[Senate Hearing 110-131]
[From the U.S. Government Printing Office]
S. Hrg. 110-131
CONFIRMATION HEARING ON THE NOMINATIONS OF LESLIE SOUTHWICK, TO BE
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; JANET T. NEFF, TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN; AND LIAM O'GRADY, TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MAY 10, 2007
__________
Serial No. J-110-52
__________
Printed for the use of the Committee on the Judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
37-449 WASHINGTON : 2007
_____________________________________________________________________________
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
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 174
Whitehouse, Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 1
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Leslie Southwick, Nominee to be Circuit Judge for
the Fifth Circuit.............................................. 3
Levin, Hon. Carl, a U.S. Senator from the State of Michigan
presenting Janet T. Neff, Nominee to be District Judge for the
Western District of Michigan................................... 7
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Leslie Southwick, Nominee to be Circuit Judge for
the Fifth Circuit.............................................. 4
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan
presenting Janet T. Neff, Nominee to be District Judge for the
Western District of Michigan................................... 8
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Liam O'Grady, Nominee to be a U.S. District Judge
for the Eastern District of Virginia........................... 5
STATEMENTS OF THE NOMINEES
Southwick, Leslie, Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 9
Questionnaire................................................ 10
Neff, Janet T., Nominee to be District Judge for the Western
District of Michigan........................................... 62
Questionnaire................................................ 63
O'Grady, Liam, Nominee to be District Judge for the Eastern
District of Virginia........................................... 100
Questionnaire................................................ 101
QUESTIONS AND ANSWERS
Responses of Leslie H. Southwick to questions submitted by
Senators Leahy, Kennedy, Durbin, Whitehouse and Feingold....... 138
SUBMISSIONS FOR THE RECORD
Lambda Legal, Kevin M. Cathcart, Executive Director, New York,
New York, letter............................................... 170
Leadership Conference on Civil Rights, Wade Henderson, President
& CEO, and Nancy Zirkin, Vice President/Director of Public
Policy, Washington, D.C., letter............................... 172
Levin, Hon. Carl, a U.S. Senator from the State of Michigan,
statement...................................................... 177
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
statement...................................................... 179
National Association for the Advancement of Colored People,
Mississippi State Conference, Derrick Johnson, President,
Jackson, Mississippi, letter................................... 182
People for the American Way and the Human Rights Campaign, Joe
Solmonese, President, Human Rights Campaign and Ralph G. Neas,
President, People for the American Way, Washington, D.C., joint
letter......................................................... 184
Warner, Hon. John, a U.S. Senator from the State of Virginia,
statement...................................................... 190
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
statement...................................................... 193
NOMINATIONS OF LESLIE SOUTHWICK, TO BE CIRCUIT JUDGE FOR THE FIFTH
CIRCUIT; JANET T. NEFF, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT
OF MICHIGAN; AND LIAM O'GRADY, TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF VIRGINIA
----------
THURSDAY, MAY 10, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10:16 a.m., in
room 226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Kennedy, Feingold, Durbin, Hatch,
Brownback, and Coburn.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The Committee will come to order.
We have, today, three nominees to the Federal bench who we
will hear from: Judge Leslie Southwick has been nominated to
the U.S. Court of Appeals for the Fifth Circuit; Judge Janet
Theresa Neff has been nominated to the U.S. District Court for
the Western District of Michigan, and Judge Liam O'Grady has
been nominated to the U.S. District Court for the Eastern
District of Virginia.
The hearing will proceed as follows: I will deliver brief
opening remarks, then turn to Senator Hatch, who is the Ranking
Member for this hearing, to deliver brief opening remarks. Then
the nominees will be introduced by their home State Senators in
the order of seniority. The first two, of course, are Senators
Cochran and Senator Warner, both of whom are here.
I would like to welcome each of the nominees, their
families and friends, to the U.S. Senate; of course, welcome,
Senator Cochran and Senator Warner.
As my colleagues know, voting to confirm an individual to
the Federal bench is one of the most important and lasting
decisions that a Senator can make. Not only do Federal judges
make daily decisions about life, liberty and property, not only
do they serve as an independent check on the executive and
legislative branches, but they do so with a lifetime
appointment in our Federal system. In this way, their work is
meant to be independent of the ephemeral political disputes,
what Alexander Hamilton called ``the ill humors of the
political day.''
Our system of government has had what one observer called
``the advantage of relegating questions not only intricate and
delicate, but peculiarly liable to excite political passions to
the cool, dry atmosphere of judicial determination.''
Maintaining this ``cool, dry atmosphere'' is an enormous
responsibility for judges.
This hearing is an opportunity, the first and last
opportunity, really, for Senators and the American people to
consider whether the nominees are deserving of that
responsibility. It is an opportunity to explore their
qualifications, their judicial philosophy, their judicial
temperament, and their commitment to equal justice.
On the subject of opportunities, I would like to take a
moment to express my appreciation to our Chairman, Pat Leahy,
for giving me the opportunity to chair this important hearing.
I would also like to take a moment and commend his
leadership in confirming judicial nominations during this
Congress. So far this year, the Senate has confirmed 17
judicial nominations. To put that number in context, it equals
the number of judges confirmed during the entire 1996 session
of Congress, another time of divided government. As the
President sends nominees to the Senate for confirmation, I am
sure that we will consider them as carefully and as
expeditiously as possible.
