wrote. [Laughter.]
Chairman Leahy. Which is still available.
Senator Specter. I am about to come to that. I was one of
the younger lawyers--I am still a young lawyer. I was one of
the younger lawyers on the Warren Commission staff and came up
with the single-bullet theory. You have probably heard of it.
It has had a lot of criticism for the past 34 years, so I
decided to write down how the conclusion was reached while I
was still able to write, and in the course of that, I also
wrote about a case called Felder v. Spencer Gifts, which was an
employment-at-will case. And anybody who is interested can find
it in paperback at $14.75. [Laughter.]
Thank you, Mr. Chairman.
Chairman Leahy. Plus tax. But whatever you do, Judge, you
are doing okay so far. So don't take a position on the single-
bullet theory one way or the other.
I thank you very much.
Mr. O'Brien. Thank you.
[The biographical information of Mr. O'Brien follows:]
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Chairman Leahy. What I am going to do is stand in recess
for 2 minutes while we set the table back up, because following
our normal practice, we will have the district court judge
nominees as a panel. We will stand in recess for 2 minutes.
[Recess at 10:54 to 11:00 a.m.]
Chairman Leahy. I wonder if all three of you could please
stand and raise your right hand. Lance Africk, Paul Cassell,
and Legrome Davis, do you swear the testimony you are about to
give before this committee shall be the truth, the whole truth,
and nothing but the truth, so help you God?
Judge Africk. I do.
Mr. Cassell. I do.
Judge Davis. I do.
Chairman Leahy. Let the record indicate that all three
nominees took the oath, and I want to start with Judge Africk.
Do you have members of your family here or friends that you
wish to introduce? Again, for the Africk family history.
STATEMENT OF LANCE AFRICK, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF LOUISIANA
Judge Africk. Yes, sir, and I would like to thank you and
the members of the committee for holding this hearing, Senator.
I am proud to present to you my son, Max Africk; my wife,
Diane Africk; my son, William Africk; and my mother, Evelyn
Africk; and my father, Jack Africk.
[The biographical information of Judge Africk follows.]
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Chairman Leahy. Your parents look as though they are
appropriately proud to be here, and I am delighted.
Mr. Cassell, did you wish to introduce anyone?
STATEMENT OF PAUL CASSELL, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF UTAH
Mr. Cassell. Thank you, Mr. Chairman. I also want to thank
you for scheduling the hearing.
I am also proud to introduce my family: my wife, Trish
Cassell; my oldest daughter, Anna; Emily and Sarah, working on
their coloring right now.
Chairman Leahy. They know their priorities.
Mr. Cassell. My father, William Cassell; my mother, Jean
Cassell, is recovering from surgery and could not travel.
Chairman Leahy. I understand. In fact, this is one of the
reasons why we had the hearing today and not a week before.
Mr. Cassell. Yes, and I appreciate the committee's
accommodation of that.
My sister, Susan, and her son, Stephen, and family friends
Mark Hulkower, Gary Shapiro, Jimmy Gurlay, and Mark Farnham.
Chairman Leahy. We welcome you all for being here.
[The biographical information of Mr. Cassell follows.]
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Judge Davis, do you have introductions?
STATEMENT OF LEGROME DAVIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Davis. Yes, sir. I am pleased to introduce my wife,
Sue; my son, Chris; my daughter, Kate; my oldest brother, who
will forever be my big brother, Jerome; and a number of
friends: Zak Rhahiem, Professor Kay Harris, Nancy Gist, the
former director of BJA; Sarah Hart, the current director of
NIJ; and in the back, my court officer, Donna Croce, and one of
the prosecutors who was with me for a number of years, Mr.
Kesha Nair.
[The biographical information of Judge Davis follows.]
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Chairman Leahy. Good to have you all here. I understand
that to accommodate Senator Durbin, I would yield to him first.
Senator Durbin. Thank you very much, Mr. Chairman. I
appreciate that. I thank the panel for joining us, and I want
to especially commend Senator Specter as well as Senator
Santorum, because I know that Judge Davis' name was submitted
by the previous administration and he was not given an
opportunity for this process to complete itself. And I am glad
you stuck with it. The message we tried to deliver last week in
another matter related to an effort to try to find some common
ground, and your willingness to submit Judge Davis' name again
is, I think, clear evidence of your good faith in this effort.
And, Judge Davis, thank you for your endurance, putting up with
this committee and what it did to you for 2 or 3 years, and now
giving you a chance. I am glad that you are here and with us
today.
Judge Africk, thank you for joining us, too, and as I
mentioned to you at the outside, I have met a number of your
friends as I have traveled around, and you come with the
highest recommendations. And I am glad you are with us.
Judge Africk. Thank you.
Senator Durbin. Professor Cassell, you have come here
before, I believe, and testified before this committee on a
number of issues, and I would just like to explore two or three
issues in the brief time that I am given here, if I might.
What is your position on racial profiling?
Mr. Cassell. Senator, racial profiling means a number of
things to a number of different people. I am certainly
unalterably opposed to racial discrimination in the criminal
justice system and to using race as some sort of a predictor of
criminality, which is I think the way most people use that
term.
Senator Durbin. And so when we look at statistics which
suggest that 12 percent of the American people are African
American, 13 percent of drug users are African American, 35
percent of arrests are of African Americans for drug crimes, 50
percent of convictions and over 60 percent of incarcerations
are of African Americans for drug crimes, what conclusions do
you draw from that?
Mr. Cassell. Well, Senator, obviously there are a number of
different statistics that one can look at when one looks at the
problem of race in the criminal justice system. Certainly one
of the conclusions you can draw from those statistics is that
we have a tragic overrepresentation of minorities in the
certain categories that you were talking about there.
As to how we address the particular problem those
statistics reflect, a number of people have offered a number of
different suggestions, and that is certainly not an area that I
have focused on. I certainly think it is an issue that Congress
and others need to address and to take whatever steps are
appropriate to produce statistics that are more in line with
the national norm.
Senator Durbin. In our State of Illinois, a conservative
Republican Governor, when he found that more than a dozen of
the inmates on death row prepared for execution in the State of
Illinois were, in fact, innocent because of proof through DNA--
and Senator Specter and I have legislation on this issue--and
by lack of competent counsel, he came to the conclusion we
should have a moratorium on the death penalty in our State. And
I think statistics also demonstrate that minorities tend to be
subject to capital punishment more often than those who are
not.
What conclusion would you draw about the imposition of the
death penalty in America based on the experience in Illinois
and your personal observations?
Mr. Cassell. Well, my experience with the death penalty is
rather limited. Obviously, I am from the State of Utah and am
most familiar with the imposition of capital punishment in that
State. We have not had the problem that apparently has
afflicted the capital punishment system in Illinois, and so I
wouldn't presume to pronounce to the Governor of Illinois as to
how we ought to be running his criminal justice system. And
certainly he has identified a problem there, and I commend him
for taking steps to solve the problem.
Senator Durbin. Do you think it is a national problem?
Mr. Cassell. It is a problem that we have not seen in Utah,
which is, again, the area that I am most familiar with. I serve
on the Rules of Criminal Procedure Committee in Utah where we
have taken steps to address, I think, one of the problems that
you mentioned--ineffective assistance of counsel in capital
cases--and we have come up with some rules that I think have
served us well in Utah.
For capital cases, we have provided two attorneys in every
capital case, and we have provided minimum qualifications for
both attorneys. But for the lead counsel, we have put together
a particularly stringent set of requirements to make sure that
they have had continuing legal education, prior capital
punishment trials, and those kinds of things. And I think the
experience that we have had in Utah might well be--might
provide some lessons for other States.
Senator Durbin. I think you are right. I think that is a
sound approach, and I hope Illinois will turn to it. And it
does raise a question, though, because what you have suggested
is good policy and procedure in Utah when it comes to death
penalties is actually an extra effort to make certain to
protect the constitutional rights of criminal defendants when
they are facing capital punishment and an effort to make
certain they understand what their rights are under the law.
And yet for over 10 years, you have led a crusade in this
country against Miranda rights, which were designed for that
same purpose, to make sure that individuals in the criminal
justice system who may not be aware of the rights that they
have and may be victimized as a result are given that extra
Miranda warning.
Do you see an inconsistency in that position?
Mr. Cassell. No, Senator, I don't. Maybe I should clarify.
You talked about a crusade against Miranda rights. Maybe I
should explain precisely what I thought that I was doing, and
then we could discuss the implications from there.
I have been particularly concerned that an act of Congress
was going unenforced. As the Senator is aware, this committee
authored legislation that came out of committee, was approved
by both Houses of Congress, signed by the President----
Senator Durbin. It was truly this committee, but in what
year?
Mr. Cassell. It was in 1968, Senator.
Senator Durbin. It was while I was still in law school, so
I wasn't a member of the committee. But I accept it was an act
of Congress.
Mr. Cassell. I was about 9 years old at the time, I guess,
and--which was of concern to me because I have been concerned
that the courts have not been giving sufficient deference to
acts of Congress, and, in particular, I have been concerned
that the courts have not been giving deference to findings of
fact of Congress.
When that law was passed in 1968, this committee made a
number of findings about how the criminal justice system would
operate, about how warnings could be effectively provided to
suspects, and how the rights of crime victims could be factored
into an approach for dealing with custodial interrogations. And
this committee approved, Congress approved legislation that
said so long as the confession is voluntary, it could be
admitted into evidence.
Now, of course, the warnings would be an important part of
that determination of voluntariness. But if there was some
technical mistake in the way in which warnings were delivered,
that shouldn't automatically lead to the suppression of
evidence.
I thought that that approach that the committee made--
articulated made some sense. It wasn't my preferred approach to
these issues. I prefer videotaping of police interrogation.
That is the approach I have argued for in my Law Review
article. But I certainly thought the congressional approach was
a reasonable one. I defended that view. The Fourth Circuit
agreed with me. The Tenth Circuit agreed with me. But the U.S.
Supreme Court, at least seven of the Justices disagreed with
me.
Senator Durbin. I won't take any longer, and I thank the
committee for its indulgence. The point I was trying to make
was this: I thought that you identified a very important
procedural safeguard that the State of Utah put in place when
it came to the death penalty in terms of making certain that
people had their constitutional rights protected, extra efforts
by the government, in this case, the State of Utah. And I find
your argument and logic when it comes to Miranda rights 180
degrees removed from that, and the suggestion that we would
take away this basic protection of a criminal defendant's
rights, the advice of the Miranda warning, and that somehow or
another we should follow a statute that was passed some 34
years ago that had clearly been, if not overruled, at least
seen differently by the Supreme Court.
So I am struggling with those two concepts, and I thank the
committee for its indulgence in allowing me to ask first, and,
Mr. Chairman, thank you, too. Thank you for being with us.
Chairman Leahy. You are welcome. I appreciate you doing
that.
Senator Hatch.
Senator Hatch. Well, I am proud to have all three of you
here. Mr. Davis, I had hoped that I could get you through our
committee, but because of a lot of problems, we were unable to.
But I have always been for you. And also, holding a
Pennsylvania bar license, I have appreciated the service that
you have given.
Mr. Africk, I know you well. You are an excellent lawyer.
There is every reason why you can serve with great distinction.
I know Paul Cassell better than anybody here, and I can
tell you not only is he a great law professor, but he is a
great human being and will be a wonderful Federal district
court judge.
And I hope in the practice of law we can sometimes have our
differences, even though those differences sometimes are
heartfelt. But in each case, I think Professor Cassell can
explain not only the sincere but also the intellectually good
approach that he has taken, especially with regard to Miranda
rights. And I think if you look at what he has really stood
for, it is a tougher approach towards making sure that the law
enforcement people live up to the rules and Miranda itself,
which is easily parroted any time there is a pick-up of a
criminal, or an alleged criminal. If Professor Cassell's
approach was taken, we would have very few arguments, it seems
to me, about the fairness of the law enforcement people.
But I am very proud of you, Paul, and your wife, who is an
attorney as well, and your family, and we look forward to
having you approved by the committee.
Chairman Leahy. Mr. Cassell, I found it interesting you
mentioned the Supreme Court case when you were answering
Senator Durbin's question. It was Dickerson v. United States.
Is that correct?
Mr. Cassell. Yes.
Chairman Leahy. In a fairly conservative Court, you lost 7-
2. Chief Justice Rehnquist wrote the majority opinion. You
referred to that opinion of Chief Justice Rehnquist as a
remarkable example of the imperial judiciary. When Justice
Scalia said that he would disregard the majority's precedent,
you said that was a silver lining in the dark cloud of the
decision. Justice Stevens had asked you, is it your view that
Section 3501 was intended to overrule Miranda, you said it was
not intended to overrule Miranda. But you had written an
article that says the purpose of Congress to overrule Miranda
is a slap in the face of the statute.
I just found that interesting and thought I would add that
to what Senator Durbin said. You have been here a number of
times, I think about 16 times since 1988, before a
congressional committee or subcommittee, three times on the
subject of Miranda, five times on the death penalty, eight
times on crime victims. Would it be fair to say that you feel
the justice system has been too protective of the rights of
criminal defendants?
Mr. Cassell. Mr. Chairman, I don't think it would be fair
to make that statement across the board. I think one needs to
look at particular issues----
Chairman Leahy. Do you feel there are areas where the
justice system has been too protective of the rights of
criminal defendants?
Mr. Cassell. Yes, I do. Yes.
Chairman Leahy. And those areas are?
Mr. Cassell. One of the areas that I have talked about is
Miranda, but even within that area, I have suggested that there
are some areas where the courts have been too protective of
criminal suspects and other areas where the court has been
insufficiently protective of criminal suspects. The burden of
my research has been to try to devise alternative approaches to
the current rules which provide not only greater safety for
crime victims and law-abiding citizens, but also criminal
defendants who are ensnared in the criminal justice system.
The proposal that I have advocated for dealing with
custodial interrogations is videotaping of police officers. I
believe, as Senator Hatch was suggesting a moment ago, in some
ways that is a much more stringent requirement than reading
words off of a card.
Chairman Leahy. Of course, an impossible one in some
circumstances. The beat cop who grabs somebody at the scene of
a crime and starts asking questions doesn't have a videotape
available.
Mr. Cassell. For those circumstances, I think we could go
with an audiotaping requirement. This is currently the law in
Alaska and Wisconsin, two States that have implemented it. And
it is, I think, certainly an experiment that we ought to think
about in----
Chairman Leahy. Well, let's go into this Miranda. You told
Senator Durbin your concern was not with the Miranda decision
by itself, but the fact that an act of Congress was being
ignored. And yet the Reagan administration certainly didn't try
to defend that act of Congress. I certainly wouldn't call them
soft on crime even though crime went up throughout the Reagan
administration. The Bush administration didn't call it--didn't
seek to defend it, even though crime was going up during that
time. Actually, the last administration, crime came down 8
years in a row, but they also took a similar position.
Do you have a problem with the Miranda warning? Do you
think we should do away with the Miranda warning?
Mr. Cassell. Senator Leahy, I would first like to comment
on the factual question there, whether the previous
administrations did support 3501. I think actually former
Attorney General Edwin Meese and former Attorney General Bill
Barr submitted either letters or testimony to this committee
several years ago.
Chairman Leahy. You are talking about before the courts.
Mr. Cassell. Yes, that they had asserted 3501 before the
courts. There was a case actually in 1988, if memory serves me
correctly, where the Reagan administration argued that
position. There was a case in the Bush administration as well.
Perhaps I could refer the Senator--I don't recall all of the
details or the case citations of those cases, but I have
written a Law Review article on this subject that appeared in
the Iowa Law Review where I----
Chairman Leahy. I read it.
Mr. Cassell [continuing]. Reflected all the relevant
citations. So perhaps that could serve as----
Chairman Leahy. I will read it again.
Mr. Cassell [continuing]. My views on that point.
With respect to the question of whether I disagree with
Miranda warnings, I have tried to be very clear in my Law
Review articles. My concern is not with the warnings
themselves. It is with the way in which the courts potentially
exclude voluntary evidence when there is some technical
question about the way in which warnings have been delivered or
the timing at which they were given. This I think is a concern
that this committee shared in 1968 when it passed a law----
Chairman Leahy. Could I just double-check? Did you not say
in one article that Attorneys General like John Mitchell and Ed
Meese knew about 3501 but no serious efforts were undertaken to
reverse the Johnson administration policy or to secure any
determination of the constitutionality of the law, and that an
1987 recommendation by DOJ's Office of Legal Policy that an
aggressive effort made to test the law was never adopted?
Mr. Cassell. I am not familiar with the specific quotation
that you are drawing from. I have no reason to doubt that that
is perhaps part of an article that I've written at some point.
Chairman Leahy. Miranda's Hidden Cost, National Review, 12/
25/95, page 30, written by and Stephen Markman.
Mr. Cassell. That was an article written by Justice
Markman--or currently Justice Markman on the Michigan Supreme
Court and I. As you mentioned, it comes in a popular journal,
the National Review. The more extended treatment of the issue
is in my Law Review article in the Iowa Law Review where I
covered all of the----
Chairman Leahy. So if your Law Review article contradicts
what is in National Review, we should rely on that Law Review
article? Is that your position?
Mr. Cassell. I don't think there's any contradiction, but
certainly if there were to be some contradiction discerned, the
Law Review article was--the basic problem--I don't know----
Chairman Leahy. Fair enough. I just wanted to make sure
which one to rely on.
Mr. Cassell. The problem with those popular articles is
that sometimes because of space limitations the editors
compress a very complicated subject into a few words that
doesn't capture----
Chairman Leahy. Those pesky editors, who then put your name
on the article.
Mr. Cassell. I am sorry?
Chairman Leahy. I said, those pesky editors, who then put
your name on the article.
The concern has to be because a Federal judge, especially
today, has a great deal of criminal jurisdiction. I have said,
and I think I voted for 99 percent of President Reagan and
President Bush's nominees, half of the current President Bush's
nominees. But what I have said in voting for somebody to
especially be a District Judge, a trial judge, I ask would I
feel confident coming before this person, whether I was male or
female, plaintiff or defendant, Government or defendant,
irrespective of my age, my political affiliation, whatever my
position, would I feel that I was being treated fairly?
Now, there is a concern by some that if you a criminal
defendant you would not be able to look at a Judge Cassell and
feel that way, that if you were the State or if you were the
prosecutor, as both Senator Specter and I have been, then you
might be in pretty good shape, but if you are the criminal
defendant you would not.
So help me out here. If the criteria is--and I have heard
many other senators in both parties of this committee say this
is also their criteria, that they want a judge that no matter
who you are, you are going to be treated fairly. How do we get
around this question of whether you treat defendants fairly?
Mr. Cassell. I think one way, Senator, would be ask the
people that have seen me in action on a daily basis over the
least 10 years. Those are me students in my classes. There is a
student evaluation form that they complete anonymously at the
end of every term for the last, as I say, last 10 years, and I
have always scored very, very highly on measures that would
suggest that I am a fair person in class, that I look at both
sides of the issue.
One of the things I am proudest about in my teaching career
over the last 10 years is I have had a number of students come
up to me and say, ``Professor Cassell, we feel unable to
express our views in other classes. We're shy or we're
intimidated or we're afraid the professor is going to jump on
us, but in your class, Professor Cassell,'' I've been told a
number of times they feel that they're able to speak out.
The other thing that I'm very proud about is that my
classes--I think the committee could certainly inquire of
former students--I think have always been recognized----
Chairman Leahy. We probably will, so go ahead.
Mr. Cassell. Great. The former students I think would tell
you that my classes have always been marked by an openness to
the discussion that both sides of all issues are presented, and
that I think, frankly, in some law school classes, hopefully
not very many at our school, but at other schools, is sometimes
not the way classes are conducted. And I think, again, if the
committee were to talk to people who know me the best, have
seen me in action in my primary job over the last 10 years,
they could come away with some comfort about my ability to
fairly consider both sides of all the issues.
Chairman Leahy. Considering your very harsh criticism of
Justice Rehnquist's decision in the Dickerson case, would you
still feel bound by Dickerson as stare decisis?
Mr. Cassell. Absolutely, Senator.
Chairman Leahy. How difficult would it be to set aside your
personal feelings and years of advocacy for a different result?
Mr. Cassell. I understand quite clearly that there's a
difference between being an advocate and being a judge. And as
to how difficult it will be, I guess I am encouraged by the
experience of several jurists that I admire greatly. Thurgood
Marshall was, of course, an advocate for many years, both as a
Solicitor General, during which coincidentally, he argued, I
think basically the same position that I argued on Miranda,
argued for the rights of African-Americans around the country.
Ruth Bader Ginsburg argued for the equal rights for women. Both
of them went on to be I think very fair-minded and open-minded
jurists, and I'm hoping to follow in some modest way the
example that they set, which was going from the role of an
advocate to going to the role of a fair-minded and open-minded
jurist.
Chairman Leahy. Your scholarship in Miranda, and of course
as a professor you can take any position you want, but there is
strong substantial criticism for failing to acknowledge
contrary legal authority in opposing viewpoints. George Thomas
wrote in the Legal Times on August 12th, 1996, quote:
``Scholars have a duty to describe all the evidence and to
acknowledge contrary interpretations if they are widely held.
Professor Cassell draws a one-sided picture of the evidence
against Miranda.'' I quote that because, again, using this
definition, am I going to be treated fairly, not in a law class
of a Professor Cassell, but in the Federal District Court of
the Judge Cassell, do you feel that you can listen to both
sides, and do you feel the criticism of your legal scholarship
is justified?
Mr. Cassell. Perhaps this would be an appropriate point in
the record, Mr. Chairman, to put in a record which I--a letter
which I understand Professor Thomas has sent to the committee.
I haven't seen it, but I've been advised that he sent a letter
to the committee supporting my nomination and saying while
we've had our academic disagreements on Miranda and some other
legal issues, he nonetheless thinks I could be fair minded. I
don't want to put words in his mouth.
Chairman Leahy. I am sure that we have such a letter. If
Senator Hatch would want to put it in the record, of course, I
would have no objection to that, but let us go back to my----
Senator Hatch. I have a bunch of--I will put a bunch of
letters in.
Chairman Leahy. Let us go back to my question though. Do
you feel that notwithstanding the criticism in the past, that
you can set aside such an advocacy position and listen to both
sides?
Mr. Cassell. Yes, I do, Senator. In fact, again, one of the
things that I've done over the last 10 years in my law
professor position has been to look at both sides of legal
issues and to try to understand where both sides were coming
from, and I understand that that's certainly an important
attribute of a judge, if not the most important attribute.
Chairman Leahy. Is this what you were doing then with
Miranda when you first wrote that the purpose of Congress to
overrule Miranda, as a slap in the face of the statute, was
explicitly expressed by both supporters and opponents of the
measure during Congress's consideration of it, but when Justice
Stevens in Dickerson asked you directly, ``Is it your view that
3501 was intended to overrule Miranda'', you responded, ``It
was not intended to overrule Miranda.''
Was there a change in your views or was there a change in
whether you are a columnist or an advocate before a court, or
is there some other reasons?
Mr. Cassell. Yeah, I think there is some other reason,
Senator. I think the best way to describe what Congress did in
Section 3501 was to replace Miranda. I think colloquially, in a
popular article, one could call that overruling Miranda. I
think in a more precise legal dialogue, which is the kind of
dialogue one has with a Supreme Court Justice, one needs to use
more precision, and in that--again, I think rather than relying
on just a brief shorthand comment, I filed a 50-page brief in
that case which fully set forth my views. I know that Senator
Hatch also----
Chairman Leahy. Do you feel that your views in responding
to Justice Stevens were different at all from your views that
you had expressed in earlier writings?
Mr. Cassell. No.
Chairman Leahy. So they are perfectly consistent?
Mr. Cassell. I believe that the terminology was different,
giving the differing circumstances that surrounded each of
those quotations.
Chairman Leahy. In August 1997 you co-authored a ``Wall
Street Journal'' article with Paul Kamenar, entitled ``Another
Law Janet Reno Doesn't Like.'' It starts off by saying, quote,
``Why does the Clinton Justice Department continue to team up
with criminal defense lawyers to let armed felons and other
criminals escape prosecution?'' Close quote. I mentioned it
because I thought it interesting, because this is--in the 27
years I have been here, this is the first time I have seen any
administration, Republican or Democrat, where the crime rate
went down every single year, and it did for 8 years. You went
on to attack Attorney General Reno for failing to use 18 USC
Section 3501, the Miranda statute, even though prior Republican
and Democratic administrations had followed the Supreme Court
by this statute. You also chided her for refusing to appoint
Independent Counsel in a campaign finance investigation.
The concern I have in the article--it is always in the eye
of the beholder--but that it was highly partisan and
ideological. If you take the opposing view from you, contrary
to the way you described how you would look for opposing views,
that they are not just wrong, but they are dishonest, they are
disreputable, they are unethical, or all three, is that an
attitude you would carry forward into a courtroom?
Mr. Cassell. Well, Senator, I don't think I used any of
those terms that you have just used in that article. Another
point I'd make is I see two of my former clients in one of the
cases that I was writing about there----
Chairman Leahy. Why do they team up with criminal defense
lawyers, let armed felons and other criminals escape
prosecution--I will put the whole statement in the record,
but----
Mr. Cassell. As I was saying, I see Senator Sessions and
Senator Kyl here. I filed a brief on their behalf and on behalf
of several other senators. What happened in that case, Senator,
was in my view quite unusual, and if there is strong language
in the article I think it's because of the unusual
circumstances there. A career prosecutor had filed a brief in
the Fourth Circuit invoking an act of Congress. Later, a
defense attorney called political officials in the Justice
Department and asked that those political officials withdraw
the brief of the career prosecutor that was being used to try
to convict a dangerous felon, and the political people at that
point withdrew the brief from the Fourth Circuit.
Now, I have never seen a case like that that I can recall,
and that's why I filed a brief, again, along with several other
senators that were very concerned about those circumstances and
made the point to the Fourth Circuit.
I should point out that I believe the Fourth Circuit shared
our concern in that case and another case, the Leong case, and
called for some additional briefing on the point, and
ultimately agreed with the view that I was articulating, along
with the view that Senator Sessions and Senator Kyl were
articulating, that this act of Congress took precedence over
the other Miranda rule, so I think our concerns were well
founded there.
Chairman Leahy. The Chief Justice felt otherwise, and seven
Justices felt otherwise.
Mr. Cassell. That's correct.
Chairman Leahy. And notwithstanding the rather harsh words
you had about their decision, you would follow their decision?
Mr. Cassell. Well, I don't think I used harsh words. Again,
I'd ask that the Law Review article, which goes on for, I
think, 50 or 60 pages, speaks for itself on that point. I
certainly exercise what I guess is the prerogative of anybody
who loses a case, which is to write a Law Review article
disagreeing with the result.
Chairman Leahy. Obviously, we have differing views. Maybe
we are a little bit easier going in a little State like
Vermont, but when you call Justice Rehnquist's decision ``a
remarkable example of the imperial judiciary,'' I find that a
tad harsh. It is your view that it is not. Well, and you have a
right of course to take whatever view you want. I want to get
on to questions for others here, but I just want you to know I
consider that harsh. And I have certainly had decisions where I
have disagreed with the Supreme Court, but the Supreme Court's
decision, whether you agree or disagree with it, is the final
word.
Mr. Cassell. Yes, Senator.
Chairman Leahy. I want to go to others and then I want to
get back. I do not want Judge Africk or Davis to think that
they are only spear carriers here. You are not. This is a very
important thing.
But I do note that the National Association of Criminal
Defense Lawyers, and its Utah affiliate, have opposed your
nomination. They argue that your partisan fervor raises
questions about your ability to provide a fair hearing and
judge objectively in criminal cases.
Is there anything you want to say to that? And we will put
their statement in the record too of course.
Mr. Cassell. Yes, Senator, I think that they haven't looked
at my entire record in reaching that conclusion. There are a
number of articles that I've written that have argued positions
that are favorable to criminal defendants. The very first
article that I wrote when I arrived at the University of Utah
advanced an argument that some of the Supreme Court's decision
upholding a death penalty were actually too broad and should be
reconsidered. So if you look--I've argued for videotaping of
police interrogations. I've argued for DNA testing to
potentially exonerate persons who have been convicted of
capital crimes, and I've also represented a number of crime
victims who--on a pro bono basis, who have had no other way to
have their views presented to the criminal justice system, so
I've certainly tried to be sensitive to those who are facing
state power and don't have a voice in the legal system to speak
for them, and I would hope that those kinds of things would be
considered along with--I haven't had a chance to see the letter
from the National Association of Criminal Defense Lawyers----
Chairman Leahy. We will make sure you have a copy and you
feel free to respond, because the record will be kept open. A
number of other senators have questions for you, and obviously
that or any other answer, if you want to expand on it,
obviously, you will be given that opportunity.
Mr. Cassell. Thank you, Mr. Chairman.
Senator Hatch. If I can make one comment. It is not unusual
for law professors to criticize the court. In fact, it is not
unusual for the Justices themselves to criticize each other,
and sometimes the criticisms are considered quite harsh. That
is how we handle the law. That is how we refine the law. It is
how we get so we understand the law. It is how we sometimes
reach the conclusions in the law. So the only key here is, is
will you apply the law?
Mr. Cassell. And the answer to that is unequivocally,
absolutely yes.
Senator Hatch. You know, I knew that was what your answer
would be because I know you very well.
Chairman Leahy. Senator Specter has been waiting patiently,
and it is his turn.
Senator Hatch. Right. I did not take my turn.
Senator Specter. That is not true, Mr. Chairman. I have not
been patient. [Laughter.]
I have stayed. Customarily, there are not too many senators
who attend confirmation hearings. I have been staying to
protect Judge Davis in the event there was any tough line of
questioning. I think it is relatively safe for me to leave now.
Chairman Leahy. He is doing okay.
Senator Specter. As long as there are no questions asked of
you, you should be explicitly advised you have the right to
remain silent. [Laughter.]
I would like to comment just a bit on the issues raised
before Professor Cassell. If you said they are an imperial
judiciary, I think the most serious charge that could be
leveled against you would be plagiarism, not excessive
rhetoric. One of the members of this committee had some tough
things to say to the Courts last week I think in the presence
of the Chairman and the Ranking Member. I have tried to get the
Court on television so we could follow what they do. They have
gone far and wide on the Commerce Clause and on States' Rights.
I think to say that they are imperial is a vast understatement.
There may be some institutional concern that I have on the
separation of power, but on the Miranda issue you have said you
are going to follow the law, and you really do not have a whole
lot of choice on that as a District Correct Judge if confirmed,
and I think you will be.
