[Senate Hearing 109-397] [From the U.S. Government Printing Office] S. Hrg. 109-397, Pt. 4 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION ---------- APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006 ---------- PART 4 ---------- Serial No. J-109-4 ---------- Printed for the use of the Committee on the Judiciary CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 30-256 PDF 2006 S. Hrg. 109-397, Pt. 4 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006 __________ PART 4 __________ Serial No. J-109-4 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 30-256 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- TUESDAY, APRIL 25, 2006 STATEMENT OF COMMITTEE MEMBER Page Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1 PRESENTERS Boxer, Hon. Barbara, a U.S. Senator from the State of California presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for the Ninth Circuit.............................................. 2 Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for the Ninth Circuit............................ 3 Lautenberg, Hon. Frank, a U.S. Senator from the State of New Jersey presenting Renee Marie Bumb, Nominee to be District Judge for the District of New Jersey, Noel Lawrence Hillman, Nominee to be District Judge for the District of New Jersey, Peter G. Sheridan, Nominee to be District Judge for the District of New Jersey, and Susan Davis Wigenton, Nominee to be District Judge for the District of New Jersey.................. 5 Menendez, Hon. Robert, a U.S. Senator from the State of New Jersey presenting Renee Marie Bumb, Nominee to be District Judge for the District of New Jersey, Noel Lawrence Hillman, Nominee to be District Judge for the District of New Jersey, Peter G. Sheridan, Nominee to be District Judge for the District of New Jersey, and Susan Davis Wigenton, Nominee to be District Judge for the District of New Jersey.................. 6 Smith, Hon. Gordon, a U.S. Senator from the State of Oregon presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for the Ninth Circuit.............................................. 4 STATEMENTS OF THE NOMINEES Bumb, Renee Marie, Nominee to be District Judge for the District of New Jersey.................................................. 51 Questionnaire................................................ 52 Hillman, Noel Lawrence, Nominee to be District Judge for the District of New Jersey......................................... 78 Questionnaire................................................ 79 Sheridan, Peter G., Nominee to be District Judge for the District of New Jersey.................................................. 106 Questionnaire................................................ 107 Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth Circuit........................................................ 8 Questionnaire................................................ 11 Wigenton, Susan Davis, Nominee to be District Judge for the District of New Jersey......................................... 138 Questionnaire................................................ 139 ---------- TUESDAY, MAY 2, 2006 STATEMENTS OF COMMITTEE MEMBERS Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 161 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 325 PRESENTERS Camp, Hon. Dave, a Representative in Congress from the State of Michigan presenting Sean F. Cox, Nominee to be District Judge for the Eastern District of Michigan, and Thomas L. Ludington, Nominee to be District Judge for the Eastern District of Michigan....................................................... 165 Levin, Hon. Carl, a U.S. Senator from the State of Michigan presenting Sean F. Cox, Nominee to be District Judge for the Eastern District of Michigan, and Thomas L. Ludington, Nominee to be District Judge for the Eastern District of Michigan...... 162 Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District of Columbia presenting Kenneth L. Wainstein, of Virginia, Nominee to be Assistant Attorney General, National Security Division, Department of Justice....................... 164 Stabenow, Hon. Debbie A., a U.S. Senator from the State of Michigan presenting Sean F. Cox, Nominee to be District Judge for the Eastern District of Michigan, and Thomas L. Ludington, Nominee to be District Judge for the Eastern District of Michigan....................................................... 163 STATEMENTS OF THE NOMINEES Cox, Sean F., of Michigan, Nominee to be District Judge for the Eastern District of Michigan................................... 203 Questionnaire................................................ 204 Ikuta, Sandra Segal, of California, Nominee to be Circuit Judge for the Ninth Circuit.......................................... 166 Questionnaire................................................ 167 Ludington, Thomas L., of Michigan, Nominee to be District Judge for the Easter District of Michigan............................ 228 Questionnaire................................................ 229 Wainstein, Kenneth L., of Virginia, Nominee to be Assistant Attorney General, National Security Division, Department of Justice........................................................ 257 Questionnaire................................................ 258 QUESTIONS AND ANSWERS Responses of Sandra Ikuta to questions submitted by Senator Boxer 330 Responses of Kenneth Wainstein to questions submitted by Senator Leahy.......................................................... 336 SUBMISSIONS FOR THE RECORD Allen, Hon. George, a U.S. Senator from the State of Virginia, prepared statement............................................. 342 Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared statement............................................. 344 ---------- WEDNESDAY, MAY 24, 2006 STATEMENT OF COMMITTEE MEMBER Graham, Hon. Lindsey O., a U.S. Senator from the State of South Carolina....................................................... 347 PRESENTERS Burr, Hon. Richard, a U.S. Senator from the State of North Carolina, presenting Frank D. Whitney, Nominee to be District Judge for the Western District of North Carolina............... 349 Dole, Hon. Elizabeth, a U.S. Senator from the State of North Carolina, presenting Frank D. Whitney, Nominee to be District Judge for the Western District of North Carolina............... 347 STATEMENTS OF THE NOMINEES Guilford, Andrew J., of California, Nominee to be District Judge for the Central District of California......................... 350 Questionnaire................................................ 352 Whitney, Frank D., of North Carolina, Nominee to be District Judge for the Western District of North Carolina............... 377 Questionnaire................................................ 378 ---------- THURSDAY, JUNE 15, 2006 STATEMENTS OF COMMITTEE MEMBERS Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 409 Leahy, Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 574 PRESENTERS Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting Daniel P. Jordan, III, Nominee to be District Judge for the Southern District of Mississippi....................... 414 Fortuno, Hon. Luis G., the Resident Commissioner in Congress from the Commonwealth of Puerto Rico presenting Gustavo A. Gelpi, Nominee to be District Judge for the District of Puerto Rico... 412 Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma presenting Jerome A. Holmes, Nominee to be CIrcuit Judge for the Tenth Circuit.............................................. 411 Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting Daniel P. Jordan III, Nominee to be District Judge for the Southern District of Mississippi....................... 410 STATEMENTS OF THE NOMINEES Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for the Tenth Circuit.............................................. 417 Questionnaire................................................ 418 Jordan, Daniel P., III, of Mississippi, Nominee to be District Judge for the Southern District of Mississippi................. 466 Questionnaire................................................ 467 Gelpi, Gustavo A., of Puerto Rico, Nominee to be District Judge for the District of Puerto Rico................................ 507 Questionnaire................................................ 508 QUESTIONS AND ANSWERS Responses of Jerome Holmes to questions submitted by Senators Leahy, Kennedy, Feingold, and Durbin........................... 546 SUBMISSIONS FOR THE RECORD Binder, Steven, Deputy Public Defender, County of San Diego, San Diego, California, letter...................................... 566 Crantfield, Rev. Glenn, President and Chief Executive Officer, City Rescue Mission, Oklahoma City, Oklahoma, letter........... 567 Hoch, William H., Crowe & Dunlevy, Oklahoma City, Oklahoma, letter......................................................... 568 Holloway, William J., Jr., Judge, Tenth Circuit, U.S. Court of Appeals, Oklahoma City, Oklahoma, letter....................... 569 Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for the Tenth Circuit, letter...................................... 570 Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma, statement and attachment....................................... 571 Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, statement...................................................... 575 McCampbell, Robert G., Crowe & Dunlevy, Oklahoma City, Oklahoma, letter......................................................... 578 Murphy, Brooke S., Crowe & Dunlevy, Oklahoma City, Oklahoma, letter......................................................... 580 ---------- ALPHABETICAL LIST OF NOMINEES Bumb, Renee Marie, Nominee to be District Judge for the District of New Jersey.................................................. 51 Cox, Sean F., of Michigan to be District Judge for the Eastern District of Michigan........................................... 203 Gelpi, Gustavo A., of Puerto Rico, to be District Judge for the District of Puerto Rico........................................ 507 Guilford, Andrew J., of California, to be District Judge for the Central District of California................................. 350 Hillman, Noel Lawrence, Nominee to be District Judge for the District of New Jersey......................................... 78 Holmes, Jerome, A., of Oklahoma, to be Circuit Judge for the Tenth Circuit.................................................. 417 Ikuta, Sandra Segal, of California, to be Circuit Judge for the Ninth Circuit.................................................. 166 Jordan, Daniel P., III, of Mississippi, to be District Judge for the Southern District of Mississippi........................... 466 Ludington, Thomas L., of Michigan to be District Judge for the Easter District of Michigan.................................... 228 Sheridan, Peter G., Nominee to be District Judge for the District of New Jersey.................................................. 106 Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth Circuit........................................................ 8 Wainstein, Kenneth L., of Virginia, to be Assistant Attorney General, National Security Division, U.S. Department of Justice 257 Whitney, Frank D., of North Carolina, to be District Judge for the Western District of North Carolina......................... 377 Wigenton, Susan Davis, Nominee to be District Judge for the District of New Jersey......................................... 138 NOMINATIONS OF MILAN D. SMITH, JR., OF CALIFORNIA, TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT; RENEE MARIE BUMB, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. SHERIDAN, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; AND SUSAN DAVIS WIGENTON, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY ---------- TUESDAY, APRIL 25, 2006 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:17 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, presiding. Present: Senators Hatch and Feinstein. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. I am going to get started. Senator Feinstein is coming, and we will interrupt whatever we are doing, including Senators at the table, when Senator Feinstein gets here because she can only be here for a short while and then has to leave. But why don't we start with you, Senator Smith, and then we will start with you, Senator Boxer. Senator Smith. If I may, may I have Senator Boxer go first? Senator Hatch. That would be great. Senator Smith. She is the Senator of the State. Senator Hatch. Oh, that is right. Excuse me. She is from the State of California. Sorry, Senator Boxer. We are happy to have you. Senator Boxer. It is only 37 million people. [Laughter.] Senator Hatch. That high now? Senator Boxer. Honestly. Senator Hatch. Another 3 million illegal aliens. Senator Boxer. No, no, no. [Laughter.] Senator Hatch. Senator Boxer, we are honored to have you here. PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. BARBARA BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Boxer. Mr. Chairman, I am speechless. Anyway, this is a wonderful day, and I so thank you for allowing me to be here on behalf of Milan Smith, and I am thrilled to be here. You know, blood is thicker than water, but I almost feel like part of the family in this sense: that I have wanted this for a long time. I think this nomination is going to be great for this country. And so I am here to offer my strong support for Milan Smith. He is very well regarded by those who know him and work with him, and I am supremely confident that should he be confirmed, he will discharge his responsibilities with dignity, with integrity, and with intelligence. We have had so many tough arguments over judges, and here is one where I hope we are not going to have one at all, because I think that this particular candidate just meets every standard that one could want, whether one is a Republican or a Democrat. Mr. Smith received his B.A. cum laude from Brigham Young University in 1966, his J.D. from the University of Chicago Law School in 1969, and from there he moved to California to embark on a very impressive legal career. He joined the prestigious firm of O'Melveny & Myers upon his graduation, and he later started his own firm, where he is the managing partner. Mr. Smith's career, however, has not been limited to private practice. He has dedicated his time and his expertise to public service as well. Mr. Chairman, in 1984, Governor Deukmejian appointed Mr. Smith to the Governing Board of the Los Angeles State Building Authority, where he served as president until 1992. Since then, he has asked at the Authority's general counsel. In 1987, Mr. Smith also was appointed as a member of California's Fair Employment and Housing Commission, where he served for 3 years. Throughout his work for the citizens of California, Mr. Smith has demonstrated compassion, courage, and understanding of the hardships faced by average citizens. He has shown a willingness to examine all sides of an issue and to develop thoughtful and balanced solutions to problems. Mr. Chairman, he has fought for those who have been discriminated against, and he has added his strong voice to them, and he has shown courage. And I now know why he is such a strong supporter of equal rights for women, because I have met many of the women in his family, whom you will, I am sure, meet when, I am sure, Gordon will introduce them. So, in summary, through his public and his private work, Mr. Smith has earned the admiration of his colleagues, and today Mr. Smith has come to Washington. [Laughter.] Senator Boxer. And I hope when he leaves Washington, the chances that he will become--that he will be elevated to this unbelievable position as a Ninth Circuit judge will be pretty much a slam-dunk, I hope. He is an individual of great character, an independent thinker. I have profound respect for him, and it is a very happy day for me. And I would love to stay here if I might to hear my colleague's comments and also that of Senator Feinstein's, if I might stay for those. Senator Hatch. Well, thank you. We are honored to have you here, Senator Boxer, and we appreciate the kind remarks that you have given on behalf of Mr. Smith. Senator Feinstein, we will turn to you. PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Well, thank you very much, Mr. Chairman. I am sure I could probably just do this by saying ``Ditto'' after what my friend and colleague said. [Laughter.] Senator Feinstein. But I would like to also put in my 2 cents' worth, and it is a great pleasure to join with Senator Boxer in introducing Milan D. Smith, Jr., who is nominated for the Ninth Circuit Court of Appeals. Milan Smith has had a long and distinguished legal career in California. After graduating for the university of Chicago Law School in 1969, he moved to Los Angeles, and he has been an important part of the legal community there ever since. In 1972, he founded the law firm now known as Smith, Crane, Robinson & Parker, and so for the last 34 years, he has been associated with that law firm and engaged in a wide-ranging legal practice in business and real estate law. As an attorney, he has, I think, demonstrated a commitment to serving the public, from presiding over the Governing Board of the Los Angeles State Building Authority, to acting as Vice Chairman of Ettie Lee Homes for Youth. After reviewing his record, a majority of the ABA rated him well qualified, and as is obvious, he is the brother of our colleague, Oregon Senator Gordon Smith, who is sitting at the table. What some of you may not know, unless Senator Boxer mentioned it, his maternal grandfather, Jesse Udall, was the Chief Justice of the Arizona Supreme Court, so there is real precedent for familial service on our Nation's highest courts. I am very pleased to join with my colleague in supporting his nomination, and I urge a speedy confirmation. Senator Hatch. Well, thank you, Senator Feinstein. We appreciate you being here, and we appreciate your kind remarks. Senator Smith, we will turn to you, and then we are going to go to Senator Menendez. PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. GORDON SMITH, A U.S. SENATOR FROM THE STATE OF OREGON Senator Smith. Thank you, Mr. Chairman. May I express to my colleagues from California how much their presence here means to me and their kind words about my big brother; also to you, Mr. Chairman, for your chairing this hearing, by your request; and also may I thank President Bush for his confidence in Milan and for moving this nomination. As you might imagine, having one's brother nominated to this high court, which has jurisdiction over the State of Oregon, is a very moving thing for me personally. I am deeply honored that my kinsman will be a Federal judge. As you can also imagine, my feelings are a little tender right now, so I have written out what I want to say. Because my emotions are somewhat close to the surface this morning, as I drove to work, when I got there, I turned to a book that I often turn to, to find wisdom. There I found in the Book of Kings a statement that I think is appropriate for this occasion: ``And God gave Solomon wisdom and understanding exceeding much, and largeness of heart, even as the sand that is on the sea shore. And Solomon's wisdom excelled the wisdom of all the children and of all the wisdom of Egypt. For he was wiser than all men, and his fame was in all nations round about.'' Mr. Chairman, without equating Milan to Solomon, I can, without equivocation, speak to his many Solomon-like qualities. Milan, Jr., is the eldest of Milan and Jessica Udall Smith's ten children. I am the eighth in that number and Milan's youngest brother. In my 54 years of life, Milan has been an example and force for good in our family and, since the death of our parents, has been truly a family leader and friend to us all, through times of tears and times of cheers. For as far back as my memory serves, I have been witness to a concourse of people who have sought him out for wisdom and judgment, for