To conclude, I look forward to the opening statements of my
colleagues in the Senate and of the nominees, and the answers
to our questions from each of the nominees.
I now turn to Ranking Member Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Senator Whitehouse. I
appreciate that.
I want to welcome all of our nominees here today, and of
course the Senators who are appearing on their behalf. I will
be very short. I want to congratulate each of you for your
nomination to the Federal bench.
I also want to thank Chairman Leahy for scheduling this
hearing. Some far-left groups have criticized Chairman Leahy
for moving too fast, particularly on Judge Southwick's
nomination.
Along with Judge Neff, he appeared before this Committee
nearly 8 months ago when he was nominated to the District
Court. The same record is before us now for his nomination to
the Fifth Circuit.
As I understand it, Judge Southwick has provided the
Committee with nearly 10,000 pages of documents, including both
published and unpublished opinions. We have had his detailed
answers to the Committee questionnaire for nearly 3 months, and
those are essentially the same as what he provided almost a
year ago. So I think the criticism of Chairman Leahy's
scheduling of this hearing is off-base, and I want to thank
Chairman Leahy for moving it along.
The position to which Judge Southwick has been nominated is
a judicial emergency. It needs to be filled. He is an excellent
nominee who has the highest rating from the American Bar
Association, unanimously.
I certainly hope that we can proceed with dispatch on all
three of these judges, if we can, today. Thanks, Senator
Whitehouse.
Senator Whitehouse. Thank you, Senator.
If I may, I will now call on Senator Cochran for his
introduction of Judge Southwick.
PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FIFTH DISTRICT, BY HON. THAD COCHRAN, A U.S. SENATOR
FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for
inviting me to be present today to introduce Judge Leslie
Southwick to the committee. I am very pleased to have this
opportunity to introduce my friend and recommend him for
service in the Federal judiciary.
In my opinion, he should be confirmed to serve on the U.S.
Court of Appeals for the Fifth Circuit. I have known Leslie for
about 30 years. In my opinion, he is exceptionally well-
qualified for this responsibility. It is a very important
position in our Federal judiciary, but he has the background,
the proven intellectual competence, and a sense of fairness
that well equip him for service on this important court.
He graduated cum laude from Rice University in 1972, and
then went to the University of Texas School of Law, where he
graduated 3 years later. After law school he clerked for the
Chief Judge of the Texas Court of Criminal Appeals. He then
came to Jackson, Mississippi, where I was practicing law, in
1977.
He joined the firm of Bernini, Grantham, Grauer & Hughes, a
very well-respected and outstanding law firm in our State, one
of our most prestigious firms, as a matter of fact. He became
widely respected immediately as someone who had good judgment,
who worked hard, who had good common sense. He was a very
capable lawyer.
He has since served as a Deputy Assistant Attorney General
in the Civil Division of the U.S. Department of Justice. He
supervised about 125 lawyers of the Federal Programs branch. He
also supervised the Office of Consumer Litigation.
In November 1994, Leslie Southwick was elected to serve on
the newly created Mississippi Court of Appeals. From August of
2004 to January of 2006, he served as the Staff Judge Advocate
for the 155th Brigade Combat Team in Iraq.
I recall communicating with him during his time when that
unit was deployed as part of our military force in Iraq. They
were mobilized in support of Operation Iraqi Freedom. He was
out in the desert with the troops and providing leadership and
advice on legal matters to the brigade.
He is currently serving as a Professor of Law at
Mississippi College School of Law. He teaches courses in
administrative law, consumer law, evidence, statutory
interpretation, and judicial history. He has also served as an
instructor at the U.S. military academy at West Point.
He has written several legal and historical articles and
publications for the Mississippi Law Journal, the Mississippi
College Law Review, and others. He is the author of a book,
Presidential Also-Rans and Running Mates, which won an American
Library Association ``Best Reference Work of the Year'' award
in 1985.
As you can see from his accomplishments and his experience,
Leslie Southwick has had a distinguished career as a public
servant and as a private lawyer in one of the best law firms in
our State.
He is respected for his honesty and integrity, his pleasing
personality, and I am confident he will reflect great credit on
the Federal judiciary if he is confirmed by the Senate to serve
on the Fifth Circuit Court of Appeals.
Thank you.
Senator Whitehouse. Thank you, Senator Cochran.
The next Senator I will call then, going by order of
seniority, is Senator Warner of Virginia, to speak on behalf of
Magistrate Judge O'Grady.
Senator Warner. Thank you, Mr. Chairman. Might I suggest
that my distinguished Leader, Mr. Lott, please go ahead.
Senator Whitehouse. Senator Lott, please proceed.
PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FIFTH DISTRICT, BY HON. TRENT LOTT, A U.S. SENATOR FROM
THE STATE OF MISSISSIPPI
Senator Lott. Well, let me just say to my two more senior
colleagues, I appreciate this. But since we are on Judge
Southwick, maybe it would make some good sense to have us both
make our comments and then yield to our other colleagues. Thank
you, Senator Warner and Senator Levin.
Thank you very much, Senator Whitehouse, for being here and
chairing this subcommittee. Thank you, Senator Hatch, for doing
your diligent duty, as always. I do want to extend my
appreciation to Chairman Leahy for going forward with this
hearing and arranging for Senator Whitehouse to chair it, and
to Senator Reid for his work with Senator McConnell to see that
we move forward in a fair process with regard to these
nominees.