I appeared in this room in August of 1966 before the
McClellan Committee, testifying about the impact of Miranda on
criminal trials. I was DA of Philadelphia at the time, and I
was very much concerned about the retroactive application of
Miranda and tried to get it changed. I had a case where a cab
driver was robbed and murdered, a case called Commonwealth v.
Hickey. It occurred in May of 1966, and the defendant was
arrested in May of 1966 and not surprising, the defendant did
not get the Miranda warnings which were not articulated until
June 13th, 1966, but that confession was thrown out of court on
grounds of retroactivity.
I then brought a case and had cert. granted in a case
called Commonwealth of Pennsylvania v. Weir, where a man was in
an insane asylum in 1963 charged with five burglary murders. He
had a habit of pushing old women down steps. And he came out in
1968, and we could not use his confessions. We obviously could
not--the police could not give him the warnings until 1963
because they did not come down till 1966, and the Supreme Court
granted cert. in that case. And then the Pennsylvania Supreme
Court decided the case on State Court constitutional grounds to
render the U.S. Supreme Court decision moot.
And this business about the Omnibus Crime Bill of 1968, I
argued that case in a case called Kupp v. Oregon, representing
the National DA's Association in 1969, and that was a case
which arose in 1965 under Escobito. And I made the argument to
the court that an act of Congress was presumptively
constitutional, fairly well-accepted principle, and that the
due process clause to the Fourteenth Amendment, which picked up
the Fifth Amendment privilege against self incrimination and
the Sixth Amendment right to counsel could be no more expansive
than the Federal law. And the Chief Justice Warren looked down
at me--and we were arguing Escobito. He said, ``But if Escobito
goes, so will Miranda.'' And I said, ``Well, Mr. Chief Justice
I can't control that.'' I won the case unanimously. Last time I
was there I lost a case unanimously. But the Court did not
refer to that.
But I think in an advocacy context, go to it, Professor, as
long as a Judge you will follow the law, and I am sure you
will. Now, I think Miranda overall has been a good decision. I
think the police have accommodated to it, but where a
prosecutor or a litigant wants to challenge retroactivity, it
seems to me that is perfectly justifiable, and if you want to
re-raise the issue in the Court, the Courts can take care of
themselves, even with professors on the other side.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. I just wanted you to know, Judge
Davis, we will be hitting with a very tough question. Is he
willing to uphold the law and follow stare decisis, but if you
are willing to take your chances on his answer to that, of
course I know you have other hearings.
Senator Specter. Senator Leahy, Judge Davis did not need me
here at all.
Chairman Leahy. Well, Judge Davis would not be here without
you so.
Senator Specter. That is true, that is true.
Chairman Leahy. And he has spoken very--Senator Specter has
spoken to me privately before, very strongly in your behalf.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I wanted to be here
for this hearing to especially support the nomination of
Professor Paul Cassell. I do not know either of the other two
candidates, but their records are outstanding, and I would hope
that we could quickly approve all three members of this panel
on to the full Senate for consideration.
Because of the questions that you have asked Professor
Cassell, let me just make a couple of points. He has a
reputation of fairness and reasonableness and objectivity that
is as fine as any candidate that I think we have ever had come
before us. Like a lot of other very smart active people, he has
taken positions before. It will be in the record and he will be
able to read it then I think.
He has taken positions, and I would hope that because
someone has an active legal mind and is willing to propose
solutions to problems that may not be strictly conforming to
the norm of the time, that that will not disqualify a candidate
from being considered, especially when that candidate has made
it very clear that he will abide by the precedence of the
Supreme Court and there is nothing in his record to suggest
anything but that.
There is one area in which a judge, however, has an ability
to continue to pursue matters that interested them before they
sent it to the bench, and in that sense to continue to be
activist. And, Mr. Chairman, I have in mind supporting the
rights of victims of crime, because we know that while some of
those rights are embodied in legislation, and of course some of
us would like to see them embodied in the Constitution as well,
the primary method of supporting rights of victims of crime is
for judges to be cognizant of what those rights are and to be
very forward leaning in the protection of the victims of crime
as they appear before them in court. If the prosecutors and the
court personnel and the judges are on top of those things, and
are willing to support the rights of victims of crime, then
generally they can do all right in the courts. But if they are
not, then we have found, unfortunately, according to the
Justice Department that crime victims can be disadvantaged.
One of the reasons that Judge Cassell's nomination is so
important I think here is that he has been a leader in victims'
rights advocacy, and as a result enjoys widespread support
among national victims' rights organizations. I think they
would very much like to see a leader like Judge Cassell
elevated to the bench because of his ability to continue----
Chairman Leahy. He is still Professor Cassell.
Senator Kyl. I am sorry. Did I misspeak?
Chairman Leahy. No, that is all right, you can call him
whatever you want, but I just thought being a professor is a
hard enough job anyway. He ought to at least be able to enjoy
the title.
Senator Kyl. If I misspoke, I apologize. But groups like
the National Organization for Victims Assistance, Parents of
Murdered Children, The Stephanie Roper Foundation, National
Crime Victims Amendment Network, and many others, including in
specific States like California, and Arizona and others, are
very strong supporters of Professor Cassell because they know
of his advocacy for their cause, and this is a situation of
which there is no difference of opinion with the Supreme Court
and where he would have the ability to continue to try to
protect their rights as a member of the bench.
So I would hope that all of these things would be weighed
in the committee's determination as to whether or not to pass
Professor Cassell's name on for consideration to the full
Senate. And based upon his stellar background, his obvious
intellectual ability, his law school, his law review, his
teaching, his advocacy before the U.S. Supreme Court and other
things, that we would agree that this is one of the most
eminently qualified candidates for the Federal District Bench
that we have had before us. And, frankly, I am proud of the
fact that he has been willing to take even perhaps unpopular
positions in matters and to advocate those positions to the
extent that he believes that they would better round out the
law. It has been made very clear that he would support the
Court's ultimate decision in those kind of cases.
I was going to ask the same question that the Senator from
Utah asked, and obviously, I do not need to do that anymore. So
if any of the members of the panel would like to comment on
what I have said, they are certainly free to do so. And,
Professor Cassell, you are as well.
Finally, Mr. Chairman, I would just say as a personal
matter, I have known Professor Cassell now for several years,
because as you know I have worked on these crime victims issues
as well, and I just do not know a finer candidate for our
consideration to the Federal District Bench than Professor Paul
Cassell.
Chairman Leahy. Senator Kennedy.
Senator Kennedy. Thank you very much, Mr. Chairman. And I
apologize that we were unable to get here earlier for the full
discussions, but I will read the record over and look forward
to it. And some of these matters might have been gone through,
but I would like to see if we cannot have the response to the
questions.
And this is for Professor Cassell. I know that you have
been asked, as I understand from the staff, from the Chairman
about your views on Miranda. And I was interested that after
your loss in the Dickerson case, you stridently criticized the
Supreme Court and called Chief Justice Rehnquist's ruling ``a
remarkable example of imperial judiciary.'' Most disturbing you
found solace in the fact that Justice Scalia, in dissent,
declared that he would ignore the majority's ruling and
continue to apply the Section 3501 in all future cases, and you
described his extraordinary show of disregard for the
majority's ruling as a silver lining in the dark cloud of
decision.
You made the statement less than two years ago. Do you
stand by it today?
Mr. Cassell. Yes, I do, Senator.
Senator Kennedy. You stand by your statement that Judge
Rehnquist's ruling is a remarkable example of imperial
judiciary?
Mr. Cassell. I do, Senator.
Senator Kennedy. And you also stand by your statement that
Justice Scalia said he would ignore the majority's ruling and
continue to apply it. Do you support that position?
Mr. Cassell. As an academic, I believe that Justice
Scalia's decision was very well reasoned, and as I have
suggested earlier, the article that I believe you are quoting
from is what might be called a loser's prerogative. I certainly
recognize that seven Justices rules against me. That's the law
of the land and I will follow it, but it seems to me that the
least a loser could do is write a Law Review article praising
the dissenting opinion in a case.
Senator Kennedy. My concern is if you are confirmed as a
judge how we can be sure that you will follow the binding
precedent that you strongly, strongly differ with.
Mr. Cassell. Senator, I can assure you that no one is more
well aware of what the majority said in the Dickerson decision
than I am. I read that within minutes of it being released from
the Supreme Court, and I am fully aware of the parameters of
that decision. That is the law of the land. That will be the
law that I will apply.
There is, of course, a difference between one's role as an
advocate or an academic and the role that one undertakes when
one becomes a United States District Court Judge. Those roles
are completely different. The role of a District Court Judge is
to follow the law of the land, and Dickerson is the law of the
land.
Senator Kennedy. Well, the reasons--I mean that is a
standard boilerplate answer which we expect, but you seem to
add a personal characterization about your own strong personal
views on this, and that is why the question is particularly
relevant, being able to separate your own view when you have
been rather harsh in terms of the criticism of the holding. I
mean I think that is where you expect people to be supporting
the law of the land. We do not often have nominees for there
that are as outspoken and as critical in personal terms really
of the Chief Justice or the members of the Court as you have
been, so that is why that is particularly kind of a question.
You are separating yourself from your own personal views that
were very direct and extremely critical of the Chief Justice
Rehnquist and of the majority in that case.
Mr. Cassell. Could I add one thing, Senator?
Senator Kennedy. Sure.
Mr. Cassell. I do not think I criticized the Chief Justice
personally. I did criticize the opinion professionally.
Senator Kennedy. Well, the ruling ``a remarkable example of
imperial judiciary.'' I mean you can say that that is an
academic, that is--we will leave it to others, that may draw
their own conclusions on that.
On the issue in October 20th the panel of the Fifth Circuit
Court of Appeals denied the habeas corpus relief to a Texas
death row inmate, whose lawyers repeatedly slept through his
trial for substantial periods of time. I know you are familiar
with this case. You defended that decision on National Public
Radio, stating that there was no real suggestion that the
defendant was innocent. The en banc Fifth Circuit disagreed. It
reversed the panel and granted the inmate relief. It held that
when a court finds on the basis of credible evidence that the
defense counsel repeatedly slept as evidence was being
introduced against a defendant, that defendant has been denied
counsel at a critical stage of the trial. Do you agree or
disagree with the holding of the en banc Fifth Circuit?
Mr. Cassell. I have not had an opportunity to study all of
the ramifications of the en banc holding. The en banc holding,
as I understand it, relies on two particular issues, first of
all, an interpretation of the presumptive prejudice rule in
Strickland v. Washington, and secondly a question of
retroactivity under Teague v. Lane. As I recall, the decision
is 9 one way, 5 the other. There is a concurring opinion as to
the Teague issue. The Strickland issue I think was 7 or 8
judges. So it's a very complex decision, and--but there are, I
believe, two dissenting opinions as well that dissent on
varying points of those two particular doctrines. So it's not a
decision that I've studied in great detail. As you suggested
with your earlier questions, the focus of my academic research
has been on Miranda, but I am generally aware of the Fifth
Circuit's decision en banc.
Senator Kennedy. Well, do you agree or differ, when a State
court finds on the basis of credible evidence that defense
counsel repeatedly slept as evidence was being introduced
against a defendant, that defendant has been denied counsel at
a critical stage. Would you agree with that statement?
Mr. Cassell. That sounds about right to me, Senator, yes.
Senator Kennedy. I am sorry, I did not hear.
Mr. Cassell. When counsel repeatedly sleeps through
critical stages of a trial, absolutely, that sounds to me like
a denial of Sixth Amendment right to counsel.
Senator Kennedy. Last year Justice O'Connor observed that
more than 90 death row inmates nationwide have been exonerated
since 1973. She said there were serious questions about whether
the death penalty is fairly administered in the United States,
and added, ``The system may well be allowing some innocent
defendants to be executed.'' You, on the other hand, have been
described as the academic world's foremost defender of capital
punishment. You have described as an urban legend, possibility
that an innocent person has been put to death. In response to a
study showing a 68 percent error rate in capital cases by
stating that this statistic might be viewed as a reassuring
sign of the judiciary circumspection before imposing the
ultimate sanction. And most incredibly, you have argued that
the failure of the United States to execute more people has
sent a deplorable message and has undoubtedly led to more
deaths. Your views on the death penalty depart dramatically
from Justice O'Connor, and others, who even if they support the
capital punishment, are concerned about unfairness in its
implementation and possibility of wrongful execution.
How can we be assured that you will put aside personal
views if you are confirmed as a Federal Judge?
Mr. Cassell. Well, first of all, with respect to the
factual premises in that question, I am not certain that my
views differ from those of Justice O'Connor. I share Justice
O'Connor's concern that we have to be very, very careful about
the prospect of executing an innocent person. Justice O'Connor
has also expressed her concern that in some situations the
appellate review process, habeas review process at multiple
levels, extends cases unduly, and creates unnecessary anguish
for family members who have lost a loved one in a homicide.
The question of course in these cases is to strike a
reasonable balance between those competing concerns, and in my
view, that balance is not one for a judge to strike, but for
Congress to strike. Congress has drafted the laws dealing with
habeas corpus, and those will be the laws, as a Federal
District Court Judge that I will apply. And I give you my
assurance, Senator, that when a capital case comes before me,
no less than any other case, I will fairly apply the laws that
govern that situation, and if a death row inmate is entitled to
relief, he or she will get it, and if he is not entitled to
relief, he or she will not get it.
Senator Kennedy. Your comments in the congressional
testimony and writings often accused the Clinton administration
of misleading the courts with respect to Miranda. I believe
your comments in the DOJ's defense, Miranda was driven by
politics and not by legal analysis, argued that it has been a
clear constitutional abdication on the part of the Executive
Branch in the last several years during the tenure of the
Clinton administration, in the American Criminal Law Review,
``Will Miranda Survive?''
And you took specific aim at then Attorney General Janet
Reno, accusing her of impeding the enforcement of a statute and
teaming up with defense lawyers to let armed felons and other
criminals escape prosecution.
Did you ever take note that the Reagan and Bush
administration also declined to defend 3501?
Mr. Cassell. No, Senator, I didn't. I did take note of the
fact that both--the reasons I didn't was that Attorney General
Meese, Attorney General Barr both, I believe, submitted
statements to this committee indicating that they had actually
taken affirmative action under that statute during their
tenures, and it was their policy during their administrations
that--they took the view that 3501 was constitutional. So that
was the view that I took note of, as expressed by the former
Attorneys General.
Senator Kennedy. You are saying that they believe that it
was constitutional?
Mr. Cassell. That's what they said, yes, Senator.
Senator Kennedy. But they did not--they viewed it was
constitutional, but they did not take action under it?
Mr. Cassell. They did, but in a limited number of cases,
Senator.
Senator Kennedy. I just did not see where they had.
Mr. Cassell. There is a case in 1987, United States v.
Goudreau, where Attorney General Meese authorized a 3501 brief.
There was another brief, I believe it was United States v.
Cheely, filed either during the waning days of the Bush
administration or the early days of the Clinton administration.
Chairman. Leahy. If I can interject, they did not direct
their law enforcement, FBI and whatnot, to take that position,
did they?
Mr. Cassell. They directed their prosecutors to take it.
There was a 1969 Justice Department memorandum that was----
Chairman Leahy. But not their law enforcement, the
thousands of agents and others who were on the street, who
would be the first person the prospective defendant might come
in contact with?
Mr. Cassell. They directed compliance with 3501 for law
enforcement agencies. The 3501 still envisions law enforcement
agencies giving warnings. What it doesn't envision is
suppressing voluntary statements when there is a technical
issue about how the warnings were delivered.
Senator Kennedy. I do not know whether--we have all
received these number of letters. I do not know if you are
familiar with them, but I was rather surprised at the number
from attorneys in Utah that have written to us. Ronald Yengich,
who is an attorney in Salt Lake City; Clark Donaldson, again in
Salt Lake City, in particular talking about your disturbing--
``Cassell about his extremist views; he has shown a repeated
tendency to eschew the truth when it did not suit his
preconceived views of what the law--for example, his claim that
the Miranda decision led to repeated clearance rates on serious
crimes is unsupported.'' And then they list four or five lines
of different citations on this. ``Most disturbing of his
behavior is a number of distorted factual representations.''
And Gilbert Athey, who is, I guess, the past president of the
Utah Association of Defense Lawyers.
I do not know whether you have had a chance to see these
and have any opportunity to react or respond to them. I think
you ought to have a chance to do so.
Christine Rogers, who is from Salt Lake City, and Mr.
Bugdon, Walter Bugdon, and others. I do not know whether you
have had a chance to see them, whether there is anything that
you want to comment on it, or whether you ought to have a
chance, since they make representations, to respond.
Mr. Cassell. Yes, I appreciate the opportunity to respond.
I haven't seen several of those letters. I would say that I
have litigated against several of those defendants--I'm sorry--
defense attorneys. And I think what may be going on there is a
reaction that some of them have, when they're suggesting that
my views are unusual. I think what they're saying in some of
those cases is that it's unusual for victims of crime to have
legal representation.
In Mr. Bugdon's case, I, on a pro bono basis, represented
an 11-year-old boy who had been sexually assaulted by his
father. The case was charged as a first-degree felony and
dropped to a misdemeanor. And the boy was not given an
opportunity to exercise his constitutional right to be heard,
and I think this was the first case in which Mr. Bugdon had
seen an attorney represent a victim of crime to try to assert a
constitutional right, and I took that case to the Supreme Court
and obtained a decision from the Utah Supreme Court just last
week, that in many respects vindicated the rights of crime
victims and sets forth a precedent that I think will long stand
for the proposition that victims of crime have a voice in the
criminal justice system.
In Mr. Yengich's case I handled a sexual assault case of, I
believe it was a 5-year-old girl. The case had been going on. I
think there had been, if I am remembering correctly, 11
continuances at the request of Mr. Yengich. When the 12th
continuance was requested, the family came to me. On a pro bono
basis I agreed to represent the family, and I objected to that
continuance on the basis of a victim's right to a speedy trial.
And again, I think Mr. Yengich was surprised to hear an
attorney articulating and speaking for a crime victim.
Apparently those experiences have allowed them to reach their
conclusions. They are certainly entitled to reach their
conclusions, and I respect that right, but I respectfully
disagree with their ultimate conclusion.
Senator Kennedy. Well, I would hope that you would have a
chance. I read through those. I did not see those mentioned.
Just looking at Mr. Enderton, mentioned that Mr. Yengich is a
criminal attorney. Many people are saying that his comment
should carry little weight, and comments generally go that he
only wrote what was expected because he was a liberal Democrat
and a criminal defense attorney. ``I am neither liberal or a
Democrat. As a matter of fact, I am a very staunch Republican
with very conservative views.''
And then he continued on. ``I believe that Mr. Cassell is
neither qualified nor independent enough to adequately serve on
the Federal Bench.'' And ``Mr. Cassell has consistently pushed
ultra conservative positions.'' And it continues on.
But I think you ought to have a chance to just respond to
these questions. Obviously, there are some serious questions,
at least in my own mind, given the comments that you have made,
about the characterizations that you made both in terms of the
Court and in terms of the holdings that are of concern, to
whether you will be able to be sufficiently independent given
these strong views and whether people will be able to achieve
that kind of independence.
But I would like to submit some other written questions,
Mr. Chairman.
Chairman Leahy. The record will stay open for all members
to submit questions.
Chairman Leahy. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman, and if your time
is wrapping up and you need me to stop, please just let me
know. I just have a few questions I would like to ask.
First, I would like to----
Chairman Leahy. Actually, what I was thinking we may do is
recess until 12:30 and then come back and begin with the
Senator from Alabama, if that would fit his schedule.
Senator Sessions. I wouldn't ask the committee to come back
for me. If you are coming back for somebody else----
Chairman Leahy. I would come back for you any time.
Senator Sessions. No. I am serious. As far as I am
concerned, these witnesses have answered the questions
effectively and I see no reason to continue the hearing for my
questions.
Chairman Leahy. How long did the Senator from Alabama want?
Senator Sessions. Five minutes would be sufficient.
Senator Kennedy. Do you want me to stay for five minutes?
Chairman Leahy. No, no, that is okay.
Go ahead.
Senator Sessions. I salute President Bush for the excellent
nominees that he has made.
Judges Africk and Davis, congratulations to you for being
able to sit here quietly. I know you appreciate that.
[Laughter.]
Chairman Leahy. I have a couple of questions for them.
Senator Sessions. I thank the President for making those
good nominations, and I would note that Judge Davis represents
the second nominee that President Clinton had submitted that
was not confirmed that President Bush has now submitted for
confirmation. I think that demonstrates his desire to be
bipartisan in his nominations.
With respect to the Fifth Amendment right against self-
incrimination, I think it is important to note what the
Constitution says. It says, ``No person shall be compelled in
any criminal case to be a witness against himself.''
Professor Cassell, you have worked on those warnings and
studied all the law and that sort of thing. I believe it was
suggested that one of the lawyers criticized you because you
asserted that criminals have gotten off as a result of the
Miranda warning.
I was a prosecutor for almost 17 years, and it is an
absolute fact that everyday in this country criminals are
getting off as a result of Miranda applications, for two
different reasons. One is some technical violation in its
administration, and the second reason is that they hush up. I
have always believed that confession was good for the soul
myself.
Surely, you can't be compelled to be a witness against
yourself, but in the history of this country, until Miranda,
the courts have never said you had to read somebody the
Constitution before you asked them a question. We might as well
tell them, if you are plain idiot, don't answer. Why don't we
tell them that?
Law enforcement has been hampered as a result of not being
able to ask people questions without these warnings that have
reduced a percentage--10, 20, 30, 40 percent of the witnesses
who may have cooperated previously now no longer do so, making
it more difficult often to apprehend repeat, serial offenders,
like that is the only crime they are going to commit.
That is my little view of this, Mr. Chairman. I know it is
not politically correct, but I remember the Supreme Court
ruling.
Chairman Leahy. The Senator has got another 30 seconds out
of that 5 minutes.
Senator Sessions. All right.
Chairman Leahy. At the end of that 30 seconds, we will
recess for one-half hour and then come back.
Senator Sessions. Mr. Chairman, I am satisfied with my time
at this time. I would not ask the committee to come back.
Chairman Leahy. I want the Senator from Alabama to know
that when we come back at twenty of one, he would still be
recognized, if he wanted to be, and if he wants to take an hour
or two hours, I will be glad to give it to him. I am not trying
to cut him off. Senator Hatch and I discussed this earlier. I
am trying to avoid having to go into this evening by doing it
this way.
We will stand in recess until twenty of one, and if the
Senator from Alabama wishes to come back, I assure him he will
be given whatever amount of time he wants.
[The committee stood in recess from 12:10 p.m. to 12:41
p.m.]
Chairman Leahy. Gentlemen, I thank you, and I apologize for
the delay.
Judge Africk, could I ask you a question? You served as a
Federal magistrate in the Eastern District of Louisiana for
more than 10 years. Am I correct?
Judge Africk. Yes, Senator.
Chairman Leahy. I know in my own State of Vermont how
valuable the magistrates are just to keep things moving along,
and actually doing a lot more than that. But what do you think
would be the most challenging thing for you to go from being a
magistrate to a district judge?
Judge Africk. Well, actually two things I thought about,
Mr. Chairman. The first thing would be that I will be handling
more dispositive motions than I handle now. As you know, unless
there is a 28 U.S.C. 636(c) consent, we have no authority to
handle most civil cases. And in addition to that, I will have
felony jurisdiction and I will be able to preside over felony
criminal trials.
Chairman Leahy. Are you looking forward to that?
Judge Africk. Yes, sir, very much so.
Chairman Leahy. Now, district judges, especially if they
get to know the magistrates better and all, have to rely, and
they do rely on magistrates a lot. But does a district judge
have a responsibility to review the legal research done by a
magistrate, or should the district judge just accept that as
the final word?
Judge Africk. As you know, Mr. Chairman, we write reports
and recommendations on a number of things to the U.S. district
court that can either accept or reject our recommendations.
Depending on whether it is an issue of law or whether it is a
question of fact, the standard would differ.
Chairman Leahy. But do you feel that the district judge has
a responsibility, though, to make sure you are right?
Judge Africk. Yes, sir. I think the district judge has to
look at the entire report and recommendation, and feel
comfortable that the law has been complied with.
Chairman Leahy. Let me ask you a question. You have been a
member of the bar for over a quarter of a century. Of course,
you are welcome to join any group that you want, but some raise
the point that you joined the Federalist Society when this new
administration came in. Did that have anything to do with
wanting to be on the Federal court bench or are we just talking
about a coincidence here?
Judge Africk. Senator, what actually happened is my next-
door neighbor is a Federal judge, U.S. district court judge in
the Eastern District of Louisiana. He is on the advisory
committee at the Federalist Society, and we had been speaking
and he spoke to me about joining the Federalist Society.
I knew it to be an organization that encourages scholarly
debate on things like separation of powers and judicial
restraint. I did not know it to lobby for political-type
issues, and I ended up joining and ended up going to two
luncheon meetings, both of which I was late for.
Chairman Leahy. Usually, if I go to a luncheon meeting of
any group that I belong to and if I am late, I find that I end
up chairing whatever committee there that I least want to be
on. That is always a dangerous thing to do.
Judge Africk. I will be careful.
Chairman Leahy. I assume it is your position that you would
feel bound by the decisions of your circuit even if you
disagreed with them personally.
Judge Africk. Mr. Chairman, I am committed to stare
decisis. It is a positive thing, it is a matter of judicial
restraint. I consider it to be an anchor of the legal system. I
am not an elected representative of the citizens and I will
certainly pledge to you that I will be bound by that doctrine.
Chairman Leahy. It certainly makes everybody's life a lot
easier.
Judge Africk. Yes, sir, it does.
Chairman Leahy. Professor Cassell, I want to go to back to
the--is it Burdine or Burdeen case?
Mr. Cassell. I believe it is the Burdine case.
Chairman Leahy. Burdine, Calvin Burdine. There was some
discussion of that earlier here, and the three-judge panel of
the Fifth Circuit had ruled that a sleeping lawyer can be
effective counsel for a defendant as long as the lawyer does
not doze during important parts of the trial.
Of course, ultimately the full court of appeals reversed
that. But the day after the original three-judge panel, you
said, ``The issue before the fifth Circuit is whether the
disputed''--my emphasis--``disputed claim about a defense
attorney nodding off for a few minutes during the trial is
going to automatically lead to an invalidation of the death
penalty and automatically lead to a new trial. The Fifth
Circuit has just said let's just take a look at the facts.''
Well, to begin with, this was not a disputed claim. The
prosecution and the defense counsel neither disputed the claim
about the defense attorney nodded off. In fact, the prosecution
accepted that they didn't sleep just for a few minutes, as you
suggested, but for substantial portions of the trial. They did
say that they thought he was awake during critical periods.
Obviously, the full circuit found that a sleeping counsel is a
sleeping counsel, and reversed.
So let me just ask you this: If, as the prosecution had
accepted, a defense lawyer falls asleep during substantial
portions of a capital murder trial, is that providing effective
assistance of counsel?
Mr. Cassell. Absolutely not, Senator.
Chairman Leahy. How would you feel if you were presiding
over a case and you found either counsel nodding off? What
would you do as a judge?
Mr. Cassell. Immediately take corrective action.
Chairman Leahy. Which would be?
Mr. Cassell. Among other things, waking them up, but that
would be the----
Chairman Leahy. Well, no, but I mean it may be different,
depending upon the circumstances. It may be a case, too, where
seeing something like that could also create a real problem
with the jury, too. I assume you would be cognizant of that.
Mr. Cassell. Certainly, Mr. Chairman. My point was--
Chairman Leahy. But you wouldn't let the sleeping go on. Is
that what you are saying?
Mr. Cassell. Among other things. I mean, the point is that
is clearly ineffective assistance of counsel and clearly far
below the standards of professional conduct that we expect of
both defense counsel and prosecuting attorneys.
Chairman Leahy. In 1993, you stated before the House
Judiciary Committee that newly discovered evidence submitted
after trial is almost invariably unreliable. Since 1993, we
have seen more than 45 individuals on death row released. In 11
of these cases, DNA was a very significant part. In a number of
cases where people have been locked up for rape or other
assault, DNA has been dispositive in proving not only did they
have the wrong person, but then showing who the right person
was, even the wrong person may have been there for years.
Do you feel that newly discovered evidence submitted after
trial is, to quote you, ``almost invariably unreliable?''
Mr. Cassell. I am not certain about that quotation, Senator
Leahy, but let me say this about that very important issue. I
think it is a critical that those who have been convicted of
capital crimes, no less than those who have been convicted of
other crimes, have the opportunity to present newly discovered
evidence through the courts, not just to the courts, in fact,
but to the executive branch through the clemency process.
We have actually in Utah just last legislative session
enacted legislation to provide DNA testing, again not just for
capital cases but for all cases in which it might exonerate
those who have been wrongfully convicted, and I have supported
that legislation.
We have also started a very interesting project out in
Utah. It is called the Rocky Mountain Innocence Project. My old
faculty colleague, Lionel Frankel, who recently passed away,
has established the project. I have been involved in helping
them fund-raise.
What they are trying to do is to investigate particularly
DNA cases, but other cases as well, in which there may be a
situation in Utah or other Rocky Mountain States where there
could be an innocent person wrongfully convicted. And I have
offered my services once they identify their first case. They
are still working in the fundraising stages, but I have offered
my services on a pro bono basis to try to make sure that that
kind of a terrible miscarriage of justice doesn't go forward.
Chairman Leahy. Thank you.
Let me ask Judge Davis something. You are currently a judge
for the Court of Common Pleas in the--is it the First Judicial
District?
Judge Davis. The First Judicial District, sir, yes, sir.
Chairman Leahy. In your questionnaire, one of the things
that struck me is you have participated in a variety of pro
bono projects. I have been a very, very strong advocate of
judicial candidates being involved in pro bono activities, as I
am for all lawyers. Lawyers have a fairly privileged part in
society and it is one way of giving things back.
You helped in the early stages of establishing a drug
treatment court in Philadelphia. You were the project
coordinator for a special initiative intended to assist
substance-abusing females in addressing their drug use, and
housing, education and health. You chaired the committee which
restructured the pre-trial release procedure in Philadelphia.
Would it be safe to say that you believe lawyers should be
involved in pro bono work?
Judge Davis. Without a doubt, sir. I think that as you
indicated previously, to occupy the exalted position of an
attorney is a privilege. It is nothing that is given to you, it
is nothing that is guaranteed to you, but if you enjoy that
privilege, there is a reciprocal responsibility to return
something to the community.