counsel and comfort, on matters great and small. These have included my parents, myself, and all of my brothers and sisters, cousins and kinsmen from far and wide, his own six children, and, of course, his legions of legal clients over many decades. Without respect of persons, he has been a wise friend and a good shepherd to all. His academic preparations and provident life speak for themselves. But, in sum, what I can say is that he is one of the wisest men I have ever known. He has an understanding heart, a heart for judgment. He is possessed of the spirit of discernment between good and bad, right and wrong, the just and the unjust. I cannot think of a time or a court when a man of his quality and preparation are more sorely in need than this one and in our time. While I doubt that Milan's fame as a judge will spread Solomon-like throughout the world, I do predict that those who come before his court will find his judgments will mean the world to them. His judgments do mean the world to me. So, my Senate colleagues, I commend to you a man who has dusted me off many times, as a boy and as a man when I have fallen, and showed me the way to better paths, to life's sunny uplands--my brother, Milan Dale Smith, Jr. I urge his confirmation to the Ninth Circuit Court of Appeals. I thank you, Mr. Chairman. Senator Hatch. Well, thank you, Senator Smith. I have sat through literally about a thousand of these, and I have to say I have never heard a more eloquent presentation. However, I chalk it up to the fact that he is your brother. [Laughter.] Senator Hatch. Actually, it was really great, I think. Of course, I have known Milan for a while, too, and I have a very high opinion of him and of his legal abilities. So we are really happy you Senators could be with us. And, Senator Feinstein, we are glad you could be here as well. We are going to turn--I am sorry, Senator Menendez. I have to go to Senator Lautenberg first, and then I will come to you. PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY, BY HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Lautenberg. Thanks, Mr. Chairman. Sorry I am rushing in kind of last minute here, but I was stuck on a train in here and it took just a minute more than we would like, so my apologies, because I am so fortunate, Senator Menendez and I have four wonderful candidates to present to you, Mr. Chairman, and to the Judiciary Committee. They are Renee Bumb, Susan Wigenton, Noel Hillman, and Peter Sheridan. They have all been nominated to serve as district court judges in New Jersey. Now, I know each of them has family members here today, and I am sure that they will want to take the opportunity to make introductions of them. Mr. Chairman, people often look at New Jersey on the map and think that they are looking at a small State, but they are wrong. While we are relatively small geographically, we have the tenth largest population in the country. And despite our large population, the entire State shares one Federal judicial district, and it has been at times difficult to make sure all of the regions of the State feel properly resented-- represented--I am sorry, they are resented--represented in the Federal district of New Jersey. [Laughter.] Senator Lautenberg. They call that Freudian, I guess, Mr. Chairman. Senator Hatch. Really. Go ahead. Senator Lautenberg. What is great about the group of nominees before us today is that they come from different regions of our State and add to the diversity of the Federal bench. Renee Bumb, right behind me on the left, is currently the attorney in charge of the Camden U.S. Attorney's Office. She has a reputation as an excellent prosecutor. She has handled cases ranging from drug trafficking to white-collar crime, and since 2000, Ms. Bumb has supervised all of the attorneys in her office while continuing to try cases herself, specifically those dealing with public corruption. Now, Judge Susan Wigenton has been a full-time Federal magistrate judge in Newark since 2000. Before that, she served as a part-time Federal magistrate and worked as a solo practitioner focusing on civil rights cases. Judge Wigenton also worked in a law firm and served as a public defender in Asbury Park, New Jersey. She has been a first-rate magistrate judge, and I am confident that Judge Wigenton will make an excellent district court judge. Peter Sheridan has spent the last decade as a named partner at Graham, Curtin & Sheridan in Trenton. Prior to that he has worked in private practice at other law firms and has a strong record of public service. He served as Director of the Authorities Unit for the State of New Jersey, Vice President and General Counsel of the Atlantic City Casino Association, and an attorney with the Port Authority of New York and New Jersey. Now, Mr. Noel Hillman served as the Chief of the Public Integrity Section at the Department of Justice, leading a team of 30 attorneys who investigate and prosecute public corruption cases nationwide. Now, Mr. Hillman has a reputation for taking on crimes that undermine public confidence in our political system no matter how political or controversial. Before he went to the Justice Department, Mr. Hillman served as Deputy Chief of the Criminal Division of the U.S. Attorney's Office in New Jersey. And so, Mr. Chairman, we have four excellent nominees who will represent New Jersey and the country well, and I am proud not only to introduce them to the Committee, but to enthusiastically endorse their confirmation, and I hope that the Judiciary Committee will do the same. Thank you very much. Senator Hatch. Thank you very much, Senator. That is high praise for these nominees. Senator Menendez, we are happy to welcome you to the Committee and look forward to hearing for you. PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY, BY HON. ROBERT MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Menendez. Thank you, Mr. Chairman. I am very pleased to be once again before the Committee to testify along with my distinguished senior colleague, Senator Lautenberg, and the privilege of introducing to the Committee four more distinguished New Jerseyans that have been nominated by the administration to serve on the Nation's judiciary system. I do not have the great privilege that Senator Smith had in terms of a family member who is so distinguished, but I do have the enthusiasm that he expressed for his brother for these four nominees that are before the Committee. We had the privilege about a month ago of introducing Michael Chagares to the Committee as a circuit judge for the Third Circuit, which he received a very substantial and unanimous vote in the Senate. And today these nominees for the district court I think are also exceptional individuals. The confirmation of a judge to a lifetime appointment is a vital responsibility given to this body by the Constitution and one that I know I and certainly the members of this Committee take quite seriously. So I appreciate the chance to also join in in presenting to the Committee Renee Bumb, Noel Hillman, Peter Sheridan, and Susan Wigenton. It is gratifying to see, as I sat in the back for a few minutes, so many of the family members who are here today for this important day in each of their loved ones' lives, and it would be too many to recognize. I am sure they will at some point as they each come forth. It is an honor that we take pride in that has been bestowed on each of these fellow New Jerseyans, so let me very briefly say a few words about each of these nominees. Ms. Bumb graduated from Ohio State University and the Rutgers School of Law, both with honors. She began her career in private practice and has spent the past 15 years working in the U.S. Attorney's Office for the District of New Jersey. She is a two-time recipient of the Director's Award, the highest award given to an Assistant U.S. Attorney, and for the last 6 years, she has served as the Attorney in Charge of the Camden Office. Mr. Hillman is a graduate of Monmouth College, Seton Hall University School of Law, the New York University School of Law, and he also has started his career in private practice before spending the last 15 years at the Department of Justice. He has received the Executive Office of the U.S. Attorneys Director's Award twice and in 2004 received the Attorney General's Award for Fraud Prevention, and he currently serves as the senior counsel to the Assistant AG of the Criminal Division where, until recently, he was the Chief of the Public Integrity Section, and he did so with great distinction. Mr. Sheridan graduated from my alma mater, St. Peter's College, then Seton Hall School of Law, and unlike Ms. Bumb and Mr. Hillman, he began his career in public service by working at the Office of the New Jersey Solicitor for the Port Authority of New York and New Jersey, an important regional bi- State agency, and later served in the administration of former Governor Tom Kean. For the past 11 years, he has been a shareholder and director of a prestigious firm, Graham, Curtin & Sheridan. And, finally, Judge Wigenton graduated from Norfolk State University and the Marshall White School of Law from the College of William & Mary. She started her career in public service as a public defender and at the New Jersey Board of Examiners. Judge Wigenton then went on to private practice and in 1996 was the second of only four African-American women in the State of New Jersey to be named as a partner in a major law firm. She then went back to public service and has spent over 8 years as a U.S. magistrate judge for the District of New Jersey, and she has performed exceptionally as a magistrate judge. Mr. Chairman, there is no higher calling than the calling of public service. That is why I know that both Senator Lautenberg and I are so pleased to see people of this quality who are willing to serve our Nation in the administration of justice. I am happy to join Senator Lautenberg in commending to the Committee each of these nominees and to very strongly be supportive of the Committee's endorsement of their nominations. Senator Hatch. Well, thank you so much. Because of both your recommendations, I am prepared to confirm them right now. [Laughter.] Senator Hatch. I appreciate you both coming. We really appreciate that. Mr. Smith, we will take you first, and I have very few questions to ask of you, but if you would, do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? Mr. Smith. I do. Senator Hatch. Thank you. I have known you for a long time, and I have known your family for a long time, and, of course, Gordon is a partner here in the Senate. I knew your Dad way back when, and I just have to say there isn't a better family on the face of the Earth, as far as I am concerned, and you come not only highly recommended by your brother and others, but also I am fully aware of your legal practice, what you have done in your practice, and the fact that you have worked with some prestigious law firms and basically have built your own law firm into something of real value. This is one of the most important positions on Earth, the Ninth Circuit Court of Appeals, and, frankly, I have no doubt in my mind that you can fulfill that position as a judge on that circuit. In fact, I am counting on you fulfilling it in every way. I am just going to ask you one question because I think everybody on this Committee is aware of you and your excellent reputation, and if they are not, we will make them aware. You have distinguished yourself as one of Southern California's premier attorneys in the area of complex commercial litigation, and obviously you have gained some insight from the professional experience that will influence your decisionmaking on the Ninth Circuit Court of Appeals. Now, how have all these experiences prepared you for service on this very prestigious Circuit Court of Appeals? STATEMENT OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT Mr. Smith. Thank you for that question, Senator. I think that my brother Gordon referred to the Book of Kings and others of other faiths would refer to other books. Those who have no particular religious faith would refer to other books of wisdom. And from the beginning of time, I think people have respected experience that is gained from years of dealing with people, years of dealing with issues, and wisdom sometimes comes with a little bit of gray hair and certainly dealing with people and the complex issues that confront human beings. I believe that being the father now of seven wonderful children, having practiced law for 37 years and dealing with a wide variety of issues, will enable me, if confirmed, to bring a lot of what I guess my Grandmother Udall would call ``common sense'' to the decisions that are brought before me. People all have aspirations. Every human being wants what is good for his or her children, his or her business, his or her country. And if confirmed, it would be my goal, frankly, to do in the Ninth Circuit Court of Appeals what I believe my brother has done in the Senate, which is to get to know individuals personally, become their friend, and whether you always agree with them is not necessarily the point but, rather, that you can disagree without being disagreeable. And I think that that comity among your colleagues can help bring a result that is more fair, more balanced, more appreciated by the lower courts, by the public, and others who must understand and implement the policies--or not policies, but the rulings that the court issues. So I would hope that that combined experience could help to bring about such a result. Senator Hatch. Well, thank you. Why don't you take some time to introduce your family and friends to us who are here. Mr. Smith. Thank you, Senator. I'd really love to do that. Let me start, if I may, by introducing my wonderful, beautiful, talented, brilliant wife and law partner, Kathleen Crane, who is directly in back of me. Senator Hatch. That may be the best description he is ever going to give of you. Once he becomes a judge, they become very arrogant. [Laughter.] Senator Hatch. It is an honor to have you here. Mr. Smith. Then I will just start in order of birth: my daughter Tiffany of Utah--Sandy, Utah. Senator Hatch. She is in law school now herself, isn't she? And you are the mother of how many? Ms. Smith. Three. Senator Hatch. Three. And you are what year of law school? Ms. Smith. I am 2L, just finishing. In the middle of finals. [Laughter.] Senator Hatch. You shouldn't have come. Ms. Smith. This is more important. I will learn criminal procedure tomorrow. Mr. Smith. My daughter Courtney Smith, who is from New York City, is directly in back. Senator Hatch. Good to have you here, Courtney. Mr. Smith. My daughter Amanda, who is from Beverly Hills, California, who is a new mother, about a year ago. Senator Hatch. That is great. Mr. Smith. My daughter Elizabeth, who is from Brentwood, California. Senator Hatch. Elizabeth. Mr. Smith. My daughter Brittany Brown, who is presently from Boston College, in the city of Boston right now. And if it is all right, we have a number of friends who have traveled as well. May I introduced them, Mr. Chairman? Senator Hatch. Sure. We would love to have you do that. Mr. Smith. Please. Our friends Earl and Melanie Boyd, who are directly back of us there. Senator Hatch. Welcome. We are happy to have you here. Mr. Smith. Jack and Linda Cross, who are here from California. Senator Hatch. Welcome. Mr. Smith. Kay Tabarrah, who lives in D.C. now but used to live in California. Senator Hatch. Kay. Mr. Smith. And Carol Raymondo, who is from Cayucos, California, near Morro Bay. Senator Hatch. Carol. Mr. Smith. And who is here on some business, and I think I got everybody--oh, Suzette. I apologize, Suzette. My favorite niece, Suzette Jones, who is from Sarasota, Florida, and who is--we are just delighted that she is here. She's a wonderful member of our family as well. So thank you for letting me introduce them. They are the most precious thing in my life. Senator Hatch. I can tell that, and they are wonderful people. [The biographical information of Milan Smith follows.] [GRAPHIC] [TIFF OMITTED] T0256.001 [GRAPHIC] [TIFF OMITTED] T0256.002 [GRAPHIC] [TIFF OMITTED] T0256.003 [GRAPHIC] [TIFF OMITTED] T0256.004 [GRAPHIC] [TIFF OMITTED] T0256.005 [GRAPHIC] [TIFF OMITTED] T0256.006 [GRAPHIC] [TIFF OMITTED] T0256.007 [GRAPHIC] [TIFF OMITTED] T0256.008 [GRAPHIC] [TIFF OMITTED] T0256.009 [GRAPHIC] [TIFF OMITTED] T0256.010 [GRAPHIC] [TIFF OMITTED] T0256.011 [GRAPHIC] [TIFF OMITTED] T0256.012 [GRAPHIC] [TIFF OMITTED] T0256.013 [GRAPHIC] [TIFF OMITTED] T0256.014 [GRAPHIC] [TIFF OMITTED] T0256.015 [GRAPHIC] [TIFF OMITTED] T0256.016 [GRAPHIC] [TIFF OMITTED] T0256.017 [GRAPHIC] [TIFF OMITTED] T0256.018 [GRAPHIC] [TIFF OMITTED] T0256.019 [GRAPHIC] [TIFF OMITTED] T0256.020 [GRAPHIC] [TIFF OMITTED] T0256.021 [GRAPHIC] [TIFF OMITTED] T0256.022 [GRAPHIC] [TIFF OMITTED] T0256.023 [GRAPHIC] [TIFF OMITTED] T0256.024 [GRAPHIC] [TIFF OMITTED] T0256.025 [GRAPHIC] [TIFF OMITTED] T0256.026 [GRAPHIC] [TIFF OMITTED] T0256.027 [GRAPHIC] [TIFF OMITTED] T0256.028 [GRAPHIC] [TIFF OMITTED] T0256.029 [GRAPHIC] [TIFF OMITTED] T0256.030 [GRAPHIC] [TIFF OMITTED] T0256.031 [GRAPHIC] [TIFF OMITTED] T0256.032 [GRAPHIC] [TIFF OMITTED] T0256.033 [GRAPHIC] [TIFF OMITTED] T0256.034 [GRAPHIC] [TIFF OMITTED] T0256.035 [GRAPHIC] [TIFF OMITTED] T0256.036 [GRAPHIC] [TIFF OMITTED] T0256.037 [GRAPHIC] [TIFF OMITTED] T0256.038 [GRAPHIC] [TIFF OMITTED] T0256.039 Senator Hatch. We are grateful that you are willing to serve because we know that you have a substantial career, we know that you could have a very interesting and easy life without doing this job. But this is an important job, and we are really pleased to have people of your qualifications willing to serve, and we will do everything in our power to get you through as fast as we can so you can get on that court. I know that you are still going to be very subservient to Mrs. Smith at home. [Laughter.] Mr. Smith. May I also, Mr. Chairman, thank the Committee. I want to thank Chairman Specter and his wonderful staff, Ranking Member Leahy and his staff. They have shown us many courtesies, as have you. I am very, very grateful for that. I realize that there are lots of people who pass before this Committee, but I must confess I feel very, very grateful of their sensitivity and the expeditious way in which they have handled my nomination and hoped-for confirmation. So thanks to all who have been involved in this process. Senator Hatch. Well, thank you so much, and I have to say your brother has weighed in rather heavily on your behalf. [Laughter.] Senator Hatch. He did not really have to. Mr. Smith. Well, that is very nice. Let me just conclude by saying this: Nobody ever had a better brother. Senator Hatch. He feels exactly the same. Mr. Smith. We tend to get lachrymose over the dedication of a drawbridge. I am sorry about that. [Laughter.] Mr. Smith. But as you probably know, Gordon and I are extraordinarily close, and he was gracious enough to say lots of nice things about me, and I cannot tell you how proud I am of him. He has been through a lot, as you know. Senator Hatch. Yes, I know. Mr. Smith. But I think his courage and what he has shown to people will help lots of other people, and I know that today our parents and grandparents and others were very proud of him and a lot of us in the family because we believe in public service. We understand the importance of being there to try to do good to people and to bring the skill sets that we have for the benefit of our community and others. So I thank you for this opportunity to be here. Senator Hatch. Well, thank you. I share your high opinion of my colleague, I will tell you. As good as it gets, and I think both sides of the floor think very highly of Gordon, as they should. But we are honored to have all of you here. We will push this nomination as fast as we can, and hopefully you will be sitting on that court within a short period of time, and that ought to be an interesting part of your life from this point on. I have no doubt you will be one of the great judges in this country. So thank you so much. It is great to see all of you. We are proud of all of you, and we wish you the best. Mr. Smith. Thank you, Senator. And if it is all right, we will move out of the way so that other family members in the New Jersey contingent can move forward and be closer to their families. And thank you very much. Senator Hatch. Good to see you. Well, if we can have the other nominees take their places at the table, we will move ahead with them. Let's have you all stand, and I will administer the oath. Please raised your right hands. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? Ms. Bumb. I do. Mr. Hillman. I do. Mr. Sheridan. I do. Judge Wigenton. I do. Senator Hatch. Thank you very much. I am aware of all of your reputations. They are excellent reputations. You had two fine Senators recommend you, plus the President of the United States, and I am not going to bother you with any questions because I know that each of you is qualified, more than qualified to serve on the Federal bench. And we are very proud to have you here today. If you want me to ask some questions, I will. [Laughter.] Senator Hatch. But I think sometimes these should not be ordeals. These ought to be really wonderful experiences to all of you. What I would like you to do, however, is take time--and we can start with you, Ms. Bumb--take time and introduce members of your family and friends who are here, and we will just go across the table. Okay? You are first. STATEMENT OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Ms. Bumb. Thank you, Senator. I want to first introduce my wonderful, wonderful, wonderful husband, behind me. [Laughter.] Senator Hatch. He is embarrassed. Ms. Bumb. Kevin Smith. Senator Hatch. Good to have you here. Ms. Bumb. And my two daughters, Katrina and Elizabeth Smith. Senator Hatch. Oh, they are beautiful. I tell you, that is just great. Ms. Bumb. And I do want to introduce, although he is not here, our youngest, Liam Timothy, who is waiting for us in Russia, and we will be picking him up next month. Senator Hatch. So you are adopting him then. Ms. Bumb. Yes. Senator Hatch. That is terrific. Ms. Bumb. He will be 1 year old next month. And my wonderful parents, Harold and Trudy Bumb. Senator Hatch. We are so happy to have you here. You have to be really proud of your daughter. Mrs. Bumb. We are. Ms. Bumb. Thank you, Senator, and thank you for the honor and privilege, to you and to the Committee, for allowing me to be here. It is an honor and privilege. Senator Hatch. We are very proud of you. [The biographical information of Renee Bumb follows.] [GRAPHIC] [TIFF OMITTED] T0256.040 [GRAPHIC] [TIFF OMITTED] T0256.041 [GRAPHIC] [TIFF OMITTED] T0256.042 [GRAPHIC] [TIFF OMITTED] T0256.043 [GRAPHIC] [TIFF OMITTED] T0256.044 [GRAPHIC] [TIFF OMITTED] T0256.045 [GRAPHIC] [TIFF OMITTED] T0256.046 [GRAPHIC] [TIFF OMITTED] T0256.047 [GRAPHIC] [TIFF OMITTED] T0256.048 [GRAPHIC] [TIFF OMITTED] T0256.049 [GRAPHIC] [TIFF OMITTED] T0256.050 [GRAPHIC] [TIFF OMITTED] T0256.051 [GRAPHIC] [TIFF OMITTED] T0256.052 [GRAPHIC] [TIFF OMITTED] T0256.053 [GRAPHIC] [TIFF OMITTED] T0256.054 [GRAPHIC] [TIFF OMITTED] T0256.055 [GRAPHIC] [TIFF OMITTED] T0256.056 [GRAPHIC] [TIFF OMITTED] T0256.057 [GRAPHIC] [TIFF OMITTED] T0256.058 [GRAPHIC] [TIFF OMITTED] T0256.059 [GRAPHIC] [TIFF OMITTED] T0256.060 [GRAPHIC] [TIFF OMITTED] T0256.061 [GRAPHIC] [TIFF OMITTED] T0256.062 [GRAPHIC] [TIFF OMITTED] T0256.063 [GRAPHIC] [TIFF OMITTED] T0256.064 [GRAPHIC] [TIFF OMITTED] T0256.065 Senator Hatch. Mr. Hillman? STATEMENT OF NOEL LAWRENCE HILLMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Mr. Hillman. Thank you, Senator. I am here with my wife, Tracy Hillman, and I tell her every day how wonderful she is. [Laughter.] Mr. Hillman. So I won't repeat that. Senator Hatch. I think that first witness was good for all of us, don't you? Mr. Hillman. I think so. You can't tell the people you love you love them enough. Senator Hatch. That is right. Mr. Hillman. I am also here with my three children, and John is 13. Senator Hatch. John, you are looking good. Mr. Hillman. Drew is fast approaching 11. Senator Hatch. Drew looks good, too. Mr. Hillman. And our dear little Paige is 6, Senator. Senator Hatch. Hi, Paige. How are you? You look better than the boys. [Laughter.] Mr. Hillman. I appreciate the opportunity to do that. Senator Hatch. We are honored to have you here. We are surely honored to have your family here. You seem too young to be a judge, a Federal district judge, is all I can say, with all those young children. That is just terrific, though. Happy to have you here, and we hear really good things about all four of you. 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Mr. Sheridan? STATEMENT OF PETER G. SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Mr. Sheridan. Thank you, Senator. I'd like to say that I'm thankful for this Committee to have a hearing for me with my colleagues, as well as I'd like to thank the President for putting my name in nomination, and for Senators Menendez and Lautenberg for moving forward on our nominations. Senator Hatch. You bet. Mr. Sheridan. With me today are my family: my wife, Barbara; my children Katherine, Tom, and Peter; and behind them are my two sisters, Rose and Ann; and my co-worker, Harriet Tyrrell and her husband, Brian. Senator Hatch. That is great. Mr. Sheridan. Thank you, Senator. Senator Hatch. We are so happy to have all of you here. What a nice family. We are just grateful to have all of you here today. Mr. Sheridan. I appreciate the opportunity. 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Judge Wigenton? STATEMENT OF SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Judge Wigenton. Thank you, Senator Hatch. It is a pleasure and honor for me to be here today, and I do want to express my deepest gratitude to the Committee and all the members of the Committee for their patience in just working with us very diligently to arrive at this particular point. Also, I want to extent my gratitude to the President for this nomination, in addition to the Administrative Office, who is also here, and they have also worked with each and every one of us to get to this point. But I am happy to introduce the members of my family that I have brought here today, and I consider all of them to be members of my family. First and foremost, I have my wonderful husband, Kevin, and my son, Kevin II. Senator Hatch. That is great. He looks pretty good. That is great. Judge Wigenton. He is a big 3\1/2\-year-old. Senator Hatch. Yes. Judge Wigenton. In addition, I have my oldest brother, Dr. Henry P. Davis, and his wife, Weptanomah Davis. Senator Hatch. Doctor, an honor to have both of you here. Judge Wigenton. And my niece and nephew, their children, Lilybelle and Henry. Senator Hatch. Great to have you here. Henry, you are looking good, too. Judge Wigenton. I also have my aunt and uncle, my Aunt Mesie, Aunt Mesie Wright, and Clarence Wright, who are members or residents of Maryland, and they are here as well. Senator Hatch. Great to have you folks here. Judge Wigenton. In addition, I have members of my office and my chambers who I consider to be family members. I have my courtroom deputy, Ellen McMurray. Senator Hatch. Good to have you here. Judge Wigenton. My able law clerk, Frances Bajada. Senator Hatch. Great to see you, Frances. Judge Wigenton. And Wayne Fang, who will be leaving me this year, but he has been a wonderful law clerk. Senator Hatch. Wayne, proud of you. Judge Wigenton. And last, but not least, I have Attorney Bobby Stafford, who is a member of the bar in the State of Virginia and also practices in the District as well, and he is here. Senator Hatch. Great. Good to have you here. Judge Wigenton. And once again, thank you. [The biographical information of Susan Wigenton follows.] [GRAPHIC] [TIFF OMITTED] T0256.124 [GRAPHIC] [TIFF OMITTED] T0256.125 [GRAPHIC] [TIFF OMITTED] T0256.126 [GRAPHIC] [TIFF OMITTED] T0256.127 [GRAPHIC] [TIFF OMITTED] T0256.128 [GRAPHIC] [TIFF OMITTED] T0256.129 [GRAPHIC] [TIFF OMITTED] T0256.130 [GRAPHIC] [TIFF OMITTED] T0256.131 [GRAPHIC] [TIFF OMITTED] T0256.132 [GRAPHIC] [TIFF OMITTED] T0256.133 [GRAPHIC] [TIFF OMITTED] T0256.134 [GRAPHIC] [TIFF OMITTED] T0256.135 [GRAPHIC] [TIFF OMITTED] T0256.136 [GRAPHIC] [TIFF OMITTED] T0256.137 [GRAPHIC] [TIFF OMITTED] T0256.138 [GRAPHIC] [TIFF OMITTED] T0256.139 [GRAPHIC] [TIFF OMITTED] T0256.140 [GRAPHIC] [TIFF OMITTED] T0256.141 [GRAPHIC] [TIFF OMITTED] T0256.142 [GRAPHIC] [TIFF OMITTED] T0256.143 [GRAPHIC] [TIFF OMITTED] T0256.144 Senator Hatch. Well, thank you. Well, we are honored to have all of you here. The questionnaires are so extensive that I almost think it is an insult for us to ask you any further questions, and especially since we know of your reputations, know how really qualified you folks are. We appreciate you appearing, and I am going to make this easy on you. We are just going to congratulate you, and we will move as fast as we can your nominations. And just serve well on the bench and remember what I said. The closest thing to godhood in this life is a Federal judgeship, and we just don't want you to take that to heart that strongly. What we would like you to do is just give service the way Federal judges ought to do and be fair and honest and decent to everybody who comes before you--and, above all, those poor humble attorneys who have to appear. They do not particularly want you to try their cases for them, but when you see a young person who is struggling in the evidence or something, you can give a little help. [Laughter.] Senator Hatch. There is nothing wrong with that. But we are honored to have all of you here. We are honored to have your family members here, clearly good people, and the courts are going to be better off with the four of you on that court. So, with that, we are going to recess this hearing until further notice and congratulate all of you, and we will do our best to get you through as quickly as possible. Ms. Bumb. Thank you, Senator. Mr. Hillman. Thank you, Senator. Mr. Sheridan. Thank you, Senator. Judge Wigenton. Thank you, Senator. Senator Hatch. Thank you so much. Good to see you. [Whereupon, at 2:54 p.m., the Committee was adjourned.] NOMINATIONS OF SANDRA SEGAL IKUTA, OF CALIFORNIA, TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT; SEAN F. COX, OF MICHIGAN, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; THOMAS L. LUDINGTON, OF MICHIGAN, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; AND KENNETH L. WAINSTEIN, OF VIRGINIA, TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE ---------- TUESDAY, MAY 2, 2006 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 3:06 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback presiding. Present: Senators Brownback and Feingold. OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE OF KANSAS Senator Brownback. The hearing will come to order. Thank you for being here and joining us today. A vote has just been announced. We have a hearing on four nominations--Sandra Segal Ikuta, Sean F. Cox, Thomas Ludington, and Kenneth Wainstein. What I thought I would do here is offer to Senator Levin and Stabenow, if you want, before we head over to vote, to make your introductory statements and comments. Then I will have to recess and go vote and then come back and we will finish. Delegate Norton, I hope that can work for you, but I have to take care of my colleagues first here. I am sorry about that. Senator Levin, do you want to go forward with your statement? PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, BY HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF MICHIGAN Senator Levin. Thank you, Mr. Chairman, for your accommodation, as always. There is no one who is more accommodating in the U.S. Senate than Senator Sam Brownback and we really very much appreciate it. I want to thank you and the Committee for holding this hearing today. Both Senator Stabenow and I are pleased to introduce two Michigan jurists, Tom Ludington and Sean Cox, whom the President has nominated to the Federal bench in the Eastern District of Michigan. I will let Judge Ludington introduce his family--I think it is always a special privilege of the nominee to do that-- although it is tempting to do that, other than to say that his sons have made the ultimate sacrifice here, which is to miss a day in school to be with their father. He is indeed a well-respected jurist in Michigan. He currently serves as a circuit court judge. He is the chief judge in his circuit, in Midland County, Michigan. He has been in private practice a long time before that. He was elected to the bench in 1995. I also, in addition to Judge Ludington, would like to join Senator Stabenow in welcoming Judge Sean Cox and his family, whom I know he will also introduce. Judge Cox and Judge Ludington both got high grades from the American Bar Association, as well as from the screening group that Senator Stabenow and I set up to look at the nominations of the President and to review them. Both of the nominees here today did very well with that group and we got very positive feedback about both of them. I shouldn't introduce Sean Cox by mentioning that his brother is the Attorney General of the State of Michigan, but since I am big on brothers, and I know that he is, too, I do want to mention it. I know how proud the family is of both of them. I shouldn't take 30 seconds to say this, but when my mother was asked what about the two Levin brothers that were now elected to the Senate and to the House, respectively, when we both were here, and the press was pressing her for, well, you must be just so proud of your two sons, now a sibling act in the House and the Senate, her response was if that is what they want, it is OK with me. Their prompt confirmation is something we all look forward to, and again we thank you very much, Mr. Chairman, for holding this hearing and for dividing it the way you are to accommodate us. Senator Brownback. A ringing endorsement from mom. That is a great story. Senator Stabenow. PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, BY HON. DEBBIE A. STABENOW, A U.S. SENATOR FROM THE STATE OF MICHIGAN Senator Stabenow. Well, thank you, Senator Brownback. I, too, am here to join in strong support of the nominations of Judge Sean Cox and Judge Tom Ludington for the U.S. District Court for the Eastern District of Michigan. I don't have a brother or a sister serving, but I am someone who believes strongly in family, as does everybody here. And to look around at these two families, it is really wonderful to see, and I know that their wives and children and relatives are all very proud of them and are very exciting about being here today and about the opportunities that all of this presents. Both of these nominees bring distinguished legal careers and judicial experience to the Federal bench. Judge Sean Cox has served as a circuit court judge for the 3rd Circuit of Michigan since 1996. He is a graduate of the Detroit College of Law and the University of Michigan, and has over 12 years of private practice experience. So I want to welcome Judge Cox and his family to the Senate today. Judge Thomas Ludington has served on the 42nd Circuit Court for Midland County since 1995. He has served as chief judge of the court for the past 6 years. Judge Ludington is a graduate of the University of San Diego School of Law and Albion College, another great school in Michigan. After graduating from law school, Judge Ludington worked at the Currie and Kendall law firm for 14 years, and also served as president of the firm before he left to join the Michigan Circuit Court. I want to welcome Judge Ludington and his family, as well, today. We very much appreciate the timely manner in which these nominations have moved forward now and expect the same timeliness on the floor. It is my pleasure to work with you on these vacancies and other judicial issues coming before us that affect Michigan. Thank you, Mr. Chairman. Senator Brownback. Thank you very much, Senator. I appreciate that greatly. Representative Norton, I do have time if you would like to go ahead and put your statement in now before I have to head off and vote, if that would facilitate you as well. Senator Levin. Can we be excused? Senator Brownback. Yes, you will be excused. Thank you very much for coming by. I appreciate it greatly. PRESENTATION OF KENNETH L. WAINSTEIN, OF VIRGINIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE, BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA Delegate Norton. Let me make haste and thank you, Senator Brownback. I am pleased to come forward and recommend Kenneth Wainstein to this new and important position. He is going to be the maiden, or whatever it should be called in his case, person to hold this position of Assistant Attorney General for National Security. It was strongly recommended by the commission, bringing together the counterterrorism, counter- espionage and similar attorneys under one new person. I know Ken Wainstein from his work as U.S. Attorney for the District of Columbia, but if you take a look at his combined Federal and local career and prosecutorial experience, you can understand, it seems to me, immediately why the President selected him for this new post-9/11, very important position. I simply want to say how much I appreciate the way Ken Wainstein adapted himself to the unique demands of the U.S. Attorney's office for the District of Columbia. It is a unique office and its combination of Federal and local responsibilities, I think, will serve him well in his new position, considering that that position will require him to be in tune with cases that are as likely to arise from local conditions as from the Federal itself. Just as he will have to make adaptations and indeed clear the way entirely for his new position, he adapted to the way in which we were trying to make the U.S. Attorney's Office for the District of Columbia. It handled twice as many local cases as Federal cases, because he is really a local D.A. for the District of Columbia, as well as the U.S. Attorney. Those who held the position before him--Eric Holder, who later became Deputy Attorney General, and Wilma Lewis, both the first African Americans to hold the position, and Wilma Lewis the first woman--made the position, in fact, much more like a D.A. position while handling all of these important Federal matters. And Ken Wainstein just went right to it, expanded the Federal involvement appropriately even as he was handling very important cases of the kind that I am sure brought him to the attention of the President for this new position. He was interim U.S. Attorney twice; the second time around, he made it to the top. I think you can see this a clear merit appointment, a man who has never been in politics. He has been in the Justice Department all his life. He was chief of staff for FBI Director Mueller, Executive Director of the Executive Office of U.S. Attorneys, D.C. and New York experience. He leaves with the homicide rate this year down 17 percent in the District of Columbia. I am sorry to lose him right at the time when he and I were working together to get a new forensic lab--I will have more to say to you in your other hat about that, Mr. Brownback--and where we are working to get for the U.S. Attorney for the District of Columbia investigators, instead of using our cops, the way every other U.S. Attorney has. It is your gain and our loss. I am pleased to recommend the President's recommendation to you. Thank you very much for taking me. Senator Brownback. Thank you very much, Delegate Norton. We appreciate that greatly. I also want to recognize Congressman Dave Camp from Michigan, who is here, I am sure, to support both of these nominees. If you have a statement you wanted to put forward, I am going to have to run in 1 minute. I apologize for that. PRESENTATION OF SEAN F. COX, OF MICHIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON, OF MICHIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, BY HON. DAVE CAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Representative Camp. Well, thank you very much, Senator Brownback. I just want to endorse the remarks of Senator Levin and Senator Stabenow to these two exceptionally well-qualified judges from Michigan. Judge Ludington and I grew up together. We live in the same hometown and when I am home and run into lawyers from every political stripe and perspective, they all say what an excellent job he does as a judge. And I know they both will serve this country well as district court judges. Thank you. Senator Brownback. Thank you very much. We will put the hearing in recess while I go vote and I will be right back. I want to apologize to the nominees and the families. I just can't avoid it. I have to run over and vote and I will be back as quickly as I can. We are in recess. [The Committee stood in recess from 3:17 p.m. to 3:36 p.m.] Senator Brownback. The hearing will come back to order. Thank you all for joining me and I am sorry about the delay. I want to call the panel up of our judicial nominees and we will do the executive branch nominee on a second panel. So if you would all care to come on forward, I will do an introduction here at this time. Our first nominee who will be making a presentation will be Sandra Segal Ikuta, who has been nominated to serve on the Ninth Circuit Court of Appeals. She graduated Phi Beta Kappa from the University of California-Berkeley, received her master's degree at Columbia University Graduate School of Journalism, and received her J.D. from UCLA Law School. After law school, she clerked for Judge Alex Kozinski. I am sure I butchered that. I apologize. How do I say that? Ms. Ikuta. Kozinski. Senator Brownback. Kozinski. That ought to be much simpler. It is the German in me that just doesn't get those names right. She clerked for Judge Kozinski on the Ninth Circuit Court of Appeals and then for Justice Sandra Day O'Connor on the U.S. Supreme Court. She then entered private practice where she worked for 14 years in the law firm of O'Melveny and Myers. Ms. Ikuta specialized in environmental issues, including litigation, compliance and other pre-litigation matters, including assisting clients with environmental audits and property contamination issues. In 1997, she was promoted to partner at the law firm and she became co-chairman of the environmental law practice group. Ms. Ikuta left the law firm in 2004 to become Deputy Secretary and General Counsel for the California Resources Agency, where she currently serves. She is responsible for general legal matters for the agency. She received a unanimous well qualified rating from the ABA. Sean F. Cox is our next nominee. Judge Cox has been nominated to the Federal District Court for the Eastern District of Michigan. He is a graduate of the University of Michigan and Detroit College of Law. Judge Cox has an extensive record of legal experience. He was in private practice with three law firms between 1984 and 1996, where he had a diverse practice representing governmental entities, insurance companies and individual litigants in complex litigation. Since 1996, he has served with distinction on the 3rd Circuit Court for the State of Michigan and he, as well, has received a unanimous well qualified rating by the ABA. Judge Thomas L. Ludington has been nominated to the Federal District for the Eastern District of Michigan. He is a graduate of Albion College and the University of San Diego School of Law. He spent 14 years in private practice. During that time, Judge Ludington dedicated much of his work in the area of banking and securities law, as well as bankruptcy and employment law. He also served as president of the firm for 6 years. In 1995, he began his judicial service by taking a seat on the State of Michigan's 42nd Circuit Court. Since 1999, he has served as chief judge of that court, where he has become a widely respected trial judge. Like our other nominees, Judge Ludington was rated unanimously well qualified by the American Bar Association. This is an outstanding group of nominees. We have had testimony already entered by two members of the Senate, a Representative from the House, and the Delegate from the District of Columbia on our executive nomination. I would like to also enter into the record at this point in time a statement from Senator George Allen and a statement from Senator John Warner in support of the nomination of Kenneth L. Wainstein for Assistant Attorney General for National Security. Welcome, all of you nominees. I want to welcome your families, as well, to this hearing about your nominations for the bench. Ms. Ikuta, I look forward to your testimony. If you would like to introduce family, you are welcome to do so now and we will hear your testimony. STATEMENT OF SANDRA SEGAL IKUTA, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT Ms. Ikuta. Thank you, Senator. I would like to introduce my husband, Ed Ikuta, and my daughter, Lillian Ikuta. Senator Brownback. Welcome. We are delighted to have you here. Ms. Ikuta. They have been such a wonderful support to me. 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Judge Cox. STATEMENT OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN Judge Cox. Thank you, Senator. I would like to introduce my wife, Janine; my son, Patrick; my daughter, Clare; my brother- in-law, Doug Cutcher, and Kyra and Alissa Cutcher. 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LUDINGTON, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN Judge Ludington. Good afternoon, Senator. It is kind of a pleasure. We have had a chance to introduce you here informally a minute ago, but I am joined this afternoon by my wife, Tina, who is present. Adjacent to her is Christopher Warren, and John Thomas on your right. Also with us this afternoon are my mother-in-law, Ms. Jane McGuire, and brother-in-law, Tim, and last but not least, my father, Jack Ludington. 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Being a person on the bench, being a judge, is a high responsibility and it involves the whole family. So I am delighted that all of you could join in this affair. Ms. Ikuta, we would be happy to receive your statement if you have a statement--excuse me; I am jumping ahead of things. We normally swear in our witnesses for the bench, so if you would all rise and raise your right hands? I promise to tell the truth, the whole truth and nothing but the truth, so help me God. Ms. Ikuta. I do. Judge Cox. I do. Judge Ludington. I do. Senator Brownback. Thank you. You may be seated. Ms. Ikuta, do you have a statement that you would like to enter into the record or to state here? Ms. Ikuta. I don't have an opening statement other than to thank the President for nominating me and the Committee for having these hearings. Thank you. Senator Brownback. We will have a few questions. Judge Cox, do you have a statement? Judge Cox. Senator, I would like to thank the Committee very much for having this hearing today. It is a great honor to be before you. I would like to thank President Bush for the honor that he has given to me and my family of nominating me for the Eastern District of Michigan, and I would also like to thank Senator Levin and Senator Stabenow for taking time from their busy schedules to come in here before this Committee and introduce me, as well as Judge Ludington. Thank you very much. Senator Brownback. Thank you. Judge Ludington. Judge Ludington. Senator, I would echo my colleagues. We are all very appreciative of the President's nomination, as well as the fact of all the cordiality you have extended to us this afternoon. Senator Brownback. We are delighted to have you here. Ms. Ikuta, let me start with you on this, and I am sure you have had this question in a number of the screenings that you have gone through thus far. There have been a lot of questions in the political debate about the role of the judiciary in the country and in the government today, and it has been the subject of a lot of political debate and it has been a subject of a lot of personal debate. Could you outline for me and for this Committee your view of the role of the judiciary in the government and in this society? Ms. Ikuta. Thank you very much, Senator, for that question. I see the role of the judge in our system as interpreting the law, the precedents of the Supreme Court and the judge's circuit, and applying those laws impartially and fairly to the legal issue before the court. Senator Brownback. Judge Cox. Judge Cox. Senator, the role of the judiciary is to follow the law, not to make the law. As a judge, it is incumbent upon a judge to follow and respect precedent and it is incumbent upon a judge to follow statutory law. The statutes are presumed to be valid. Again, the role of a judge is not to make the law. The judge follows the law. Senator Brownback. Judge Ludington. Judge Ludington. Again, in many respects I would echo a lot of the things that my colleagues have added. I think what is important, and I would add perhaps uniquely true with trial judges, is the fact that there has to be a certain reservation in understanding the role of the judge in terms of constitutional process and understanding the limits, the appropriate limits of the types of decisions that we can make. We can't solve every problem. It is very important that we understand in a principled way what our role in the system is and be sure that we limit ourselves within that context. Senator Brownback. Why do you think we have gotten even to this debate today? I mean, why is this such a big political issue about the role of the judiciary in this society today? You have been around courts and judges all your life. You have watched the political system, each of you. We didn't used to debate this point or even raise it. Why are we where we are today? Ms. Ikuta. Senator, that is a very thoughtful question and it is an important issue. I know there is a lot of concern and controversy about what constitutes judicial activism, and it highlights the importance of judges following the rule of law and applying that law in a neutral and impartial way. Senator Brownback. But why did we get so fired up about it? Are we taking everything to the courts instead of the legislatures now, or why is it so big as an issue? Judge Cox, do you have a thought, or Judge Ludington? Judge Cox. Well, Senator, again, the role of the judge in society, in our jurisprudence, is to follow law, to respect precedent. It is not the role of the judge to legislate. Maybe if the judge is legislating, we have the issue. If the judge is respecting precedent, following precedent and following the law, we don't have the issue; we don't have the debate. Senator Brownback. Judge Ludington, you have watched the system. Why are we debating this now? Judge Ludington. Well, I think part of it, in my view, is the fact that we have an increasing number of societal problems that are being brought to courts. And in many cases, there are instances where people have been injured, where there is at least some merit to the concerns that bring them to court. And I can make the personal observation that there are a lot of circumstances, particularly with trial courts, where you are trying to apply the law in a way in which you simply have to draw some limits according to the law in reaching conclusions. But the change, I think, reflects an increasing demand being placed on courts to address ever wider ranges of issues, and so it becomes particularly important, in my judgment, for the trial court to have a good understanding of the law and its limits, and it isn't always necessarily easy to apply that. Senator Brownback. Now, you will go from a State court, both of you, to a Federal court. So you go from a court of general jurisdiction to a court of limited jurisdiction. Is that going to be difficult for you to show judicial restraint, coming from where you come from to where you are going to, from State court to the Federal court? Judge Ludington. I guess my own observation would be probably somewhat to the contrary. We work with, in many respects, a really wide range of human issues, certainly, in a court of general jurisdiction in the State. So we have been tested in terms of our ability to fairly, but nevertheless impartially apply the law, and I think we will look back on it as good training for the Federal bench, as well. Senator Brownback. When we had the Alito and the Roberts hearings, which I thought were outstanding hearings and a couple of outstanding nominees, one of the things that was really striking to me is that you look at our system and there are limits on the Congressional power. The President can veto the bill. The courts can declare it unconstitutional. There are limits on Presidential power. Congress can not appropriate the money. The court can say that what the President is doing is unconstitutional. Then I asked both Judge Roberts and Judge Alito what is the restraint on the court's power. And they didn't want to say, well, the Congress could not appropriate the money, which they would look at, or that there were constitutional restraints. They said, well, the restraint on the court is the court itself; it is judicial restraint. To me, it wasn't a very satisfying answer, frankly, because everybody else has constraints within the system, and then to say, well, the court has to restrain itself--and maybe I look at it saying, well, that is like asking Congress to restrain itself. You know, there are a lot of people that say, well, that is pretty tough for a body to do. Yet, in many respects that is the first-line answer, and if we don't have a court that can adequately look at itself as with limited jurisdiction and restrain itself, then you find the other two branches of Government being pushed by the populace to do what they can to restrain the court. Then you get in these big kind of global-proportion shoving matches of who has what authority to be able to do what. It seems like to me that is the era we are in now where you have got the legislative, in particular, pushing back against the judicial. And there has always been a traditional competition between the legislative and the executive branch, all of which I think is healthy in a system that tries to have checks and balances and has limited authority and the people have the broad authority. But I just say it to you because I think it really is up to the court to restrain the court, by and large, and if the court does that, these aren't issues. If the court doesn't do that, then they get thrown into the political process and it becomes a much more difficult field. Ms. Ikuta, let me ask you about the environmental law area. Apparently, that has been an area of expertise and special interest for you. Ms. Ikuta. Yes, sir. Senator Brownback. What particular area in the environmental field, or is it just broadly that you have been very active in the environmental field? Ms. Ikuta. At present, as the General Counsel and Deputy Secretary in Governor Schwarzenegger's administration, we have been active in implementing the Governor's policy in trying to protect natural resources and open space and preserve agricultural land. That has been an area of great interest for me. Senator Brownback. What drew you into the field? Is it a personal interest of yours, environmental law? Ms. Ikuta. There were a range of factors that drew me into that field. I was interested in stewardship of the land, air and water, but also I really enjoyed the interrelation of Federal, State and local laws. It was a very challenging area and interesting for me. Senator Brownback. Is that going to be one that will be hard for you to set aside some of your past work and background in serving on the Ninth Circuit Court or is it one you feel like you are going to be able to resolve these cases fairly, because I guess you are going to receive a fair number of environmental cases and litigation coming up at the circuit court level? Ms. Ikuta. Thank you, Senator, for giving me the opportunity to address that question. In fact, throughout my career my function has been to analyze case law and statutory law and advise clients very neutrally as to what the law requires. So I think my training and background actually would stand me in good stead if I am so fortunate to be confirmed. Senator Brownback. And you don't believe you will have any difficulty adhering to a fair decision and not your own personal opinions or cases that you have been involved in move you on those? Ms. Ikuta. No, I would have no trouble putting aside any knowledge or background that I have on issues and applying the law and the precedent fairly and impartially. Senator Brownback. I am delighted to have your expertise coming forward, frankly. I mean, that is good to have that kind of expertise. It is also one, though, that people always want to make sure they get a fair hearing in front of the courts and an unbiased set of minds to review a case. I know you are well aware of all of that. I want to thank all of you for coming forward. You have been through extensive background checks. You have been through extensive political vetting, I guess, in the process. I apologize if the process has been too intrusive for you, but this is kind of the one juncture where the policymakers get the shot that they can at the bench. So everybody then wants their shot at this and to see that the person has a good judicial temperament, has a first-class mind, and will hear things fairly. Everybody has their different interpretation of what fair, I guess, is in the system, but at the end of the day we want good judges that people can respect and look up to and believe that they are getting a fair case from, and I know each of you will do that. To your families, I want to thank you for allowing them into public service. We know you don't do it for the money. That is not part of it, but being a judge is a vaulted position in this society. Particularly at the district level, for most cases you are the final arbiter on people having major disputes that have changed and impacted their lives, their companies, their group, whatever the case might be. You are it. A lot of cases do get appealed, but as you know, most don't, and so you are the final arbiter. So they have to look to you and say, OK, this person I trust to be fair. I don't want him to be on my side and I don't want him to be--well, I probably do want him to be on my side, but I know that is not fair completely. I just want somebody that will be fair in this system, good temperament, good mind, that I can trust. It is based on that trust that the system even works. So I really do commend you for coming forward to do that, for going through the process, as difficult as it can be. God bless you for serving. I want to wish you all the best. I don't anticipate any problems with this moving forward, but we have had difficulties moving judges forward the past several things. So things could stall, but I wouldn't anticipate any in this. Thank you all very much for coming. Thank you for your families. If you have additional statements to put forward, the record will remain open the requisite number of days so that you could put those forward if you would choose to. Judge Cox. Thank you, Senator. Ms. Ikuta. Thank you, Senator. Judge Ludington. Thank you. Senator Brownback. Thanks for being here. Next, I want to call up Kenneth Wainstein, nominated to be Assistant Attorney General for the National Security Division. The USA PATRIOT Improvement and Reauthorization Act of 2005 created a new National Security Division within the Department of Justice, to be headed by a Senate-confirmed Assistant Attorney General for National Security to head the division. The key functions assigned to the new division and to its assistant attorney general include working with the Director of National Intelligence, unifying all intelligence operations within the Department under one common chain of authority, and handling