It is not an easy task. It is an important task. I think,
obviously, quality is every bit as important--maybe more so--
than quantity.
I will not repeat what my senior colleague has said in his
comments here this morning in support of Judge Leslie
Southwick. He obviously has an outstanding record. I was just
writing down here what an outstanding life he has had. He is
well-educated. He was an outstanding student, graduating cum
laude from Rice University, an outstanding university in Texas,
the Texas Law School.
He clerked in two different, very important courts, for the
presiding judge of the Texas Court of Criminal Appeals, and he
moved to Mississippi and clerked for one of the most
outstanding people I have ever known in my life, let alone the
fact that he was the chief judge of the Fifth Circuit Court of
Appeals, Charles Clark from Mississippi. So he has been an
outstanding student, he has had outstanding experience as a
clerk for very fine judges in critical positions.
He has a distinguished military career, having taken leave
from the Court of Appeals to go to Iraq, as Senator Cochran
just pointed out, as a Judge Advocate for the 155th infantry
unit out of Mississippi.
He is an author and has been recognized for that. He is a
law school professor. He has been affiliated with one of the
very best law firms in the State. But I think, most importantly
of all, he himself has served as a judge, an appellate court
judge, in Mississippi, where he has participated in deciding
over 7,000 cases and he authored the most opinions in 8 of his
10 years on the appellate court.
He received the ``Judicial Excellence'' award from the
Mississippi State Bar Association. He has been broadly and
widely acclaimed as an excellent choice to serve on the Federal
judiciary, including by the local newspaper, the paper in our
State's capital, the Clarion Legend, a Gannett newspaper, not
known for just endorsing any Republican nominations for
anything.
But they had this to say about Judge Southwick: ``...is an
outstanding nomination for the bench, with no hint of any
reason for disqualification. The U.S. Senate should confirm the
nomination.''
He has one other distinction here. He probably is getting
close to having a record for how long he has been pending
before this Senate for a Federal judicial appointment, first
the Southern District, but then was moved up and recommended
for the Fifth Circuit Court of Appeals.
I, like Senator Cochran, have known him for a long time
personally. I have nothing but the highest admiration. He has
everything you are looking for here in terms of education,
history of public service, reputation for fairness, and stellar
judicial temperament. I urge the Subcommittee to expeditiously
move forward on this nomination of Judge Leslie Southwick.
Thank you very much, Mr. Chairman, and my colleagues.
Senator Whitehouse. Thank you, Senator Lott.
We will now return to the regular order of seniority. I
call on Senator Warner to speak on behalf of Magistrate Judge
O'Grady.
PRESENTATION OF LIAM O'GRADY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF VIRGINIA, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman. May I say to you
that we have had some connection and knowledge with each other
for many, many years, and I am very impressed with your ability
to take strong reigns and grasp the responsibilities of
chairing a Committee of the U.S. Senate in such a short time
after your election to this august body.
Senator Whitehouse. Thank you, sir.
Senator Warner. I wish you well.
Senator Whitehouse. Thank you, sir.
Senator Warner. And I thank the Chairman who sent you,
Patrick Leahy, whose friendship and work I have shared in my 29
years with my colleague--and indeed mentor--who is not
listening to me, Senator Hatch. He fostered my career from the
very beginning in the U.S. Senate. Thank you, both of you, for
coming here today and having this hearing.
Mr. Chairman, Senator Hatch, other members of the
committee, I would like to read from the opening paragraph of a
statement and endorsement by my colleague, Jim Webb, who is
unable to be here this morning.
He states as follows: ``Today it is my distinct pleasure to
offer my support, along with my colleague Senator Warner, for
the nomination of Magistrate Judge O'Grady to be a judge on the
U.S. District Court for the Eastern District of Virginia.''
I ask unanimous consent that his statement follow my
statement in the record of today's proceedings.
Senator Whitehouse. Without objection, that will be done.
[The prepared statement of Senator Webb appears as a
submission for the record.]
Senator Warner. And at this time, Mr. Chairman, I would ask
the Chair to invite Magistrate O'Grady to introduce his wife
and children.
Judge O'Grady. Thank you, Senator. This is my wife, Grace
McPherson O'Grady, who is no stranger to these proceedings. She
worked for Senator Hecklin after college, and then Senator Nunn
on the Permanent Subcommittee on Investigations after getting a
graduate degree. With us also are my two youngest children:
Wynn, who is nine, and Tatum, who is five. Thank you, Senator.
Senator Warner. Well, we welcome Wynn and Tatum to the
proceedings. Mrs. O'Grady, it is good to have you back under
such happy circumstances.
Thank you, Mr. Chairman. I would ask unanimous consent that
my full statement be made a part of the record.
Senator Whitehouse. Without objection.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Senator Warner. I should like to draw to the attention of
the members of the Committee certain aspects of this.
Mr. Chairman, there is an old saying in the Senate, some
Senators are proud to point that they came up through the
chairs to become a U.S. Senator, meaning that they served in
the State legislatures of their respective States, they often
came from there either to the Governorship or, indeed, the
House of Representatives, and finally to the U.S. Senate.
Well, this outstanding nominee by our President has really
come up through the chairs of the legal profession. Judge
O'Grady, who has been nominated to fill this seat, has been a
member of the Virginia Bar since 1978.
He has worked as a sole practitioner, as an Assistant
Commonwealth Attorney, as an Assistant U.S. Attorney, as a
partner in an international law firm, and for the last 4 years
he's worked with the Eastern District of Virginia as a
magistrate judge.