I had the good fortune of being a Common Pleas judge for 15
years, of being the Director of the Criminal Division for about
8\1/2\ to 9 years, and my objective was to improve the
operation of the Criminal Division in a lot of different ways
so that we could satisfy our responsibility to the public, so
that we could satisfy our responsibility to all elements of the
community without negatively impacting upon public safety. And
the things that you have mentioned, sir, are elements of what I
was able to do with the support and cooperation of a lot of
people in Philadelphia, sir.
Chairman Leahy. Judge, it is over 860 days since President
Clinton first nominated you, and you have been re-nominated by
President Bush. Probably being here today compresses some of
that time in your mind.
Will you give me your assurance, if you go on the district
court bench, that you will do as you have done in the past and
you will view everybody who comes before that court, whether
they are plaintiff, defendant, rich, poor, whatever their
political background, Republican or Democrat--that you will
look at them through the same prism, with the same fairness?
Judge Davis. I will do my absolute best, sir, to give
everyone who appears before me full and complete justice.
Chairman Leahy. Thank you.
Judge Davis. And I would say that I am appreciative to the
support that I have gotten from members of this committee over
the years, and to the fact that I have a hearing today. But
also I am especially appreciative to both President Clinton for
nominating me and President Bush for nominating me, as well,
because it is not a question of right and I feel distinguished
that both Presidents have nominated me, sir.
Chairman Leahy. Thank you very much.
Senator Sessions?
Senator Hatch. Well, could I----
Chairman Leahy. Of course, Senator Hatch.
You will yield to Senator Hatch?
Senator Sessions. Yes.
Senator Hatch. Thank you very much.
You don't mind, Senator Sessions? I would be happy to yield
to you if you would prefer.
Senator Sessions. No, no.
Senator Hatch. All three of you have my support. I think
all three of you will make excellent district court judges. I
am particularly happy to see you finally get here, Judge Davis.
Judge Davis. Thank you, sir.
Senator Hatch. If we can have people like you on the
Federal district bench, all three of you, we are going to
continue to do what is right in this country.
Now, let me just ask a few questions to you, Professor
Cassell. There have been some issues that have been raised.
First of all, I don't think anybody in their right mind would
question your integrity. You just have too much bipartisan
support to have your integrity brought into question.
I just would like to put a number of letters into the
record, and just a few of them, but enough that it makes a
difference.
The State University of New Jersey, Rutgers University
School of Law; this is George C. Thomas, who is a professor of
law, the Alexander P. Waugh Distinguished Scholar. He says, ``I
write to support enthusiastically and without reservation the
nomination of Professor Paul G. Cassell to be a Federal
district judge. I have known Paul for many years and I believe
he will make a highly capable judge. I wrote a letter
supporting his tenure at the University of Utah College of Law
several years ago and he has continued to shine as a legal
thinker and writer.''
Then he goes on about how intelligent you are, and so
forth. Then he says, ``We have dueled in a friendly way in
print.'' So you have both argued with each other, but then
finally he says, ``Professor Cassell and I disagree on some
issues, and yet respect each other. This fact alone says
volumes, I think, about how effective he will be as a judge in
dealing with lawyers and others in his courtroom. I predict
that Paul Cassell will research the law energetically,
understand it as well as anyone can, and apply it fairly and
consistently.''
Douglas E. Beloff, who is a Democrat, an associate
professor of law at Lewis and Clark Law School in Portland,
Oregon, says, ``I am a registered Democrat. It has been my
pleasure to know Professor Paul Cassell personally and
professional for several years and I am writing to urge you to
confirm him.''
He says, ``As his resume reflects, Professor Cassell is
brilliant. He is one of the quickest conceptual thinkers and
writers I have ever met. There is no question he is very well
qualified for the district court position. I would like to
speak to Professor Cassell's character and temperament, which
are extremely well suited for the district court position. And
despite his remarkable intellect and achievement, Professor
Cassell is very gracious and modest. I am aware of him in
circumstances when others were being less than respectful and
he always responded courteously and with dignity. He treats
everyone kindly, listens very well, and responds thoughtfully.
I have also had occasion to see him with his wife and family.
Professor Cassell is an extremely devoted husband and father.
In sum, Professor Cassell's personal values exceed his
intellectual genius.''
Then he goes on to say, ``I understand that Professor
Cassell litigated the issue of whether a Federal statute passed
by the House and Senate altered the Miranda warning. Some may
see this as a sort of talismanic test of how Professor Cassell
views all civil liberties. Nothing could be further from the
truth. As the only professor who has written a law book on the
rights of crime victims in the criminal process, I can say that
Professor Cassell has been a staunch defender of the civil
liberties of crime victims in the criminal process. Paul
Cassell and Laurence Tribe, of Harvard, who argued an election
issue for Gore, have joined in their support of civil liberties
for crime victims. Therefore, to have an impression that
Professor Cassell is somehow generally anti-civil liberties is
frankly laughable. In my experience of him, Professor Cassell's
views, like most thoughtful legal scholars, are subtle and
complex, and cannot credibly be branded with any label. For all
these reasons, I urge you to speedily confirm Paul Cassell as a
District Court Judge for the District of Utah. The citizens of
Utah could not find a better legal mind or a more decent human
being.''
There are a number of other letters that I will put in the
record at this point.
You have said several times, Professor Cassell, that, if
confirmed, you will follow the law. One of the Senators here
said, well, that is a mantra that everybody says when they come
before the committee. I suspect not everybody, but almost
everybody does say that because it is true.
But some of my colleagues have questioned your views on a
couple of discreet areas. So I would like to know why should we
believe that you will balance your views of capital punishment
with the rights of criminal defendants?
Mr. Cassell. Well, I think the record is clear on that,
Senator, that I have worked on issues such as the Rocky
Mountain Innocence Project to try to make sure that those who
are wrongfully convicted have some kind of a mechanism to set
those wrongful convictions aside. I have even written law
review articles in which I have criticized U.S. Supreme Court
decisions that upheld capital sentences. So I think there is a
balanced record there.
I have a number of years as a prosecutor upholding the law,
and all of those factors I think make it quite clear that I
will follow the law. That is not some mantra that I am
repeating, but that is what my record indicates over the years.
Senator Hatch. On Miranda, I think we all have to admit
that Miranda has been both praised and criticized by brilliant
people, good people, honest people. I think both sides have
made points that really must be considered in the overall
concept of the law.
On the other hand, the Congress did pass Section 3501, and
we in Congress believe that when we pass a law it ought to be
followed unless it is found to be unconstitutional. So it was
legitimate for you, it seems to me, to argue that 3501 should
at least protect the right under certain circumstances for
confessions to come into evidence, just to present that as a
broad issue.
You have been criticized here today because you have argued
the other side, but you have said you lost. Now, is there any
reason in the world why you would not enforce in your court the
Miranda warnings?
Mr. Cassell. Absolutely not, Senator. I argued the case and
I lost 7 to 2, and I understand 7 is more than 2, many more
than 2, and I certainly will follow----
Senator Hatch. Well, Section 3501 was a legitimate statute
at the time. Until the Court said that it didn't overrule
Miranda, it was legitimate to argue that.
Mr. Cassell. And, in fact, one of the situations in my home
State--we had a Tenth Circuit ruling on point upholding 3501.
So when I was arguing these things, I was following what the
Tenth Circuit had ruled. And, of course, as a district court
judge in Utah, I will follow not only the Supreme Court's
decisions, but the Tenth Circuit's decisions as well.
Senator Hatch. Well, I am saying even those who have been
on the opposite side of you on the Miranda issue have argued
that you will be fair in applying the law now that it is
established.
I mean, I look at Michigan law professor Yale Kamisar. Now,
he is the Nation's leading advocate, or should I say leading
academic defender of Miranda, and he said, ``Cassell is a smart
guy and even though he doesn't like Miranda, I think he would
apply conscientiously it as a judge.''
Do you disagree with that statement?
Mr. Cassell. Not at all.
Senator Hatch. I don't either. I know that you will.
Do you think that Mr. Kamisar's confidence in your ability
to act fairly as a judge is well placed?
Mr. Cassell. I do, Senator.
Senator Hatch. Now, you have been criticized here today for
referring to the Supreme Court's decision in Dickerson in one
of your law review articles as an example of an imperial
judiciary. It seems to me that at least a couple members of
this committee have made the very same or similar allegation,
first, with regard to the Court's view of the Violence Against
Women Act--that happens to be an Act that I was prime cosponsor
of--in the Morrison case, and just last week with regard to a
number of recent cases.
Do you think that such comments, whether by a Senator or a
law school professor, inherently indicate a lack of respect for
stare decisis and the binding power of Supreme Court decisions?
Mr. Cassell. Not at all, Senator, and I am glad you
mentioned--I am not sure I came up with the phrase ``the
imperial judiciary.'' It may have been borrowed from some
member of this committee, but I think I did use that in one of
my articles.
Senator Hatch. Now, you are not blaming the august members
of this committee for inappropriate language like ``imperial
judiciary,'' are you?
Mr. Cassell. No, absolutely not. [Laughter.]
Chairman Leahy. If they have, if they are ever up for a
judgeship, we will ask them the same question.
Senator Hatch. And I would imagine we would be fair in
saying that they have a right to say what is on their mind and
they have a right to say that they will be bound by stare
decisis and by the law as it is. I think we will take their
word for it, too, as I hope this committee will take your word
for it. You have a reputation of impeccable honesty and
integrity, and anybody who doesn't take your word for it, there
has got to be some question about their impressions.
Let me just put it this way: It is not unfair to criticize
the Supreme Court. That is what law professors do. They sustain
the Supreme Court, they argue for it, and they criticize it.
That is how students learn.
When you teach your criminal law classes, do you cover both
sides of the issues, or do you just cover the ones that you
feel are appropriate?
Mr. Cassell. We absolutely cover both sides, majority
opinions, dissenting opinions, and both sides of the issue.
Senator Hatch. I presume with the Socratic method that you
really forcefully advocate sides that sometimes you don't
accept.
Mr. Cassell. Well, that is part of the academic process, is
to understand both sides of the issue.
Senator Hatch. Well, there is a lot more I could say, but
the important thing here is your integrity, your ability, your
reputation; the fact that you are one of the leading
authorities on criminal law; all the pro bono work that you
have done, helping people who didn't have the money to pay for
their own attorneys; the work that you have done for victims'
rights, rightly or wrongly in the eyes of some members of this
committee, but sincerely done; the really hundreds, if not
thousands of law students that you taught over the years; the
associations that you have.
To me, I don't see how anybody can really justly criticize
you. The fact that you might differ on some points of law--my
gosh, we differ up here on points of law. We differ with the
Federal judiciary on many, many points of law. It is just
something that happens.
I just want to say I have seen a lot of people in my 26
years on this committee come before this committee as potential
judges--district, circuit, and Supreme Court--and I have got to
tell you, anybody who looks at your career has got to say you
rank with the best of them. That is why you have been
nominated, that is why Senator Bennett and I have recommended
you, and that is why we believe in you.
I can personally testify that you will act in a very
honorable, respectful way of the law and of the people and
litigants that come before you and of the attorneys who appear
before you. That I know will be true, and that is one reason
why you were nominated.
Keep in mind, I practiced law in the Federal district court
in Utah and for years we had a judge out there who didn't care
what the law said. He was imperious. I happened to have liked
him, and he liked me, but the fact of the matter was what he
did in many cases was not right. And I have worked very, very
hard to make sure that our district court out there does not
have imperious people, if you want to use that term again, who
ignore the law, who substitute their own predilections for what
the law is, and who may not be respectful of the litigants that
appears before them or the attorneys.
I know that you will be. That is one reason why we have
made this recommendation to the Bush administration, and that
is why, after meeting you, they are enthusiastically in support
of you. And I hope this committee will do what is right by you,
and I intend to see that they do.
So I appreciate all three of you. I am going to support all
three of you. You are going to have an advocate in me, and I
expect all three of you to become excellent judges in the
Federal judicial system, because it is the judicial system in
this country that has saved the Constitution, in my eyes, not
the Congress of the United States, which may criticize some of
your positions from time to time, but should not criticize your
integrity.
Thank you, Mr. Chairman.
Chairman Leahy. We will move Senator Hatch off the
undecided list.
Senator Hatch. That was known before we started.
Chairman Leahy. Senator Sessions, how much time would you
like? Obviously, you can have whatever time you would like.
Senator Sessions. Seven minutes, just a few minutes.
Senator Hatch, you said it well about Mr. Cassell. Just
looking at his record, there has been a commitment to public
service. I know we seem to take pride that young people
volunteer to defend criminals in court and work for them, but
he has volunteered a lot of his time for victims. I don't think
that should be held against him. I think it is a compliment.
But you also, I noticed----
Senator Hatch. He has defended people that have been
accused, too.
Senator Sessions. Yes, and I think it is significant that
with regard to the Rocky Mountain Innocence Project that you
have helped the project in its fundraising, have offered legal
services pro bono and to help the institute survive. So that,
to me, says a lot in terms of your belief in fairness.
I have some things to say about Miranda. I know it is
politically correct today to believe that no one can say
anything bad about it, but I saw it when it came into effect. I
saw the impact on the criminal justice system. I do believe it
did have one good effect; it helped improve professionalism in
the police department. My view is that could have been done in
another way. It would have been just as effective without
having as much adverse impact on the criminal justice system as
a whole.
But let me just ask a couple of questions. What about
Miranda? What was he charged with and what was his personal
criminal history later?
Mr. Cassell. As I recall, Senator, he was charged with
forcible rape and had an extensive prior criminal record.
Senator Sessions. And the decision was a 5-to-4 decision by
the Supreme Court, and that is when they imposed the Miranda
rule, so to speak, as a prophylactic, as I recall.
Now, Chief Justice Warren, the liberal Chief Justice who
issued that opinion--did he say this was a constitutionally-
required remedy?
Mr. Cassell. What he said in the opinion was he encouraged
Congress and the States to consider looking at alternative ways
of addressing the concern about police professionalism that you
mentioned, while safeguarding the rights of law-abiding
citizens. So there was that balance of competing interests
there.
Senator Sessions. And he did not say in the majority in
that case--even the 5 majority did not say that Miranda was
constitutionally required, just as a prophylactic rule, isn't
that correct?
Mr. Cassell. That was certainly my understanding of Miranda
and the subsequent decisions interpreting it, yes, Senator.
Senator Sessions. And with regard to people being on either
side of that case, who was the Solicitor General who argued
against the Miranda case?
Mr. Cassell. It was Solicitor General Marshall, Thurgood
Marshall, that took the position that voluntariness should be
the test rather than some kind of warning requirement.
Senator Sessions. And that is basically your view?
Mr. Cassell. My view, and the view, I think, of this
committee in Section 3501, as I have articulated in my law
review articles.
Senator Sessions. I don't think that is an extreme
position. I think that is a position of real value that is
worth thinking about.
With regard to the death penalty, in my personal view as a
prosecutor, probably 90 percent of death penalty cases are
really open and shut facts. There are some that are close and
they deserve very careful attention. There is so much pressure
in a death case. I know Senator Leahy as a prosecutor
understands it.
You have got a horrible crime, a terrible situation with
the victims, and you may not have a great deal of proof. So
that puts the pressure on the system sometimes. You can't
ignore the case, as you could a minor case with weak proof, and
sometimes you can have a case come out adversely.
I am glad that you believe in the innocence project, that
you would support new evidence that would show somebody to be
innocent. I believe that is important, but it is clear to me
that the Framers contemplated a death penalty in the
Constitution. They make multiple references to capital cases
and capital crimes and putting people to death. So they
contemplated it. Fundamentally, it is approved by the
Constitution.
Let me ask you this: Are you familiar with this new study
from Emory University, entitled ``Does Capital Punishment Have
a Deterrent Effect?'' Three professors there wrote it, and what
did it conclude?
Mr. Cassell. I am generally familiar with the study,
Senator Sessions, and the conclusion there was that each
execution would save a number of innocent lives. I forget the
precise calculation that the professors came up with.
Senator Sessions. As I understand it, the report says that
it could save up to 18 lives as a deterrent effect. If there is
anything like truth there, we should be able in this country to
carry out a legitimate death penalty, making sure that those
who are innocent are not caught up in that net, prosecuting and
punishing by death only those that clearly deserve it, and at
the same time get a real impact on innocent lives that may
otherwise have been lost.
The idea that there is no adverse impact by undermining the
death penalty I do not believe is correct. I believe this Emory
University study would confirm that.
Mr. Chairman, I would offer that for the record.
Chairman Leahy. Without objection.
Senator Sessions. With regard to the ``imperial
judiciary,'' I am sure Senator Hatch has never used that
phrase.
Senator Hatch. I have been a lot rougher than that from
time to time. [Laughter.]
Senator Sessions. It is common around here. I have noticed
a number of Senators use it.
Isn't it a way, Mr. Cassell, of just saying that when a
judge acts apart from the statutory and constitutional power
that he has been given, it is an imperial-like act; that since
they are given a lifetime appointment without a vote of the
American people, there is no way to answer to the American
people; that judges have to have self-discipline and adhere to
the law?
Mr. Cassell. I think that is exactly right, Senator
Sessions. That is one of the reasons I am seeking the position,
is to try to follow the law rather than make the law, as I
think has been done in some cases.
Senator Sessions. Well, your academic record as president
of the Stanford Law Review, one of the great law reviews and
one of the great law schools in America, your history of public
service, your cogent writing, and your insight, I think, is
important. But mostly I believe you are a man of integrity and
ability, committed to the law, and you will enforce it whether
you agree with it or not.
Thank you, Mr. Chairman.
Senator Hatch. Mr. Chairman, 30 seconds.
Chairman Leahy. Of course, I will give you all the time you
want. I just wanted to thank Senator Sessions for coming back.
I know we had to cut him off earlier. I appreciate very much
that he did come back.
Senator Hatch. I do, too. Just 30 seconds.
Just to set the record straight, you also supported Utah's
recently enacted Post-conviction Testing of DNA Act, which is
one of the first laws in this country that provides for State-
financed testing of potentially exculpatory DNA evidence when
DNA testing was not available at trial. You were one of the
principal advocates for that.
Mr. Cassell. I certainly--there were a number of people
that worked on it, so I don't know if it would be fair to
describe me as the principal advocate.
Senator Hatch. No, but I mean you would certainly support
that.
Mr. Cassell. I certainly supported it and I think it is
really a valuable piece of legislation that is up and running
today in Utah to deal with that circumstance.
Senator Hatch. So anybody who would think that you have the
idea of placing capital punishment above justice certainly
would be wrong?
Mr. Cassell. Certainly, Senator.
Chairman Leahy. Professor Cassell, are there any studies
that would support the view that the death penalty may not be
an effective deterrent?
Mr. Cassell. Yes, there are, Senator. There are----
Chairman Leahy. Are there credible ones?
Mr. Cassell. Well, like many academic issues, there are
studies on both sides.
Chairman Leahy. In your view, are there credible ones?
Mr. Cassell. That conclude that it is not a deterrent?
Chairman Leahy. Yes.
Mr. Cassell. I think there are credible studies on both
sides of the question, yes, Senator. It is one of those, again,
where you get a number of criminologists in the room. It is
like having a number of economists in the room.
Chairman Leahy. But you believe it is an effective
deterrent?
Mr. Cassell. I do believe it is an effective deterrent,
yes, in some cases.
Chairman Leahy. I have handled a lot of murder cases. I can
think of a lot of them where it wouldn't have made the least
bit of difference, family murders, things like that, and others
where I suspect it might have. But that is not really the issue
here.
I would mention on Miranda, there seem to be concerns that
somehow a whole lot of people are going free as a result of
this. When I became a prosecutor, Escobito came down within a
matter of weeks after I became a prosecutor, and Miranda came
down. I cannot remember a case where it made any difference.
I had the highest conviction rate of any prosecutor in
Vermont's history at that time, and I think probably the
highest since. I argued more criminal cases before our Vermont
Supreme Court than all the States' attorneys--we call them
States' attorneys in Vermont--than all the States' attorneys
put together for that century, and I won every one of them.
I agree with Senator Sessions that it gave an opportunity
to improve training of police officers, but in my personal
experience I never found a case where it allowed somebody to go
free. I would just mention that for whatever it is worth. I
don't say that as being scientific, but as I say that as one
who usually won his cases.
Mr. Cassell. Unfortunately, we may not be--the people of
various States may not be lucky enough to have you representing
them in all these cases.
Chairman Leahy. Well, I am----
Mr. Cassell. We have a number of good prosecutors in Utah,
but I will say sometimes they need a confession to make the
case.
Chairman Leahy. And we need the Constitution to hold us
together.
Gentlemen, I thank all of you.
Senator Hatch. Can I just ask one? What about Miranda
himself? He was set free.
Mr. Cassell. He was re-tried and the only reason he was----
Senator Hatch. Well, he was set free and then he went on to
rape somebody.
Mr. Cassell. The only reason he was able to be re-convicted
was he told his wife that he was going to get out now, and then
she turned State's evidence and that was a new confession that
enabled his re-conviction.
Senator Hatch. Right.
Chairman Leahy. With that, gentlemen, Judge Africk,
Professor Cassell, and Judge Davis, I thank you all for being
here and being so patient. I also want to compliment your
families, parents, children, and everything else.
You children should tell your parents that they owe you.
You have sat through this very, very patiently.
Thank you very, very much.
We stand in recess.
[Whereupon, at 1:19 p.m., the committee was adjourned.]
[Submissions for the record follow.]
[Additional material is available in the Committee files.]
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NOMINATION OF JEFFREY HOWARD, OF NEW HAMPSHIRE, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FIRST CIRCUIT; PERCY ANDERSON, OF CALIFORNIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; MICHAEL M.
BAYLSON, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA; WILLIAM C. GRIESBACH, OF WISCONSIN, NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN; JOAN E.
LANCASTER, OF MINNESOTA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT
OF MINNESOTA; CYNTHIA M. RUFE, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; AND JOHN F. WALTER, OF
CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF
CALIFORNIA
THURSDAY, APRIL 11, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:37 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl
presiding.
Present: Senators Kohl, Feinstein, Feingold, Hatch, and
Specter.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Good afternoon, and this committee will come
to order.
Today, we welcome a distinguished panel of seven nominees
who are before us. We also welcome the distinguished Senators
and Congressmen who are here to introduce the nominees from
their States. Of course, we welcome the families and the
friends who are here in support.
Judicial nominations are among the most important duties of
the Senate Judiciary Committee. A Federal judgeship is a
lifetime appointment and a job that affects the lives of
innumerable people throughout the course of the judge's tenure.
The job is a great responsibility entrusted to just a very few
people. All we ask is that you administer impartial justice and
obey the Constitution. So we congratulate all of the nominees
on their selection.
We would like to proceed in the following manner. After
opening statements from committee members, we would like the
Senators and the Congressmen on the first panel to introduce
their nominees. Then we will invite all the nominees forward to
take the oath and testify on the second panel.
The second panel will include Jeffrey Howard, to be United
States Circuit Court Judge for the First Circuit; Percy
Anderson, to be District Court Judge for the Central District
of California; Michael Baylson, to be District Court Judge for
the Eastern District of Pennsylvania; William Griesbach, to be
District Court Judge for the Eastern District of Wisconsin;
Joan Lancaster, to be District Court Judge for the District of
Minnesota; Cynthia Rufe, to be District Court Judge for the
Eastern District of Pennsylvania; and John Walter, to be
District Court Judge for the Central District of California.
I myself will withhold my own introduction of Judge
Griesbach, who will soon become the first Federal judge to sit
in Green Bay, Wisconsin, until after our colleagues have made
their statements.
So at this point I would like to ask my colleagues sitting
here on the panel to make any opening remarks they would wish
to make.
Senator Orrin Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
you holding this hearing. I am pleased that the Judiciary
Committee is considering the nominations of seven exceedingly
well-qualified people for the Federal judiciary.
I would like to welcome all of you to the committee and, of
course, our colleagues as well who will speak for them.
Before we discuss the excellent credentials of today's
nominees, however, let me just take a minute to make an
observation about how this hearing fits into the larger picture
of the committee's work on judicial nominations.
Today marks the 337th day since President Bush announced
his first 11 picks to the Federal circuit courts of appeals.
Eight of those nominations have been languishing in this
committee for nearly a year, with no commitments for hearings
or votes any time soon. All eight received the ABA's majority
rating of either ``well qualified'' or ``qualified.''
Among those are some of the very best lawyers in the
history of the country, including Miguel Estrada, John Roberts
and Michael McConnell, just to name three, and the rest of the
eight are terrific people. This committee's unwillingness to
move more expeditiously on these nominations is exacerbating
the circuit court vacancy crisis that exists in America today.
Nearly one in five circuit court seats is vacant all across
America.
When President Bush sent up his first nominees, we had 31
circuit court vacancies, and today we still have 31 circuit
court vacancies. The D.C. Circuit Court of Appeals is one-third
vacant, and the Sixth Circuit, just to mention two, is 50-
percent vacant. Quite a number of these circuit court vacancies
involve emergency areas as well.
President Bush has responded to the circuit court vacancy
crisis by rapidly nominating top-notch men and women. The only
obstacle standing in the way of the nominees' ability to serve
the American people is this committee.
I am glad that we will consider a circuit court nominee
today, but I will point out that in years past, under
Republican leadership, we regularly considered two or more
circuit nominees at a time. In fact, we did so on ten different
occasions.
I am also particularly pleased to see nominees John Walter
and Percy Anderson, from the Central District of California,
here. I will bet they are happy to be here today as well,
considering it has been ten years since they were initially
nominated to their seats during the first Bush administration.
They were both nominated in March of 1992, but unfortunately
the Senate, which was controlled by the Democrats at that time,
denied them a hearing.
Interestingly, they are not the only nominees pending
before the committee today who were nominated by the first
President Bush nearly ten years ago. Terrence Boyle for the
Fourth Circuit, John Roberts for the D.C. Circuit, Henry Saad
for the Sixth Circuit, Leonard Davis for the Eastern District
of Texas, Andrew Hanen for the Southern District of Texas,
Ronald Leighton for the Western District of Washington, and
Richard Dorr for the Western District of Missouri--all seven of
those nominees were nominated by the first President Bush, but
never received committee action at the time. I hope that they,
too, will soon receive their long-awaited hearings.
Although I would like to explain my support for each of the
seven excellent nominees before us today, in the interest of
time I am going to ask Chairman Kohl if the balance of my
remarks could be included in the record at this point. That
way, we will have more time for introductions from members and
for the nominees themselves.
Let me just say that you are all excellent nominees and
that I am going to support all of you. I will work with my
colleagues for your swift confirmation, and I want to thank
Chairman Kohl. I think Chairman Kohl has worked hard to try and
resolve some of these difficulties and I personally appreciate
his willingness to conduct this hearing today.
I appreciate my colleagues, but we have got to do a better
job on this committee and I hope that we can in the future. But
today is a good illustration of moving ahead in the right
direction and I want to compliment our chairman of the full
committee and our chairman of this hearing today, Chairman
Kohl.
Senator Kohl. We thank you, Senator Hatch, and your full
statement will be made a part of the record.
[The prepared statement of Senator Hatch follows:]
Prepared Statement of Senator Orrin G. Hatch
I am pleased that the Judiciary Committee is considering the
nominations of seven exceedingly well-qualified candidates for the
federal bench, and I would like to welcome you to the Committee.
Before we discuss the excellent credentials of today's nominees,
however, I must take just a minute to make an observation about how
this hearing fits into the bigger picture of the Committee's work on
judicial nominations.
Today marks the 337th day since President Bush announced his first
11 picks for the federal bench. Eight of those nominations have been
languishing in this committee for nearly a year with no commitments for
hearings or votes any time soon. All eight received the ABA's majority
rating of either well-qualified or qualified. Among these are some of
the very best lawyers in the history of our country, including Miguel
Estrada, John Roberts and Michael McConnell, just to name three.
This Committee's unwillingness to move more expeditiously on these
nominations is exacerbating the circuit court vacancy crisis that
exists in America today. Nearly one in five circuit court seats is
vacant all across America. When President Bush sent up his first
nominees we had 31 circuit court vacancies, and today we still have 31
vacancies. The DC Circuit Court of Appeals is one-third vacant and the
6th Circuit is 50-percent vacant.
President Bush has responded to the circuit court vacancy crisis by
rapidly nominating top-notch men and women. The only obstacle standing
in the way of the nominees' ability to serve the American people is
this Committee.
I am glad that we will consider a circuit court nominee today, but
I will point out that in years past under Republican leadership, we
regularly considered two or more circuit nominees at a time. In fact,
we did so on ten different occasions.
I'm also particularly pleased to see nominees John Walter and Percy
Anderson from the Central District of California here--and I'll bet
they are happy to be here today too--considering it's been 10 years
since they were initially nominated to their seats during the first
Bush Administration. They were both nominated in March of 1992, but
unfortunately the Senate--which was controlled by the Democrats at the
time--denied them a hearing.
Interestingly, they are not the only nominees pending before the
Committee today who were nominated by the first President Bush nearly
10 years ago. Terrence Boyle for the 4th Circuit, John Roberts for the
D.C. Circuit, Henry Saad for the 6th Circuit, Leonard Davis for the
Eastern District of Texas, Andrew Hanen for the Southern District of
Texas, Ronald Leighton for the Western District of Washington, and
Richard Dorr for the Western District of Missouri--all seven of these
nominees were also nominated by the first President Bush, but never
received Committee action at that time. I hope that they too will soon
receive their long-awaited hearings.
Now, although I would like to explain my support for each of the
seven excellent nominees before us today, in the interest of time, I am
going to ask Chairman Kohl if the balance of my remarks could be
included in the record at this point. That way we will have more time
for the introductions from Members and for the nominees themselves. Let
me just say that you are all excellent nominees and I am going to
support all of you. I will work with my colleagues for your swift
confirmation.
Jeffrey Howard's nomination to the First Circuit Court of Appeals
is one more example of the quality appointments that President Bush is
making. Mr. Howard has the record of a great attorney and a great
public servant. He has served his communities in elected and appointed
office and in a myriad public and volunteer undertakings. The people of
New Hampshire can be proud of him.
As New Hampshire's Attorney General, he wrote and implemented one
of the nation's first effective comprehensive state wide
interdiscplinary protocols to combat domestic violence. He also led the
fight in New Hampshire for consumers that were the victim of fraudulent
businesses. As Principal Associate Deputy Attorney General for the
Justice Department, Mr. Howard was a top adviser to Attorney General
William Barr, in the areas of asset forfeiture, drug enforcement, and
civil rights.