Foreign Intelligence Surveillance Act responsibilities on behalf of the Attorney General. These reforms were aimed at implementing some of the important recommendations of the 9/11 Commission and the Commission of the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, commonly known as the WMD Commission. Kenneth Wainstein has been nominated to be the first assistant attorney general for the newly created National security Division at the Department of Justice. Mr. Wainstein has excellent academic credentials and a lengthy background of public service, each of which makes him particularly well qualified for his position. He is a graduate of the University of Virginia and the law school of the University of California, Berkeley. Following law school, Mr. Wainstein clerked for Judge Thomas Penfield Jackson on the Federal district court in Washington, D.C. From 1989 to 2001, he served as Assistant U.S. Attorney first in the Southern District of New York and later in the District of Columbia. In 2001, he became the Director of the Executive Office for U.S. Attorneys, which serves as a bridge between the U.S. Attorneys' offices around the country and the Department of Justice. From 2002 to 2004, he became very familiar with difficult criminal and terrorism issues through his service at the FBI first as general counsel, then as chief of staff. Mr. Wainstein currently serves as U.S. Attorney for the District of Columbia, a position he has held since 2005. He has a long and thorough resume that demonstrates his commitment to his country and the well-being of its citizens, and I am confident he will render excellent service as the first assistant attorney general for the National Security Division. Mr. Wainstein, we are delighted to have you here. If you have family members you would like to introduce, you may do so at this time. STATEMENT OF KENNETH L. WAINSTEIN, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE Mr. Wainstein. Thank you very much, Mr. Chairman. Yes, I do. I would like to introduce my family, if I may. To my left is my wife, Elizabeth Wainstein. Senator Brownback. Welcome. Mr. Wainstein. And two of my three girls--do you want to stand up? Mackie is this one right here, and this is Ellie. And we have a third, Cicely, who is 13 months old, and she opted to stay home and take a nap. Senator Brownback. Opted to stay home. Mr. Wainstein. I also am very happy to have my parents here--my mother, Eleanor Wainstein, and my father, Leonard Wainstein. Senator Brownback. We are delighted to have you here. Mr. Wainstein, we would be happy to receive any statement you would like to give. Mr. Wainstein. Thank you. I would like to give a very brief statement, if I may, Mr. Chairman. First, I would like to thank Senators Allen and Warner for their very kind statements they put in the record, and I also want to thank Congresswoman Norton for kindly appearing today and the kind words that she had, and also for her partnership with the U.S. Attorney's office in D.C. and law enforcement in the District. I would also like to thank my family for their love and support and for being here with me today. I also want to thank a number of my colleagues and friends who are here in the hearing room, a number of whom are colleagues from the U.S. Attorney's office whom I have had the honor and pleasure to work with over the last two years, and prior to that as a line prosecutor. They represent a group of people who are truly wonderful public servants and who do great work on behalf of the residents of D.C. I want to thank the President for the honor of nominating me for this position and the trust that he and the Attorney General have placed in me by nominating me for this job. And I can assure this Committee that if I receive this job, I will give it my full--give it everything I have and I will do everything I can to pursue the mission of protecting national security and defending civil liberties and the freedoms that we hold so dear. With that, I would be very happy to take any questions. 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Thank you, and thank you for your great service, and I want to thank your family. You have impressive resume and an impressive work you have done so far, and this is a key position. On the FISA court and the FISA issue, what are you willing to say at this point in time about what we should be doing of our National intelligence being reviewed by the FISA court? Mr. Wainstein. Of our National intelligence being reviewed by the FISA court? Senator Brownback. Yes. As you know, we have got a big debate about some of the intelligence-gathering information that we are getting and the process by which we are getting it. A number of people are saying we need to take more of this process and have it approved by declaratory judgment by the FISA court and having them review what we are doing, not all the information, but what we are doing, and render an opinion whether or not this is within the authority and purview of the President. We are in a big debate. As a matter of fact, we will take it back up this Thursday in this Judiciary Committee about whether we should give more authority to the Attorney General to pursue this through the FISA court, more authority to Congress, or to private individuals to bring FISA actions. Do you have any thoughts you are willing to share on that? Mr. Wainstein. Yes, sir. I know that there have been a number of proposals and pieces of legislation that have been proposed to address the intersection of the terrorist surveillance program and the FISA court work. Those proposals and your question points up, I think, a very important issue for this Committee and for the Government and for the country that raises separation of powers issues, raises practical issues of our ability to defend ourselves against international terrorists, to have an early warning system that can protect us from terrorists, but also have a scheme by which the FISA courts approves warrants in appropriate circumstances. All of these issues are raised by that debate and I think it is a healthy debate to have. I have to admit that I am not well-versed on the particulars of each of the proposals, and not being over at the Department yet working on those matters, I think it would be premature to weigh in with an opinion as to one proposal or another. I will say, however, that I think this is--if I am fortunate enough to be confirmed, this is an area that I will be looking at closely. I will be soliciting the input of the professionals over at the Department of Justice and throughout the intelligence community as to what is practical and what is best going to protect civil liberties, but at the same time help us defend against terrorists. And I will be open to working and soliciting input and providing input to the Committee. So I look forward to that if I am confirmed. Senator Brownback. Let me build on this a little bit. I have been in some of these hearings and I have been in on a fair amount of the discussion. Intelligence is, if not our lead tool, one of our most important tools in this war on terrorism. There is just no question about it. A lot of people are complaining about our borders being too porous, our southern border. Yet, the number of legal entries we have a year into the country is over 250,000. The 9/11 terrorists all entered legally into the United States. It is an intelligence operation that we have got to have that can catch people. So, to me, intelligence is just a paramount issue. At the same time, we have got to convince people that in this decades-long war on terrorism that we are going to be in for some period of time that the way we are doing this is right and is approved by an independent court, by an independent body. That is why I have been supportive of having more of these programs be reviewed by an outside set of eyes so that we can maintain public support for the desperately needed intelligence information we have to have. We have got to have this information if we are going to protect people. Yet, we are democracy and we have to have people's support to do this. That is why I like the example that one of my colleagues put forward when he was saying we need to have these intelligence programs be reviewed by an independent set of eyes, but it needs to be a sieve that the water can pass through. And it is checked, but it is not stopped, so that we can get the information; we can move the programs on through. I don't expect you to answer that. You are not at the Department yet. It is a big policy issue, but as somebody that represents a State that is concerned about maintaining public support for the war on terrorism, and particularly intelligence-gathering in the war on terrorism, I think this is important that we get this one right and that we build bipartisan public support for intelligence-gathering as much as we can. You are going to be right at the intersection of determining what to do in that particular area. Mr. Wainstein. Yes, Mr. Chairman, and I appreciate your comments and I appreciate your sentiments. And I appreciate that I will, if I am fortunate enough to be confirmed, be in a position where I will be working with these issues substantively, but I will also be sensitive to the public acceptance of what it is we are doing. I can tell you as a prosecutor for many years--most of my 17 years in the Department of Justice has been as a criminal prosecutor--the credibility that we have is that we are doing justice and we are doing things right, and that witnessed, jurors, even suspects or defendants, believe that when we take action, we take action that is appropriate, the end result of which is to do justice and do right. That is a very important credibility to have, and that applies across the board in both the law enforcement world and in the intelligence world. And that is an issue that I do know is something that the Department is sensitive to and is sensitive to in this context. And I expect that if I am involved in the ongoing discussions about these programs, whatever programs might be ongoing which you might be referring to, that that is something I will be looking at very closely. Senator Brownback. Good, because I just think it is important for us in our maintenance of public support for the war on terrorism which we have to have. Mr. Wainstein, thank you very much for coming here and for being willing to assume this position. I am hopeful that we can move that through the process and get it approved. We need you on board now because we have got to get these programs reviewed. It was considered important by the Congress that this position be established so that we could have somebody that is at that juncture of intelligence-gathering and national security that is at DOJ and working with the Attorney General. So I am hopeful we can approve you on a rapid basis. Mr. Wainstein. Thank you very much, Mr. Chairman. Senator Brownback. Senator Feingold, I didn't see you over there so quiet. I am done. Do you have some questions to ask? STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Feingold. I do. Thank you, Mr. Chairman. First, let me praise you and the nominee for the comments you have just made about the need to raise these kinds of issues and to be sensitive to these kinds of issues, not only because it is our system of Government and has to do with people's rights, but also if we want to be successful in the fight against terrorism. It is my belief that although we have done many things right since 9/11, one of the things we haven't done right is showing sufficient public sensitivity to this aspect, which this experienced prosecutor just indicated was so important in his work as a prosecutor. So I think your comments are absolutely right in terms of the efficacy in the fight against terrorism and the need to keep public confidence that we are doing the right thing. Mr. Wainstein, you have an important responsibility as the first nominee to the position of assistant attorney general for the newly created National Security Division. In a very real sense, as you know, you owe your job, should you be confirmed, to the Congress. This new division and your position to lead it were created in the recently passed PATRIOT Act reauthorization bill. While I voted against that bill, I certainly support the goals of the new division, and I very much hope that it will serve the purpose for which it was created, to bring the disparate parts of the Department that deal with intelligence and national security together under a single chain of command, thereby minimizing turf battles and allowing the Department to more efficiently carry out its work to fight and prevent terrorism and espionage. As the first assistant attorney general for this new division, you will shape the procedures and guidelines for your successors, and will therefore have a big influence on whether the new division succeeds. I think you also have an important role in repairing the rift that has developed during this administration between the Department and the Congress. The Attorney General hardly ever appears before this Committee or its counterpart in the House. When he does, he won't answer our questions. When we ask him followup written questions, he takes a very long time to answer them or provides non-responsive answers. The administration has pursued a confrontational and highly political approach to reauthorizing the PATRIOT Act, refusing to agree to even the modest and reasonable changes to the Act that Chairman Specter proposed and this Committee adopted by unanimous vote. Then we have the NSA spying scandal which I think has presented a constitutional crisis the likes of which this country has not seen for a generation. With the full support of the Department of Justice, the administration takes the position that the President has the inherent power to violate any law that touches on national security or terrorism. That theory raises the question of whether much of what we do in this Committee or in the Senate is an elaborate charade with no real effect, because in the end the administration has claimed for itself the power of this branch of Government to write the laws and the power of the third branch of Government to interpret them. So obviously, because of that history, you have the opportunity and need to, I think, do some fence-mending, not personally, but with regard to this record of the administration, and I hope you are eager to do that. Protecting Americans from terrorism is our No. 1 priority in Congress, as it is in the Department, and this Committee does want to be helpful in your work. I would like to ask you first whether you agree that the fight against terrorism, with all its complexities and dangers, can be better carried out with the legislative and executive branches of Government working together than if they are at loggerheads. Mr. Wainstein. Thank you very much for your words, Senator. As to the question about how we can best pursue the war against terrorism, absolutely no question, the best way that we can pursue that war and the best way we can protect our country men and country women against crime or terrorism, any kind of threat, is working jointly, both Congress and the executive branch. I have seen examples of that over the years in the law enforcement context where Congress has provided the tools that we need to protect our citizens. I have seen it in the PATRIOT Act where, thanks to, I think, some very sound legislation by Congress, we now have a balanced PATRIOT Act which has provided us the tools we need to fight the war against terror, but also has provided a number of new safeguards that weren't in place prior to the reauthorization act. So I see that as an example of the benefit of working jointly between--having the executive branch work closely with the legislative branch. And I would see that it would be my duty to work very closely, to seek your input, and to provide you input where it would assist you in satisfying your duties. Senator Feingold. I am a member of the Intelligence Committee, as well as the Judiciary Committee. So I, of course, agree with the Chairman's comments about the need for intelligence and I understand very well the need for secrecy in intelligence matters. But I also believe that in many cases this administration has pursued policies of secrecy for political reasons rather than for national security reasons. Can we count on you to be a voice in internal DOJ deliberations for more cooperation and consultations with Congress and more openness with the public? Mr. Wainstein. Thank you, Senator. You have gotten to, I think, a point that relates to a point raised by the Chairman about the importance of instilling confidence in the public and in the Congress in our programs and our activities. And I think the only way to do that is to have contact and to talk about the issues we have in common, to have open channels of communication, and I will endeavor to do that. I think it will be particularly critical as we stand up this new division to seek the assistance and the input of Congress and to let you know what we are doing because you will be very interested in seeing how our organization reflects the best ideals of defense of our national security as well as protecting civil liberties. Senator Feingold. Just to be clear in the record, it is my hope that you will be an advocate for what you just said in the internal DOJ deliberations. Mr. Wainstein. Yes, Senator, I will be an advocate for that to anybody. Senator Feingold. From July 2002 until May 2004, you worked at the FBI, first as general counsel to the FBI and then as Director Mueller's chief of staff. Were you read into the NSA program during that time? Mr. Wainstein. I was aware of the program, yes, sir. Senator Feingold. And did you ever express concern about the legality in constitutional and internal deliberations within the FBI or the Department of Justice? Mr. Wainstein. No. When I got there to the FBI, Senator--I got there in, I think, the summer of 2002, and the program had been ongoing for, I think, eight or 9 months at that time and I was never asked to render any opinion on the program. I never was asked to be involved in any operational matters relating to the program. I was familiar with the program and that is about the extent of it. Senator Feingold. So you never did render any kind of opinion as to your view as to the legality of the program? Mr. Wainstein. No, I didn't, sir. Senator Feingold. If confirmed to your new position, you will head the section of the Department that is responsible for submitting applications under FISA to the Foreign Intelligence Surveillance Court. That statute and that court, of course, were bypassed by the President authorizing the NSA warrantless spying program. Both Representative Jane Harman of the House and Senator Dianne Feinstein, a member of this Committee and the Senate Intelligence Committee, have received as much information about the NSA program as any Member of Congress. They both have said they believe that this program could be carried out consistent with the current FISA statute. Are you comfortable with undertaking this new position with overall responsibility for complying with the FISA statute knowing that the administration is undertaking a significant surveillance program outside of that law? Mr. Wainstein. Yes, Senator, and you have obviously touched on a very important debate that is ongoing right now about the parameters of the FISA statute and the constitutionality of the terrorist surveillance program. I have read the publicly available documents both supporting the program and those saying that the program is not constitutional. I have found the 42-page white paper that was submitted by the administration to provide a fairly compelling justification for the program. If I am fortunate enough to take this job, one of the first things I would do is I would look at the intersection of those two programs, the FISA operations and this program, to make sure that in practical