In his career, he has had a wide array of experience. As a
sole practitioner, he worked as a court-appointed criminal
defense lawyer. As an Assistant Commonwealth Attorney, he tried
upwards of 100 jury trials. As an Assistant U.S. Attorney, he
focused on narcotics and organized crime cases.
As a partner in the well-known law firm that he was
associated with, he worked extensively on patent and trademark
cases, and for the last 4 years as a magistrate judge, of
course, he had a full spectrum of so many of the
responsibilities on that court.
Equally impressive, though, despite the rigors of his
career, he has always found time to give back to the community.
He has helped teach law at both George Washington University
here in the Nation's capital, and George Mason in Northern
Virginia. While at the firm, he set up a pro bono legal clinic
and took court-appointed cases involving those in need. Most
recently, he has been a dedicated volunteer youth soccer and
youth hockey coach.
Together with his family, I think they are exemplary
persons for continuing in public service. He has the skills and
qualifications, in my judgment, to become a U.S. District Court
judge. I do hope that this Committee will see fit to confirm
him.
I thank the Chair and the Ranking Member.
Senator Whitehouse. Thank you, Senator Warner.
We will now proceed to hear from Senator Levin, who is here
to speak on behalf of Judge Janet Theresa Neff.
PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MICHIGAN, BY HON. CARL LEVIN, A U.S.
SENATOR FROM THE STATE OF MICHIGAN
Senator Levin. Mr. Chairman, forgive me for that pause.
Thank you so much, Chairman Whitehouse, members of the
committee, for holding this hearing today on Janet Neff.
I am here with Senator Stabenow and am pleased to support
all three Michigan nominees that are pending before this
Committee for the Western District of Michigan: Robert Yonker,
Paul Maloney, and Janet Neff.
They have been nominated by the President to the Western
District. We worked with the White House on these nominations.
They received a hearing last year. They were unanimously
reported out of the Committee last year.
Unfortunately, the nominations were held up at the last
session of the last Congress, so they were not confirmed. I
hope very, very fervently that the three nominees will be
approved by this Committee and that they will be promptly
confirmed by the Senate.
A hearing on one of the nominees, Janet Neff, is being held
today. I want to welcome her and her family to the hearing.
She graduated with honors from the University of Pittsburgh
in 1967, then from Wayne State University Law School in 1970.
She has had a distinguished legal career. After law school,
Judge Neff served as an estate and gift tax examiner for the
Internal Revenue Service, and then a research attorney for the
Michigan Court of Appeals before becoming an Assistant City
Attorney for the city of Grand Rapids.
Judge Neff has also worked in private practice. She served
as a Commissioner for the Michigan Supreme Court, and then as
an Assistant U.S. Attorney. Judge Neff currently serves on the
Michigan Court of Appeals, and she has been granted numerous
awards and honors, including ``Outstanding Member for 2006'' of
the Women Lawyer's Association of Michigan.
Her hallmarks on the Court of Appeals in Michigan have been
integrity, decency and hard work. We are fortunate to have
Judge Neff devoted to public service. I hope we can all work
together to move all three of these Western District Court
nominees promptly through the Senate.
I will keep this statement briefer than perhaps I would
ordinarily do because of the lengthier statement which I made
when her first hearing occurred. But I just want to assure this
Committee of her qualifications, both legally and of character,
her objectivity, her fairness, her open-mindedness on the
bench.
She has strong support in her community, both the legal
community and the broader community. She is extraordinarily
well-qualified to be a District Court judge, and I commend her
highly to this committee.
Senator Whitehouse. Thank you, Senator Levin.
Senator Stabenow, would you like to add your statement now?
Senator Stabenow. I would.
Senator Whitehouse. Please proceed.
PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MICHIGAN, BY HON. DEBBIE STABENOW, A
U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Stabenow. Thank you so much, Mr. Chairman, for
holding this hearing, and distinguished members of the
committee.
This is a wonderful opportunity for us to once again speak
of strong support for Judge Janet Neff, as well as, as Senator
Levin said, for the other two nominees for the Western
District. All three of the nominees are supported by both of
us, and we are very pleased that they were reported unanimously
last year from the committee.
This is, in fact, as you know, the second hearing for Judge
Neff. I wonder if I might as well, seeing Judge Neff and her
family here, just take a moment and give her the opportunity to
introduce her family, who I know she is very proud of as well.
Senator Whitehouse. Please. We would be delighted for that
to happen.
Judge Neff. Thank you, Senator. This is my husband of 35
years, David Neff, and our daughter, Genevieve Dorment, who has
just finished her second year of law school at Fordham
University in New York City.
Senator Whitehouse. Well, congratulations, and welcome to
the Committee on this happy occasion.
Senator Stabenow. In addition to all of the qualifications
that Senator Levin has spoken about and I have been pleased to
join in speaking about at the first hearing, Mr. Chairman, I
want to stress today that it is very important that the
Committee move quickly to confirm Judge Neff, as well as the
other two nominees. Currently, the Western District has only
one full-time judge hearing cases and the Judicial Conference
has declared it a judicial emergency.
Even when the bench is full, this district represents
logistical challenges because it covers communities all over
Michigan, from the upper peninsula, if you are familiar with
Michigan, all the way down to Benton Harbor and St. Joseph.