Percy Anderson, nominated to be U.S. District Judge for the Central
District of California began his career representing indigent clients
in civil matters. He later became an Assistant U.S. Attorney in Los
Angeles, where he spent six years as First Assistant Division Chief,
managing criminal division affairs in the absence of the Chief of the
division. In 1985, he joined the Bryan Cave firm, specializing in white
collar criminal defense and aviation litigation. In 1996, Mr. Anderson
became a partner with Sonnenschein Nath & Rosenthal, a Los Angeles
firm, where he focuses on commercial litigation, intellectual property,
products liability, false claims, and white collar criminal defense
work.
Michael Baylson, nominated to be U.S. District Judge for the
Eastern District of Pennsylvania, is familiar with that district
because he has served as the United States Attorney there. In that
capacity, he developed a reputation for adopting new and successful
strategies for the war on drugs, including the tactic of identifying a
drug gang, then infiltrating it to learn all its members and indicting
them en masse. He also was an early proponent of the ``Weed and Seed''
program designed to ``weed out'' drug dealers from a community and then
``seed'' those communities with social services and financial support.
William C. Griesbach, nominated to be U.S. District Judge for the
Eastern District of Wisconsin, comes to us with seven years of
experience on the bench, having served as a Wisconsin State Circuit
Court Judge since 1995. Prior to his elevation to the bench, Judge
Griesbach obtained substantial experience in both criminal and civil
litigation: He spent eight years as an Assistant District Attorney for
Brown County, Wisconsin handling criminal matters, and five years
before that at a Green Bay, Wisconsin law firm working on civil cases.
Joan E. Lancaster, nominated to be U.S. District Judge for the
District of Minnesota, began her career as an Assistant City Attorney,
trying approximately 12 jury and 40 court trials during her service.
She then spent ten years as an Assistant U.S. Attorney for the District
of Minnesota. After two years of private practice, Justice Lancaster
was named as a District Court Judge in the 4th Judicial District in
Minnesota. Since 1998, she has served as an Associate Justice on the
Minnesota Supreme Court.
Cynthia M. Rufe, nominated to be U.S. District Judge for Eastern
District of Pennsylvania, is another example of how President Bush has
tried to create a diverse federal judiciary. Judge Rufe can only be
described as a true champion of the rights of children and women. She
also was a high school teacher. In addition to her charity work, Judge
Rufe has also run the gamut of the legal profession. She was a Public
Defender for 5 years and went on to start her own private practice. As
a judge, she was appointed by the Pennsylvania Supreme Court and served
with distinction as a member of the Appellate Procedural Rules
Committee.
John F. Walter, nominated to the U.S. District Court for the
Central District of California, has gained experience in private
practice and government service. Mr. Walter has served as an Assistant
U.S. Attorney in the Criminal Division, Fraud and Special Prosecutions
Unit, where he prosecuted the then-largest bank burglary in the U.S. He
has been in private practice since 1972, working not only as a civil
litigator but also as a criminal defense lawyer. As a member of the
Federal Indigent Defense Panel, Mr. Walter has represented more than 75
indigent defendants charged with federal crimes in federal court and
devoted thousands of pro bono hours to these cases.
Senator Kohl. Senator Russ Feingold.
PRESENTATION OF WILLIAM C. GRIESBACH, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN BY HON. RUSSELL D.
FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. Of course, I
know who is the senior Senator and who is the junior Senator,
but I do need to leave after this so I am going to speak on
behalf of the nominee, with your permission, Mr. Chairman.
First, I thank you for working with me on these
nominations. I think it has been an excellent experience and it
has turned out well for our State, and I appreciate your
leadership.
I am also really happy to see our two Congressmen from
Wisconsin. You should have heard Congressman Tom Barrett talk
about our nominee, Mr. Griesbach. It was one of the nicest
personal tributes I have ever heard, and I am sure he will
explain in his comments about how well he knows you from so
many years. Tom, of course, is a person I have a lot of regard
for in this respect.
Congressman Green, your area, our area, has waited far too
long for this wonderful opportunity. You worked hard to make
this possible and we are all very happy that we will have a
Federal judge in the northeastern part of the State.
Mr. Chairman, it is a great pleasure to welcome Judge
Griesbach to the Senate and to join so many colleagues in
introducing him to the committee. As you know very well, Judge
Griesbach's nomination was the product of a collaborative
process between you and me and the chairman of the Judiciary
Committee in the House, Mr. Sensenbrenner, and the White House.
I am very pleased with this nomination and I wholeheartedly
support it.
Judge Griesbach has a distinguished record as an attorney
and a judge in Brown County, Wisconsin. He is widely respected
in Green Bay and within Wisconsin's legal community. In fact, a
1998 survey by the Green Bay News Chronicle of attorneys who
practice in Brown County rated Judge Griesbach first out of
eight circuit judges in the county in all five categories that
were considered--temperament, fairness, legal scholarship, work
habits, and decisiveness. The paper called this achievement a
quintuple crown, and I agree that that is remarkable. Some of
the comments from attorneys in this confidential survey were
``born to be a judge,'' ``best judge we have'' and ``as good as
they get.''
After interviewing Judge Griesbach and reviewing all that
his colleagues have said about him, I am confident that he will
make an excellent Federal judge. This is an exciting time for
the judicial system in Wisconsin and the judge, if confirmed,
will play a key role in the new division of the Eastern
District in Green Bay.
A Federal court in northeastern Wisconsin has been a long
time in coming and I look forward to it finally becoming a
reality. I mentioned before that this nomination was a result
of a collaborative process. As you know, Mr. Chairman,
Wisconsin Senators have been using the Wisconsin Federal
Nominating Commission to screen candidates for judicial
vacancies since 1979. It has been used by Senators of both
parties under Presidents of both parties. The commission
process reflects the longstanding progressive tradition of good
government in Wisconsin.
The success of this process is self-evident, consistently
yielding highly qualified nominees well-respected in the
State's legal community and agreeable to both parties. I am
proud of our State's history on this issue and I think that
Judge Griesbach is a prime example of what the commission
process offers to the State and the country. I hope that our
commission can continue to serve as a model for other States in
the nomination process, and I urge the White House to work with
us on future nominations, not only to the district court but
also the court of appeals, should there be a vacancy.
Again, Judge Griesbach, welcome to the hearing today. I
want to also congratulate all the other nominees. Although I
can't stay for the questioning, I do look forward to moving
your nomination through the committee process as fast as
possible and I look forward to the honor of voting to confirm
you on the floor of the Senate promptly.
Thank you, Mr. Chairman.
Senator Kohl. Thank you, Senator Feingold.
Before we move to introductions from Senators and
Congressmen, I would like to ask Senator Specter if he has any
remarks to make at this point.
PRESENTATION OF CYNTHIA M. RUFE AND MICHAEL M. BAYLSON,
NOMINEES TO BE DISTRICT JUDGES FOR THE EASTERN DISTRICT OF
PENNSYLVANIA BY HON. ARLEN SPECTER, A U.S. SENATOR FROM THE
STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. I do,
and thank you for presiding at these hearings to move along the
judicial nomination process.
I have the pleasure and honor to introduce two of the
nominees, Judge Cynthia Rufe from Bucks County, Pennsylvania, a
distinguished jurist, had been a distinguished lawyer before
she became a distinguished jurist, and Michael Baylson, who has
been United States Attorney for the Eastern District of
Pennsylvania and is a chief litigator for one of the mega firms
in Philadelphia and has made quite a success of his career
after a very shaky start as an assistant district attorney in
my office. [Laughter.]
In light of the loaded docket and the many colleagues who
are here, I will abbreviate my comments to that effect, Mr.
Chairman.
Senator Kohl. We thank you, Senator Specter.
We will now move to introductions from the nominees'
States, from Senators and Congressmen. Due to time pressures,
Senator Gregg has asked if we could give him the first
opportunity to make an introduction.
Senator Gregg?
PRESENTATION OF JEFFREY HOWARD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIRST CIRCUIT BY HON. JUDD GREGG, A U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Gregg. Thank you, Mr. Chairman. I do appreciate
that. I have the head of NIH coming to a hearing at three
o'clock.
It is my pleasure to join with Senator Smith today in
bringing to the committee a person who has exceptional
qualifications and who is an extremely talented attorney, as
well as a decent and very honorable individual, and that is
Jeff Howard, who is the nominee for the First Circuit Court of
Appeals.
I have known Jeff Howard for years. He comes out of the
tradition which I think is an extraordinarily strong tradition
which we have in the State of New Hampshire of sending people
to the circuit court in Boston who have talent, ability, and
bring a great deal of common sense to the judiciary. We have
had gentlemen like Judge Hugh Bounds, gentlemen like Judge Norm
Stahl and Judge David Souter, who have, in the New Hampshire
tradition, brought common sense to Boston as the circuit court
meets.
Jeff Howard will accomplish that, also. He was U.S.
Attorney, he was the attorney general. I had the good fortune
when I was governor to participate in his appointment in that
position. He will bring to the judiciary the knowledge of the
real-world business of law enforcement, having served in both
those two very critical positions in law enforcement. He has
been a country attorney, also, as well as a practicing attorney
in a fairly large law firm in Manchester.
All those talent put together make him a person of
exceptional breadth of experience, which is what I think you
need on the court. He has seen all sorts of different
situations and understands the implications of them, and as a
result, in my opinion, will bring to the circuit court of
appeals the type of knowledge, life experience, and common
sense which we need.
His intelligence, his capability and his integrity are
beyond question. He will be an exceptional addition to our
country system, and I appreciate the courtesy of the committee
in holding this hearing and endorse him with my most
enthusiastic endorsement.
Senator Kohl. We thank you, Senator Gregg.
Now, we will move on to Senator Robert Smith, from the
State of New Hampshire.
PRESENTATION OF JEFFREY HOWARD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIRST CIRCUIT BY HON. BOB SMITH, A U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. Thank you very much, Mr. Chairman, and
Senator Hatch and other members of the committee. Thank you
very much for having this hearing today.
I am very proud to introduce Jeffrey Howard as the nominee
for the First Circuit Court of Appeals. His brother, Mark, is
here, and I am sure he will be introducing them in a few
moments, and his wife, Marie, and two sons, John and Joseph,
who so far have been very good throughout this hearing. I said
so far.
I want to start, Mr. Chairman, by saying thank you to the
chairman of the committee, Senator Leahy, for his cooperation
in this matter. It could be very easily the other way, but I
talked to Senator Leahy a few weeks ago on the floor. He asked
me to put a note in writing to him and he said he would bring
this nominee forth and he did, and I appreciate it very much.
It may stem from the fact that the nominee has some dairy farm
experience. Maybe that is why Senator Leahy decided to move it
quickly. I don't know, but for whatever reason I am very
grateful to the chairman for that.
Let me first say as the senior Senator from New Hampshire I
was very proud to suggest that Jeff Howard be the nominee for
this position to the President. The White House sought our
input and I was pleased to provide it. The Senate has a unique
responsibility in this process, as you well know, but the
President does the nominating, but he does seek the advice and
sometimes he gets the consent of the Senate for the nominees.
President Bush, I think, has made a great selection here
and I am very happy to be here in support of Jeff Howard. I am
not going to go through it all, but he has an impressive array
of legal experience that well qualifies him for this job, Mr.
Chairman. He was U.S. Attorney for New Hampshire from 1989 to
1993. He litigated numerous, numerous cases at both the trial
and the appellate level, and was a member of the Attorney
General's Advisory Committee of U.S. Attorneys.
He received the Attorney General's Edmund Randolph Award,
as well as the U.S. Attorney's Award--no small achievement. He
has Federal experience that includes a stint as principal
associate Deputy Attorney General at the U.S. Department of
Justice from 1991 to 1992, and he performed this job at the
request of former Attorney General Bill Barr.
In addition to his work as a U.S. Attorney, he served as
Attorney General of New Hampshire from 1993 to 1997, and even
Deputy Attorney General in 1988 and 1989. He has been involved
in thousands of litigated matters, covering the full range of
issues that are going to come before him as a Federal judge.
It might be interesting to note also something that
certainly got my attention. He has been either on the brief or
the lead counsel in more than 100 cases in the First Circuit,
the court to which the President has nominated him. Over the
last 10 years, he has performed approximately 2,500 hours of
pro bono work for victims of domestic violence. I think that
says a lot about the kind of person we are bringing forth to
this court.
He grew up on his grandfather's dairy farm in Cornish, New
Hampshire. I also grew up on a dairy farm, so we have a lot in
common. The cows get milked twice a day, as we all know, four
or five o'clock in the morning and seven or eight o'clock at
night, regardless of whether it is Christmas or New Year's, or
whatever day it is.
Then he went on to graduate from Plymouth State College
with a B.A., received his law degree from Georgetown, and was
editor of the American Criminal Law Review. This is a well-
qualified person to be a judge and I am honored to be here to
support that nomination, Mr. Chairman.
Thank you again for having the hearing today.
Senator Kohl. We thank you, Senator Smith.
Now, we will move on to the Senators from Minnesota.
Senator Wellstone?
PRESENTATION OF JOAN E. LANCASTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MINNESOTA BY HON. PAUL WELLSTONE, A U.S.
SENATOR FROM THE STATE OF MINNESOTA
Senator Wellstone. Thank you, Mr. Chairman. Now, I know
where that handshake comes from you.
Mr. Chairman, I am here with my colleague, Senator Dayton,
and we both have the great honor of introducing Justice Joan
Ericksen Lancaster today. Before I talk about her many
accomplishments, although I am just going to summarize to be
brief, I want to take a minute and welcome and acknowledge two
of her greatest accomplishments of all, which are her children,
Claire and John. I know they will be introduced later by you,
but I want to just mention to you, Mr. Chairman, that John
actually has some clothing, I think, trousers or pants, that he
bought at Kohl's department store. I just thought I would
mention that.
Senator Kohl. A good man. He is a very good man.
Senator Wellstone. Also accompanying her is her good
friend, John Stanoch, whom I would like to welcome as well.
Justice Lancaster's qualifications are outstanding. She is
currently serving with distinction as Associate Justice of the
Minnesota Supreme Court and has held that position since 1998.
She has also served as judge of the 4th District Court in
Hennepin County for three years and as a partner in the law
firm of Leonard, Street and Deinard in Minneapolis for 2 years.
Particularly relevant to this position for which she is
nominated is her 10 years as Assistant U.S. Attorney in the
District of Minnesota, where she worked extensively in both the
civil and criminal divisions.
I am particularly impressed with Judge Lancaster's
compassion and commitment to creating a better, more just
society in Minnesota and in our country. She was co-chair of
the governor's Task Force on Fetal Alcohol Syndrome. She
chaired the Minnesota Juvenile Justice Services Task Force that
studied the way Minnesota State courts handle juvenile
delinquency.
Through these and other commitments, as well as her many
professional accomplishments, I think that without a doubt that
is one of the reasons we are really proud that Judge Lancaster
has earned the high regard of her peers, including a ``well
qualified'' from the American Bar Association.
In my conversations with judges and lawyers who have
practiced with and argued before Justice Lancaster, it is clear
that she is widely respected as a highly responsible,
thoughtful, and independent judge. I just want to finish by
sharing some of the praise that she has received from the
editorial boards of a couple of our large newspapers.
The Star Tribune wrote, ``The high court's newest member,
Joan Ericksen Lancaster, is a gifted jurist. Her colleagues
praise her vivid intellect and simply wonderful personality.''
The Pioneer Press wrote, ``Lancaster brings impressive
experience and thoughtful independence to the court.'' Finally,
in the words of the Duluth New Tribune, ``The court benefits
from her federal experience and her strong passion for
justice.'' I love those words, ``strong passion for justice.''
The merit of her nomination is also reflected by the
presence here today of Chief Judge James Rosenbaum, of the
Minnesota District Court, who supports her nomination. Judge
Rosenbaum is an excellent jurist and his strong interest in her
nomination is, I think, important for this process.
Justice Lancaster has broad bipartisan support. I would
like to congratulate Congressman Ramstad for his excellent
nomination. Once nominated, she was immediately welcomed by
Senator Dayton and me. I hope the committee will move forward
to the immediate confirmation of this outstanding judge.
I thank you, and I want to say that not only is she from
Minnesota, but also from Northfield, Minnesota, which is our
home where we raised our children. So for a town of about 12 or
13,000, including two colleges, assuming everything works out
well, and I am really sure it will, this will be such a huge
honor.
Thank you very much.
Senator Kohl. Thank you, Senator Wellstone.
Senator Dayton?
PRESENTATION OF JOAN E. LANCASTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MINNESOTA BY HON. MARK DAYTON, A U.S.
SENATOR FROM THE STATE OF MINNESOTA
Senator Dayton. Thank you, Mr. Chairman. For a start, I
couldn't help notice that I am the only one up here who doesn't
merit ``The Honorable'' in front of his name. I don't want to
explore the committee's reasons for making that determination
in a public setting, but I would like to get the roll call vote
on that decision.
I am very, very pleased, Mr. Chairman, to join with my
distinguished senior colleague, Senator Wellstone, in
introducing Joan Lancaster to this committee and respectfully
urging your approval of her nomination.
Justice Lancaster is a very talented, superbly well-
qualified, and highly respected jurist in Minnesota. I commend
the President for making an excellent selection and Justice
Lancaster has my full support.
She was appointed to the Minnesota district court by
Republican Governor Arne Carlson in 1995, and then appointed by
Governor Carlson to the Minnesota Supreme Court in 1998. There,
she served under two chief justices, one a former Democratic
lieutenant governor and currently a former Republican State
legislator. Both of them have given Justice Lancaster's
nomination their enthusiastic support.
Since the announcement of her nomination, I have had many
attorneys and other Minnesotans knowledgeable about our
judiciary unsolicited call me, write me, or break out of other
conversations and speak to me about Judge Lancaster. All of
them said essentially the same thing about her. They consider
her to be an excellent judge. They characterized her judicial
philosophy variously from ``moderate'' to ``conservative.''
However, regardless of that characterization, they all said
that she is principled, hard-working, and committed to high
professional and legal standards.
The fact that the nomination of a Republican President is
being endorsed by two Democratic Senators here today attests to
Justice Lancaster's exceptional qualifications. Again, I think
the President has made an excellent selection.
I also want to thank personally Chairman Leahy and his
staff for their swift and accommodating response to this
nomination. Judge Lancaster's nomination was submitted by the
White House to the Senate on January 24 of this year. The
American Bar Association's rating of ``well qualified'' was
received by this committee on March 22, and on that same day
the Senate adjourned for our two-week Easter recess.
I met with Justice Lancaster last Thursday, and Senator
Wellstone's and my office contacted Chairman Leahy's staff that
afternoon. Here we are, Mr. Chairman, one week later before
this committee. It would have been impossible for anyone to
have provided these two Senators and this nominee a more
expedited review than Senator Leahy has made possible, and I
want to thank him for doing so. I want to thank you, Mr.
Chairman, for moving so expeditiously today with these
nominees. I again want to thank the committee and give my
unqualified support.
Thank you, Mr. Chairman.
Senator Kohl. We thank you for your statement, Senator
Dayton.
Now, we will go to the two Congressmen from Wisconsin.
First, Congressman Mark Green.
PRESENTATION OF WILLIAM C. GRIESBACH, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN BY HON. MARK GREEN,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN
Representative Green. Thank you, Mr. Chairman and Senator
Hatch. I am honored to be here and I appreciate your scheduling
this hearing as quickly as you have.
Today, along with my senior colleague, Tom Barrett, I have
the privilege of introducing to you an exceptional jurist, and
more importantly an exceptional man, someone whose nomination I
believe really merits the full and enthusiastic support of this
committee.
William Griesbach has an impressive legal career, from his
early days in private practice, through his days in the
district attorney's office, through his heralded work in the
Brown County circuit court system, to this new, proud moment.
But I am not here to talk about what Judge Griesbach looks
like on paper. After all, you have the record before you. There
is simply no question but that he is superbly qualified for
this challenge, that he has the intellect, the knowledge, and
the experience for this job.
As I am sure you agree, however, there is much more to
being a great judge than just those tangible qualities. It
takes qualities that are neither Republican nor Democrat,
conservative nor liberal, qualities that are much tougher to
put your finger on, qualities that you can only really discover
when you get to know someone personally. That is why I support
Judge Griesbach so enthusiastically and why I am here to talk
about Bill Griesbach, the person.
Bill has the temperament for this position. He is
tremendously principled, eminently fair, unshakably honest, and
tenaciously decisive. People in Brown County, Wisconsin, where
I practice law, admire him because they know that no matter who
they are, no matter where they come from, they will receive a
fair shake in his courtroom. In other words, he possesses the
qualities that separate merely a good judge from an outstanding
one.
For these reasons, as well as his base qualifications, a
bipartisan Federal nominating commission that, Senator Kohl,
you helped to establish put his name at the top of the list for
this new position.
I fought hard along with you, Mr. Chairman, to win this
needed new Federal judgeship for northeastern Wisconsin. It
took a lot of work, but we finally succeeded. This is the man
we need for that job, for the betterment of my area,
northeastern Wisconsin, the State of Wisconsin, and our
Nation's Federal bench. I hope and trust this committee will
agree.
Again, I thank you for the great privilege of being able to
appear before you. Thank you.
Senator Kohl. Thank you, Congressman Green.
Congressman Tom Barrett.
PRESENTATION OF WILLIAM C. GRIESBACH, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN BY HON. THOMAS M.
BARRETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
WISCONSIN
Representative Barrett. Thank you, Senator Kohl, Senator
Hatch, and Senator Feinstein. It is an honor to be here.
I want to begin by complimenting you, Senator Kohl, along
with Senator Feingold, for moving this nomination, and moving
it in a bipartisan fashion. I think the process that we have in
Wisconsin really is a model and it allows us to choose the best
person. There were a lot of excellent, excellent candidates for
this position, but I am proud to be here today on behalf of my
friend and former classmate, Bill Griesbach.
You often see the little hangings on refrigerators that
everything you need to know in life you learn in kindergarten.
I don't know if that is true because I haven't known Bill since
kindergarten, but I have known him for 35 years, because we
were high school classmates together.
By the time he hit high school, he was clearly someone who
was ready to be a judge, and I say that because as the 6th out
of 12 children, you learn how to mediate. He could deal with
the older brothers and sisters and the younger brothers and
sisters because he was perfectly situated.
Even 35 years ago, Bill had the temperament, the
intelligence and the integrity to be a judge. He was the type
of person when you were playing a pick-up game of basketball or
softball, it might not be so much fun because if there was
always a call, he would make the call and everybody knew it was
a fair call. He is just that type of person. He has always been
that type of person. He is the type of person that anyone could
trust with anything of importance in their lives.
He studied at Marquette, and studied very, very hard, where
he was an excellent, excellent student. But it wasn't just
studying. He met his wonderful wife, Joanne, there as well, and
they have four lovely daughters, three of whom are with them
today. He then clerked for the Seventh Circuit and did a
wonderful job there.
But it was really in Green Bay where he first entered
private practice and then worked in the D.A.'s office that I
think people recognized that Bill really has the special
qualities and temperament to be a judge. As Senator Feingold
said, the ratings from the attorneys in Brown County underscore
the respect that Bill has earned as a member of the bench. If
you look at his appeal record, you will see that people don't
even want to appeal him because they feel that they get a fair
shot from Bill Griesbach.
So I am tremendously honored to be here today. I am
ecstatic for Bill. I am ecstatic for his family. But, frankly,
I am more ecstatic for the people in the Eastern District of
Wisconsin because you and the other members of this committee
could not have done a better job and President Bush could not
have done a better job than picking Bill Griesbach to fill this
position.
So thank you, and again I thank Senator Feingold and the
others for doing this because in terms of integrity, honesty
and tenaciousness, this is a grand-slam home run.
Thank you.
Senator Kohl. We thank you, Congressman Barrett.
We would now like to turn to the Senator from California,
Senator Feinstein.
PRESENTATION OF PERCY ANDERSON AND JOHN F. WALTER, NOMINEES TO
BE DISTRICT JUDGES FOR THE CENTRAL DISTRICT OF CALIFORNIA BY
HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman and
Senator Hatch. Before I introduce the two nominees from
California, I would just like to acknowledge the presence of
Consuelo Marshall, the Chief Judge of the Central District of
California, and Sherry Carter, the Clerk of the Central
District of California, who are here today. I know my
colleagues on the committee welcome you, and so thank you very
much for being here.
Mr. Anderson and Mr. Walter are the first nominees to come
out of California's bipartisan judicial advisory committee. The
White House, in conjunction with Senator Boxer and I,
established this committee. It is bipartisan, split equally,
and the two nominees have come out of that committee
essentially by a unanimous vote of the committee. So this, I
think, means that this system can work and should work, and can
also produce highly qualified judicial candidates. So I hope
they serve as some kind of an example.
I would now like to introduce Percy Anderson. He is joined
by several members of his family at today's hearing, including
his brother, Jerry Anderson, his nephew, Caulin Anderson,
Vivian Murphy, and Tanya Murphy. I just want to extend our warm
welcome to all of them.
Mr. Anderson is a resident of Inglewood, California. He has
spent his entire 25-year legal career practicing law in
Southern California. After graduating from UCLA Law School, Mr.
Anderson spent three years working for San Fernando Valley
Neighborhood Legal Services before joining the Criminal
Division of the United States Attorney's office in Los Angeles.
During his six-year tenure as Assistant United States
Attorney, he specialized in Federal criminal litigation and he
rose to the position of First Assistant Division Chief. In
1985, Mr. Anderson left the U.S. Attorney's office to enter
into private practice. He is currently a partner at
Sonnenschein, Nath and Rosenthal, where he specializes in
commercial litigation and white-collar criminal defense.
Judges and private practitioners in the Los Angeles area
consistently praise him for his legal acumen, his high ethical
standards, and his professionalism. Dale Bonner, an attorney at
Hogan and Hartson, said that Mr. Anderson, and I quote,
``exemplifies the high level of integrity, thoughtfulness and
temperance which are important to a strong Federal judiciary.''
I hope the committee will agree with this.
We also have comments from Judge Irma Gonzalez as to his
honesty and dedication, and District Judge Lourdes Baird as to
his competence. The American Bar Association gave him high
marks, with a substantial majority of the committee awarding
him their highest rating of ``well qualified.''
I would now like to introduce Jack Walter. He is a resident
of Pacific Palisades, California, and he is joined today by his
wife of 35 years, Joyce Walter, and his friends Customs
Commissioner Robert Bonner, Kim Bonner, Jan Handzlik, and Jan's
daughter, Anna. Mr. Walter has two children who unfortunately
couldn't attend today's hearing.
He comes before this committee, I believe, with outstanding
legal credentials. After graduating from Loyola Law School, Mr.
Walter served as an Assistant U.S. Attorney in the Criminal
Division and the Fraud Special Prosecutions Unit of the U.S.
Attorney's office in Los Angeles.
Since 1976, he has practiced law in a firm he co-founded,
Walter, Firestone and Richter. His private practice has focused
on civil and criminal litigation before both State and Federal
courts. He has served on the Federal Indigent Defense Panel in
the Central District for over 20 years. In this capacity, he
successfully briefed and argued the case of U.S. v. Johnson
before the United States Supreme Court. Over the years, he has
represented over 75 indigent defendants who were charged with
crimes in Federal court.
Mr. Walter has also served as a judge pro tem in the Santa
Monica Municipal Court for over five years, and he has a number
of supporters in the legal community, including Jan Handzlik,
Chairman of the American Bar Association White Collar Crime
Committee, and numerous district court judges. The ABA rates
him as ``well qualified.''
Before concluding, I just want to stress to the committee
how urgent it is to fill these vacancies in the Central
District of California. The Central District now has six
vacancies. It is perhaps the most acute shortage of unfilled
judgeships of any court in the country. The Administrative
Office of United States Courts has designated four of these
vacancies as judicial emergencies.
With the nominations of Percy Anderson and Jack Walter, we
are taking a much-needed step forward to alleviate the judicial
crisis, at least in this district in California. So I am very
hopeful that both can be speedily confirmed.
I very much want to thank the chairman of the committee for
bringing these two nominees before the committee, and thank
you, Senator Kohl and Senator Hatch.
PRESENTATION OF WILLIAM C. GRIESBACK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF WISCONSIN BY HON. HERB KOHL,
A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Kohl. Thank you, Senator Feinstein.
From my own State of Wisconsin I also want to welcome Judge
William Griesbach to the Senate Judiciary Committee today. We
also welcome his wife, Joanne, his daughters, Maryanne, Rachel
and Elisa. We welcome his brother, John, his niece, Maggie, and
his colleague, Judge Donald Zuidmulder.
As we have heard from several others already here today, he
is an exemplary State court judge. His nomination is supported
throughout Wisconsin, and we trust that he will be a top-flight
Federal judge.
Others have already gone over his legal background, but let
me comment briefly on what a fine man Judge Griesbach is. He is
deeply committed to his family, to his community, and to the
law. He possesses all the best qualities that we look for in a
judge--intelligence, diligence, humility, and integrity.
We are confident that the people of Green Bay and all of
Wisconsin will be enormously proud of him and that he will
serve them well. The Green Bay community has waited a long time
for a Federal judge. When Judge Griesbach is sworn in, we think
they will find that it was well worth the wait.
Green Bay needs and deserves a Federal judge. With
Congressman Green and Senator Feingold, we fought a long time
to create this judgeship. A Federal judge in Green Bay will
mean swifter and surer justice for all of northern Wisconsin.
Judge Griesbach's nomination proves once again that the
process we use in Wisconsin to choose Federal judges and U.S.
Attorneys ensures excellence. The Wisconsin Federal Nominating
Commission has been used to select Federal judges and U.S.
Attorneys in Wisconsin since 1979 through Republican and
Democratic administrations, and the tenure of Senators from
both parties. Through a great deal of cooperation and careful
consideration and by keeping politics to a minimum, we always
find qualified candidates.
Judge Griesbach, having survived the rigors of the
Wisconsin Federal Nominating Commission, your appearance before
the Senate Judiciary Committee today will be as pleasant as a
visit to Lambeau Field on a Sunday in October. Again, we are
pleased to have you with us and we look forward to your
testimony.
At this time, I would like the seven nominees----
Senator Feinstein. Mr. Chairman, if I may, Senator Boxer
had wanted to be here to introduce these two judges that I
introduced. If I may, I would like to submit her statement for
the record.
Senator Kohl. We will make it a part of the record.
We will also make Senator Leahy's comments a part of the
record.
We have received a number of letters of recommendation for
Judge Griesbach that we will also make a part of the record.