terms they are working in tandem and they are working appropriately. And I imagine I would also take a look at the law and if I have an opinion about the law and the legal justification for the program, I will voice that opinion. Senator Feingold. Obviously, I respect your view and would not have expected you to say something different. All I can say is I have been involved with the law for decades myself and I have reviewed all these materials and I have rarely seen a weaker case for any legal argument in my life. You indicated that you believe that the white paper is compelling? Mr. Wainstein. Well, Senator, I have read that and I have to admit that I have not gone beyond to look at the back-up materials, to look at the case law, read the cases cited. And I haven't looked at the variety of position papers that are at odds with that, but I have---- Senator Feingold. Fair enough, but with regard to the authorization of military force for Afghanistan as being a justification for this, which is included in the White House paper, do you find that compelling as a justification for the NSA surveillance program outside of FISA? Do you find that compelling? Mr. Wainstein. Once again, I haven't gone back and really noodled through it as I would before I felt comfortable as a responsible lawyer rendering an opinion on something. But I looked at the analogy of the Hamdi case, where the Supreme Court found that detentions were authorized by the authorization of the use of military force, and that seemed to be an analogous situation and it seemed to apply here. Senator Feingold. Well, we have been back and forth on this with Senator Graham and others on the Committee. Fair enough. I know that is not your purpose in being here, but I ask these questions to highlight obviously the significance of this vis- a-vis your position; that you have an opportunity, and you are obviously highly qualified to do it, to try to help us improve this relationship between the executive and the Congress in this area. And at the core of it is our ability to believe that the President and the executive is not overreaching with regard to the law. So that is a concern I have, but I certainly want to work with you in a cooperative way to resolve our differences. I wish you well. Thank you. Mr. Wainstein. Thank you, Senator. I appreciate those kind words, and I assure you that I will work with you with the same desire to serve each other's purposes and provide each other communication and information that we need. Senator Feingold. Thank you, Mr. Chairman. Senator Brownback. Thank you, Senator Feingold, and I appreciate the thoughts. And I can guarantee you, Mr. Wainstein, they come from a deep-felt heart on the part of Senator Feingold to try to protect the rights of the individual. It is that sort of bipartisan approach on intelligence-gathering that I am hopeful we can move forward with, and that you can really be at the vortex of making that happen. It is needed if we are going to maintain the support that we need for the war on terrorism for the decades that it is going to take to prosecute this war. We have got to get everybody's support in it and keep it there. So I hope you continue to work with us on this Committee, Senator Feingold and myself and many others, to do that. Mr. Wainstein. Thank you, Mr. Chairman. I appreciate your support. Senator Brownback. Thank you. We will maintain the record open for the requisite number of days. We appreciate your attendance. The hearing is adjourned. Mr. Wainstein. Thank you, sir. [Whereupon, at 4:19 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T0256.273 [GRAPHIC] [TIFF OMITTED] T0256.274 [GRAPHIC] [TIFF OMITTED] T0256.275 [GRAPHIC] [TIFF OMITTED] T0256.276 [GRAPHIC] [TIFF OMITTED] T0256.277 [GRAPHIC] [TIFF OMITTED] T0256.278 [GRAPHIC] [TIFF OMITTED] T0256.279 [GRAPHIC] [TIFF OMITTED] T0256.280 [GRAPHIC] [TIFF OMITTED] T0256.281 [GRAPHIC] [TIFF OMITTED] T0256.282 [GRAPHIC] [TIFF OMITTED] T0256.283 [GRAPHIC] [TIFF OMITTED] T0256.284 [GRAPHIC] [TIFF OMITTED] T0256.305 [GRAPHIC] [TIFF OMITTED] T0256.306 [GRAPHIC] [TIFF OMITTED] T0256.307 [GRAPHIC] [TIFF OMITTED] T0256.308 NOMINATIONS OF ANDREW J. GUILFORD, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND FRANK D. WHITNEY, OF NORTH CAROLINA, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA ---------- WEDNESDAY, MAY 24, 2006 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:03 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Lindsey Graham presiding. Present: Senator Graham. OPENING STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA Senator Graham. The hearing will now come to order, a few minutes late, and the Chair recognizes my two friends, colleagues, distinguished Senators from North Carolina, and ladies first. PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. ELIZABETH DOLE, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA Senator Dole. Thank you, Mr. Chairman, and I want to thank you for holding today's hearing. It is my great honor to introduce Frank DeArmon Whitney, the President's nominee to serve as a U.S. district judge in the Western District of North Carolina. Mr. Whitney brings an impressive record of accomplishment and achievement before this committee, and he is an outstanding choice for this important post. Frank Whitney has deep roots in North Carolina and in public service. He attended Wake Forest University and the business and law schools at the University of North Carolina at Chapel Hill. After receiving his law degree with honors, Frank clerked on the prestigious U.S. Court of Appeals for the District of Columbia Circuit for Hon. David Sentelle, a favorite son of North Carolina, and it is a privilege to have Judge Sentelle with us today. Upon completing his clerkship and a year in private law practice, Frank returned to North Carolina and dedicated himself to public service. For nearly 11 years, he served as an Assistant U.S. Attorney for the Western District of North Carolina. While in the Western District, he acquired substantial trial experience, both criminal and civil, and earned the respect of his colleagues and peers. In 2002, Frank was elevated to the post of U.S. Attorney for the Eastern District of North Carolina. As a result of his leadership, energy, and enthusiasm, the Eastern District has experienced a period of robust and resounding success. Among his many accomplishments, Frank Whitney has supervised what some have called ``the most successful public corruption prosecution in North Carolina history.'' He also has helped prepared Iraqis for the process of drafting a constitution and establishing a judicial system. He has even recovered North Carolina's original copy of the U.S. Bill of Rights, which was stolen from the State Capitol in 1865. Senator Graham. Stolen? Senator Dole. His performance as U.S. Attorney has elicited high praise. The Raleigh News and Observer credited Frank Whitney for awaking elected officials to the importance of ethics in Government, and the newspaper attributed his incredible success to his restless mental and physical energy and Boy Scout idealism. Others who have had the opportunity to observe Frank's work have described him as aggressive yet fair. Those who know Frank best, including those who have worked for him in the U.S. Attorney's Office, are effusive in their support for his nomination. One of Frank's colleagues made the following assessment: ``Frank is personable and gracious, yet knows the law and seeks justice. He has an abiding love for our country and is deeply committed to the principles that have made it great. He appreciates the historic separation of powers and understands judicial self-restraint. Frank possesses vast legal knowledge and demonstrates admirable judicial temperament.'' Mr. Chairman, this description is consistent with everything that I know about Frank Whitney, and I submit that this is precisely the type of person we need on our Federal courts. I have spoken mainly of Frank's service for this country as its representative in court. But there is another component of his career that I must commend. That is his impressive record of military service, which began during his collegiate days at Wake Forest where he participated in ROTC. Frank is present a Lieutenant Colonel in the U.S. Army Reserves, and he has worked as an intelligence officer and as a judge advocate. He has been awarded numerous military honors, including a parachutist badge and three meritorious service medals. Mr. Chairman, Frank Whitney truly has dedicated his life to serving his country as a civilian and as a soldier. Frank comes to this Committee with impeccable credentials, and I am confident that he would serve with great distinction as a member of the Federal judiciary. It is my privilege to give him my strongest endorsement. Thank you again for holding a hearing for this distinguished North Carolinian and public servant. I hope that this Committee will act with due speed on his nomination and that I soon will have the opportunity to cast a vote for his confirmation on the Senate floor. Thank you very much. Senator Graham. Thank you, Senator Dole. You can preach my funeral. That was pretty good. Senator Dole. All right. [Laughter.] Senator Graham. You have got a lot to live up to, Frank, when you come up here. Well done. Senator Burr? PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA Senator Burr. Mr. Chairman, Senator Dole makes it very difficult to go second, and I forgot to say that it is an honor to be asked to speak on behalf of Frank Whitney to be a United States District Court Judge in the Western District of North Carolina. I saw the Chairman's eyes light up as Senator Dole talked about his military service, and I think in many ways it mirrors that of the Chairman. I am not sure who ranks higher, but I am sure we will find out before this hearing is over. [Laughter.] Senator Burr. Clearly, Frank's academic and professional credentials are quite impressive. He is currently U.S. Attorney in my home State. He has practiced in two very distinguished law firms. He was an Assistant U.S. Attorney. He has clerked in the D.C. District Court of Appeals. He graduated with honors from law school at UNC-Chapel Hill. And he was Phi Beta Kappa from my alma mater, Wake Forest. That should be enough right there just to put him on the bench. But I think Senator Dole put it best, that this is an incredibly impressive resume, and now you have to add to it that his most honorable characteristic is that he continued to do this while he served his country. He continues to serve in the Army Reserve, both as an intelligence officer and a judge advocate. He is a former paratrooper and received three meritorious service medals and recently was selected for promotion to Lieutenant Colonel, so I have a feeling you probably do outrank him. I could continue with the list of qualifications, but I think it is clear that this is a man that is well qualified to join the other fine Federal judges who currently preside in our State of North Carolina. But, Mr. Chairman, I think the most important qualification that I would like to note about Frank Whitney is he is a good man. I had the pleasure of meeting Frank and his family this morning when they visited my office--his wife Catherine, his daughter Hunter, and other family members. And I think that you will have the opportunity to meet them as well. Personally, as a husband and a father, I want to feel confident that the individuals that we extend a lifetime appointment to represent the things that I as a husband and a father think are important. Frank Whitney meets that goal. I feel confident that Frank does understand the importance of being a Federal judge. I know that Frank is qualified to serve on the bench. I am confident that Frank will continue to serve his Nation with honor and dignity. I believe Frank will continue to make his family proud, and I am 100-percent confident today that North Carolina will have one of the best Federal judges in the country in Frank Whitney. Mr. Chairman, I urge you and your colleagues to move his nomination as quickly to the floor out of Committee as we possibly can so that a State that has a number of vacancies today can begin tomorrow to fill those vacancies. And I thank the Chair. Senator Graham. Well, I want to thank both of my colleagues from North Carolina for, one, picking someone like this. This is what makes the law so well respected in our society. The law is well respected because we have good judges, good prosecutors, good defense attorneys, and you have hit a home run here. I appreciate both of you for not only picking someone that represents your State well but would represent our whole Nation well wearing the robe. And I promise you we will get this done very quickly. Thank you both. Senator Graham. All right. If you both would please raise your right hand. Do you solemnly swear the testimony you are about to give before this hearing is the truth, the whole truth, and nothing but the truth, so help you God? Mr. Guilford. I do. Mr. Whitney. I do. Senator Graham. Maybe a good way to start is for each of you just to introduce your families, if you don't mind. STATEMENT OF ANDREW J. GUILFORD, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA Mr. Guilford. Thank you, Mr. Chairman. I am honored to be here. I appreciate the opportunity to introduce my family. Is that better? Thank you. I'm glad I got that on before I had this unique opportunity. Obviously, I am honored to receive the nomination. I'd like to thank you, Mr. Chairman, for having this hearing and for the good work that you and this Committee does. I would like to thank the President, of course, for nominating me and in the State of California, Senators Boxer and Dorr--Senators Boxer and Feinstein have an advisory committee. I'm pleased with the advice that they've given that has brought me here. Someone who is not here are my mother and father, Howard and Elsie Guilford, who have been married now for over 60 years. They were unable to come, but I did--I am blessed with a lot of people who were able to come. Let me first start with the Brusseau family, neighbors from the area: Judith Brusseau, please stand up. Charlotte Brusseau, Catherine Brusseau, and Rebecca Brusseau. Thank you all for coming. Next is my brother, who has been a JAG officer, a career JAG officer, which seems to be a popular career here today: Jeff Guilford. Thank you for coming, Jeff. Then my family over here, first my daughter, Amanda Murray, who is in a Ph.D. program at the University of Iowa. Her husband could not come because he is working on his Ph.D. program from Iowa. My daughter, Colleen Guilford, who in a few weeks will graduate from Harvard Law School. We are very proud of her. And last, but not least, my friend and wife for 32 years, Loreen Guilford. Senator Graham. We welcome you all. Mr. Guilford. Thank you, Mr. Chairman. [The biographical information of Andrew J. Guilford follows.] [GRAPHIC] [TIFF OMITTED] T0256.309 [GRAPHIC] [TIFF OMITTED] T0256.310 [GRAPHIC] [TIFF OMITTED] T0256.311 [GRAPHIC] [TIFF OMITTED] T0256.312 [GRAPHIC] [TIFF OMITTED] T0256.313 [GRAPHIC] [TIFF OMITTED] T0256.314 [GRAPHIC] [TIFF OMITTED] T0256.315 [GRAPHIC] [TIFF OMITTED] T0256.316 [GRAPHIC] [TIFF OMITTED] T0256.317 [GRAPHIC] [TIFF OMITTED] T0256.318 [GRAPHIC] [TIFF OMITTED] T0256.319 [GRAPHIC] [TIFF OMITTED] T0256.320 [GRAPHIC] [TIFF OMITTED] T0256.321 [GRAPHIC] [TIFF OMITTED] T0256.322 [GRAPHIC] [TIFF OMITTED] T0256.323 [GRAPHIC] [TIFF OMITTED] T0256.324 [GRAPHIC] [TIFF OMITTED] T0256.325 [GRAPHIC] [TIFF OMITTED] T0256.326 [GRAPHIC] [TIFF OMITTED] T0256.327 [GRAPHIC] [TIFF OMITTED] T0256.328 [GRAPHIC] [TIFF OMITTED] T0256.329 [GRAPHIC] [TIFF OMITTED] T0256.330 [GRAPHIC] [TIFF OMITTED] T0256.331 [GRAPHIC] [TIFF OMITTED] T0256.332 [GRAPHIC] [TIFF OMITTED] T0256.333 Senator Graham. Thank you. Mr. Whitney? STATEMENT OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA Mr. Whitney. Thank you, Mr. Chairman. It is my honor also to introduce my family, if I may. To my far right is my mother- in-law, Judy Ghoneim; my wife, Catherine; my daughter, Hunter. She's our 8-year-old. Our 10-year-old, Amy, is very disappointed because she's at home sick, and she wanted to be here today. The next row is my colleague and close friend, Bobby Higdon from the Justice Department, who is joining us today. An old friend of mine and my wife's, Kim O'Brien. My legal mentor, Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit. My cousin and close friend, David Whitney, who's former chief counsel for Senator Helms and is currently counsel on the House Judiciary Committee. And behind him, my nephew, Will Austin. [The biographical information of Frank D. Whitney follows.] [GRAPHIC] [TIFF OMITTED] T0256.334 [GRAPHIC] [TIFF OMITTED] T0256.335 [GRAPHIC] [TIFF OMITTED] T0256.336 [GRAPHIC] [TIFF OMITTED] T0256.337 [GRAPHIC] [TIFF OMITTED] T0256.338 [GRAPHIC] [TIFF OMITTED] T0256.339 [GRAPHIC] [TIFF OMITTED] T0256.340 [GRAPHIC] [TIFF OMITTED] T0256.341 [GRAPHIC] [TIFF OMITTED] T0256.342 [GRAPHIC] [TIFF OMITTED] T0256.343 [GRAPHIC] [TIFF OMITTED] T0256.344 [GRAPHIC] [TIFF OMITTED] T0256.345 [GRAPHIC] [TIFF OMITTED] T0256.346 [GRAPHIC] [TIFF OMITTED] T0256.347 [GRAPHIC] [TIFF OMITTED] T0256.348 [GRAPHIC] [TIFF OMITTED] T0256.349 [GRAPHIC] [TIFF OMITTED] T0256.350 [GRAPHIC] [TIFF OMITTED] T0256.351 [GRAPHIC] [TIFF OMITTED] T0256.352 [GRAPHIC] [TIFF OMITTED] T0256.353 [GRAPHIC] [TIFF OMITTED] T0256.354 [GRAPHIC] [TIFF OMITTED] T0256.355 [GRAPHIC] [TIFF OMITTED] T0256.356 [GRAPHIC] [TIFF OMITTED] T0256.357 [GRAPHIC] [TIFF OMITTED] T0256.358 [GRAPHIC] [TIFF OMITTED] T0256.359 [GRAPHIC] [TIFF OMITTED] T0256.360 [GRAPHIC] [TIFF OMITTED] T0256.361 Senator Graham. Well, thank you. Welcome to you all, and particularly, Judge Sentelle, welcome to you. We really appreciate you coming and taking time from your duties to be here to support Frank. We will make this short and to the point, but we will start with you, Mr. Whitney. One of the great debates we have been having in the Senate is who should be a judge and why and how much does philosophy matter and what is the role of a judge, and is a conservative politician and a conservative judge the same thing, or a liberal politician and a liberal judge, are they the same thing? I don't think so, but if you could give me just a real brief explanation of what you believe your judicial philosophy is and how you see your job as a district court judge in terms of that philosophy. Mr. Whitney. Thank you, Senator. That's a very thoughtful question. This morning, my wife, daughter, and mother-in-law decided to do a little tour of Capitol Hill, and we walked down the street to the Library of Congress. On the way we stopped in front of the Supreme Court building, and I looked up over the colonnade and I saw the phrase, ``Equal Justice Under the Law.'' And I don't think anything more summarizes the importance of what district judges do. They ensure that all men and women are treated equally under the law. And I pledge to follow the law, adhere to the law, if confirmed, and apply equal justice under the law. Senator Graham. How do you think your military service has helped you, if at all, for this job? Mr. Whitney. Thank you for allowing me to share my thoughts on that. My military service is more beneficial to me than any other legal service because, as a judge advocate--and you know this, and I believe you do outrank me. I believe you are an 06 Colonel. Senator Graham. Only in rank, not in---- [Laughter.] Mr. Whitney. Thank you. Senator Graham. Thank God the two don't go together. [Laughter.] Senator Graham. I would have been in trouble a long time ago. Mr. Whitney. As you know, judge advocates deal with soldiers and dependents, with people. And my experience in private practice or in public practice, civilian public practice, has either been with businesses or representing the people of the United States. As a judge advocate, though, I represented soldiers' and dependents' personal needs, individual needs, and