So, it is a very large area and it is extremely challenging
right now, which is the reason we have been working hard with
the White House, together, to get these vacancies filled.
However, I am very pleased that her confirmation process is
continuing and I hope that she will be confirmed before the
Memorial Day recess, again, along with the other two pending
nominations for the U.S. District Court for the Western
District of Michigan.
These nominees all bring very distinguished legal careers
to the Federal bench. Judge Neff has served as a judge on the
Court of Appeals for the Third District of Michigan for almost
17 years. I cannot stress enough, Mr. Chairman, how much she is
respected, not only for her legal mind, her balance and
objectivity, but for her personal integrity.
In addition to her distinguished career on the bench, Judge
Neff has been an active leader in Grand Rapids, Michigan,
including serving as the first woman president of the Grand
Rapids Bar Association.
So, I commend her to you and ask that the Committee move as
quickly as possible to allow us to fill all three vacancies in
the Western District.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Stabenow.
I have a statement from Chairman Leahy that I will add to
the record. He has asked me to add it to the record of this
proceeding.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Whitehouse. If there is no further business, we
will proceed to the nominees. Thank you, Senator Levin and
Senator Stabenow.
Senator Levin. Thank you.
Senator Whitehouse. May I call Judge Leslie Southwick
forward to be sworn, please?
[Whereupon, the witness was duly sworn.]
Senator Whitehouse. Please be seated.
Judge Southwick. Thank you.
Senator Whitehouse. Do you have a statement or opening
remarks you would care to present to us?
Judge Southwick. I have a very important opening statement.
Senator Whitehouse. Please.
STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT
Judge Southwick. Which is to introduce my wife, who has
joined me for this hearing today, Sharon Southwick. Would you
mind standing? Sharon and I have two children. Our son,
Phillip, who is married, his wife, Mary, living in Austin. Our
daughter Cathy is grown as well, living in Houston. They could
not join us today, but I think in spirit they are here as well.
Thank you, Mr. Chairman.
[The biographical information of Judge Southwick follows:]
[GRAPHIC] [TIFF OMITTED] T7449.001
[GRAPHIC] [TIFF OMITTED] T7449.002
[GRAPHIC] [TIFF OMITTED] T7449.003
[GRAPHIC] [TIFF OMITTED] T7449.004
[GRAPHIC] [TIFF OMITTED] T7449.005
[GRAPHIC] [TIFF OMITTED] T7449.006
[GRAPHIC] [TIFF OMITTED] T7449.007
[GRAPHIC] [TIFF OMITTED] T7449.008
[GRAPHIC] [TIFF OMITTED] T7449.009
[GRAPHIC] [TIFF OMITTED] T7449.010
[GRAPHIC] [TIFF OMITTED] T7449.011
[GRAPHIC] [TIFF OMITTED] T7449.012
[GRAPHIC] [TIFF OMITTED] T7449.013
[GRAPHIC] [TIFF OMITTED] T7449.014
[GRAPHIC] [TIFF OMITTED] T7449.015
[GRAPHIC] [TIFF OMITTED] T7449.016
[GRAPHIC] [TIFF OMITTED] T7449.017
[GRAPHIC] [TIFF OMITTED] T7449.018
[GRAPHIC] [TIFF OMITTED] T7449.019
[GRAPHIC] [TIFF OMITTED] T7449.020
[GRAPHIC] [TIFF OMITTED] T7449.021
[GRAPHIC] [TIFF OMITTED] T7449.022
[GRAPHIC] [TIFF OMITTED] T7449.023
[GRAPHIC] [TIFF OMITTED] T7449.024
[GRAPHIC] [TIFF OMITTED] T7449.025
[GRAPHIC] [TIFF OMITTED] T7449.026
[GRAPHIC] [TIFF OMITTED] T7449.027
[GRAPHIC] [TIFF OMITTED] T7449.028
[GRAPHIC] [TIFF OMITTED] T7449.029
[GRAPHIC] [TIFF OMITTED] T7449.030
[GRAPHIC] [TIFF OMITTED] T7449.031
[GRAPHIC] [TIFF OMITTED] T7449.032
[GRAPHIC] [TIFF OMITTED] T7449.033
[GRAPHIC] [TIFF OMITTED] T7449.034
[GRAPHIC] [TIFF OMITTED] T7449.035
Judge Southwick. I will ask for clarification. You are
chairing today. Should I refer to you in that way?
Senator Whitehouse. You know, this is my first go at it, so
I'm not entirely sure. But let's give it a try.
Judge Southwick. I certainly shall.
Senator Whitehouse. Very good. Well, you come to us with
some impressive qualifications: as the Deputy Assistant
Attorney General of the United States, as a member of the
Mississippi Court of Appeals, and as an individual who has been
unanimously ranked as ``Well Qualified'' by the American Bar
Association. So, I congratulate you on the career that has
brought you to this point.
If I may proceed with a few questions. In this building we
spend quite a lot of time thinking about the political dynamics
of the country. As I indicated in my opening statement, I'm a
deep believer in the phrase that James Bryce used in his
wonderful book about our country, The American Commonwealth, in
which he pointed out that the particularly passionate fights of
the day are, in many cases, transferred to what he described as
the ``cool, dry atmosphere of judicial determination.'' It is a
vital part of our country's political structure that
determinations, particularly where passions run high, continue
to be made in that cool, dry atmosphere.
We are, of course, involved in many, many discussions about
how the separation of powers principle plays itself out,
concerns about the unitary executive and the effects, if any,
of signing statements on laws.