Senator Hatch. If you could also make Senator Santorum's
statement a part of the record?
Senator Kohl. And Senator Santorum, in addition, also has a
statement for the record.
Senator Hatch. Thank you, Mr. Chairman.
Senator Kohl. At this time, if the seven nominees will step
forward and position themselves, we will have Mr. Howard on my
left, then Mr. Anderson, Mr. Baylson, Judge Griesbach, the
Honorable Joan Lancaster, the Honorable Cynthia Rufe, and Mr.
John Walter.
Will you raise your right hands and repeat the oath as I
administer it?
Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth and nothing but the
truth, so help you God?
Mr. Howard. I do.
Mr. Anderson. I do.
Mr. Baylson. I do.
Judge Griesbach. I do
Judge Lancaster. I do.
Judge Rufe. I do.
Mr. Walter. I do.
Senator Kohl. We thank you. If you will sit down, we will
proceed.
Starting with you, Mr. Howard, if you would like to make a
statement or introduce members of your family, we would be
happy to hear from you at this time.
STATEMENT OF JEFFREY HOWARD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIRST CIRCUIT
Mr. Howard. Thank you, Mr. Chairman. I would like to
express my gratitude for you holding this hearing today. I
appreciate it very much.
I would like to introduce my wife, Marie, who is here with
me today; my sons, Joseph and John; as well, my brother, Mark,
who is an Assistant United States Attorney. I was delighted to
learn that former New Hampshire governor Stephen Merrill is in
town and he has dropped by. As well, my friend, Nick Guess, is
here. Representative Charles Bass was here a few moments ago.
Thank you very much.
[The biographical information of Mr. Howard follows:]
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Senator Kohl. We thank you, Mr. Howard.
Mr. Anderson?
STATEMENT OF PERCY ANDERSON, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Mr. Anderson. Thank you, Mr. Chairman, for affording me
this hearing today, and I would also like to thank your
colleagues for the opportunity.
I would like to introduce my brother who is here today,
Jerry Anderson; his son, Caulin Anderson; his aunt, Vivian
Murphy, and her daughter, Tanya Murphy. Also here today is the
Chief Judge of our court, the Honorable Consuelo B. Marshall,
and the Clerk of our court, Sherry Carter.
[The biographical information of Mr. Anderson follows:]
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Senator Kohl. We thank you, and welcome.
Mr. Baylson?
STATEMENT OF MICHAEL M. BAYLSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Baylson. Thank you, Senator. I very much appreciate the
opportunity to appear here today.
I would like to introduce my wife, Dr. Frances Ruth Batzer
Baylson, who is here with me; our son, Todd Baylson; our
daughter, Ariella Baylson. I regret to say that our daughter,
Mira Baylson, could not be here. She is a student at Wesleyan
University and could not leave.
[The biographical information of Mr. Baylson follows:]
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Senator Kohl. Thank you, and we welcome your family
members. Judge Griesbach?
STATEMENT OF WILLIAM C. GRIESBACH, TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF WISCONSIN
Judge Griesbach. Thank you, Mr. Chairman. I also wish to
thank you for holding this hearing. I also thank you for the
very kind words.
My family members that I would like to introduce include my
wife, Joanne; my daughters, Elisa, Rachel and Maryanne. My
daughter, Katie, was unable to be here. My niece, Maggie, is
here. My brother, John, is here to represent my parents and my
11 brothers and sisters. I felt it would not be fair to take
over the hearing room, so he is the only sibling I brought. And
of course, I would like to also introduce my friend and
colleague, Judge Don Zuidmulder, from Brown County.
[The biographical information of Judge Griesbach follows:]
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Senator Kohl. Thank you, Judge Griesbach, and we welcome
you all here. Judge Lancaster?
STATEMENT OF JOAN E. LANCASTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MINNESOTA
Judge Lancaster. Good afternoon, and thank you, Mr.
Chairman. Thank you for holding the hearing. I am deeply
honored to be here.
I am accompanied by my two children, John Lancaster and
Claire Lancaster, who are in the back of the room, accompanied
by my friend, John Stanoch, and by the Chief Judge of the
District of Minnesota, Judge James Rosenbaum.
[The biographical information of Judge Lancaster follows:]
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Senator Kohl. Thank you, and we welcome your family
members.
Judge Rufe?
STATEMENT OF CYNTHIA M. RUFE, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Rufe. Thank you, Mr. Chairman. I am especially
honored to be here today.
I would like to also take this opportunity to introduce my
family and friends who are with me, and I will start with my
husband, the Honorable John J. Rufe. My two daughters are here,
Mrs. Tiffany Alexander, who today learned that she passed the
Pennsylvania Bar, whom I am very proud of, and my second
daughter, Meredith Weaver, who drove in from Pittsburgh, where
she is a student at the University of Pittsburgh.
Representing my large family of four girls and a brother is
my sister, Christine Favata, who was able to get here from
North Carolina. The rest were in Florida, and my mother, Mrs.
Antoinette Favata, could not get here. So I did wish to mention
that. I also am accompanied by my law clerk, Sam Hijab. I am
very happy to have him here. We have a family friend with us,
Greg Lydon, who works for the Federal Government.
Thank you.
[The biographical information of Judge Rufe follows:]
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Senator Specter. Mr. Chairman, may the record reflect that
the Pennsylvania Bar is very tough, perhaps exceeded only by
Wisconsin? [Laughter.]
And Senator Hatch, a member of the Pennsylvania Bar, can
confirm my representation.
Senator Hatch. I can confirm that.
Senator Kohl. Mr. Walter?
STATEMENT OF JOHN F. WALTER, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Mr. Walter. Good afternoon, Mr. Chairman. Thank you very
much for the hearing today.
I would like to introduce first my wife of 35 years, Joyce
Walter. I am accompanied also by good friends, Commissioner
Robert Bonner, of the United States Customs Service, and his
wife, Kimmie, and another good friend, Jan Handzlik, and his
daughter, Anna.
Unfortunately, my daughter, Dr. Amy Walter, could not be
here today, but I would like to mention her, as well as my son,
Jeffrey Walter.
Thank you very much.
[The biographical information of Mr. Walter follows:]
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Senator Kohl. Thank you, Mr. Walter.
Just before we begin the questioning, I would like to
advise all the nominees that in addition to today's questions,
they may receive written follow-up questions from any member of
the committee. The record will be open for a week and we urge
the nominees to get their answers in as quickly as possible.
Mr. Howard, let's start with you. You have been a
politician for much of your career, running statewide for
elective office and serving in public office. How will you make
the transition from making political judgments to the kind of
non-partisan, non-political frame of mind necessary to serve on
the Federal appellate court? What specifically can you tell us
to assure us that all litigants who come before you will
receive a fair hearing and equal treatment?
Mr. Howard. Thank you for that question, Mr. Chairman. It
is true that I ran for statewide office--that is, the
governorship of New Hampshire--two years ago. That is the only
office that I have ever run for that is an elective office.
Fresh out of law school, in 1981, I was hired, I believe,
on a merit basis as an assistant attorney general in the New
Hampshire Attorney General's office, and later I was appointed
to the position of United States Attorney by President Bush,
and later appointed as Attorney General in New Hampshire. So I
have held statewide public office, but not as an elected
official.
Both in the position of United States Attorney and as
Attorney General, I believe that I was called upon on
innumerable occasions to weigh not only the evidence but the
justice of a matter in front of me. Those cases ranged from
representing consumers, hundreds of consumers, those people who
are in little position to help themselves. I had to make the
decision that they needed help and to help them.
It is true that at the same time it was my job, function
and duty to represent the State of New Hampshire, as well as
the United States Government, as United States Attorney. But I
believe that my background is one that shows that I can be
fair, that I have been balanced, and that I will continue to do
so. Should I be confirmed to this position, I can promise the
American people, this committee and the United States Senate my
fidelity to those very principles.
Senator Kohl. Mr. Howard, the American Bar Association's
Standing Committee on the Federal Judiciary conducts
evaluations of every nominee's record, as you know. While a
majority of the committee found you qualified for the Federal
bench, a minority concluded that you were not qualified.
As you may know, while the committee releases its ratings
and vote to the public, it does not explain the basis for its
decision. Since that is now a part of the public record, we
would like to give you this opportunity, if you wish, to
discuss the ABA's evaluation.
Mr. Howard. I do not know, Senator, what the reason for the
minority evaluation was. I did receive a letter that indicated
that a substantial majority of that committee found me
qualified, and I believe that my experience as a prosecutor, as
an attorney general of my State, as a United States Attorney,
as time here at the Department of Justice in Washington as
Principal Associate Deputy Attorney General, and most recently
as a private practitioner representing individuals and
businesses who have had dealings with the Government of the
United States, has led me to a position where I have had
considerable experience both at trial and in supervising
litigation. One of the things that I have enjoyed most in my
career is bringing along young trial lawyers. I have been
involved in literally thousands of criminal and civil cases.
Now, I could sit here and speculate that the fact that I am
not currently a sitting judge may have had something to do with
the minority recommendation, but it probably wouldn't be wise
for me and I would simply be speculating. But let me s say I
agree with the majority of the committee. [Laughter.]
Senator Kohl. Mr. Howard, as a Federal court of appeals
judge, you will be called upon to not only interpret case law
as it applies to the cases before you, but also to rule on
issues that are of first impression for your circuit. How do
you intend to approach cases of first impression?
Mr. Howard. Senator, as a former attorney general of a
State who found it his duty to defend legislation that under
the State constitution was presumed constitutional but was
often attacked, I have a great deal of respect for the
enactments of the legislative body.
I believe that, as a judge, there is a strong presumption
of constitutionality of legislative enactments with respect to
those constitutional cases that are of first impression. With
respect to cases that are factually of first impression in the
First Circuit, we always have the opportunity to look to the
other circuits, the principles embodied in the Supreme Court
precedents, taking into consideration the premise of the
question that these would be cases of first impression, look to
the language of the statute first. Oftentimes, the answer is
right there.
Senator Kohl. Thank you, Mr. Howard.
Senator Hatch?
Senator Hatch. We are happy to welcome all of you here
today. It is a singular privilege to be nominated to the
Federal courts of this country. These are lifetime appointments
that are, I think, among the most important that this country
has to give to people. So we want the very best people we can
get to be on the Federal bench, and I think each of you
qualifies in that regard.
Mr. Howard, I notice you are the son of a policeman. I will
bet that left a lasting mark on you.
Mr. Howard. Indeed, Senator, and my dad continues to work
in law enforcement as a bailiff in a county court.
Senator Hatch. That is great. I notice you graduated from
Georgetown Law School and I think that should help you get a
quick confirmation, as Senator Leahy graduated from there as
well.
Mr. Howard. I am aware of that, sir.
Senator Hatch. While working as a prosecutor, you
initiated, edited, and put into practice one of the Nation's
first effective, comprehensive statewide interdisciplinary
protocols to combat domestic violence. As the coauthor along
with Senator Biden of the Violence Against Women Act, I am
naturally very concerned about that. I am very interested in
these issues because of that bill.
Could you explain those protocols to us and how they have
helped to prevent violence against women?
Mr. Howard. It came as a surprise to me that when I became
Attorney General in 1993 in New Hampshire it was still true
that emergency personnel, police officers, Senator, social
workers, doctors, emergency room nurses did not have a working
protocol, and each of those agencies that come into contact
with an abused person has their own interest and often didn't
speak with one another.
To me, this meant that an abused spouse or child could be
further victimized by the system, being forced to tell their
story over and over, being brought through the system. And so
we in New Hampshire decided that we would seek to bring those
entities together, and we worked for over a year on
interdisciplinary protocols. We trained over 1,500 police
officers in that first year-and-a-half, as well as emergency
room personnel, doctors, nurses. I am happy to report, though
domestic violence still exists in our State, it has fallen in
record numbers. Cooperation is very important, we have found.
Senator Hatch. That is great. I hope people pay attention
to what you did there because it is important.
Now, you also support the State's use of the death penalty.
In your career as a prosecutor, have you ever had occasion to
seek the death penalty?
Mr. Howard. Senator, I have not had occasion to seek the
death penalty. The State of New Hampshire does have capital
punishment on the books, and I am sure there are cases which
are appropriate for the death penalty. Under the New Hampshire
statute, I have not had that occasion.
Senator Hatch. Now, some of my Democrat colleagues seem to
hold the view that because one has personal views, sometimes
views derived of religious conviction, they cannot separate
their private opinions from their public duty.
As a judge, how will you know to separate private views
from your sworn duty as a judge?
Mr. Howard. Senator, I have given that question a great
deal of thought and yet the answer came to me immediately. A
judge is required to enforce, apply, and interpret the law as
set down by the Congress of the United States, in line with the
binding precedent of the United States Supreme Court, and I
will have no difficulty doing that.
Senator Hatch. That is great.
Well, let me just ask a couple of questions to the rest of
you. I don't want to ignore the rest of you and all of these
positions are extremely important. I have a personal view that,
without the courts, we probably wouldn't have a Constitution
today because it has been the courts, as far as I am concerned,
that have interpreted and kept the Constitution vibrant and
alive. So these are really important positions.
Let's start with you, Mr. Anderson, and if we can, we will
just go across the bench here. In recent reviews of the latest
Supreme Court term, a number of commentators have debated the
propriety of decisions striking down various acts of Congress.
Now, I am not asking you about any specific cases, but
would like to know generally when do you think it is
appropriate for a Federal district court judge or any Federal
court to declare a statute enacted by Congress
unconstitutional. The quick answer is whenever it is
unconstitutional, but I would like to hear a little more depth
than that.
Mr. Anderson. Well, Senator, thank you very much for the
question. I believe as a district court judge my primary
responsibility and main function is to identify the rule of law
and to apply it, and for the most part as a district court
judge I am there to follow the law as handed down by our
circuit court and by the Supreme Court. Absent a constitutional
violation, I don't think I am in a position to declare a
congressional law unconstitutional.
Senator Hatch. Does anybody else care to comment about
that, or do you agree with that comment? Do you care to add
anything?
Judge Griesbach. I think even district court judges must
declare that a law is unconstitutional if, in fact, it
contravenes those provisions of the Constitution.
Senator Hatch. I interpreted Mr. Anderson's comment that he
would do that if he finds it unconstitutional.
I think what I am going to do is defer to Senator Specter,
if I can. He has some questions he would like to ask.
Senator Specter. Well, Mr. Chairman, it was my request, if
it is acceptable, to have the hearing for Judge Rufe and Mr.
Baylson now and then I will excuse myself because I have other
pressing commitments.
Senator Kohl. Go ahead.
Senator Specter. Judge Rufe, welcome. You bring a
distinguished background to the nomination for Federal court.
You were in the public defender's office. You have been a
common pleas judge for--how long has it been?
Judge Rufe. Almost nine years.
Senator Specter. What differences, if any, do you see
between being a State court judge and a Federal judge?
Judge Rufe. Other than the differences in the genesis of
common law as opposed to statutory law, I don't see the
difference in judging. I think the past eight-and-a-half years
on the bench have established that I try to be a good judge,
and for that I think the qualities are the same.
I don't think the transition will be difficult in that
respect, and I trust that my energy and intellect and my past
experience with Federal law and procedure will kick back in, so
to speak. I am not concerned about the transition, except to
finish up some work. But since I manage a pretty efficient
caseload and I don't have a backlog, I think that will be not a
problem either.
What I do like to see in judges is what I think will make
my transition easier, and that is to remain fair and open-
minded, to listen to all sides, to research, to do the right
thing, and to follow the law. I don't think that will change,
regardless of where I am a judge.
Senator Specter. One of the traditional questions asked is
a view of interpreting the law as opposed to making the law.
There is concern on both sides of the line as to activist
judges. How would you define a judge's role and how would you
approach that issue or those issues?
Judge Rufe. That is a very good question, Senator, for my
present role as a State court judge, as well as a Federal
judge, if I should be so honored to be selected. I do think
that a judge cannot legislate from the bench. I do think that
is for the legislature.
Congress passes laws. We must apply them, interpret them,
enforce them. Interpreting laws is what our job is supposed to
be as a judge, to make sure the law fits the facts, the people
fit the facts, the facts fit the law. I do not believe it is
appropriate to legislate from the bench and I do not intend to
do so.
Senator Specter. What is your view of the appropriate line
of authority when a United States district court has the
responsibility of reviewing, say, the judgment of the Supreme
Court in the State and you find a constitutional infirmity? How
comfortable would you be under those circumstances in issuing
an order which, in effect, reverses the State supreme court?
Judge Rufe. Of course, any reversal of another court,
including the highest court of the State, would be undertaken
with much hesitation. But if it needs to be done, hard
decisions need to be made, I think my record says I know how to
make those decisions and I would not hesitate to do so.
I think one of the many types of cases that will face me in
the Federal court is habeas corpus petitions, reviewing State
trials, criminal cases. I think I am probably as well qualified
as anyone to decide those cases because I know what a State
record is. And I think if there is a real error, I would not
hesitate to reverse. However, I would do so with great care and
consideration for my colleagues on the other bench.
Senator Specter. And your husband is also a common pleas
court State judge?
Judge Rufe. Yes, he is.
Senator Specter. Would there be any problem in your mind if
one of those cases you had to review from a State court
involved your husband? I withdraw the question.
Judge Rufe. Of course, I wouldn't. Although he probably
wouldn't mind, I wouldn't do it.
Senator Specter. Mr. Baylson, have you had occasion to seek
the death penalty in your role as a prosecuting attorney?
Mr. Baylson. Well, Senator Specter, when I was working for
you as an assistant district attorney----
Senator Specter. You were chief of the Homicide Division,
weren't you?
Mr. Baylson. I was, for my last year under your tenure.
Senator Hatch. This sounds like a home run ball question to
me.
Mr. Baylson. There were some occasions where we considered
the death penalty.
Senator Specter. Watch out. Senator Hatch is tough when his
turn comes.
Mr. Baylson. But I never had the occasion in a case to
personally argue it in front of a jury. But I know you and I
discussed it and the position of the office was that it was
appropriate to seek it where the facts were appropriate.
Senator Specter. Mr. Baylson, what would your work as an
assistant D.A., and more specifically as United States Attorney
for the Eastern District of Pennsylvania--what bearing would
that have on your view as to your capabilities as a Federal
trial judge?
Mr. Baylson. Well, Senator Specter, if I would be so
fortunate as to be confirmed, I would like to look back on my
experiences as a prosecutor, first of all, for my knowledge of
the criminal process, for my knowledge of substantive criminal
law which I have maintained throughout the years, but also for
a sense of being fair because I--and as you taught all of us
when we worked for you, we were to be fair prosecutors. We were
to be advocates, but we were to be fair, and I think that is
important, obviously, if someone becomes a judge that you want
to be--the judge has to be very fair. He has to be fair and he
has to appear to be fair.
As United States Attorney, we had a very much more
discretionary kind of jurisdiction in terms of choosing our
cases and we chose the cases that had merit, where there was a
public impact and where the force of Federal prosecution would
do some good. I think that is relevant if I were to become a
Federal judge, and I would look upon the Federal process as one
in which it was most important for the judge to be fair.
Senator Specter. Mr. Baylson, I would like your comments on
the question as to a judge's function vis-a-vis legislating and
interpreting the law. How do you see yourself working on that
line?
Mr. Baylson. Well, if I were to be confirmed as a district
court judge, I would be most aware of the rulings of the United
States Supreme Court and of the Court of Appeals for the Third
Circuit, and perhaps other Federal appellate courts as well. I
would be bound to follow those and I would not do anything that
was not in accord with settled precedent.
I do not think I could, as a district court judge, properly
legislate from the bench, so to speak. I think my job would be
to take the facts and the record in the case before me and
apply settled precedent.
Senator Specter. Mr. Baylson, a final question with respect
to a cut in pay. This will be a cut in pay?
Mr. Baylson. Yes, Senator, it will be, assuming our law
firm has another good year.
Senator Specter. How do you evaluate taking on a Federal
judgeship contrasted with the very substantial diminution in
your pay?
Mr. Baylson. Well, Senator, I have once before taken a
diminution in pay to become United States Attorney, and it was
a wonderful opportunity for which I thanked you then and I
thank you now, as well. I think public service is very
important and I think that there are other things in terms of
professional growth and professional contribution other than
the amount of money that someone makes.
I have been fortunate that I have been able, through
savings, to build up enough money, with my wife, who is a full-
time physician, to put our children through college and
graduate school, and we are very proud of them. And I think
that I can live comfortably on the salary that is paid to a
judge.
Senator Specter. A very, very last question. When you were
appointed an assistant D.A. in November of 1965, your salary
was $6,277 a year.
Mr. Baylson. Senator, you have got it on the nose for the
last 35 years. Thank you.
Senator Specter. Was that an increase or a decrease in your
compensation at that time?
Mr. Baylson. It was a very marginal increase over what I
had been paid as a law clerk, but it was thrilling to work for
you and I will cherish it forever.
Senator Hatch. We have all found that to be the case, too.
[Laughter.]
Senator Specter. I think my confirmation is almost assured
now.
Thank you very much, Mr. Baylson and Judge Rufe. Thank you,
Mr. Chairman.
Senator Kohl. Well, we thank you, Senator Specter, and we
will now continue with the regular order.
Senator Specter. Mr. Chairman, may I just add that I have a
statement from Senator Santorum, who strongly recommends both
Judge Rufe and Mr. Baylson. I also had been asked by
Congressman Charles Bass to note that he was here, but had
business on the House side, but wanted to come and speak in
favor of Mr. Howard.
Senator Kohl. We will enter Mr. Bass' statement into the
record.
Senator Kohl. We will now continue and we will go one
nominee at a time, myself and then Senator Hatch.
Mr. Anderson, in the past few years, beginning with the
Lopez decision, the Supreme Court has struck down a number of
Federal statutes, including several designed to protect the
civil rights of our vulnerable citizens, as being beyond
Congress' power.
Taken individually, these cases have raised concerns about
the limitations imposed on congressional authority. Taken
collectively, they appear to reflect a new federalism crafted
by the Supreme Court that threatens to fundamentally alter the
structure of our Government.
What advice would you give Senators who are drafting
legislation to comply with this new federalism?
Mr. Anderson. Senator, of course, I would--I am not sure
that I am in a position to advise Senators as to what they
should do to comply with this new federalism. But as a district
court judge, I believe that I am bound to identify, recognize
the law as handed by the Supreme Court, as handed down by the
Ninth Circuit Court of Appeals, and to faithfully follow that.
It certainly would appear that the Supreme Court has made some
new law in a number of different areas and I am committed to
following that law and upholding it.
Senator Kohl. Senator Hatch?
Senator Hatch. Well, frankly, I am very pleased with every
one of you. I know the process you have been through; it hasn't
been an easy one, as it shouldn't be. I have looked over all of
your records and each of you is a distinguished person in your
own right.
When you take on the Federal bench, there are some people
who think and have said, and I may have been one of them, that
the closest to being in the godhead is to be on the Federal
bench, because you are there for life and you have tremendous,
tremendous powers. It is very important that you recognize the
limitations of those powers, too, because we have had notable
examples of judges in this country on the Federal bench who
seem to think they can do whatever they want to, whatever their
viscera tells them.
One of the things I am pleased with with regard to all of
you is that I think you understand the importance of following
the rule of law, of interpreting the law and not, as you said,
Judge Rufe, legislating from the bench.
There are tough questions where you are going to have to
make decisions, and some will accuse you of legislating from
the bench for having made them. But you will know what those
are, and I am convinced that this particular panel is going to
know how to handle those problems without going outside of the
jurisdictional power that you have.
I am very pleased with you, Mr. Howard. I think you will
make a great addition to the Circuit Court of Appeals. From
what I hear about you, you will do a great job.
So each of you, I just want to compliment you and tell you
how proud I am of you. As long as I am on the Judiciary
Committee, I am going to be supporting the Federal judiciary
because I think it is extremely important. A lot of people
don't realize how coequal and powerful the judicial branch of
Government is, but I think each of you will help them to
understand that in legitimate ways.
So I don't have any further questions. I am convinced each
of you is a good nominee, each of you deserves confirmation,
and we intend to put you through as quickly as possible.
I want to thank my friend and chairman for conducting this
hearing. I want to thank Senator Leahy for having so many of
you appear today, and we want to keep moving in this direction.
We do need to work more on the circuit courts of appeals
because we are in a crisis mode there, and I hope my colleagues
on the other side will help us to get that done.
My thanks to each of you for being willing to accept these
positions. It isn't easy to accept positions that pay less than
graduate law review students, first-year lawyers, but that is
not why you are doing this. You are doing this because you want
to serve your country. As you have expressed, Mr. Baylson,
public service is extremely important, and I want to compliment
each of you for being willing to make those sacrifices and for
being willing to do this, and I wish you well on the bench.
Senator Kohl. Thank you, Senator Hatch.
Senator Specter, do you have any questions of Mr. Anderson?
Senator Specter. Mr. Anderson, I would like your comments
on the role of a judge on interpreting versus making law.
Mr. Anderson. Yes. Senator, as I have said before, I
believe that the role of a judge is to--the primary role is to
identify and apply the law and not to legislate from the bench.
Senator Specter. Thank you. I have no further questions,
Mr. Chairman.
Senator Kohl. Mr. Baylson, in your experience as a U.S.
Attorney for the Eastern District of Pennsylvania, you were
responsible for overseeing the criminal prosecutions of many
repeat violent drug offenders. As you know, the Federal
Sentencing Guidelines, in conjunction with statutory mandatory
minimums, reduced the amount of discretion Federal judges have
during the sentencing process.
As the founder of the largest non-profit provider of drug
and alcohol rehab in the State of Pennsylvania, you have also
demonstrated a remarkable commitment to and compassion for
those who suffer from addiction.
In your view, what role do statutory mandatory minimums and
the Federal Sentencing Guidelines play in the ability of our
justice system to find the optimum balance between treatment
for addition, rehabilitation of criminals, and punishment for
crime?
Mr. Baylson. Mr. Chairman, if I were to be confirmed as a
district court judge, I would follow the law. I would follow
the mandatory minimums that have been enacted by Congress and
mandated. I would follow the Sentencing Guidelines that are the
law of the land. I would follow the opportunity, if I felt it
was appropriate in a particular case, for departures from those
mandatory minimums and those guidelines if an appropriate
motion was made by the United States Attorney, as is also
provided by law.
I would render my best judgment on an individual appearing
based on the facts of the case and what Congress has enacted as
the appropriate sentence and what the Sentencing Guidelines
say. And there have been many circuit court opinions by now
interpreting the guidelines, and that would be my job as a
district court judge.
I have been active in the drug addiction field personally.
I feel very strongly that this is a great challenge to our
Nation, and particularly our Philadelphia community, and I have
participated in it, as you have noted. But I would put my
personal feelings aside and as a judge I would render a
decision based on the facts of the case and what the law was as
set down by Congress, the Supreme Court, and the Third Circuit.
Senator Kohl. Thank you, Mr. Baylson.
Judge Griesbach, you will be the first Federal judge to sit
in northern Wisconsin. Can you tell us what this means to the
legal community in the area, as well as to residents generally
in that part of the State? Do you believe that you would have a
special responsibility to the community as the only Federal
judge in this area?
Judge Griesbach. I think any Federal judge carries a great
responsibility, but especially the first judge in a new court,
and I certainly feel that responsibility and will do my best to
fulfill that responsibility.
Twenty years ago, Mr. Chairman, when I was a staff attorney
at the United States Court of Appeals for the Seventh Circuit,
the circuit executive told me there would be a Federal court in
Green Bay the following year. I came to Green Bay in part with
that in mind. I thought I would be able to use my Federal
experience in this new Federal court. Twenty years later, I
never would have dreamed that here I am about to sit in that
Federal court.
It took a long time to get there, and that whole area owes
a great deal to you, Senator Feingold, and Congressman Green
for your hard work in creating that court. I will do my utmost
to make you proud of the court and to carry out those
responsibilities.
Senator Kohl. Thank you, Judge Griesbach.
Judge Lancaster, you have served with distinction as a
State supreme court justice. Tell us why you want to leave that
position for a job on the Federal bench.
Judge Lancaster. Thank you, Mr. Chairman. It is not a
choice, I think, that all members of the State's highest court
would make. I have an unusual amount of Federal trial
experience. I think I am the only member of the supreme court--
in fact, the only person ever to serve on Minnesota's Supreme
Court to have tried as many Federal trials as I have. I was an
Assistant United States Attorney, as has been noted, for ten
years, and so I have a degree of comfort and familiarity with
that environment and feel that I could make a contribution
there.
Senator Kohl. Judge Rufe, you have devoted a significant
amount of time to providing legal services to disadvantaged
persons, particularly in the area of treatment of youth and
families in drug and alcohol abuse. As a Bucks County assistant
public defender from 1977 to 1980, you represented delinquent,
dependent, and abused children. You have also donated your
legal services to AIDS patients in hospice care and have served
on the board of directors of a number of organizations. So we
commend you for your many years of service to your community.
What is the single most important lesson you will take from
your experience providing legal services to disadvantaged
persons to your new position as a Federal district court judge.
Judge Rufe. Thank you for the opportunity to respond to
that question because it seems that my entire professional life
has been spent not making as much money as I might have, but in
working harder than I needed to. And harder means I have taken
on some difficult challenges in representing those who can't
speak for themselves.
I have found that the experience in representing abuse,
dependent, neglected children or their families, or criminal
defendants who are indigent, carried over into my experience as
a judge very easily because I did understand their positions
and I did understand the nature of the problems.
As my colleague and my fellow nominee, Mr. Baylson, has
demonstrated, it is the recognition that drug and alcohol abuse
and addiction ruin so many facets of society that I don't think
that will change if I am a Federal judge. I believe that
experience and knowledge, coupled with the idea that there are
those who cannot do for themselves, who might need some
assistance from the legal community, not as a judge but as a
person who promotes pro bono work--I think that would tend to
crystalize the problem and compare it to the present laws and
to apply those laws fairly in those cases. I do think the
experience has done well for me and for the cases that I have
sat on and represented.
Senator Kohl. Thank you, Judge Rufe.
Judge Rufe. Thank you.
Senator Kohl. Mr. Walter, you have served as a law partner
in a firm primarily involved in civil litigation for more than
25 years. What do you think will be the most challenging aspect
of making the transition from being a partner in a law firm to
being a district court judge?
Mr. Walter. Well, Mr. Chairman, probably the most difficult
transition will be to get back into the criminal area. As an
Assistant United States Attorney back in 1970, I gained
substantial experience as a Federal prosecutor, but my practice
after that period of time shifted into civil litigation. So I
think the biggest challenge is going to be to go back into the
area of criminal law and make sure that I sharpen my skills as
they were when I was a Federal prosecutor.