it really touched me how important it is that we are dealing with people. And as a judicial officer, I think I will be able to perform with an understanding that it is individuals that their lives we're dealing with as we make rulings on the law. Senator Graham. Thank you. Mr. Guilford, how would you describe your judicial philosophy? And how will it be applied to the job that awaits you? Mr. Guilford. Well, thank you for that interesting question, Mr. Chairman. I would agree with what Mr. Whitney has said. I would view the role of the judicial branch as being the branch that interprets the law and does not make the law, does not execute the law. It's the branch that interprets the law. And I would hope to do that as the law is written. And I would hope to do it with humility. I think if we bring to the bench judges with humility, we will get the right kind of rulings. Senator Graham. Well, I just want to again thank you both for being willing to serve in this important job. I know you are not doing it for the money. I hope we can pay our judiciary a more appropriate rate because you do leave private practice on many occasions. The ability to make money is left behind for public service, and I want to make sure our judiciary is not only independent but that people with families, like you, who are not independently wealthy, can still serve. If you have a kid in Harvard, you probably know what I am talking about. So it is very important to me that our judiciary be adequately compensated because people who are not independently wealthy with families can still financially be able to help our country. I look forward to supporting both of you, and congratulations to you and to your families, because there may be self-made men and women, I am just not one of them. If it weren't for people around me, my mentors, my family, and my friends, I would not be here. And I am sure it is the same for each of you. So congratulations. I hope you enjoy your time in Washington, and all of you should be rightfully proud of this moment because it was a team effort to get here. God bless. Mr. Guilford. Thank you, Senator. Mr. Whitney. Thank you, Senator. Senator Graham. The record will be left open for 1 week, and without any further input, the hearing is adjourned. Thank you. [Whereupon, at 2:20 p.m., the Committee was adjourned.] NOMINATIONS OF JEROME A. HOLMES, OF OKLAHOMA, TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT; DANIEL P. JORDAN III, OF MISSISSIPPI, TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI; AND GUSTAVO A. GELPI, OF PUERTO RICO, TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO ---------- THURSDAY, JUNE 15, 2006 United States Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 2:03 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Tom Coburn, presiding. Present: Senator Coburn. OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator Coburn. The Committee will come to order. Today, we will have a confirmation hearing for three of the President's judicial nominees. I appreciate your willingness to appear before the Committee today. Our nominees have traveled some distance, and we appreciate that. I am particularly glad to see my friend, Mr. Holmes, a fellow Oklahoman here with us today. I hope we can quickly move all of your nominations through the Committee and get them voted on the floor as soon as possible. Senator Leahy will not be able to attend. He does have a statement, which I will put into the record under unanimous consent agreement, as well as a statement from Senator Kennedy. We have distinguished Members of Congress with us. Is Senator Cochran coming, Senator Lott? Senator Lott. I believe he is. Senator Coburn. And Senator Inhofe will be here. We will turn to our distinguished Members of Congress and allow them to introduce their nominees. First, we will start with Senator Lott. PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI Senator Lott. Well, thank you very much, Mr. Chairman. It is a pleasure to call you Chairman, and it is such a delight also to realize that the Chairman of this Subcommittee chairing this hearing on the Judiciary Committee is not a lawyer. Senator Coburn. I think four of us on the Committee are not lawyers. Senator Lott. That is a very positive development. But don't get carried away. We are not going to allow you on the Supreme Court. Senator Coburn. I will not. Senator Lott. But thank you for having this hearing and allowing me to go forward. I know my senior colleague from Mississippi, Senator Cochran, will be here because he, like I, has known this family for at least 40 years, probably, and the young nominee that we are introducing today. So it is my great pleasure to introduce Daniel Jordan to the Committee. He is accompanied here by his wife, Teri--I want to recognize her-- and, more importantly, his daughter, Anna; and his mother and father. Dan Jr. was president of the student body and the brigade commander of the Army ROTC unit when I was a freshman at the University of Mississippi in 1959, and he was one of those leaders on campus we all looked up to, and his wife, Lou--she was Smeltzer then--was Miss Ole Miss, which is the greatest honor you could possibly achieve in Mississippi, other than being Miss America. But this is a great, great family, and the senior Dan Jordan--I do not know the exact title, but for lack of a better--is it curator? Mr. Jordan Jr. President of the Thomas Jefferson Foundation, which owns and operates Monticello. Senator Lott. Okay. He said it very well himself. You will notice how young Lou looks, and, of course, the husband there is not quite that young looking, but he has done an outstanding job at Monticello. And if you have not ever been, go and let him take you on the night tour, where you can actually feel the spirit and almost blow out the candle of the tour from Thomas Jefferson. I think you would really enjoy it. He recently was selected as the Outstanding Citizen of the State of Virginia, and I think that is a great acknowledgment by Virginia that it would pick a Mississippian. So we know the pedigree; we know the DNA of Dan Jordan. And we are very delighted that the President has seen fit to nominate him to the United States District Court for the Southern District of Mississippi. In Mississippi, his nomination has received bipartisan and broad support and praise, and that is really significant because that has not always been the reaction of our nominees in Mississippi. But Dan has become a very respected litigator, and even those who oppose him in the courtroom--and maybe those who oppose him have the most respect for him because they appreciate his demeanor and the type of attorney he has become and the kind of individual he is. He is a graduate of the University of Mississippi cum laude and the University of Virginia Law School, where he was on the Editorial Board of the Journal of Law and Politics. He is currently a partner with Butler, Snow, O'Mara, Stevens & Canada, the largest law firm based in Mississippi. In his practice, he has demonstrated the knowledge, professionalism, fairness, temperament, and skill that make him, I believe, ideally suited for the Federal bench. He has a history of work in public service. Before attending law school, he gained experience working in the Department of Interior and later as a legislative aide for the then-freshman Senator from Mississippi, yours truly. And since returning to Mississippi, he has continued to serve the public through numerous philanthropic outlets. He has served as the coordinator for the Jackson, Mississippi-based Stewpot Legal Clinic, an organization providing legal assistance to the homeless. His tireless efforts prompted the executive director of the Mississippi Volunteer Lawyers Project to recently proclaim of Dan in these words: ``Words cannot express how he has given his time. He takes time out of his busy schedule to give back...He is just great.'' He has been named one of Mississippi's ``Top 40 under 40,'' although I believe he is over 40 now, by the Mississippi Business Journal and honored as ``Jackson's Finest'' by the Mississippi Multiple Sclerosis Foundation. He is an active member of the Christ United Methodist Church in Jackson and is the father of two. He has the education, the experience, the reputation, and I think most importantly, the temperament to be an outstanding and fair judge. He is young, but he is wise and mature beyond his years. He is a perfect example of the kind of person that we need in the Federal judiciary, and so it is my great honor to be here to endorse the nomination and ask for the speedy confirmation of Dan Jordan of Mississippi to the Southern District of the Federal court. Senator Coburn. Thank you, Senator Lott. Next is my senior Senator, Senator Inhofe from Oklahoma. Senator Inhofe? PRESENTATION OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT, BY HON. JAMES M. INHOFE, A U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator Inhofe. Thank you, Mr. Chairman. I apologize for being late. As you know, we have the Armed Services bill on the floor right now. Well, I am here to endorse very heartily Jerome Holmes from Oklahoma. I cannot say enough good things about this guy. I have known him now for quite a number of years, and I have followed him. And, you know, it is not very often--and I think probably the two of us would fit in the category. It is hard to find someone that everybody likes. But everybody likes this guy. He has the temperament, he has the background, and the family background, to really appreciate what life in America is all about and what he should be doing in his public service. His family is no stranger to serving the public. His father, Ryland Holmes, was in the Foreign Service, which took the family to places such as Ethiopia and Korea. Since I have an Ethiopian granddaughter, we have had some conversations about that. His mother, Hattie Holmes, was a public school teacher when they lived overseas, and she was an administrator at the University of the District of Columbia when they returned to the United States. He earned his law degree from Georgetown University in 1988 and his master's in public administration from Harvard University in 2000. He practiced law privately from 1991 to 1994 and was an Assistant U.S. Attorney for the Western District of Oklahoma. I believe that this distinguished service as Assistant U.S. Attorney helped him secure an impeccable reputation in the legal field. He was recently sworn in as the Vice President of the Oklahoma Bar Association and is currently director at one of Oklahoma's premier law firms, Crowe & Dunlevy. He goes above and beyond the call of duty and is an active member of the Oklahoma Bar Association's Rules of Professional Conduct Committee and the Commission on the Homeless and Poverty of the American Bar Association. He also co-chairs the Crowe & Dunlevy Diversity Committee. He was a member of the Oklahoma City bombing prosecution team. Not only has Jerome Holmes enjoyed a stellar professional career, but he has received numerous award for his service, including the Director's Award from the Executive Office of the U.S. Attorneys for superior service and many, many others that I will submit for the record. I would like, though, to say that in addition to my recommendation, I have comments in letters from an abundance of people, but I would like to only mention one, Mr. Chairman, and that is a statement by the Tenth Circuit Judge William Holloway. He said, ``I am pleased to recommend highly my former clerk, Jerome Holmes...He is dedicated to the highest standards of intellectual service and performed his work for our court as my clerk with complete impartiality and compassion for the people whose cases were before the court.'' So I would say the same thing as Senator Lott said. I recommend his confirmation as soon as possible, and I can assure you that our judicial system will be better off with Jerome Holmes. Thank you. Senator Coburn. Thank you, Senator. Next we have Representative Luis Fortuno of Puerto Rico. If you would, you are recognized for 5 minutes. PRESENTATION OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO, BY HON. LUIS G. FORTUNO, THE RESIDENT COMMISSIONER IN CONGRESS FROM THE COMMONWEALTH OF PUERTO RICO Resident Commissioner Fortuno. Thank you, Mr. Chairman. As the sole Representative in Puerto Rico of the 4 million U.S. citizens residing in Puerto Rico, it gives me great pleasure to introduce U.S. Magistrate Judge Gustavo Gelpi to the Senate Judiciary Committee. On April 24, 2006, our President, George W. Bush, nominated him to fill a vacancy in the U.S. District Court for the District of Puerto Rico. Mr. Chairman, I am honored to appear before you today in enthusiastic support of his nomination. Mr. Gelpi was born in San Juan, Puerto Rico, and educated at the Suffolk University Law School and Brandeis University, both in Massachusetts. Early in his legal training, he worked as a student law clerk to U.S. Magistrate Judge Joyce L. Alexander and as a law clerk to U.S. District Judge Juan Perez-Gimenez. From 1993 to 1996, he worked in the office of the Federal Public Defender for the District of Puerto Rico as assistant Federal public defender. In 1996, Mr. Gelpi became Special Counsel for the United States Sentencing Commission in Washington, D.C. In 1997, he started working in the Puerto Rico Department of Justice, first as a special aide to the Attorney General and subsequently as Assistant Attorney General. In 1999, he continued his distinguished public service career by becoming the Solicitor General of Puerto Rico. Since 2001, Magistrate Judge Gelpi has served with distinction as a U.S. Magistrate in the U.S. District Court for the District of Puerto Rico. Magistrate Judge Gelpi has been actively involved in groups and committees dedicated to educating and improving the legal profession. He is a member of the Criminal Justice Act Committee, U.S. District Court for the District of Puerto Rico; the Federal Bar Examination Committee, District Court for the District of Puerto Rico as well; Fellow, Federal Bar Association; and the Vice President for the First Circuit, Federal Bar Association, among others. He has published several law review articles on maritime law, criminal law, and ethics. His impeccable record in public service and in the field of law has earned him a place among the most distinguished jurists and attorneys in Puerto Rico. On May 2, 2006, Gelpi was awarded an Honorary Doctor of Laws Degree by his alma mater, Suffolk University Law School. This nominee has received widespread support from those who have worked with him. Those who encounter him in the courtroom speak with respect and admiration. The Federal Bar Association, Puerto Rico Chapter, expressed its unconditional satisfaction with his qualifications and recognized him, and I quote, as an ``exceptional, competent, and qualified Federal legal professional.'' The Hispanic National Bar Association likewise expressed unconditional satisfaction with his qualifications, noting, and I quote again, ``seldom have we witnessed such an accomplished career and steadfastness of service in a candidate for the United States District Court of Puerto Rico.'' On May 30, 2006, the American Bar Association issued a unanimous vote rating Mr. Gelpi as ``Qualified'' for appointment as judge of the United States District Court for the District of Puerto Rico. Mr. Chairman, Mr. Gelpi without any doubt is at the top of the legal profession in his community. I believe that Mr. Gelpi possesses the intellectual capacity and dedication to faithfully and impartially perform the duties of his new position. It is my pleasure to introduce to you and to recommend with enthusiasm Mr. Gustavo Gelpi, a nominee that fully understands the responsibility that a position on the Federal bench entails and will excel, I am sure, in his new position. Thank you again, Mr. Chairman. I thank you all for being here today. Senator Coburn. Thank you, Congressman Fortuno. Next we have one of my favorite people in the Senate, the Chairman of the Appropriations Committee, Hon. Thad Cochran. Senator? PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI Senator Cochran. Mr. Chairman, thank you for the opportunity of being here today to recommend to the Senate Judiciary Committee Daniel Jordan III for service as a judge on the United States District Court for the Southern District of Mississippi. I have been here a good many years now, and we have had several distinguished candidates for the Federal judiciary before the Committee for review and for confirmation. But I frankly do not recall anyone who has ever been better qualified to serve in the position to which he has been nominated than Dan Jordan III. He is a very intelligent, hard- working, conscientious lawyer in the largest city in our State--Jackson, Mississippi. He is affiliated as a partner with one of the leading law firms in our State, the largest, really, of homegrown law firms practicing in our State of Mississippi. And he has an unblemished record in terms of good character, good judgment, professional competence, and just generally being a good citizen. I do not know of any other more compelling evidence of that than the amount of time and effort he has volunteered to help the victims of the Katrina disaster. He went to the Gulf Coast and helped establish a pro bono legal assistance operation there, providing advice, counsel, and assistance to those who were victims of that devastating hurricane in our State. It was not fun even just being on the coast during the last several months because of the widespread and complete destruction that occurred in that part of our State. And so leaving your family and your law practice and other responsibilities and spending the time and effort that he has personally spent to that cause I think is very impressive and it illustrates the kind of person he is. But beyond that, I have known his parents. I happened to be in college with them. As a matter of fact, his father and I were good friends. His father was a varsity basketball player at the University of Mississippi, and incidentally, Dan Jordan was captain of his high school basketball team in Richmond, Virginia, where he was when he was in high school. Dan and Lou Jordan, his parents, are some of the best respected and finest people that we have from Mississippi. They live In Charlottesville because Dan Jr. is the President of the Thomas Jefferson Foundation, which has the responsibility of managing and seeing to the operations, overseeing Monticello, the Thomas Jefferson home there. He serves as a visiting scholar at the University of Virginia as well because he was a distinguished history professor before he assumed this responsibility. But they live there now, and that is where Dan spent some of his growing-up days. But they are Mississippians. They go way back in our State. And Dan III returned to Mississippi after he graduated from law school at the University of Virginia where he had done very well as a student. He immediately went to work in the law firm there in Jackson. He is involved in litigation. He has been honored for his good work in the legal circles. He has been President of the Young Lawyers Section of the Mississippi State Bar, a job I used to have. I thought that was about the highest honor I could ever hope to have. It was a big deal. But it is an indication in his case of the respect that other lawyers have for him who are his age and beyond. He is an ideal person for this job, and I am really glad that I had a chance to come by today to congratulate him and to indicate to the Committee the high opinion I have of him and the high hopes I have of his service on the Federal judiciary. I predict he will serve with great distinction and reflect credit on his family and on our State and on this Committee for recommending his confirmation by the Senate. Thank you. Senator Coburn. Senator Cochran, thank you so much. I would now ask for our nominees to come forward and