I would like to hear your views on the role of separation
of powers in our country's political structure, the importance
of it, the judiciary's role in it, and how you would make
decisions as a judge on the Circuit Court of Appeals.
Judge Southwick. Certainly. Mr. Chairman, I am interested
in separation of powers in the need of judges to stay within
their ``lane''--maybe that is a military term--within their
role. The three branches of government--I am not telling
anything new here--each are assigned a State level. I was
assigned, and if fortunate enough to be on the Fifth Circuit,
would be assigned, a limited role.
I am concerned about staying within the boundaries assigned
to me on the State Court of Appeals. I was conscious of that,
dealt with issues dealing with the proper role of the
legislature--Congress, here, certainly--what is their
obligation, what is their area of responsibility, to what
extent do their statutes control what we are doing, to what
extent is the independent judicial function involved?
So, I believe separation of powers if vital. It's part of
how this country is structured, how this country's government
has been organized. That premise applies at the State level,
and I've tried to apply it, and certainly will be conscious of
it if fortunate enough to serve on the Fifth Circuit.
Senator Whitehouse. There has been some controversy about a
decision that you did not author, but signed onto, both in the
main opinion and the concurring opinion, S.B. v. L.W. that
involved a woman who was gay and who was seeking custody of her
daughter. Because that has been a matter of some controversy, I
looked at the decision myself.
The thing that struck me about it, was that it used a
particular phrase. It used the phrase: ``homosexual
lifestyle''. For those engaged in political debate, my
experience is that that particular phrase--it's not exactly at
the level of fighting words, but it's a defining term in the
political combat of the debate over the rights of gay people in
America. It is a term that is highly associated with a
particular point of view that is not particularly favorable to
gay rights.
It would be, in my estimation, a little bit like, if for
some reason the question of the Iraq conflict came up and a
judge were deciding a matter related to it and used the phrase
``cut-and-run'', which has become a charged political piece of
terminology.
Again, I know you did not write those opinions, but in the
context of a country in which everybody is entitled to equal
justice before the law, how do you feel about the use of a term
like that that is charged on one side of the debate?
A gay person coming before a judge who uses that term on a
regular basis to describe their sexual orientation would, I
think, reasonably conclude that the judge had pretty strong
opinions on that subject that were adverse to that individual,
and it seems like it is unnecessary terminology to use, not
really judicial terminology.
I am interested, going forward. Again, you did not write
that opinion, but I would ask you to react to those thoughts
because I think it is important that we all understand that you
are a person who will give everybody a completely fair shake
and see things right down the middle, particularly in this
country of ours where we encourage people of all different
persuasions to be active in our political and civic life.
Judge Southwick. Thank you, Senator. That is an important
question and I appreciate your pointing out several times, I
was not the author. Obviously, I did join the opinion.
As you discussed, that opinion dealt with child custody.
The trial court had decided that the father, as opposed to the
mother, was entitled to custody. Among the factors that are
required to be considered under Mississippi controlling
precedent is the moral--morality--moral issues that may arise
as to both parents.
And at that time, 2001, I believe is the date of the
opinion, Bowers v. Hardwick was still the law of the land. I
think it was cited, at least in the concurrence, perhaps in the
majority opinion. Lawrence v. Texas, 4 years ago, perhaps.
Both the concurring opinion and the majority discussed case
law and the concurring opinion statutes that state the policy--
public policy in Mississippi at that time regarding
homosexuality. That was relevant to the decisionmaking on
whether the trial judge had abused his discretion in deciding
which parent ought to get custody of that child.
You have asked more generally, sir, about the need to treat
all people that come before the court with respect. I'm
paraphrasing, but I take that to be what you've asked.
Senator Whitehouse. A fair paraphrase.
Judge Southwick. Thank you. And I feel that's vital.
Senator Lott was kind enough to mention an award that I
received 3 years ago from the State Bar as the person who
received the ``Judicial Excellence'' award that year.
One of the reasons that was said, of course, I was a judge,
and things are said about judges by lawyers that maybe have to
be taken with a grain of salt but I hope they meant this, that
among the reasons I was commended that year was for the sense
that I was fair to all who came before me, in oral arguments,
in the writing of my opinions.
And that's what I tell my clerks, that's what I tell my
staff. Whatever we do with a case, however we write it, we
treat each person, a criminal defendant, maybe one of the least
appealing--not trying--it depends on the defendant--but the
least disfavored that comes before us. Treat those people with
respect, all the participants in the case.
So I would not have used that phrase. I did join it. I
thought her opinion--Judge Payne--both the concurring opinion--
it was useful that she added the legislature's view on the
issue. The majority had just talked about what courts had said
about the issue. But in 2001, before Lawrence v. Texas, that
was the law of Mississippi. Where it is today would have to be
decided today.
Senator Whitehouse. Senator Hatch?
Senator Hatch. Well, thank you.
Judge, is your microphone on?
Judge Southwick. Well, if you tell me it's not, I bet
you're right.
Senator Hatch. No, I think it is.
Judge Southwick. Maybe I'm not speaking loudly enough.
Senator Hatch. I think it is. I just wanted to double
check.
Well, first, let me thank you for your service to our
country and to your community. You took a military leave of
absence from your service on the Mississippi Court of Appeals
to serve in Iraq as a Judge Advocate for the 155th Brigade
combat team of the Mississippi National Guard, and you
volunteered for Habitat for Humanity, a fine organization,
doing the Lord's work for nearly 15 years, and I want to thank
you for that service as well.