Senator Kohl. Well, I think, number one, you have all done
a very good job and clearly are all very well qualified for the
bench. Number two, I have, you are fortunate to hear, some very
taxing questions to ask you that might indeed shake each of
you. However, there is a vote on, so I am not going to ask
those questions.
Unless there are further questions or comments from Senator
Hatch or Senator Specter, I will declare this hearing to be at
an end and congratulate you for having done such a fine job.
Thank you.
[Whereupon, at 4:56 p.m., the committee was adjourned.]
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NOMINATION OF JULIA SMITH GIBBONS, OF TENNESSEE, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT; DAVID C. GODBEY, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS; ANDREW S. HANEN, OF
TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS;
SAMUEL H. MAYS, JR., OF TENNESSEE, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF TENNESSEE; THOMAS M. ROSE, OF OHIO, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO; AND LEONARD E. DAVIS,
OF TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
TEXAS.
----------
THURSDAY, APRIL 25, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Edwards
presiding.
Present: Senators Edwards, DeWine, and McConnell.
STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM THE STATE
OF NORTH CAROLINA
Senator Edwards. Good afternoon, everyone, and welcome. We
want to welcome you to these judicial nomination hearings. We
have a very full schedule. In addition to that, the Senators
who are present to give statements and Senator DeWine and I
have a series of votes that are going to start soon. So we will
be substituting for each, one of us leaving to go vote and the
other coming back. We want to welcome everyone, welcome the
Senators who are here, welcome the nominees and their families,
whom I hope we will have an opportunity to meet and have you
introduced to us a little later.
It is my understanding that Senator Thompson and Senator
Frist may have a conflict problem and so we are going to start,
Senator Gramm, with your permission, with Senator Thompson.
PRESENTATION OF JUILA SMITH GIBBONS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT AND SAMUEL H. MAYS, JR., NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE BY HON.
FRED THOMPSON, A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Thompson. Thank you very much, Mr. Chairman. I want
to thank the committee very much for scheduling this hearing on
the nominations of Judge Julia Smith Gibbons, to be United
States Circuit Judge for the Sixth Circuit, and Mr. Samuel
Mays, whom we all call ``Hardy,'' to be United States District
Judge for the Western District of Tennessee. I appreciate the
opportunity to introduce these two outstanding Tennesseans to
the committee.
First, as far as Judge Gibbons is concerned, despite her
evident youth for such a position, Judge Julia Smith Gibbons
has been a judge for over 20 years. I am confident, Mr.
Chairman, that the committee will not pass on a more highly
qualified nominee this year.
Judge Gibbons was born and raised in Pulaski, Tennessee,
which is a small town in south central Tennessee less than 20
miles from where I grew up. She attended Vanderbilt University,
in Nashville, from which she received her B.A. magna cum laude
in 1972, and where she was elected to be a member of Phi Beta
Kappa, the national honor society.
Judge Gibbons then left Tennessee to attend law school in
our neighbor to the east at the University of Virginia Law
School, where she was a member of the editorial board of the
law review and was elected to the Order of the Coif, the
national legal honor society.
Upon graduating from law school, she returned to Tennessee
to clerk for Judge William Miller, of the Sixth Circuit, the
court to which Judge Gibbons has been nominated. In 1976, Judge
Gibbons became an associate in the law firm of Farris, Hancock,
Gilman, Branan and Lanier, one of whose name partners, Ron
Gilman, now serves on the Sixth Circuit through appointment by
President Clinton.
After three years practicing law, Judge Gibbons joined the
administration of Governor Lamar Alexander as the Governor's
legal adviser in 1979. In 1981, Governor Alexander appointed
Judge Gibbons to the Tennessee Circuit Court for the Fifteenth
Judicial Circuit, which covers Memphis and Shelby County, and
she was elected to a full term in 1982.
In 1983, Judge Gibbons was appointed United States District
Judge for the Western District of Tennessee by President
Reagan, the first woman to hold such a position in Tennessee.
At the time, she was the youngest Federal judge in the Nation.
From 1994 to 2000, she served as chief judge of the court.
She is very highly regarded by the bar as an exceptional
trial judge. While she was being considered for this
appointment and since her nomination, I have heard from many
lawyers who have practiced before her extolling her virtues as
a trial judge. Her reputation is national and it has been
recognized by our Chief Justice, who has appointed her to the
Judicial Panel on Multidistrict Litigation, the Judicial
Resources Committee of the Judicial Conference, and the
Judicial Officer Resources Working Group.
Despite her heavy judicial workload, Judge Gibbons has
remained active in her church and community, serving as an
elder of the Idlewild Presbyterian Church and as a former
president of the Memphis Rotary Club. I have information here
concerning her family, but I think Judge Gibbons will probably
want to introduce them herself.
Mr. Chairman, as members of the Judiciary Committee know,
the Sixth Circuit currently has eight vacancies among its
complement of judges. The court frankly is in crisis. Judge
Gibbons is the first nominee to the Sixth Circuit to be
considered by this Congress and the committee can be confident
that she will make an exceptional appellate judge. She is
extremely smart and hard-working, with an excellent
temperament. I am very pleased to endorse her with great
enthusiasm to the committee, and I hope the committee will act
promptly to report her nomination to the full Senate.
I am also very pleased to introduce Hardy Mays, of Memphis,
to the committee. Mr. Chairman, I am especially grateful to
Chairman Leahy and the committee for moving Mr. Mays'
nomination so quickly. The need is quite urgent.
The Western District of Tennessee typically has four judges
assigned to hear cases in Memphis, along with a fifth who hears
cases in Jackson. Judge Gibbons and Judge Donald currently hold
two of these seats. A third, the one to which Mr. Mays has been
nominated, is vacant. A fourth judge is currently on disability
leave.
Therefore, if the Senate were to confirm Judge Gibbons to
the Sixth Circuit without taking up Mr. Mays' nomination, Judge
Donald would be the only serving district judge in Memphis out
of the four who normally sit there. So moving Mr. Mays'
nomination along with Judge Gibbons' is imperative for
litigants with cases pending in the Western District.
Hardy Mays is very well known to the bar of the Western
District of Tennessee. He was born and raised in Memphis. He
attended Amherst College, from which he graduated cum laude in
1970. Having become acclimated to northern winters, he stayed
up north to attend Yale Law School, where he served as editor
of the law journal and from which he graduated in 1973.
He returned home to Memphis, where he joined the law firm
that is today known as Baker, Donelson, Bearman and Caldwell,
the Baker there being our former Senator and mentor Howard
Baker, the Senator from Tennessee. He practiced law there for
over 20 years. Although he started as a tax and banking lawyer,
his practice soon focused on litigation. He has represented
clients before the local, state and Federal courts in west
Tennessee in a variety of civil cases.
While his practice continued to evolve into one primarily
concentrated on banking law issues, Mr. Mays continued to try
cases until 1985. During his time as a litigator, he tried over
25 cases to judgment, many of them in Federal court.
His peers recognized his standing at the bar and selected
him as a member of the board of directors of the Memphis Bar
Association, a position he held from 1985 until 1987. That
year, he became managing partner of his firm, a move that
forced him to give up litigation. He helped turn the firm into
a regional law firm, opening offices in Nashville, Chattanooga,
and I might add since that time several more in various parts
of the country, including Washington, D.C. He gave up his
position as managing partner of the firm in 1988 and returned
to the full-time practice of law. By that time, his practice
had again evolved into one focusing on health law and related
practice areas.
In 1995, Mr. Mays joined the administration of Governor Don
Sundquist as his legal counsel. Two years later, he became the
Governor's chief of staff. In these positions, he served the
people of Tennessee ably and tirelessly, and was highly
regarded during his tenure with Governor Sundquist. In 2000, he
returned to his former law firm, where he has continued to
practice focusing on health care.
Mr. Mays is highly regarded by the bar for his intellect,
his legal ability, his fairness, and his unfailing good humor.
I am confident he has the ideal temperament to serve in the
stressful position of a trial judge.
In addition to his record of professional accomplishments,
no introduction of Mr. Mays would be complete without
references to his extraordinary commitment to his community.
While I will not take time to detail this, I would focus on one
aspect of his involvement with his neighbors.
Mr. Chairman, the arts in Memphis would be far poorer
without his contribution. He serves or has served as a director
of the Memphis Orchestra, the Memphis Botanic Garden, Opera
Memphis, the Memphis Ballet, the Playhouse on the Square, the
Decorative Arts Trust, and the Memphis Brooks Museum.
So, Mr. Chairman, Mr. Mays is an excellent choice to serve
as a Federal district judge. I appreciate the President's
decision to nominate him and I am grateful to the committee for
holding this hearing so promptly. I urge the committee to move
forward to report this nomination to the full Senate so that we
may get the judgeship filled because of this great need in
Memphis.
So thank you, Mr. Chairman and Senator DeWine, for your
courtesy, and Senator McConnell. As three fine lawyers, you
know more than most the importance of these positions and how
fortunate I believe we are to have these two outstanding people
who are willing to serve in this capacity.
Thank you very much.
Senator Edwards. Thank you very much, Senator Thompson.
Senator Frist?
PRESENTATION OF JULIA SMITH GIBBONS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT AND SAMUEL H. MAYS, JR., NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE BY HON.
BILL FRIST, A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Frist. Thank you, Mr. Chairman, and I will
abbreviate my comments.
Aaron Burr once said that Tennesseans as a breed can go
anywhere and do anything. Today's nominees are living testimony
to Burr's observation, and it is a distinct honor for me to
join my colleague, Fred Thompson, in introducing to you Judge
Julia Smith Gibbons and Samuel ``Hardy'' Mays, both of Memphis,
Tennessee.
Julia Gibbons' distinguished life is an example of the
American dream. She has been a trailblazer for women in the
legal profession and exemplifies in both her professional and
personal life the character that makes us a great Nation,
active in her church and community, a supportive and loving
spouse to Bill for 29 years, and the proud mother of two
wonderful children, Carey and Will.
A product of small-town America and the solid values that
her family instilled in her, as valedictorian of her senior
class at Giles County High School, she was obviously poised to
accomplish great things. As Senator Thompson outlined, after an
outstanding record at Vanderbilt University and the University
of Virginia Law School, Judge Gibbons headed home to Tennessee
to serve then-Governor Lamar Alexander as his legal adviser,
and became the first female trial judge of a court of record in
Tennessee, and just two years later, in 1983, was confirmed by
the Senate as a U.S. District Judge in the Western District of
Tennessee.
At that time, Julia became the first female Federal judge
in Tennessee, was the second youngest person on the Federal
bench in the country, and the second youngest in the Nation's
history ever appointed to a district court judgeship. Her legal
acumen and human touch soon made her one of the brightest stars
in our Federal judicial system.
I have heard from numerous attorneys in the Memphis legal
community who appear before Judge Gibbons' court and they have
offered generous praise of her work. She is known for being
bright, industrious, thorough, even-handed, and someone who
truly loves the law. As one constituent who wrote me about her
so succinctly said, ``she is everything anyone could want in a
judge.''
For all of these reasons, I am delighted to add my strong
endorsement to President Bush's nomination of Judge Gibbons to
the Sixth Circuit Court of Appeals. She is ready to go to work
and is immediately prepared to do the work of the Sixth
Circuit.
It is a wonderful coincidence that Judge Gibbons' hearing
and Hardy Mays' are both today, as these two nominees not only
know each other professionally, but are close personal friends
as well.
Samuel Hardwicke Mays, also known as ``Hardy,'' is a
Memphis institution. No one lives life more to the fullest than
Hardy, whose passion for the arts, a good book, the law, and
public service is known to all.
As have so many others, I first sought his counsel when I
decided to run for the United States Senate. Since then, I have
turned to Hardy for advice on a variety of occasions, and I
value the thoughtful, balanced approach he can bring to any
issue. I am proud to call him my friend.
More importantly, he is an outstanding lawyer with a keen
intellect. He is fair and impartial, and has enormous
compassion for his fellow man. Hardy has demonstrated both in
his distinguished legal career with the Baker Donelson firm in
Memphis and his life in public service as legal counsel and
chief of staff to Governor Sundquist a unique ability to hear
all sides of an issue, to work with people from all walks of
life, and to find equitable solutions to virtually any
challenge. His personal and professional integrity are above
reproach and his even temperament is ideally suited for the
Federal bench.
Once again, many outstanding Tennesseans have added their
support to Hardy's nomination, including a number of prominent
Democrats throughout the State. Former Tennessee U.S. Senator
Harlan Mathews was pleased to add his support, stating that
``Hardy Mays will be a credit to the Federal bench.'' I
couldn't agree more with Senator Mathews and I am grateful to
President Bush for his nomination of an individual who I know
will act with fairness to all in a way which will make all of
us proud.
Mr. Chairman, I add to Senator Thompson's my presentation
to you of Judge Gibbons and Hardy Mays, and urge you and your
colleagues on the Judiciary Committee to consider their
nominations as quickly as possible.
Senator Edwards. Thank you, Senator Frist.
Senator Gramm?
Senator Thompson. Mr. Chairman, if I could interrupt, we
have another Tennessean testifying before the Finance Committee
as we speak. So if the committee would excuse us, we would
appreciate it.
Senator Edwards. Absolutely. You are excused. Thank you.
Senator Frist. Thank you, Mr. Chairman.
Senator Edwards. Senator Gramm?
PRESENTATION OF DAVID GODBEY, ANDREW S. HANEN, AND LEONARD E.
DAVIS, NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN,
SOUTHERN, AND EASTERN DISTRICTS OF TEXAS BY HON. PHIL GRAMM, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Gramm. Well, Mr. Chairman, let me say that it is
easy for me to be brief. I have three nominees. One is Leonard
Davis, from Tyler, who is to be a District Judge in the Eastern
District. Another is David Godbey, from Dallas, to be a
District Judge in the Northern District. The other is Andy
Hanen, from Houston, to be a District Judge in the Southern
District.
Two of these nominees graduated first in their law class.
The other one graduated with high honors from Harvard. They
have been either outstanding State judges or officers in the
State bar association. They are supported by a broad spectrum
of people and practitioners of the law in my State. They have
been involved in everything good in their communities.
It is a pretty strong statement, but I doubt on any single
day ever in the history of this committee have we had three
nominees from the same State that had qualifications equal to
the three people that we present to the committee today.
I thank you, Mr. Chairman and members of the committee, for
moving forward on these nominees. They were all nominated on
the 23rd of January and we are grateful that they have a
hearing on such an expedited basis.
Senator Edwards. Thank you, Senator Gramm.
Senator Hutchison.
PRESENTATION OF DAVID GODBEY, ANDREW S. HANEN, AND LEONARD E.
DAVIS, NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN,
SOUTHERN, AND EASTERN DISTRICTS OF TEXAS BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman. I will just say
a few words about each of these nominees from Texas because
Senator Gramm and I have a process through which they go which
is rigorous. We have a committee that interviews all the
candidates. There were a number of good candidates, but these
came out on top.
Andy Hanen is a 1975 cum laude graduate of Denison
University, in Ohio. In 1978, he earned his law degree from
Baylor University, ranking first in his class. He was president
of the Student Bar Association and a member of the Baylor Law
Review.
He then founded his own law firm in Houston, where he had
significant trial experience, half of which was before Federal
courts. He has been named Outstanding Young Lawyer of Texas by
the State bar. He has been elected president of the Houston Bar
Association and is currently a director of the Texas State Bar.
He also gives his time to the community in charitable work and
is truly a leader in the Houston community.
David Godbey graduated magna cum laude from Southern
Methodist University with degrees in electrical engineering and
math. After working as an electrical engineer, he scored in the
99th percentile on the LSAT, entering Harvard Law School and
receiving a J.D. degree magna cum laude. He then clerked on the
Fifth Circuit, so he is very familiar with the Fifth Circuit.
He presides over the 160th District Court today. He is a
State district judge, elected by the people of Dallas County,
and has long experience in litigation and appellate law. He has
consistently been the highest-rated State civil court judge by
the Dallas Bar Association poll, with a 94-percent approval
rating by all of the lawyers in the Dallas bar. I think you can
see he, too, is a legal scholar and well regarded by his peers.
Leonard Davis, for the Eastern District, earned a
mathematics degree from the University of Texas at Arlington, a
master's degree in management from Texas Christian University,
and graduated number one in his class from Baylor University
Law School.
He has practiced civil and criminal law for 23 years in
Tyler and now is the Chief Justice of the Civil Court of
Appeals in Tyler, Texas. This is the State interim court of
appeals in Texas. He is also very active in civic work in the
community. He is one of the community leaders in Tyler, Texas,
and is on the State Ethics Advisory Commission.
I can't think of three more qualified people in the State
of Texan than those that we have before you today, and the two
of us urge you to nominate them so that they can go to their
benches which are very much needed at this time to be filled.
Senator Edwards. Thank you, Senator Hutchison. You and
Senator Gramm may be excused. Thank you very much for your
statements.
Senator DeWine, I believe you had a statement on behalf of
one of the nominees.
PRESENTATION OF THOMAS M. ROSE, NOMINEES TO BE DISTRICT JUDGE
FOR THE SOUNTERN DISTRICT OF OHIO BY HON. MIKE DeWINE, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator DeWine. Mr. Chairman, thank you very much, and
thank you for holding this hearing and presiding.
It is my pleasure and honor today to introduce Judge Thomas
M. Rose, Judge of the Greene County Court of Common Pleas, whom
President Bush has nominated to serve as a Federal judge in the
Southern District of the State of Ohio.
Let me also introduce his wife, Sandy, who is in the front
row seated next to Judge Rose; his daughter, Traci; his sister
and brother-in-law, Laura and Ned Hinton; his friends, Ron and
Brenda Lewis; and his friend and clerk, Bob Berger.
Mr. Chairman, I have known Judge Rose for over 30 years
now. He grew up in Lowellville, Ohio, in the Hocking Hills of
Ohio. He graduated from Ohio University, graduated from the
University of Cincinnati Law School. He is someone who has had
a very distinguished career, a proven track record, someone who
has a broad range of experience in the practice of law and in
law itself.
He has been in the private practice of law. He served as an
assistant county prosecuting attorney. He headed the civil
division of the Greene County prosecutor's office. Mr.
Chairman, in Ohio, as you may know, the prosecuting attorney in
each county represents all of the elected officials, everyone
from the sheriff to the clerk of courts. He also represents all
the township trustees of all the different townships and many
of the school boards.
So if you represent all of these different agencies and
different boards, you get all kinds of problems. You see all
the problems of the county that there are, except the criminal
problems, but you see just about everything else.
Judge Rose, from there, at one time became the first
juvenile court magistrate in Greene County, again someone who
tried all of the juvenile court cases in the county; so, again,
a different form of experience, but certainly experience that
is very, very important.
For the last 11 years, Judge Rose has served as Common
Pleas Judge of Greene County. In Ohio, the Common Pleas is the
highest trial bench. It is the court that tries all the major
civil cases and tries all the major criminal cases. Judge Rose
has a distinguished record on the bench for those 11 years at
the Common Pleas level.
If you look at Judge Rose's career, it has been a steady
progress, a broad range of experiences. He has handled some
very, very tough and complex cases, everything really from
presiding over an aggravated murder case where the defendant
insisted on representing himself--and we all can appreciated
what kinds of problems that presents for everybody in the
courtroom, particularly for the judge, and Judge Rose presided
over that and presided over it very well--to things such as
when he was a prosecuting attorney giving counsel to township
trustees over things like line fences and other problems that
are very important to the local community.
When we talk about judges and we describe who should be on
the bench, we talk about judicial temperament. Judge Rose has
judicial temperament. Judge Rose is the type of person that you
would want to judge your case, whether you were a practicing
lawyer or whether you were the plaintiff or the defendant in a
criminal case. Judge Rose is the type of person that you would
want sitting on the bench.
As I indicated, Mr. Chairman, I have known Judge Rose now
since 1973, when he and I served as assistant county
prosecuting attorneys at the same time. For a period of time,
we also practiced law together, but since that time Judge Rose
has acquired an unbelievable amount of experience in those 30
years.
But he is really, Mr. Chairman, the same man that I met in
1973, and that is a man of great integrity and great honor, and
he is someone whom I am very pleased to recommend to this
committee and to the Senate for confirmation.
Senator Edwards. Thank you very much, Senator DeWine.
Senator McConnell, would you like to make a statement?
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. If I could, Mr. Chairman. I understand
you have got a lot of people here. I just wanted to stop by and
greet the hearing of Judge Gibbons with considerable relief.
As a Senator from the Sixth Circuit, which is 50-percent
vacant--8 out of 16 seats are vacant; 7 of those nominations
have been made by the President for quite some length of time--
I just wanted to come by and express my gratitude that we are
having a hearing on at least one of the President's nominees to
the Sixth Circuit.
I would like to, Mr. Chairman, just ask that my full
statement with regard to the crisis that we have in the Sixth
Circuit appear in the record at this point.
Senator Edwards. Yes, your statement will be made part of
the record.
[The prepared statement of Senator McConnell follows:]
Prepared Statement of Senator McConnell
I am very pleased the Chairman is holding this hearing for six of
the President's judicial nominees. I am particularly glad, of course,
that the circuit court nominee whom the Chairman has chosen to include
is a nominee to the Sixth Circuit Court of Appeals.
The Sixth Circuit covers my home state of Kentucky, as well as the
states of Michigan, Ohio, and Tennessee. The vacancy crisis in the
federal courts of appeals is approaching 20 percent. Even more
troubling, the vacancy crisis in the Sixth Circuit is at a dangerous
level of 50 percent. Having half the seats of the Sixth Circuit vacant
has obviously created major problems for my constituents and for the
citizens in other states in the Sixth Circuit.
Let me note a couple of statistics that illustrate my concern.
According to the Administrative Office of the Courts, in the last five
years, from 1996 to 2001, the average number of matters for which
active-status judges in the Sixth Circuit are responsible increased
nearly 50 percent. This means that each judge is now having to resolve
many more matters than they did just five years ago.
This, in turn, has caused the median time for disposition of an
appeal to increase greatly to where the Sixth Circuit is almost the
single slowest circuit court. It is four and one-half months slower--
which is a full 40 percent slower--than the national average.
What this means is that in other circuits, if you file your appeal
at the beginning of the New Year, for example, you get your decision
around Halloween. But in the Sixth Circuit, if you file your appeal at
the same time, you must wait until Easter of the following year to get
your case resolved.
These are alarming statistics. To put a human face on the
situation, let me read some comments from judges and practitioners in
the Sixth Circuit. Ohio Attorney General Betty Montgomery has said
that--numerous death penalty appeals before the Sixth Circuit are
experiencing prolonged delays. For example, the case of Michael Beuke
has not been acted on in more than two years, and a motion in the case
of Clarence Carter has been pending for three years.
Federal district judge Robert Holmes Bell described the Sixth
Circuit as in a ``crisis'' because of the vacancies. He added, ``We're
having to backfill with judges from other circuits who are basically
substitutes. You don't get the same sense of purpose and continuity you
get with full-fledged court of appeals judges.'' Thus, even with
``backfilling,'' the Sixth Circuit still takes more than 40 percent
longer than the national average to resolve cases.
Cincinnati Attorney Elizabeth McCord, as of the end of last year,
had been waiting fifteen months just to have oral argument scheduled
for her client's appeal in a job discrimination suit. In the interim,
her client died. According The Cincinnati Post, delays like this have
become ``commonplace'' because vacancies have left the court ``at half-
strength and have created a serious backlog of cases.''
Mary Jane Trapp, president of the Ohio Bar Association, said,
``Colleagues of mine who do a lot of federal work are continuing to
complain (about the delays). When you don't have judges appointed to
hear cases, you really are back to the adage of `justice delayed is
justice denied.' ''
The point of my discussion is not to point fingers. My friend, the
Chairman, handled the district court vacancies in my home state
expeditiously and fairly. I note again how much I appreciate his
actions in this regard.
With respect to Sixth Circuit vacancies, the President has done his
job. He has nominated seven exceptionally well-qualified individuals to
the Sixth Circuit, including, of course, the nominee before us today,
Judge Gibbons. Some of these nominees have been pending for a year
without a hearing.
It is my hope that this Committee, as it did with the district
court vacancies in my home state, will begin to act expeditiously to
fill circuit court vacancies in general, and Sixth Circuit vacancies in
particular. My constituents and the citizens in the other Sixth Circuit
states urgently need relief. Today's hearing is a step in the right
direction. I thank the Chairman for that step, and I can only hope that
we will see more steps--and at a faster gait--in the future. I thank
the Chair.
Senator Edwards. I also have a statement from Senator Leahy
which will also be made part of the record.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Chairman Patrick Leahy
I would like to welcome the nominees to today's hearing. The
nominees before us represent a number of states across our nation. Many
of the nominees' family members have made the long journey with them,
and I extend the welcome of this Committee to the friends and families
in attendance. I am especially grateful to Senator Edwards for
volunteering to chair this important hearing on behalf of the
Committee.
Today, we are holding the confirmation hearing for Judge Julia
Smith Gibbons, nominated to the Court of Appeals for the Sixth Circuit,
Justice Leonard E. Davis, nominated to the District Court for the
Eastern District of Texas, Judge David C. Godbey, nominated to the
District Court for the Northern District of Texas, Andrew S. Hanen,
nominated to the District Court for the Southern District of Texas,
Samuel H. (Hardy) Mays, Jr., nominated to the District Court for the
Western District of Tennessee, and Judge Thomas M. Rose, nominated to
the District Court for the Southern District of Ohio.
With today's hearing, in little less than 10 months, the Senate
Judiciary Committee will have held 17 hearings involving a total 61
judicial nominations. That is more hearings on judges than the
Republican majority held in any year of its control of the Senate. In
contrast, one-sixth of President Clinton's judicial nominees--more than
50--never got a Committee hearing and Committee vote from the
Republican majority, which perpetuated longstanding vacancies into this
year.
I am pleased to include Judge Gibbons on the hearing today at
Senator Fred Thompson's request. Of the six Court of Appeals nominees
who have received hearings in 2002 by the Committee, all have been at
the request of Republican Senators. By including Judge Gibbons on this
hearing, we hope to provide some much needed relief to the Sixth
Circuit, which has eight vacancies. Six of those vacancies arose before
the Judiciary Committee was permitted to reorganize after the change in
majority last summer.
The Sixth Circuit vacancies are a prime and unfortunate legacy of
these recent partisan obstructionist practices. Half of the seats on
the Sixth Circuit are vacant. Most of those vacancies arose during the
Clinton Administration and before the change in majority last summer.
None, zero, not one of the Clinton nominees to those vacancies on the
Sixth Circuit received a hearing by the Judiciary Committee under
Republican leadership.
One of those seats has been vacant since 1995, the first term of
President Clinton. Judge Helene White of the Michigan Court of Appeals
was nominated in January 1997 and did not receive a hearing on her
nomination during the more than 1,500 days before her nominations was
withdrawn by President Bush in March of last year. Kathleen McCree
Lewis, a distinguished lawyer from a prestigious Michigan law firm,
also did not receive a hearing on her 1999 nomination to the Sixth
Circuit during the years it was pending before it was withdraw by
President Bush in March 2001. Professor Kent Markus, another
outstanding nominee to a vacancy on the Sixth Circuit that arose in
1999, never received a hearing on his nomination before his nomination
was returned to President Clinton without action in December 2000.
Some of the other side of the aisle held these seats open for years
for another President to fill, instead of proceeding fairly on those
consensus nominees. Some were unwilling to move forward knowing that
retirements and attrition would create four additional seats that would
arise naturally for the next President. That is why there are now eight
vacancies on the Sixth Circuit, why it is half empty or half full.
Long before some of the recent voices of concern were raised about
the vacancies on that court, Democratic Senators in 1997, 1998, 1999,
and 2000 implored the Republican majority to give the 6th Circuit
nominees hearings. Those requests, not just for the sake of the
nominees but for the sake of the public's business before the court,
were ignored. Numerous articles and editorials urged the Republican
leadership to act on those nominations. Fourteen former presidents of
the Michigan State Bar pleaded for hearings on those nominations.
The former Chief Judge of the Sixth Circuit, Judge Gilbert Merritt,
wrote to the Judiciary Committee Chairman years ago to ask that the
nominees get hearings and that the vacancies be filled. The Chief Judge
noted that, with four vacancies--the four vacancies that arose in the
Clinton Administration--the Sixth Circuit ``is hurting badly and will
not be able to keep up with its work load due to the fact that the
Senate Judiciary Committee has acted on none of the nominations to our
Court.'' He predicted: ``By the time the next President in inaugurated,
there will be six vacancies on the Court of Appeals. Almost half of the
Court will be vacant and will remain so for most of 2001 due to the
exigencies of the nomination process. Although the President has
nominated candidates, the Senate has refused to take a vote on any of
them.'' Nonetheless, no Sixth Circuit hearings were held in the last
three years of the Clinton Administration, despite these pleas. Not
one. Since the shift in majority the situation has been exacerbated
further as two additional vacancies have arisen.
When Senator Edwards convenes our hearing this afternoon on the
nomination of Judge Gibbons to the 6th Circuit, a hearing we announced
last week, it will be the first hearing on a 6th Circuit nomination in
almost 5 years. Similarly, the hearing we held on the nomination of
Judge Edith Clement to the 5th Circuit last year was the first on a 5th
Circuit nominee in 7 years and she was the first new appellate judge
confirmed to that Court in 6 years. When we held a hearing on the
nomination of Judge Harris Hartz to the 10th Circuit last year, it was
the first hearing on a 10th Circuit nominee in 6 years and he was the
first new appellate judge confirmed to that Court in 6 years. when we
held the hearing on the nomination of Judge Roger Gregory to the 4th
Circuit last year, it was the first hearing on a 4th Circuit nominee in
3 years and he was the first appellate judge confirmed in 3 years.
Large numbers of vacancies continue to exist on many Courts of
Appeals, in large measure because the recent Republican majority was
not willing to hold hearings or vote on more than half--56 percent--of
President Clinton's Courts of Appeals nominees in 1999 and 2000 and was
not willing to confirm a single judge to the Courts of Appeals during
the entire 1996 session. From the time the Republicans took over
majority control of the Senate in 1995 until the reorganization of the
Committee last July, circuit vacancies increased from 16 to 33, more
than doubling.
Democrats have broken with that recent history of inaction. Nine
nominees have been confirmed to the Courts of Appeals in less than 10
months. Judge Gibbons is the 12th nominee to a Circuit Court to receive
a hearing in less than 10 months.