rise and lift your right hand. Do you swear that the testimony you are about to give before this Committee is the truth, the whole truth, and nothing but the truth, so help you God? Mr. Holmes. I do. Mr. Jordan. I do. Judge Gelpi. I do. Senator Coburn. Please be seated. Our first nominee is Jerome Holmes. He is nominated to be a circuit court judge on the United States Court of Appeals for the Tenth Circuit. If confirmed, Mr. Holmes will be the first American of African descent to serve on that court. Mr. Holmes comes before this Committee with stellar academic and legal credentials. He graduated from Wake Forest University cum laude in 1983, Georgetown University Law Center in 1988. While at Georgetown, he served as editor-in-chief of the Georgetown Immigration Law Journal. Recently, in 2000, he earned his master's of public administration from Harvard's Kennedy School of Government. Between college and law school, he worked briefly as a social services assistant with the D.C. Department of Corrections. While in law school, he clerked for Hon. Wayne E. Alley of the U.S. District Court for the Western District of Oklahoma and Hon. William J. Holloway of the U.S. Court of Appeals for the Tenth Circuit. Following his clerkships, he spent 3 years in private practice as an associate with the well-regarded law firm of Steptoe & Johnson. In 1994, he began a distinguished career as a Federal prosecutor, serving as an Assistant U.S. Attorney in the Western District of Oklahoma. Among other duties, he prosecuted public corruption, Federal criminal civil rights violations, and was the office's first antiterrorism coordinator. He also worked on the prosecution team that built the case against the perpetrators of the Oklahoma City bombing. Since 2005, he has been a director of the prominent law firm of Crowe & Dunlevy, where he has focused on white- collar criminal defense and complex litigation. He also chairs the firm's Diversity Committee. Mr. Holmes has given back to the people of Oklahoma by taking leadership roles in a wide variety of civic organizations. These include services as director of the Oklahoma Medical Research Foundation, a trustee of the Oklahoma City National Memorial Foundation, director of the Oklahoma Academy of State Goals, Chairman of the City Rescue Mission, and Vice President of the Oklahoma Bar Association. the American Bar Association has unanimously found Mr. Holmes to be qualified to serve on the Tenth Circuit. Our second nominee today is Gustavo Antonio Gelpi, nominated to be a district court judge for the District of Puerto Rico. As magistrate, he was nominated by President Bush to be a judge on the U.S. District Court for the District of Puerto Rico on April 24, 2006. He graduated from Brandeis University in 1987, received his J.D. from the Suffolk University Law School in 1991. He began his legal career clerking for Hon. Juan Perez-Gimenez on the U.S. District Court for the District of Puerto Rico. Following his clerkship, he joined the Office of the Federal Public Defender for the District of Puerto Rico as an assistant Federal public defender. In that capacity, he provided legal assistance to the indigent defendants in criminal cases. During his time in the public defender's office, he served as special counsel to the U.S. Sentence Commission, where he worked on revisions to Sentencing Guidelines. In 1997, he joined the Puerto Rico Department of Justice as an Assistant to the Attorney General. Later that year, he joined the Department's Office of Legal Counsel. In 1999, he began serving as Puerto Rico's Solicitor General. Following the year as Solicitor General, he entered private practice with the San Juan firm of McConnell Valdes, where he has worked on commercial litigation. In 2001, he was appointed to serve as U.S. magistrate judge for the District of Puerto Rico. In that capacity, his recommendations have consistently been adopted by the district court. The American Bar Association unanimously rated Judge Gelpi as qualified. Finally, Daniel Porter Jordan III, our third nominee, was nominated to be a district court judge for the Southern District of Mississippi. He received his BBA from the University of Mississippi in 1987, his J.D. from the University of Virginia Law School in 1993. Between college and law school, he was a legislative assistant, as we heard earlier, for Senator Trent Lott. That had to have been fun. Following law school, he joined Butler, Snow, O'Mara, Stevens & Canada as an associate, and since 2000, he has been an equity member of the firm, practicing chiefly in the area of product liability. He has also gained significant experience in mediating cases. He has been very involved with the Mississippi Bar Association, including serving as a member of the Board of Directors, and both Secretary and Treasurer of the Litigation Section. He has been active in pro bono activities and was awarded the Hinds County Bar Association Pro Bono Award in 2005. He has received a unanimous qualified rating by the American Bar Association. Gentlemen, we welcome you to the Committee today. We would be pleased to hear any statement that you care to make, and I would ask that you introduce your family and friends who are here for your hearing. Please try to limit your statements to 5 minutes. We will not enforce that, however, if you feel that there is more that we should have. We will begin with Mr. Holmes. Welcome. STATEMENT OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT Mr. Holmes. Thank you, Dr. Coburn. I don't believe I will need to go over 5 minutes. I do not have a formal statement to make, but I would like to thank President Bush for the confidence and trust that he has placed in me in nominating me for this important position on the Federal bench. I would like to thank you, Dr. Coburn, for all of your support, as I have gone through this nomination process. I would also like to extend warm thanks to Senator Inhofe both for his kind remarks today and for his kind remarks through this process that have been very encouraging to me and supportive. With me today are my sister, Jean W. Holmes, who is a resident of the District of Columbia and who works at the Environmental Protection Agency; and my law partner and good friend, William H. Hoch III. Will on very short notice arranged to come to Washington to be here for this proceeding, and I am very grateful for that. With that, I would welcome any questions from the Senator at the appropriate time. 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Thank you. Mr. Jordan? STATEMENT OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI Mr. Jordan. Thank you, Senator. I, too, would like to thank the President for this tremendous opportunity. I am humbled by it and excited for it. I also want to thank Senators Lott and Cochran. They have meant a lot to me and my family for years, and it was a real pleasure working here in the Senate for Senator Lott. I feel like you know my family well at this point, but I will introduce them anyway. This is my wife, Teri; my daughter, Anna, who is 8; my mother, Lou Ellen; and my father, Dr. Daniel Jordan. My son, Robert, is 5 and he is not with us today. I thought this would go more smoothly if he stayed at home. [Laughter.] Mr. Jordan. But I, too, appreciate this opportunity and look forward to answering your questions. And I am sorry, I do want to also thank two friends, former colleagues, Shelly McCain and Jennifer Hawks Bland, who surprised me by showing up today. I am very pleased to see them. Thank you. 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Judge Gelpi? STATEMENT OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO Judge Gelpi. Thank you, Senator. I join my colleagues. I would also like to thank the President for nominating me, as well as you and the members of this Committee for having me here today. I would also like to thank Congressman Fortuno for being here with me today. Today with me is my father, who gave me his same name. He is sitting right behind me. Senator Coburn. Welcome. Judge Gelpi. I also have some friends from Puerto Rico and from the Mainland who are here today and former colleagues of mine from the Sentencing Commission. They are here as well. My wife and children, 5 and 2 years, respectively, are not here today. Like Mr. Jordan, I felt the hearing could go smoother. They are not here, but they are here in spirit. They thank you also for having me here today. 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Thank you. All right. Well, we will start out with some questions. The record will be left open for questions by other members of the Committee for one week, and staff should advise members of such. Mr. Holmes, you have considerable experience in the area of counterterrorism. As an Assistant U.S. Attorney, you served on the prosecution team for the Oklahoma City bombings and then after September 11, 2001, you served as coordinator for your office's counterterrorism efforts. What did you learn from those experiences? Mr. Holmes. They were valuable experiences to me, Dr. Coburn, in terms of understanding the importance of the threat that faces our Nation from terrorism and the importance of taking vigorous steps to address that threat. Senator Coburn. Do you feel that you have the ability to separate your ideology from your judicial philosophy? Mr. Holmes. Thank you, Dr. Coburn, for that question, because the answer is affirmatively and strongly yes. I very much understand the role of a judge, and the role of a judge is to be fair and impartial and to follow the law. Of all the things I can commit to, I can commit to following the law and following precedent. And my personal views and ideology, to the extent that I have an ideology, would be put aside and is not relevant for that role. Senator Coburn. All right. Thank you. Most of your experience has been in trial courts. How has that prepared you to be a circuit court judge? Mr. Holmes. Thank you, Dr. Coburn. As it relates to that question, I believe it has given me tremendous preparation for the role of an appellate judge. An appellate judge has an opportunity to only review the record, and to understand the context of the record, it often takes experience in the courtroom. The dynamic of the courtroom is very useful to the understanding of the cold record and what is going on and what the lawyers are trying to do and the constraints that the judge has to operate under in making decisions. And so I believe that that trial experience has given me ample preparation for the role of an appellate judge. Senator Coburn. You also in your career have found time to write and speak on a variety of issues. Some of those that you have written about are matters of public controversy. If you are confirmed, will you be able to put aside the import of these writings and judge each case that comes before you with an open mind bearing on stare decisis? Mr. Holmes. I very much appreciate that question, Dr. Coburn, because, again, the answer is absolutely yes. I recognize very clearly the distinction between the role of a writer on social policy issues in their personal capacity and the role of a judge in adjudicating the rights and liberties of individual litigants. And in that second, that latter role, it is inappropriate for me to import my personal views on policy issues into the decisionmaking process. My job in that role is to follow the law, to follow the precedent that I am bound by, the Supreme Court precedent, and I plan to do that, if confirmed. Senator Coburn. So on questions of affirmative action, there is no doubt in your mind you would follow stare decisis as set by the Supreme Court on cases that would come before you with regard to that? Mr. Holmes. If confirmed, Dr. Coburn, there is absolutely no doubt in my mind that I would follow the law and I would follow the binding precedents and adhere to stare decisis. Senator Coburn. Thank you, Mr. Holmes. Judge Gelpi, you have already had a distinguished career as both an advocate, as a public defender, and the Solicitor General for Puerto Rico. More recently, you have served on the other side of the bench as United States magistrate judge. Having seen judicial proceedings from both sides, would you speak briefly about the role and significance of judicial temperament? Judge Gelpi. Well, yes, thank you, Senator. Senator Coburn. Could you pull the mike a little closer to you? Judge Gelpi. Yes, sir. Senator Coburn. Thank you. Judge Gelpi. Thank you, Senator. Judicial temperament, particularly, I believe, at the district court level, is very important. We come face to face every day with attorneys, litigants. We have law enforcement agents, witnesses, and we have to deal with the public on a day-to-day basis in the courtroom and then in chambers, many times with attorneys. I believe it is very important for a judge to have temperament. You have to be able to listen to counsel, listen to both parties, never be predisposed before you listen to your case, because in my experience I have cases where you sort of have a gut feeling at the beginning, but you listen carefully to the parties, and then when you weigh the evidence or you listen to the final arguments, you realize you may have been wrong or you can change your mind. And it is very important to have that open-mindedness at all times. It is very important also to be courteous to all the parties, the litigants. They are human beings, just like the court, like the judge. It is also equally important to expect that same conduct and that same treatment from the parties and from counsel towards the court. And I think the court has to set an example, and if the court sets the example, the bar and counsel and litigants and everybody who appears before the court would follow. Thank you. Senator Coburn. Do you have a judicial philosophy that you could give in your testimony before this Committee? Judge Gelpi. I do not have a particular judicial philosophy. My own philosophy is to work as hard as I can and to apply the laws and Constitution of the United States at the trial level. That is what we do. We are not there to make new laws, to enlarge the Constitution or abridge the Constitution. That is the Supreme Court's role. We have to follow precedent from not only the Supreme Court but also from the First Circuit. So in that respect, that is my position. Senator Coburn. That sounds like a judicial philosophy to me. [Laughter.] Senator Coburn. You must know the district court and its caseload well. What are the unique challenges of that court? Judge Gelpi. Well, in Puerto Rico, I would say that the most unique challenge is the volume of criminal cases. We are one of the districts with the most multi-defendant cases, so what is most challenging is you have to be able to manage the criminal docket effectively. I have been a magistrate judge now for 5 years. I truly believe that in a big district like ours, with such a criminal docket, you have to rely on magistrate judges. So I hopefully will have, if confirmed, a successor who will assist me, as I have assisted the district court judges. Scheduling is extremely important and also just moving the cases along. And if you do that with the criminal docket, then the civil docket will also fall into place. And that is also very important because the civil litigants are also entitled to their day in court. Senator Coburn. All right. Thank you. Mr. Jordan, how have your private experiences as a private trial attorney prepared you to sit in the position as a judge? Mr. Jordan. Thank you, Senator. As a private attorney, primarily involved in civil litigation, I have been a part of that process my entire career. I frequently practice in the Federal courts within our State. I know the procedures. I know how the trials work. I have seen it. I have been there, I have done that on a firsthand basis. I think that it gives me a perspective as a litigator that I think will be helpful as a judge. If I am lucky enough to get confirmed and I have litigants before me, I will know what they are thinking. I will know what their hopes are. And I think that they will allow me, if I am confirmed, to help move the cases along and reach the correct result. Senator Coburn. You have been active in the Mississippi State Bar Association. You have also volunteered your legal services on a pro bono basis. We talked about the award that you got for pro bono. Will you tell us about your work with the Bar Association and your experience with pro bono work generally? Mr. Jordan. Certainly. Thank you, Senator. I became involved with the Mississippi Bar and also with the Young Lawyers Division in Hinds County, Jackson, really from the very beginning of my career. It is something that my law firm was very much supportive of. They encouraged us to get involved, and many of us did. One of the first leadership positions I had was as the President of the Jackson Young Lawyers Association, which is made up of roughly 300 attorneys. I thought that that was a great honor, and I thoroughly enjoyed my time there. I have also served on the Board of Directors for the Hinds County Bar Association on numerous committees, which I have enjoyed tremendously, and also on the State bar level. In terms of pro bono, I believe that it is a responsibility of all attorneys to dedicate a portion of their time to service for the disadvantaged. One of the first times I was ever in Federal court was pro bono representation on behalf of a hospice that could not afford to pay legal fees. Throughout my career, I think I have been fairly consistent about donating my time. Roughly 2 years ago, I recognized that there was a problem at the Stewpot Legal Clinic. This is an inner-city shelter for the homeless, and every Tuesday there is an attorney there giving free legal advice. But the problem was that they were having a hard time finding attorneys willing to show up to donate their time. So I asked if I could run the program. I am pleased that they allowed me to do it. It has been very rewarding for me to go down there. The type of law I practice typically deals with companies, and there is a lot of money involved. But when you sit down in a small room with somebody who has a very serious personal problem and you can help them with that problem, it is a tremendously rewarding experience. I have also worked down on the Gulf Coast some, which was-- you know, those people are in serious distress, and they needed the assistance of counsel. So I view that as a great opportunity, and I have really enjoyed that part of my practice. Senator Coburn. What do you see as your role as a judge in the Southern District of Mississippi? Mr. Jordan. Well, I believe the role of a trial judge is a limited role. If I am fortunate enough to be confirmed, there are precedents that the trial judges must follow. So many of the substantive areas of law have been addressed, whether it is Fourth Amendment rights, the scope of the Commerce Clause. You know, in my view it is not a discretionary issue for the trial judge. I really view the trial judge more as being on the front line of litigation and helping the cases get through the legal process. Senator Coburn. All right. Thank you. Would any of you like to add anything else for the record or make additional statements? Mr. Holmes. No, sir. Mr. Jordan. No, sir. Judge Gelpi. No, sir. Senator Coburn. Well, on behalf of the Judiciary Committee, I want to thank you for appearing today. We will leave the record open for one week until 5:00 p.m. on Thursday, June 22nd, for members to submit written questions. If you do receive written questions, we would ask you to return them as promptly as you can. I can also tell you from my experience on the Judiciary Committee, delay in returning written questions is something that is not dealt with in a very kind way and not favorably toward your nomination. So I would advise you to be very prompt in your response to any questions that you do submit. With that, this hearing is adjourned. 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