Now, Judge, it's my understanding, in nearly a dozen years
on the Mississippi Court of Appeals, that you participated in
more than 7,000 cases. Is that correct?
Judge Southwick. That is an estimate I made, sir. I did not
go back to the court to see exactly.
Senator Hatch. Approximately.
Judge Southwick. But approximately.
Senator Hatch. And you authored upwards of approximately
1,000 opinions.
Judge Southwick. Total, including my separate opinions.
Probably for the court, an average of 80 a year, 800. I was off
the court for a year and a half, so--I can't do the math too
well in my head, but using 10 years, about 800, 850 opinions
for the court.
Senator Hatch. Well, the American Bar Association, which
does the most exhaustive examination of judicial nominees,
their record and their temperament, looked at everything and
unanimously concluded that you deserved the highest rating of
``Well Qualified'', and it was unanimous.
The ABA says that this conclusion means that you have
qualities such as, and I'm quoting here from their published
criteria, ``compassion, open-mindedness, freedom from bias, and
commitment to equal justice under law.''
Now, no one has ever, to my knowledge, accused the ABA of
having a conservative bias. So when the most exhaustive
evaluation of your record shows that you are open-minded, free
from bias, and committed to equal justice, I am baffled by some
of the more far-left groups who look at just a few cases and
consider only the result of those few cases, and then pronounce
that you are controversial and your record is troubling, or
that you favor certain interests over others.
Now, that conclusion, in my opinion, has no credibility
because the approach leading to that conclusion is
illegitimate. You've had a dozen years of experience as a
member of the Court of Appeals, as an appeals court judge.
Did you decide cases based on the identity of the parties
or the political interests at stake, or did you apply the law
to the facts, no matter which side would come out the winner?
Judge Southwick. Senator, I did my best to treat each case
impartially without regard for the characteristics that you
stated.
Senator Hatch. Now, Senator Whitehouse brought up the
particular case of S.B. v. L.W., which was a domestic relations
case, as I recall.
Judge Southwick. Child custody, domestic relations.
Senator Hatch. OK. Now, your court decided that the trial
judge was not manifestly wrong to award custody based on the
factors outlined by the Mississippi Supreme Court, including a
sexual relationship outside of marriage.
Now, you joined a concurrence which further discussed the
public policy in the area, as reflected in State legislation at
the time. And certain political groups might not like the
result in the case, but they suggest that judges should
disregard the law and decide cases so that certain parties or
certain political interests prevail or win. Now, as I
understand it, this issue of homosexuality was only one of the
issues in deciding this case.
Judge Southwick. Yes, Senator. I believe there were 5
factors, as I recall, in the trial judge's opinion, 5 out of
the 10 that ought to be applied, that the trial judge
determined/weighed in favor of the father getting custody. The
moral issue was one of them, which was the rule in Mississippi
at that time, and remains, that the morality of each party
should be considered.
Senator Hatch. To which you were bound.
Judge Southwick. Say again, sir?
Senator Hatch. To which you were bound.
Judge Southwick. I was bound. I was bound. And I think to
some extent what Senator Whitehouse was saying on separation of
powers, the legislature had spoken to this as well and that was
the policy they had announced, on adoption, on marriage, and
the criminal statute, as was mentioned.
Senator Hatch. Do you have any prejudice against gay
people?
Judge Southwick. I do not, sir.
Senator Hatch. Some of your critics looked at just two of
your decisions and decided that you, in their words, ``may lack
the commitment to social justice progress to which Americans
are entitled from those seeking a lifetime appointment to the
Federal bench.''
Is that how you see your role as an Appeals Court judge?
Are you there to bring about social justice, or social justice
progress, or are you there to decide cases based on the law?
Judge Southwick. I am there to provide justice, as measured
by a reasonable interpretation and depth, hardworking gathering
of the facts on the record, applying it fairly to the law that
applies in that particular area.
That, I think, is the definition of justice for an
appellate judge, is to understand the facts, work hard to
understand the law--understanding both, work hard at that, and
come up with your conclusion that results from that. That's--
the symbolism is sort of mixed about ``Blind Justice'' holding
the scales with a blindfold on.
But I think, for this purpose, that is correct, that who is
before you, the outcome does not drive the analysis, the
analysis of the facts and the law leads to an outcome.
Senator Hatch. OK.
Now, let me ask you about another case, Richmond v.
Mississippi Department of Human Services. This is one of the
two cases that have been used by some of the groups to say that
all of your experience, all of your high rating by the ABA and
high acclaim from almost everybody who knows you is irrelevant.
In this case, a social worker was fired for using a racial
slur at a work-related conference. Now, you joined the majority
of the State Appeals Court, which upheld the State Employee
Appeals Court decision that she was wrongfully terminated.
Now, I have two questions about this case. Let me ask the
first one. First, what was the role of your court, the Court of
Appeals, in this case? In other words, what standard of review
did you have to apply?
Judge Southwick. OK. To explain that role I think I need to
explain the role of the agency you just mentioned. The
Department of Human Services, I believe, was her employer,
determined that she needed to be terminated.
Senator Hatch. Let me ask that part of the question, too,
and that will be my second point.
Judge Southwick. Oh.