I would like to welcome Mr. Hardy Mays of Tennessee to today's
hearing. Mr. Mays is a partner at Baker, Donelson, Bearman & Caldwell
in Memphis, Tennessee, and he graduated from Yale Law School in 1973.
Several lawyers have written to the Senate expressing strong support
for Mr. Mays' confirmation due to his intelligence, fairness, and good
temperament, including J. Houston Gordon, the former Chairman of the
Tennessee Democratic Party.
Mr. Mays has spent most of his legal career in private practice,
but he also served for five years as legal counsel and then Chief of
Staff of Tennessee Governor Don Sundquist, a Republican. Mr. Mays has
been involved in more than 50 political campaigns, including some fund
raising, on behalf of Republican candidates for President, Senate,
Governor and local offices. He is member of the Republican National
Lawyers Association. He was a delegate to the Republican National
Convention in 2000, and he was on the Executive Committee of the
Tennessee Republican Party from 1986 through 1990. Thus, it would be
wrong to claim that we will not consider President George W. Bush's
nominees with conservative credentials. We have done so repeatedly.
For example, Judge Rose was previously active in Republican
politics in Ohio. I would like to welcome Judge Rose of the Greene
County Common Pleas Court in Ohio to this hearing. Judge Rose is
strongly supported by both of his home-State Senators. A former
assistant prosecutor and private practitioner, Judge Rose was appointed
to the state bench over a decade ago by then Governor, now Senator,
George Voinovich.
We also have three nominees to the District Courts of Texas who I
would like to welcome today. In 2000, Justice Davis was appointed by
then-Governor George W. Bush to the position of Chief Justice of the
Court of Appeals in Tyler, Texas. Justice Davis has extensive
experience practicing as a litigator before state and federal court. He
has been nominated by President Bush to the U.S. District Court for the
Eastern District of Texas. Judge Godbey is a Dallas County District
Court Judge who has been nominated to the federal district court in the
Northern District of Texas. He is a former litigator who represented
corporate entities in civil and commercial litigation in state and
federal trial and appellate courts in Texas and around the country. He
has also briefed three cases before the United States Supreme Court,
including two cases involving the application of the Voting Rights Act
in Texas. Mr. Hanen is nominated to the U.S. District Court for the
Southern District of Texas. He has significant legal experience working
as a civil trial attorney in private practice for over twenty years,
and has been a leader in establishing programs to serve the needs of
the disadvantaged. Mr. Hanen appears well-supported by his colleagues
in the Houston legal community, and has received bipartisan support.
I would note that Mr. Hanen was nominated to fill the vacancy
created by the retirement of Judge Filemon Vela in May 2000. I also
recall just two years ago when Ricardo Morado, who has served as Mayor
of San Benito, Texas, and was nominated for a vacancy in the Southern
District of Texas, never got a hearing and was never acted upon.
President Clinton nominated Ricardo Morado on May 11, 2000 and his
nomination was returned to President Clinton without any action on
December 1, 2000.
It was not long ago when the Senate was under Republican control,
that it took 943 days to confirm Judge Hilda Tagle to the United States
District Court for the Southern District of Texas. She was first
nominated in August 1995, but not confirmed until March 1998. When the
final vote came, she was confirmed by unanimous consent and without a
single negative vote, after having been stalled for almost three years.
I recall the nomination of Michael Schattman to a vacancy on the
Northern District of Texas. He never got a hearing and was never acted
upon, while his nomination languished for over two years.
These are district court nominations that could have helped respond
to increased filings in the federal courts in Texas if acted upon by
the Senate over the last several years. With today's hearing on these
three Texas nominees, the Committee will have considered five nominees
from Texas in less than ten months and 11 nominees for positions on the
trial of appellate court level in the Fifth Circuit, including the
first new judge for the Fifth Circuit in seven years. In fact, it was
this Senate's confirmation of Judge Edith Brown Clement last fall that
created the vacancy to which justice Davis is nominated.
In the past few months, the Senate has also confirmed Judge Philip
Martinez to fill a vacancy on the District Court for the Western
District of Texas and Judge Randy Crane to fill a vacancy on the
District Court for the Southern District of Texas. The Senate has
confirmed Judge Kurt Englehardt and Judge Jay Zainey to fill vacancies
on the District Court for the Eastern District of Louisiana. The Senate
has also confirmed Judge Michael Mills to fill a vacancy on the
District Court for the Northern District of Mississippi.
Of course many of the vacancies in the Fifth Circuit are
longstanding. Judge Clement was confirmed to fill a judicial emergency
on the Fifth Circuit. Judge Martinez and Judge Crane likewise filled
what had been judicial emergencies. These many vacancies and
emergencies are the legacy of the years of inaction.
For example, despite the fact that President Clinton nominated
Jorge Rangel, a distinguished Hispanic attorney, to fill a Fifth
Circuit vacancy in July 1997, Mr. Rangel never received a hearing and
his nomination was returned to the President without Senate action at
the end of 1998. On September 16, 1999, President Clinton nominated
Enrique Moreno, another outstanding Hispanic attorney, to fill a
vacancy on the Fifth Circuit but that nominee never received a hearing
either. When President Bush took office last January, he withdrew the
nomination of Enrique Moreno to the Fifth Circuit. The Senate has moved
quickly to confirm Judge Armijo in New Mexico and Judges Martinez and
Crane in Texas, who were among the very few Hispanic judicial nominees
sent so far by this Administration to us.
In contrast, the Judiciary Committee is moving fairly and
expeditiously on judicial nominations. Looking at the number of
confirmations in similar periods shows that we are confirming President
Bush's judicial nominees at a faster pace than the nominees of prior
presidents, despite absurd assertions to the contrary.
After all of the floor votes on judicial nominees today, the Senate
will have confirmed 50 judges in less than ten months of Democratic
leadership of the Senate. The record shows that 48 nominees were
confirmed over the first 15 months of the Clinton Administration, a
pace on average of 3.1 per month. In the first 15 months of the first
Bush Administration, 27 judges were confirmed, a pace of 1.8 judges
confirmed per month. Likewise, in President Reagan's first 15 months in
office, 54 judges were confirmed, a pace of 3.6 per month. In contrast,
in nearly 10 months with a Democratic majority, President George W.
Bush's judicial nominees have been confirmed at a rate of 5 per month,
a faster pace than for any of the past three Presidents, even those
some were working with a Senate majority of the same political party.
The number of judicial confirmations in less than 10 months--50--
exceeds the number confirmed during all of the 2000, 1999, 1997 and
1996, for out of six full years under Republican leadership.
I commend my colleagues for their efforts to consider the almost
five dozen nominees we have had hearings for thus far. Thank you.
Senator DeWine. I have, Mr. Chairman, if I could, a
statement from Senator Hatch, as well.
Senator Edwards. That will be made part of the record,
also.
[The prepared statement of Senator Hatch follows:]
Prepared Statement of Senator Orrin Hatch
I am pleased that the Judiciary Committee is considering the
nomination of six exceedingly well-qualified candidates for the federal
bench, and I would like to welcome each of them to the Committee. I
especially welcome Andrew Hanen and Leonard Davis who have been waiting
ten years for this hearing. They were first nominated for the same
position in 1992 but did not get a hearing.
Before we discuss the excellent credentials of today's nominees,
however, I must take just a minute to make an observation about how
this hearing fits into the bigger picture of the Committee's work on
judicial nominations.
As we all know, there is a severe circuit court vacancy crisis.
Nearly one in five circuit court seats is vacant all across America. I
am afraid that at our current rate of confirmations it will be several
years before we meet America's need, unless something changes.
I am glad that we will consider a circuit court nominee today, but
I will point out, as a Wall Street Journal editorial did yesterday,
that in years past, under Republican leadership, we regularly
considered two or more circuit nominees at a time. In fact, we did so
on ten different occasions.
I am also pleased that today we will hear from a nominee for the
6th Circuit, Judge Gibbons. The 6th Circuit, which includes Michigan,
Ohio, Kentucky and Tennessee, is 50 percent vacant; only 8 of 16 seats
are filled. Judge Gibbons will be the first confirmation to the 6th
Circuit in 5 years, since 1997. Notably, under recent Republican
leadership we confirmed 4 judges to the 6th Circuit Court, all of them
President Clinton's nominees.
I must also commend President Bush. He has responded to the circuit
court vacancy crisis by rapidly nominating top-notch men and women. The
President has nominated superbly qualified nominees who are supported
not only by both Democrats and Republicans in their states and cities,
but also overwhelmingly by the people that matter most to me, the
people who know them. This includes lawyers who practice with them or
who appear before them, in the case of the nominees on the bench,
whether these attorneys have won or lost their cases.
This is certainly true of the nominees before us today who will
have my fullest support.
Judge Julia Smith Gibbons, our nominee to the Sixth Circuit Court
of Appeals, is, frankly, an extraordinary nominee. I have reviewed few
records of public service and personal accomplishment more outstanding
than hers. It seems to me that it was for good reason that in 2000 she
received a recognition called ``Heroine for Women in the Law Award.''
It seems a fitting appellation for that award if she received it. Not
least of that is the comment made by one attorney who wrote to
recommend her, and after praising her accomplishments commented: ``I
can assure you that she is an equally committed parent.'' But that is
just one of her accomplishments.
Judge Gibbons graduated magna cum laude and Phi Beta Kappa from
Vanderbilt University and then Order of the Coif from the University of
Virginia, where she was an editor for the Law Review. She went to clerk
for the late Honorable William E. Miller on the Sixth Circuit Court of
Appeals, where we now hope she will soon return after a distinguished
career, including as deputy counsel for Governor Lamar Alexander and
almost 20 years on the federal District Court bench, where she has been
Chief Judge and an active national judicial leader. She exemplifies the
nominees the President has sent us, superbly accomplished, and she
enjoys the support of Democrats and Republicans and everyone who knows
her work.
Judge Leonard Davis, who has been nominated to the U.S. District
Court for the Eastern District of Texas, graduated first in his class
from Baylor University School of Law. While in private practice he
litigated civil, commercial, and business cases, and several times he
was appointed to defend indigent defendants in criminal cases. He has
served on the State Ethics Advisory Commission and the State Judicial
Districts Board, and he currently serves as Chief Justice of the Texas
Twelfth Court of Appeals. As was the case ten years ago, Judge Davis'
combination of excellent private and public service promise to make him
a highly respected and successful federal judge in Texas.
Judge David Godbey, our nominee to the U.S. District Court for the
Northern District of Texas, brings terrific credentials to the bench. A
cum laude graduate of Southern Methodist University in mathematics and
electrical engineering, and a cum graduate of Harvard Law School, Judge
Godbey joined Hughes & Luce, a Dallas firm, handling civil and
commercial litigation in federal trial and appellate courts. In 1994,
Judge Godbey was elected to a judgeship on the 160th Judicial District
Court in Dallas, where he currently serves. I fully support Judge
Godbey and believe he will make an excellent federal judge.
Andrew Hanen, our nominee to the U.S. District Court for the
Southern District of Texas, is a model of an attorney committed both to
the legal profession and to the betterment of society. A graduate of
Baylor University School of Law, where he finished first in his class,
Mr. Hanen has extensive experience in handling, among other matters,
legal and medical malpractice, mass and toxic tort, commercial
litigation, and products liability cases. Mr. Hanen is one to be
admired for his pro bono work, both in leadership and personal roles.
As was the case ten years ago when he was first nominated, Mr. Hanen
will make an excellent federal judge.
Samuel H. Mays, our nominee to the U.S. District Court for the
Western District of Ohio, has had a long and distinguished career in
private practice and an even more distinguished life of public service.
Mr. Mays served first as Legal Counsel, then Chief of Staff to
Tennessee Governor Sunquist. In this latter capacity, he was the
``chief operating officer'' for a state with $19 billion in revenue. He
was also responsible for overseeing the Governor's cabinet and entire
staff. Mr. May has also served on the Boards of the Memphis Opera,
Ballet Society of Memphis, Memphis Brooks Museum of Art Foundation and
the Decorative Arts Trust. He will bring to the federal bench not only
a rich breadth of experience, a keen and respected legal mind, but also
tirelessly displayed love for his community that we need on the federal
bench.
Thomas Rose, our nominee to the U.S. District Court for the
Southern District of Ohio, has been a Judge on Ohio's Green County
Court of Common Pleas for the past 11 years. Before becoming a member
of the bench, Judge Rose was a prosecutor with responsibilities ranging
from juvenile matters to successfully prosecuting a capital murder
case. Judge Rose has also proven that he is a man of integrity. When
Senator DeWine, then a prosecutor in Greene County, discovered that his
office was being bugged by his superiors, he quit. Judge Rose, a
prosecutor in the same office, resigned as well believing that the
integrity of the office had been violated. The nominee is also well
known throughout Ohio for his support of many charities. He is the kind
of jurist and the kind of citizen who will make a great federal judge.
Senator DeWine. And a statement from Senator Voinovich in
regard to Judge Rose.
Senator Edwards. And Senator Voinovich's statement,
absolutely.
[The prepared statement of Senator Voinovich follows:]
Prepared Statement of Senator George Voinovich
I am writing to express my strong recommendation for Justice Thomas
Rose, whom the President has nominated to serve on the United States
District Court for the Southern District of Ohio.
Tom Rose's qualifications for this judgeship are best evidenced
through his experience. Tom has been a Judge in the Common Pease Court
of Green County, Ohio, since 1991. Judge Rose addresses about 400 civil
and 400 felony criminal cases annually. In addition, Rose supervises a
Bailiff/Court Clerk, a Scheduling Coordinator, a Court Reporter, a Jury
Commissioner and an Adult Probation Department.
Prior to becoming a Judge, Tom Rose worked for two years as a
Juvenile Court Referee with delinquent and neglected and abused
children. He also was an Assistant Prosecutor serving as a counsel to a
variety of local elected officials and government organizations and
prosecuting criminal cases. While serving as Assistant Prosecutor, Rose
also maintained a private practice working in the areas of civil
litigation, business law and real estate transactions. As an attorney,
in addition to prosecuting criminal matters, Rose litigated personal
injury lawsuits, contract disputes, will contests, adverse possession
cases, appeals to administrative agencies and all types of domestic
relations matters. Judge Rose is admitted to practice before Ohio
courts and all levels of the Federal Court System.
Since I have known Tom Rose, I have found him to be a man of
exceptional character and integrity. His professional demeanor and
thorough knowledge combine to make him truly an excellent candidate for
an appointment to the Southern District. Tom Rose is a committed
individual and a trusted leader, and it is my pleasure to give him my
highest recommendation.
Mr. Chairman, given the exemplary record of Justice Rose, I am
hopeful that his nomination will be voted favorably out of committee,
and will be expeditiously moved to the floor of the Senate. Thank you
for your personal consideration of this matter.
Senator Edwards. Judge Gibbons, I wonder if you would come
around, please, and if you will remain standing, please, and
raise your right hand?
Do you swear that the testimony you are about to give the
committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Judge Gibbons. Yes.
Senator Edwards. Be seated, please.
Judge I know from speaking with you earlier that you have
members of your family here and friends. Would you like to
introduce the folks who are here with you?
STATEMENT OF JULIA SMITH GIBBONS, OF TENNESSEE, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT
Judge Gibbons. Yes, thank you, Mr. Chairman. With me today
are my husband, Bill Gibbons; our children, Carey, who is a
junior at Columbia, our son, Will, is a sophomore at White
Station High School in Memphis; my mother, Julia Smith, and I
think mother would not be too offended if I told you that I
feel very blessed to have here her. She celebrated her 90th
birthday last summer.
Senator Edwards. Congratulations to her.
Judge Gibbons. And my brother, John Abernathy Smith, is
also here. And I won't name them by name, but I have members of
my extended family here, meaning a number of law clerks and
also members of the staff of the Panel on Multidistrict
Litigation, on which I currently serve.
Senator Edwards. Well, welcome to all of them, all the
members of your family, all of your friends, all of your
professional colleagues.
Judge, you come with an extraordinary record of
accomplishment as a judge, and I might add we have had letters
of commendation and recommendation from people all over the
spectrum about you, all very positive in their praise of the
work that you have done.
Judge Gibbons. Thank you, and I want to thank Chairman
Leahy and the entire committee for scheduling this hearing
today.
[The biographical information of Judge Gibbons follows:]
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Senator Edwards. Did you want to make an opening statement
today?
Judge Gibbons. No, thank you. No, sir.
Senator Edwards. Let me start by asking just a few general
questions.
I wonder if you would talk first, since you actually have a
good deal of experience as a district court and trial judge, a
little bit about what your experience has taught you about how
parties should be treated, about the evaluation of the law, and
I guess most importantly from the perspective of a Federal
district judge how you believe as an appellate judge opinions
and work done by lower court judges, district court judges,
should be treated by the appellate courts.
Judge Gibbons. Well, in terms of my service as a district
judge, of course, I believe parties should always be treated
courteously, fairly, and with--it is very important that the
judge be dispassionate and not become--while it is important to
show courtesy, it is also important to be dispassionate rather
than emotional or overly involved in the emotions of the
situation.
With respect to the law, it is very important for the judge
to be a good student, to read the briefs, to listen to what the
parties have to say, and to decide carefully and thoughtfully
with full use of what intellectual capacity you have to bring
to the occasion.
As an appellate judge, certainly I will try to approach
that job with the same qualities I have displayed in my work on
the district court. The appellate work is, of course, a bit
different because you do not have the same degree of
interaction with lawyers and litigants that you have on the
district court.
I am also hopeful that there will be a little--there will
be more opportunity to be reflective because, of course, in the
district court, while we do try to keep the level of
scholarship high, you are dealing with trials, writing
opinions, many things at once. And I am hoping for a little bit
more opportunity to reflect and think and craft the opinions
very carefully.
Senator Edwards. Let me follow up on that, if I can,
because as you well understand, there is a significant
difference in the responsibilities of an appellate judge and a
district court judge. The appellate judge is responsible
primarily for interpreting questions of law, as opposed to
questions of fact, and mixed questions of fact and law.
I wonder if you could give us an example or two of
situations where, as a Federal district court judge, you have
dealt with what you considered complex questions of law and how
you went about working your way through those difficult
questions.
Judge Gibbons. Are you interested in specific cases or are
you----
Senator Edwards. Yes, yes.
Judge Gibbons. Okay. I think that----
Senator Edwards. Not necessarily high-profile or
controversial cases. I am more interested in cases that you
thought presented a difficult challenge to you as a judge in
interpreting the law.
Judge Gibbons. Well, I will mention just two which I think
give examples of my approach. One is a case that was included
actually in my Senate questionnaire, and that is the Coger
case, which was a very, very--it was an age discrimination
case, probably the most factually complex case with which I
have ever dealt as a district judge.
I had to deal with many difficult issues, pre-trial issues.
In fact, one of the issues I dealt with pre-trial is before the
Court, the Supreme Court, this term, which is the availability
of disparate impact theory in an age discrimination case.
We tried the case. Just to tell you why it was factually
complex, the plaintiffs were----
Senator Edwards. This is the case that actually went to the
United States Supreme Court?
Judge Gibbons. Well, my case did not, but a case raising
the same issue did.
Senator Edwards. Yes.
Judge Gibbons. The case was factually complex due to the
fact there were 17 plaintiffs in 11 different departments at
the University of Memphis, many comparables. In any event, we
tried the case. I did a very lengthy opinion at the close of
the plaintiff's proof on the motion for partial findings. At
that point, Seminole Tribe was decided, and I ended up
dismissing the case after many years and many weeks of trial
based on this intervening Supreme Court precedent.
The second case I will mention just briefly was a patent
case which I tried in the fall of 2000, and that is not the
everyday work of the district court, although we do have
intellectual property cases. But it was a very complicated
case. The quality of the lawyering was excellent. I was faced
every day with issues that were new to me and I enjoyed very
much trying to carefully and conscientiously work through those
issues with the lawyers.
Senator Edwards. One of the issues, as I understand it,
that reminded me, if I am correct, about this in the Coger case
was an issue of federalism. Is that right? And sovereign
immunity issues, I think, also were involved?
Judge Gibbons. Yes, yes.
Senator Edwards. That is an area that some of us have
concern about, and I know that you had dealt with those issues
in that case. I think you also dealt with them in the Daily
case, if I remember correctly from the information I have seen.
Is that correct?
Judge Gibbons. I did deal with them in the Daily case, and
also in a case called United States v. Sari which was recently
furnished to the committee.
Senator Edwards. That is a case that I am not personally
familiar with. Tell me about that one.
Judge Gibbons. It was a case, a criminal case, and the
defendant was charged under the section of 18 U.S.C. 922(g)
that deals with carrying a firearm when you are under a
domestic protective order. And both that case and Daily frankly
involved a fairly straightforward application of Lopez based on
authorities from other courts.
Senator Edwards. One of the concerns that some of us--and
there are different views about this; let me recognize that
first. But one of the concerns that some of us have is that at
least some have reported that this United States Supreme Court
has struck down more congressional laws passed by the Congress,
Federal laws passed by the Congress, per year than any Supreme
Court in our history. Some people have referred to this as the
new federalism.
I guess the concern that some of us have is the impact that
could have on areas like civil rights, which have, in the
history of our country, played--the Federal laws have played a
very important and significant role in.
Can you tell me what your thoughts are about that subject,
what comments you have? I know that you will be limited in what
you can say about it, but I would like to have whatever you
feel like you can comment.
Judge Gibbons. Well, as a judicial officer I would approach
any question of reviewing a statute for constitutionality
mindful of the presumption of constitutionality and with
deference to the legislature. But, of course, as a lower court
judge I am also obligated to follow the Supreme Court precedent
and I will try to do that as faithfully as I can.
Senator Edwards. Sure. Well, let me give you an example.
One of the laws that the Congress passed by large majorities in
both Houses was the Violence Against Women Act, a big chunk of
which the U.S. Supreme Court found to be unconstitutional as an
invalid exercise of power. Again, it goes to sort of the Brown
v. Board of Education and the whole stream of cases that
depended on the Commerce Clause and the exercise of power by
the Congress.
Can you tell me whether you have any ideas or thoughts
about that, whether any of that troubles you?
Judge Gibbons. My obligation is to follow the Supreme Court
precedent and I will seek to do that.
Senator Edwards. Can you give me some examples of judges or
Justices on the Supreme Court that you particularly respect or
admire?
Judge Gibbons. Well, I would certainly have to say that I
admire Justice O'Connor. She was appointed to the Supreme Court
not long after I became a State circuit judge, and then when I
moved to the Federal court she was our circuit Justice. And her
personal graciousness to the very small number of women who
were serving as judges in the Sixth Circuit at that time was
something I have always appreciated very much, and I also
admire her approach to cases.
I also admire Chief Justice Rehnquist, whom I believe has
provided excellent leadership to the judiciary and whom I have
had the opportunity to observe when I was Chair of the Judicial
Resources Committee in his presiding over the sessions of the
Judicial Conference. And I was always extremely impressed with
the way he handled those sessions and handled carrying out the
work of the judiciary.
Senator Edwards. Can you give me some examples of cases
that have been decided over the last 20 years, 2 decades, that
you think, at least from your--they don't have to be big cases,
but in terms of legal analysis and the facts involved in the
case that you believe were decided correctly?
Judge Gibbons. Oh, yes. I don't believe it is really my
place to judge whether a Supreme Court precedent has been
correctly or incorrectly decided. I believe it is my job as a
district judge, and will be my job as an appellate judge if I
am fortunate enough to be confirmed, to follow the precedent.
Senator Edwards. Sure. But, of course, as you know, even as
a district court judge you get confronted sometimes with cases
where there is little or no precedent or where there is
ambiguity in the existing law.
Can you just give me some insight into how you would
approach those kinds of situations?
Judge Gibbons. Situations where there is ambiguity in the--
--
Senator Edwards. Or no clear precedent one way or the
other.
Judge Gibbons. Well, I think that when there is ambiguity,
one proceeds carefully, looks at what precedents might be
available by analogy. Certainly, if you are interpreting a
statute or the Constitution, you look first at the plain
meaning. If you are in some other area, then you probably go
first to any available precedents that might give you
assistance in the analysis, even though they are not directly
binding or applicable. Then you look very carefully at what the
arguments of the parties are, their briefs, and you take a
careful approach to making a decision about what should happen.
I think you should be open-minded when approaching a
situation like that. I think judges owe it to the litigants to
remain open-minded and to decide when it is time to decide.
Senator Edwards. Let me ask you one last thing. I notice
you have given some speeches over the years to various
professional organizations.
Judge Gibbons. Yes.
Senator Edwards. Can you give me some notion about what you
think about what is appropriate for a sitting judge to talk
about in the public arena and where you think the lines are,
the limits are on that speech?
Judge Gibbons. I think you speak about things that relate
to the administration of justice, things that you are permitted
to speak about within the terms of the code of conduct that
relates to judges.
Senator Edwards. Senator DeWine, did you have questions
that you would like to ask the judge?
Senator DeWine. I do, but you can proceed.
Senator Edwards. I will call on Senator DeWine now.
Senator DeWine. Thank you.
Let me ask you, if you could, to comment on--is it Coger v.
Board that you were talking about?
Judge Gibbons. Right, Coger v. Board of Regents. The
University of Memphis was also a defendant.
Senator DeWine. The issues involved in that case are
particularly important to me. I was involved when I was in the
House of Representatives in the passage of the ADEA, and so I
have more than a passing interest in that, as I am sure all
Americans do.
My understanding is that the Federal courts have really
struggled on this issue and that the district courts are split,
I think, close to 50-50 on the issue. Ultimately, the Supreme
Court, I believe, came to the same conclusion pretty much as
you did. Is that correct?
Judge Gibbons. Same result. I think probably they got there
a bit differently.
Senator DeWine. They ended up with the same----
Judge Gibbons. Ended up in the same place.
Senator DeWine. Well, obviously, there is a lot of
struggling going on. I will be honest with you--and I can say
this, you can't--I disagree with the Supreme Court on that
case. You are not allowed to say that. I understand that, but I
happen to disagree with it. But I think it is clear that there
was a very tough legal issue that you had to wrestle with.
Let me get back to a question that the chairman asked you,
and it goes back a little bit to why you would want to leave
the district court, which many people think is the greatest job
in the world, to go to the appellate court.
What bothered you, if anything--I suspect there had to be
things over your long career that have bothered you about the
Sixth Circuit. In other words, without criticizing them, maybe
a better way of saying it so you can feel comfortable and
answer it is what would you like to do when you are there and
what will be your mind set and your approach? What have you
learned in your experiences as a trial judge?
I think there are advantages and disadvantages of being on
the trial bench, but one advantage is you have been there, you
have seen it, you have been in the arena. So when you go to the
appellate court, you can judge it by what you have already
seen.
Judge Gibbons. Well, I have absolutely no criticism to make
of the Sixth Circuit.
Senator DeWine. I didn't think you would.
Judge Gibbons. I know all those judges well. I have a good
personal relationship with each of them and----
Senator DeWine. What have you learned, though?
Judge Gibbons. But I do have something to say in response
to your question other than a general affirmation of that. I
have obviously a lot of years of experience as a district
judge. Presently, there is only one active member of the Sixth
Circuit Court of Appeals who has experience as a district
judge, and that was rather brief experience.
I think district judges can bring a great deal to appellate
courts. You tend to develop as a district judge a certain
precision and focus. You focus on the particular case before
you. You learn to be record-driven, so you pay close attention
to what is in the record and what the precise record is before
the trial judge. I think that is a very useful perspective for
an appellate judge to have as well, and I hope I can make a
contribution in that area if I am confirmed.
Senator DeWine. Well, that is an interesting statistic that
you have given us. I guess what you are saying is that you need
a variety of people on the appellate bench, which certainly
makes sense.
Judge Gibbons. Absolutely. I would not say that every
member of that court should be a former trial judge, but you
surely need some of them.
Senator DeWine. Tell me a little bit more, if you could,
about the Daily case.
Judge Gibbons. Well, the Daily was just really a pretty--it
is a case brought under the Child Support Recovery Act, which
is the statute that makes it--or at least the particular clause
I was dealing with was it is a Federal offense to travel in
interstate commerce for the purpose of evading child support
payments. I am not certain I am quoting exactly what the
statute says, but I am pretty close.
And then there is a period for more than a year that the
payments have to have remained unpaid and the amount has to be
over $5,000. That was a statute that I said was constitutional,
that Congress validly passed that statute under the Commerce
Clause.
Senator DeWine. Under the Commerce Clause?
Judge Gibbons. Right, and it was a pretty straightforward
thing. It was post-Lopez, but it was a pretty straightforward
application. Other courts have agreed with that. And, of
course, those jurisdictional elements that are set forth in the
statute make it an easier question.
Senator DeWine. Thank you, Mr. Chairman.
Senator Edwards. Thank you, Senator, very much.
I just have one last question, Judge. It is obvious from
both your long record and also from just seeing you here today
that you are a person who tends to treat everyone around you
with dignity and respect, which is something I have a great
deal of respect for.
In the court which you have been nominated to, as I know
you are aware, there has been some acrimony between the members
of that court, and some fairly deeply division on some
important issues. I just wonder what kind of approach you would
bring to those kinds of differences and what you think the role
of judges should be in trying to avoid those kinds of sort of
personal, acrimonious fights.
Judge Gibbons. Well, I bring to the court, if I am
confirmed, obviously that prior relationship with all the
members of the court, which I would hope to keep a cordial and
good one. It is very, very important in the course of deciding
cases that we not make personal comments, or that we not--if we
are disagreeing, that we do so in a manner that is civil and
restrained and respectful of each other's points of view. And I
would hope to bring that sort of style to the court, and I
would hope that I would know when I should not speak as well as
when I should.
Senator Edwards. I don't have much question that you will
bring that quality to the court. Thank you, Judge Gibbons, very
much.
Senator DeWine. Judge, thank you.
Judge Gibbons. Thank you all very much.
Senator Edwards. And you are welcome to say; you are also
welcome to leave.
Judge Gibbons. I will stay. Thank you very much.
Senator Edwards. During the judge's testimony, Congressmen
Hobson, Ford, and Sandlin have arrived. I would invite them to
come forward now.
Welcome. We are happy to have all four of you here.
Congressman Hall, we will begin with you. We would love to hear
from you, and welcome.
PRESENTATION OF LEONARD E. DAVIS, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS BY HON. RALPH M. HALL, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Representative Hall. Thank you very much, and I am honored
to be here on behalf of Judge Leonard Davis, of my district. He
is currently serving as Chief Justice of the Twelfth Court of
Appeals of the State of Texas, and I know you have all this
information, so I am just going to scan it.
He enjoys strong bipartisan support. He has had no
opposition in his election of November 2000 or in his
reelection, and that is the way to run. We all know that. I
think he ought to write a book about that because I always have
opposition and they say, are you going to work hard? And I say
there are just two ways to run, and that is unopposed or
scared, and we usually run scared down there because we have a
lot of opposition.
He has served in the judiciary as a civil trial lawyer. He
is a fine man, he is a good citizen, he is a super judge, and
he is a great family man. I think growing up Fort Worth, Texas,
he came from humble parents, good parents, hard-working
parents. For over 40 years, his dad was a lineman for the
electric utility company. His mother worked part-time.
He attended high school, and although he worked throughout
college, he obtained a bachelor's degree in mathematics in four
years and went to work in 1970 as a computer programmer and
systems analyst. He studied at Texas Christian University and
entered the Baylor Law School and graduated cum laude from
Baylor in November 1976.
Judge Davis currently serves on a number of boards and the
Council of Chief Justices of the State of Texas. He is a member
of the Texas Center for Legal Ethics and Professionalism. He
has served as a member of the three-member bar admissions
commission. He has served and paid his dues, and he is highly
regarded, highly respected.
Judge Davis is a good man. I am a Democrat who recommends
this Republican to this committee, and I thank you for the
time.
Senator Edwards. Thank you very much, Congressman Hall.
Congressman Hobson, welcome. Nice to see you.
PRESENTATION OF THOMAS M. ROSE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF OHIO, BY HON. DAVE HOBSON, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Representative Hobson. Mr. Chairman, it is a pleasure to be
here today and a privilege for me to testify on behalf of my
friend, Tom Rose, who has been a steadfast champion of the
judiciary system in Greene County.
Judge Rose has a long and distinguished career, which
includes his current position as judge in the Common Pleas
Court which he has held since 1991. Judge Rose addresses about
400 civil and 400 felony cases annually.
Prior to becoming a judge, Tom worked for two years as a
juvenile court referee with delinquent, neglected, and abused
children. He also was an assistant prosecutor, serving as
counsel in a variety of local elected official and governmental
organizations, and prosecuting criminal cases.
While serving as an assistant prosecutor, he maintained a
private practice, working in the areas of civil litigation,
business law, and real estate transactions. As an attorney, in
addition to prosecuting criminal matters, Tom litigated
personal injury lawsuits, contract disputes, will contests,
adverse possession cases, appeals to administrative agencies,
and all types of domestic relations matters. Judge Rose is
admitted to practice before the Ohio courts and all levels of
the Federal court system.
Judge Rose has also been a community leader. He is a
current board member of the Xenia Rotary, and I can tell you he
attends there because I have also made it up there. He is a
member of three local chambers of commerce. Judge Rose has also
served his community by providing free legal services to a
variety of less fortunate individuals.
Many organizations, including the Greene County Victim
Witness Program, the Greene County Alcohol, Drug Addiction, and
Mental Health Services Board, the Xenia Rotary, and the Yellow
Springs Masonic Lodge, have formally recognized and honored
Judge Rose for his community service.
A native of Lowellville, Ohio, Judge Rose has lived in
Greene County, Ohio, for the past 29 years. He received a
bachelor of science education degree from Ohio University in
1970 and a juris doctorate from the University of Cincinnati
College of Law in 1973. Those of us who graduated from Ohio
State don't take umbrage at that, nor those who went to Ohio
Northern, like Senator DeWine. After completing the Ohio
University's Army reserve officers training program, Captain
Rose served for eight years in the U.S. Army Reserve.
As Ohio's 7th District Representative to the Congress of
the United States, I want to take this opportunity to publicly
recognize the judge for his many contributions to the judicial
institutions of Greene County and recommend him without
reservation to the Federal bench for the Southern District of
Ohio.
Senator Edwards. Thank you very much, Congressman Hobson.
My friend, Congressman Ford, we are honored to have you
here, and I believe we will hear from you next.
PRESENTATION OF JULIA SMITH GIBBONS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT, AND SAMUEL H. MAYS, JR., NOMINEE
TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE, BY
HON. HAROLD E. FORD, JR., A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF TENNESSEE
Representative Ford. Thank you, Chairman Edwards. It is
always a pleasure to be around you and be with the committee.
Thank you and this committee for moving as you are moving on
behalf of the Nation, and in particular with these nominees
today.
I am delighted to be here with my colleagues, and in
particular to be here with two outstanding--one jurist and one
soon-to-be jurist, we hope, in Judge Gibbons, whom you heard
just moments ago, and Samuel Hardy Mays, whom we know as just
``Hardy'' back at home.
I am a Democrat. This woman and man are Republicans, but
they represent, I believe, the very best in our legal system in
many ways as they both try to apply what is in the best
interests of not a party, but what is in the best interests of
our legal principles and what our legal system calls for.
I understand my colleagues, Senator Thompson and Senator
Frist, have already walked through extensively their resumes
and their histories and their backgrounds. I come just to
testify to the type of people they are in our community.
Judge Gibbons' husband is here, and he is our district
attorney back home is also a friend and someone who firmly
believes, as his wife does, in a fair administration of
justice. I know one thing that was probably not cited is that
Judge Gibbons was the valedictorian in her high school, in
Giles County, if I am not mistaken, some years ago. So she has
always been a leader in the classroom. Whether it was at the
University of Virginia or whether it was as legal adviser to
our former governor, she is one who stands tall in our
community.
Hardy Mays went to the wrong law school, but he went to a
good one at Yale, Senator Edwards. We appreciate the
contributions that he has made as a lawyer in private practice
and as a managing partner in one of our largest firms, Baker
Donelson--a former colleague of many in this Senate and many in
Washington, Senator Howard Baker, and Louie Donelson back in
Tennessee, who is perceived as one of the great leaders in the
Republican Party back in our State, and one of the great
political leaders and great legal minds as well.
This Senate would do the Nation good by moving
expeditiously to ensure that Judge Gibbons finds a spot on the
Sixth Circuit and that soon-to-be-Judge Mays finds a spot on
the Western District Court of Tennessee.
With that, Senator, I thank you, and a special thanks to
Senator Leahy and Senator Hatch. I know they are not here, but
I hope that the two of them can work through whatever
differences there may be to ensure that we are able to move as
quickly as we can on these nominations.
Senator Edwards, it was good to see you in Florida, and I
hope to see you sometime again soon. Thank you.
[The prepared statement of Mr. Ford follows:]
Prepared Statement of Representative Harold Ford, Jr.
Senator Edwards I'd like to express my appreciation to you, the
Committee and to Chairman Leahy and Senator Hatch for the opportunity
to testify on behalf of Judge Julia Gibbons and Hardy Mays.
First, I'd like to commend the committee for conducting a hearing
on these two nominees. I'm a Democrat and they are Republicans, but I
am not testifying today as a partisan. I'm here today because both
Judge Gibbons and Mr. Mays are my constituents and they are well
respected legal professionals and public servants who have served our
state with distinction. And I believe that--if they are confirmed by
this committee and the full Senate--they would serve honorably in their
respective positions.
As you know, Judge Gibbons has been nominated to serve on the U.S.
Court of Appeals for the Sixth Circuit. As a law clerk on the Sixth
Circuit, in private practice, as a state judge, and a member of the
U.S. District Court for Western Tennessee, Judge Gibbons has acquired
the experience and possesses the temperament that will make her an
asset to the Sixth Circuit. She has extensive experience as a trial
judge and lawyer, both of which are important qualifications for a
member of the appellate bench.
Judge Gibbons has served with distinction as a U.S. District Judge
for the Western District of Tennessee since 1983 and as the court's
Chief Judge from 1994 to 2000. In that capacity, she earned a
reputation of applying the law consistent with our Nation's commitment
to equal protection. Her appointments to serve by designation on the
Sixth Circuit and the Judicial Panel on Multi-district Litigation
demonstrate the high level of confidence she enjoys from her colleagues
on the bench. She possesses excellent academic credentials and has
demonstrated a strong civic commitment through her involvement in many
organizations in the Memphis community.
Hardy Mays, who has been nominated to serve on the U.S. District
Court for Western Tennessee, has worked as a partner with Baker,
Donelson, Bearman & Caldwell. In that capacity, Mr. Mays worked to
build the firm with its partners former Tennessee Senator Howard Baker
and Lewis Donelson into one of our state's most respected law firms. As
a lawyer, he has demonstrated that he possesses the professional
competence the breadth of experience necessary to serve on the federal
bench.
Mr. Mays was also a dedicated public servant, serving Governor Don
Sundquist in a number of high level jobs. He gained valuable experience
advising the Governor on a wide range of legal matters including
judicial selections, clemency and legislation. From an academic
standpoint, Mr. Mays has impeccable credentials and an outstanding
knowledge of the law. He received his law degree from Yale Law School
and served as an Editor of the Yale Law Journal. Finally, Mr. Mays is a
person of integrity and strong moral character.
Once again, thank you for the opportunity to appear today and
considering these two well qualified judicial nominees.
Senator Edwards. Thank you, Congressman Ford.
Congressman Sandlin, it is always great to see you again.
Welcome. We are happy to have you here.
PRESENTATION OF LEONARD E. DAVIS, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS, BY HON. MAX SANDLIN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Representative Sandlin. Thank you, Senator. I appreciate
the opportunity to be here. I have very little to add to what
Congressman Hall said. I thought we would be on the floor
whipping today and we finished up early.
I am here also to lend my support to Judge Leonard Davis
for his appointment. Our educations overlap somewhat at Baylor
University, and he has friends with him today that he went to
school with and friends from our community showing the support
of the community and the respect that Texans, and East Texans
in particular have for Judge Davis.
I have been particularly impressed with the fact that I
have been contacted by many people from East Texas, both from
the plaintiff's bar and the defense bar, in support of Judge
Davis. Certainly, we all have differences of opinion. As we see
here today and has been mentioned by many of my colleagues
today, many of us are Democrats, but when we are talking about
judicial qualifications, we are talking about intelligence,
hard work, preparation, respect in the community, seriousness.
I think Judge Davis expresses all of those in his demeanor and
in his decisions in the courtroom and the respect that he has
among the attorneys in Texas. So I know him to be of good
character.
Prior to taking the bench, he was in one of the most
respected law firms in East Texas. He is experienced in the
courtroom as an attorney and as a jurist, and I think that he
would do a good job and work hard and would be someone that the
Senate could be proud of nominating.
So I am here in support of Judge Davis and to second what
my good friend, Congressman Ralph Hall, has indicated to you
today.
Senator Edwards. Thank you very much, Congressman Sandlin.
Thanks to all the Congressmen for taking time out of, I know, a
very busy day to come over here. We are honored to have you
here.
Representative Sandlin. Thank you. We appreciate it.
Senator Edwards. If we could have come forward now Judge
Davis, Judge Godbey, Mr. Hanen, Mr. Mays and Judge Rose, and if
you would remain standing, please, when you come forward.
If you would each raise your right hand, please, do you
swear that the testimony you are about to give the committee
will be the truth, the whole truth and nothing but the truth,
so help you God?
Judge Davis. I do.
Judge Godbey. I do.
Mr. Hanen. I do.
Mr. Mays. I do.
Judge Rose. I do.
Senator Edwards. Please be seated.
To begin with, if you would each introduce yourselves, and
if you have friends or members of your family, we would love to
have them introduced, also.
Mr. Davis, why don't we start with you?
STATEMENT OF LEONARD E. DAVIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF TEXAS
Judge Davis. Thank you, Mr. Chairman. I am pleased to have
with me today my wife of 32 years, Dana--if you would stand,
Dana--and my two friends, Gaylord Huey and Whit Ryder, from
East Texas. I could not have with me today my 83-year-old
mother, Virginia, who lives in Irving, Texas, or my five
children--Bo, Stafford, Sissy, Pooh, and Hawk--all of whom are
busy in college and are near finals. But thank you, Mr.
Chairman, for the opportunity to be here today.
[The biographical information of Judge Davis follows:]
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Senator Edwards. Well, welcome to those who are here, and
tell the ones back home that we are sorry they weren't able to
be here.
Judge Godbey?
STATEMENT OF DAVID C. GODBEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF TEXAS
Judge Godbey. Thank you, Mr. Chairman. I am here today with
my wife, Beverly Bell Godbey, and my two children, John, who is
9, and Ruth, who is 7. We are delighted to all be here. Thank
you, sir.
[The biographical information of Judge Godbey follows:]
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Senator Edwards. Thank you. Welcome. We are glad to have
you all with us. I know this is a good day for you.
Mr. Hanen?
STATEMENT OF ANDREW S. HANEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF TEXAS
Mr. Hanen. Thank you, Mr. Chairman. I would like to
introduce my wife, Diane Dillard, and my daughter, Kelly Hanen,
who are here today. I have friends, Bill Greendyke from Houston
and Mike Clatt from Austin.
[The biographical information of Mr. Hanen follows:]
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Senator Edwards. Terrific. Glad to have all of you.
Welcome. Glad to have you here.
Mr. Mays?
STATEMENT OF SAMUEL H. MAYS, JR., NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TENNESSEE
Mr. Mays. Mr. Chairman, I am pleased to have my mother with
me here today from Memphis, Tennessee, Eloise Mays, who is over
to the right.
Senator Edwards. Welcome, Ms. Mays. Happy to have you here.
Mr. Mays. She has asked me not to give her age, but she is
younger in spirit than I am.
I am also pleased to have my sister, Melissa Robinson, here
from Memphis, and her husband, Cooper Robinson.
[The biographical information of Mr. Mays follows:]
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Senator Edwards. Welcome. Glad to have you all here.
Judge Rose?
STATEMENT OF THOMAS M. ROSE, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF OHIO
Judge Rose. Thank you, Mr. Chairman. I would just like to
introduce my wife, Sandra Rose; my daughter, Traci Rose, who is
now an architect in Texas, and I am not sure that she is here
to see me or the three candidates from Texas, but I think she
is here to see me; my sister and brother-in-law, Ned and Laura
Hinton; my good friends, Brenda and Ron Lewis; and my good
friend and clerk, Robert Berger.
[The biographical information of Judge Rose follows:]
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Senator Edwards. Welcome to all of you. Happy to have you
here.
Do any of the judges wish to make an opening statement?
Judge Davis. I do not, Mr. Chairman.
Mr. Hanen. No, thank you.
Mr. Mays. No, sir.
Senator Edwards. Let me begin with a couple of general
questions and we will just go down the line and let each of you
comment. I wonder if you would tell me from your experience
either as a judge, which some of you are, or as a lawyer, what
you think the two or three most important qualities are in a
good judge.
Judge Davis, we will start with you.
Judge Davis. Thank you, Mr. Chairman. I think that humility
is number one, and I think respect is number two. And by
respect, I mean respect for the role of the judge, respect for
the other branches of government, for the legislature,
recognizing their role, for the judiciary, recognizing their
role and our duty to follow precedent, and also respect, most
especially important, for the attorneys and for the litigants
that come before the court, and respect also, I would add, for
our juries and for the jury system and the right to trial by
jury.
Senator Edwards. That is a good answer. I am going to ask
the others the same question. Is there any particular trial
judge that you particularly admire, and can you tell us why?
Judge Davis. Well, oddly enough, I grew up in East Texas
and I don't know if you have ever heard of William Wayne
Justice. He is a Federal district judge there. He is from a
different party and from a completely different end of the
political spectrum than I am from, but I had the honor of
trying my first case in his court, and I will be sitting in his
court if I am fortunate enough to have the Senate confirm me.
And while we disagreed a great deal perhaps politically, I
respected him a great deal as a jurist, and his hard-working
work ethic and his ability to be fair in the courtroom to all
parties from all sides. So that would be a jurist on a very
personal level that I would identify with.
I would also add that I have had the privilege of reversing
him for the first time he had ever been reversed in a criminal
case before, and he did me the pleasure of appointing me to
represent a criminal indigent defendant in his court in the
same case immediately thereafter. But we formed a long and
lasting friendship through that process and he has had hired me
as his personal attorney when I was in private practice before.
Senator Edwards. Thank you very much, Judge Davis.
Judge Godbey, same questions.
Judge Godbey. I would agree with what Judge Davis said
about the characteristics of a trial judge. I think I might
phrase it in terms of courtesy instead of respect initially.
You need to treat all the people that come in front of you as
human beings and not treat them as objects in a case jacket.
I think also integrity, of course, is extremely important,
and probably don't need to elaborate on that. I have found
patience to be a highly desired attribute in a trial court
judge. You just can't have too much of that.
Senator Edwards. You need a lot of it, don't you?
Judge Godbey. You need a lot of it, yes, sir.
And, lastly, I think I would say open-mindedness, because
there are so many cases out there, there are so many statutes.
No one can know it all, and I think it is important for judges
to have open-mindedness, coupled, I guess, with humility, and
be prepared to learn from anyone who is in front of you because
they can probably all teach you something you don't know.
Senator Edwards. Any particular trial judge you
particularly admire and respect, and why?
Judge Godbey. I am going, if I may, to give you a category
in response to that, and that is to refer to my colleagues on
the civil district court bench in Dallas, County, Texas. They
are as good a group of folks to work with as anybody could ever
hope for, and I would not dream to pick a favorite among those
lest they hear about it back home, but they are a bunch of good
trial judges.
Senator Edwards. Thanks, Judge Godbey.
Mr. Hanen?
Mr. Hanen. I agree with the answers concerning temperament
that Judge Godbey and Judge Davis elucidated just a minute ago.
I would like to emphasize, I guess, the respect for the system.
I think those of us that have been involved with the jury
system, you know, for any period of time at all have developed
a respect for it, and you learn that it works; it is a system
that works. So I would emphasize that.
And then lastly I would add a new category to the things
they have already mentioned. I always appreciate a judge that
rules. I think sometimes situations fester and cases get worse
and more complicated because you can't get a ruling out of the
court, and I think both sides appreciate a judge that is
willing to rule.
As far as judges that I respect, I respect our current
Southern District judges quite a bit. They come from both sides
of the aisle, but they do a good job of combining intellect and
temperament and respect for the system.
Senator Edwards. Thank you, Mr. Hanen.
Mr. Mays?
Mr. Mays. I guess an ideal judge for me would approach
every matter intelligently and analytically, would treat every
human being who appeared before him or her with dignity and
respect, and would be intellectually honest. By intellectual
honesty, I mean a judge who is willing to follow the facts and
the law where they lead and reach a conclusion based on the
facts and the law, and who does not reason backward and find
the facts and the law based on a pre-conceived conclusion.
Senator Edwards. And a particular judge that you admire and
respect?
Mr. Mays. The finest trial judge I ever appeared before was
a Federal district judge in the Western District of Tennessee,
Bailey Brown, who went on to serve on the Sixth Circuit. He was
appointed by President Kennedy. I tried my first jury case
before Judge Brown, and I can assure you he was a very patient,
wise judge.
Senator Edwards. Thank you, Mr. Mays.
Judge Rose?
Judge Rose. Thank you, Mr. Chairman. I guess I would agree
with my colleagues here as to what the characteristics of a
good trial judge would be. I think I would use a little
different terminology. I think one of the terms that I would
use is to create a feeling of civility in the courtroom, and I
think the civility in the courtroom is made up of the respect
for the system and an expeditious process, but a process which
everyone is confident in and has confidence in.
The objective of a good trial judge is to try a case
fairly; not always everything that happens in a case is viewed
as fair from the parties, but to try a case fairly and make
sure that--or do the best you can to make sure that the people
who leave that courtroom believe that their case was tried
fairly.
One of the judges that I admire the most is the judge that
I am hopefully, if I am fortunate to take the place of, and
that is Judge Herman Weber. Judge Weber has always been a
person that I have admired. I tried my first trials in front of
him, in the Common Pleas Court of Greene County, and of course
now he sits as a district judge in the Southern District of
Ohio.
Senator Edwards. I apologize to the nominees. We are in the
middle of a vote that is about to end and I was hoping Senator
DeWine would be able to get back, but he has not been able to
get back yet. So we will recess now, subject to the call of the
Chair, and we will be back.
[The committee stood in recess from 3:37 p.m. to 3:39 p.m.]
Senator DeWine [presiding]. We don't want you to have too
long a break here. [Laughter.]
I think we are setting a new world's record for going back
and forth. They told me on the floor we were supposed to have
eight in a row, but if you are lucky, you will be done by then.
First of all, thank you all for your testimony so far.
We use the term ``judicial temperament'' and I guess we all
think we know what it is, but I think everyone has maybe a
little different idea. It is something that we all, I think,
understand is very, very important. Quite candidly, we have
seen many great trial judges who have it, and we appreciate
what they do and we love them for that. We have also every once
in a while seen a few who didn't have judicial temperament, and
those are the kind that frankly we don't want to see on the
bench.
Considering that this is a lifetime appointment, let me
just ask you to define judicial temperament and tell me, as you
do that, what you would be concerned about in your own actions
on the bench as a trial court judge, if the Senate confirms
you.
Let me start with Judge Davis.
Judge Davis. Thank you, Senator. Senator, I believe
judicial temperament would best be defined as I had mentioned
earlier, acting from a position of humility and realizing that
you as a judge--and I am a judge now and one of the things I
try to instill on our staff on the Twelfth Court of Appeals is
that we need to be what I call a user-friendly court, a court
that respects the litigants and respects the lawyers that
practice before us, not that we are their master, but that we
are their servant. We are there to serve them. We are there to
help them resolve their disputes by the proper administration
of justice, and we have to make tough decisions and tough
calls, but you can do that in a civil manner and in a
respectful manner.
And I think, secondly, or finally would be to let the
lawyers try their case, to not ever let yourself become an
advocate for one side or the other. I have had 23 years of
trial experience and I have been with both kinds of judges, and
I know the kind that I hope to be and if I am fortunate enough
to be confirmed by the Senate plan to be.
Senator DeWine. Judge?
Judge Godbey. I agree with much of what Judge Davis said. I
think courtesy to the folks in front of you is extremely
important. It may be the tenth case of that sort that you have
seen that year, but for the people in front of you it may be a
defining moment in their lives.
Senator DeWine. Maybe the only one.
Judge Godbey. Yes, sir.
Senator DeWine. And you are the Government. That may be the
only experience they ever have, really, that kind of
experience.
Judge Godbey. That is quite true, particularly with jurors,
who I think are often treated as conscripts and not given the
respect that they need. That may be one of the few
opportunities that they individually serve their community and
their Government.
I agree with what Judge Davis said about letting the
lawyers try their case. I think there is a delicate balance as
a trial judge between being in control of the courtroom without
having to say a word, and God forbid that you should ever have
to bang your gavel. Knowing that it is there ought to be enough
for you to be in control of the courtroom.
And then, past that, I think a good trial judge should be
invisible and simply be the host for the lawyers and the
litigants and provide the opportunity to open the courtroom to
them to bring their dispute in most cases to a jury.
Senator DeWine. Mr. Hanen?
Mr. Hanen. Well, I agree with both what Judge Godbey and
Judge Davis just said, and I guess the succinct way of putting
it would be to remember you are appointed, not anointed, and
that you need to treat the litigants and lawyers with respect,
the system with respect, and handle the case as if it were your
own.
Senator DeWine. Mr. Mays?
Mr. Mays. I think a judge with a lifetime appointment
should be able to control a courtroom and should be able to
conduct a trial without being obstreperous, without being rude,
and without being overbearing. I think also a judge has a great
responsibility not to leap to a conclusion, but to patiently
hear and weigh both sides of an argument and hear both sides of
the case before ruling.
Senator DeWine. Judge Rose?
Judge Rose. Agreeing with the other judges, I would also
indicate don't forget from where you come. We came from trial
attorneys and we all understand how much easier it is to try
our case in front of the judge, give our client the
representation that they deserve in front of a judge that will
allow you to try the case and not cut you off too quickly, not
be too arbitrary in rulings, understanding that there are rules
and understanding that there are processes. However, give
everyone their opportunity to try the case.
Senator DeWine. Let me ask about how you would control your
docket. We know that Federal judges have the same problem, and
sometimes to a greater degree the same problem that State court
judges have, too many cases to handle. How do you intend to
manage that docket?
Take a moment, though, as you explain that to also tell me
about what the proper judge's role is in achieving a settlement
and how those two play together or come together and maybe how
they don't come together. For those of you who have been on the
bench either now or at some point in your life, reflect on how
you handle that.
Judge Davis?
Judge Davis. Thank you, Senator. On the Twelfth Court of
Appeals, we have a very large docket, about 450 cases a year
that come through, on a 3-judge court, and one of the goals
that we set is the timeliness of those cases, to move them as
quickly as possible within the confines of what our number one
goal is, to correctly apply the rule of law and to develop,
deliver a high-quality, scholarly legal product.
So I think those two go hand-in-hand. You can't be too fast
to sacrifice the quality, but yet you do have to move your
docket, and I think there are a number of tools that can be
used to do that in a trial court setting--scheduling orders,
helping the attorneys agree upon some dates, and then gently
but firmly holding them to what they have agreed to as far as
moving cases through the process. I know as a trial attorney, a
scheduling order always helped me by knowing, all right, these
are the deadlines and the priorities I need to give. So I
believe that is a very big tool.
As far as the part of your question, Senator, regarding
settlement, I am a firm believer in mediation. I think it can
provide great results to help litigants settle their disputes
short of a jury trial. But I know as a trial attorney, I never
liked a judge who leaned too hard on the parties. I think that
is the parties' decision to decide whether a case needs to be
settled or not. The judge should be the facilitator of that,
but not the pressure point, so to speak. So that would be my
view in answer to your question, sir.
Senator DeWine. Judge Godbey?
Judge Godbey. I currently preside over a civil trial court
with a caseload of about 750 cases. The procedural device that
I have found the most helpful is the pre-trial scheduling
order. My practice with those is to--in fact, throughout Dallas
County, the 13 civil trial court judges use a standard form. My
practice is to direct the lawyers to confer and give them the
opportunity to tell me what they think is a reasonable schedule
and if they agree, I will certainly abide by their request
because they know their case better than I do, but then, as
Judge Davis said, convey to the lawyers that I believe at that
point we have a bargain. We have struck a deal. I have let you
tell me how much time you need to get your case ready and now I
expect you to perform as you have told me you would do.
A standard provision in our pre-trial scheduling order is a
requirement of mediation, which I think is a very helpful
practice. In Dallas, we have great results with that as a mode
of alternative dispute resolution.
With regard to settlement, my personal practice is to stay
pretty much hands-off with that, unless the lawyers ask me to
intervene. There are times when it is helpful to the lawyers
for their clients to hear something from not them, but someone
else. And in those circumstances where the lawyers ask me to, I
will tell the parties that I think it is good for them if they
are able to reach a settlement and it would save them a lot of
wear and tear. But I don't do that unless I am invited, and I
certainly think it is not appropriate for judges to pressure
lawyers into settling cases as a mode of docket management.
Senator DeWine. Mr. Hanen?
Mr. Hanen. I agree. I think docket control orders are
probably the most effective tool we have used in keeping cases
moving. My personal feeling is they really don't work, though,
unless the court holds up its half of the bargain. If the
lawyers are ready to go, the end of the docket order, the pre-
trial conference, and then the actual trial--I mean, those
would have to be realistic dates, too, and dates that they
really believe are going to happen.
So I believe if I am privileged enough to serve that I will
try to make sure from the court's standpoint when those kinds
of orders are entered that those dates are realistic and ones
that the lawyers and the litigants can depend on as well.
As far as settlement, mediation is very popular in Texas.
It has been very effective. I wouldn't limit, if I am
confirmed, parties to mediation. There are other forms of
alternative dispute resolution which work in various cases. I
probably personally would not take an active role unless
requested to by both sides.
Senator DeWine. Mr. Mays?
Mr. Mays. I think almost everything has been said, but I
will say there is no substitute for hard work on the part of
the judge in moving a case. It is a non-delegable duty. I think
if you have a reputation for moving your docket, if the parties
know they are going to move, if they know you are going to try
it, the quicker you get toward a trial, the quicker they will
settle.
I also believe in alternative dispute resolution. I have
been a mediator and I have been astonished at how the most
bitterly opposed parties can come together in the right
circumstance and reach a rational settlement.
Senator DeWine. Judge Rose?
Judge Rose. Agreeing with my colleagues, I would also say
that a scheduling order which is realistic to begin with and is
held firm to by the court is one of the most important tools.
Although I am a great fan, also, of all avenues of alternative
dispute resolution--mediation, arbitration--I also believe that
the court does need to stay accessible to the attorneys in the
case. I stay accessible to the attorneys in the case at their
request because sometimes those cases won't resolve unless the
judge becomes a part of that discussion.
Senator DeWine. As you all know, Supreme Court precedents
are binding on all lower Federal courts and, of course, circuit
court precedents are binding on the district courts as well.
Let me ask each one of you if you are committed to
following the precedents of higher courts faithfully and giving
them full force and effect even if you might personally
disagree with such precedents.
Judge Davis?
Judge Davis. Yes, Senator, definitely. I believe very
strongly in the principle of stare decisis and that that is the
backbone of our judicial system, and following precedent as a
lower court judge would be exactly what I would intend to do.
Senator DeWine. Judge?
Judge Godbey. Yes, sir, absolutely.
Senator DeWine. Mr. Hanen?
Mr. Hanen. I would certainly follow all precedents.
Senator DeWine. Mr. Mays?
Mr. Mays. Yes.
Senator DeWine. Judge Rose?
Judge Rose. Without question.
Senator DeWine. Well, I want to thank all of you very much.
Let me first thank you very much for your patience in kind of
putting up with us going back and forth here, and let me thank
you for your time today and thank your families for going
through the tension of putting up with this. Even when it is
expedited, which for each one of you it has been, I believe, I
know if I were in your position I would think it was taking
forever. The only consolation to all of you is it is a lifetime
appointment, so some things, I guess, are worth waiting for.
Let me thank the staff, Senators Edwards' staff and Senator
Leahy's staff, and particularly their judicial nominations
staff for their arranging of this hearing. Many times, we
forget that in the United States Senate the staff does a great
deal of the work. We are the ones who get to be up here and ask
questions, but they are the ones who day in and day out do the
work. So I want to pay particular attention and thank Senator
Leahy's staff and Senator Edwards' staff for getting this
hearing prepared.
I would advise each one of you that the record will remain
open, which simply means that you could, and very well may, get
additional questions from any member of the full committee, and
you will have an opportunity then to answer those questions.
So we thank you very much, and the hearing is adjourned.
[Whereupon, at 3:52 p.m., the committee was adjourned.]