Senator Hatch. Even though the Mississippi Supreme Court
reversed for another reason, didn't the court agree with you
that this employee was wrongfully terminated?
Judge Southwick. Correct. Both courts, applying the
standard of review of an administrative agency, which is to
look for substantial evidence to support the decision reached
by that agency to see if they were arbitrary and capricious,
there are also constitutional and statutory violation review
standards that did not apply here.
The Employee Appeals Board looked at this issue and they
are to determine--to make consistent the employment decisions
made throughout Mississippi government agencies. And they
looked at what was determined at this particular employing
agency and decided there was not enough to terminate the
employee for that.
There were factors that they looked at, evidence that they
relied on regarding the effect of that slur, the mind-set,
whatever. But the Employee Appeals Board had that role. Our
role on the Appellate Court was to decide, was that within--was
there evidence to support that--was it arbitrary and
capricious? The court I was on, the majority said we could
sustain that decision.
The Supreme Court said, yes, the decision not to
terminate--overturning the decision to terminate could be
sustained, but we remanded it to the agency for further review
to see if an intermediate punishment of some sort would be
appropriate.
They did not think they applied the standards that the
Employee Appeals Board--statutory standards--were supposed to
apply quite correctly and wanted further findings before they
would sustain not giving any punishment at all, is my
understanding now of what the Supreme Court did.
Senator Hatch. OK.
Now, some far-left groups have criticized you in the case
that we just discussed because the State Supreme Court reversed
it, and then they turn around and they attack you for another
case, Dubard v. Biloxi, in which the State Supreme Court agreed
with you. Once again, I think an illegitimate approach leads to
the wrong conclusion.
In the Dubard case, you dissented from your court's
decision to allow an employment suit to go forward, even though
the employment relationship is what we call ``at will''. What
was the basis for your dissent, and is it true that the
Mississippi Supreme Court unanimously reversed and vindicated
your legal conclusion?
Judge Southwick. So I don't forget, I will answer that last
part. Yes, they did unanimously reverse. Employment at will has
been the doctrine in Mississippi for non-contract, non-union,
no other governing principle employment in Mississippi for over
100 years.
Under employment at will, there is a right to leave a job
at any time, which is less significant for the employee, and a
right for an employer to fire at any time. It is said to be a
balance; whether it is or not, that is the policy behind it, as
I understand it.
This individual was terminated after being given a job
offer. The job offer was withdrawn before the person started.
The court was relatively new at the time. 1999, I believe, is
the date of that opinion. The majority in the court, I thought,
had taken a position totally contrary to many years of settled
jurisprudence about how employment at will worked.
I wrote a dissent and tried to explain it, as how
employment at will worked. I have been wrong at times and they
have had to explain to me. This time, the Supreme Court agreed
with me, which was nice. I will admit here, they have not
always agreed with me. It could be, when they reversed me, they
were incorrect. It could also, unfortunately, be that when they
affirmed me, they were incorrect. So, I never know what to make
of that.
But, nonetheless, the Supreme Court did agree that
employment at will did not acknowledge any cause of action for
this plaintiff, so I was applying what I thought was
established law.
One thing I would say about the Dubard opinion, though. As
part of my analysis after describing the balance and
acknowledging the balance of the right of employee and the
right of employer may not exactly be equal, I then said that
this was reasonable, or may have even said that this was the
best approach for the usual non-contract, non-union kind of
situation.
That was stating a policy position which, in hindsight at
years later, I probably should not have done. Policy should not
be put into an opinion. Personal opinion should not be put into
an opinion.
But, nonetheless, I was vindicated, to use your word, I
believe, sir, by the Supreme Court unanimously in a fairly
short opinion. There really--that time I was right. There
really wasn't much, I think, to dispute what my dissent said,
but I may have added a sentence that I now wish I had not.
Senator Hatch. Well, thanks, Mr. Chairman. My time is up.
Senator Whitehouse. Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
And welcome, Judge Southwick.
Judge Southwick. Thank you.
Senator Feingold. What, in your view, does joining a
concurrence or dissent written by another judge signify?
Judge Southwick. If I may, I don't want to pull my answer,
but if I could explain, because it will elaborate on how I
answer. Our court is the only appeals court in the State. The
court I was on. I'm not saying I'm still on it. I left December
31st.
All cases, appeals from trial courts, initially go to the
Supreme Court, and they decide which cases to keep and which to
send to the State Court of Appeals. The term of art is
``deflective''. We're a 10-judge court, but we hear cases
initially as 3-judge panels. Those are the only judges that get
all the briefs, those are the only judges that get the record.
Once the three-judge panel makes a decision, unanimous or
otherwise, those opinions, or opinion, go to the full court. So
I will say there's a distinction in answering your question
whether I'm on the original panel or whether I'm on the full
court, because I will have a lot more information if I was on
the original panel.
Senator Feingold. But you have the option of writing your
own dissent or concurrence if you don't agree with the
reasoning or the language used by the judge who's writing the
opinion for the court, isn't that correct?
Judge Southwick. If I'm one of the seven judges who was not
on the panel, I am entitled to write a separate opinion when it
goes to the full court, just as I would be if I were on the
original panel and a majority of the panel, two other judges,
didn't agree with my position.
If I join in the opinion, it at least means I agree with
the outcome. If I join in the opinion I may have worked with
the writing judge to alter language, and I often do, to get
back to Chairman Whitehouse's case he was talking about earlier
and the language in the child custody case.
Would language like that or language I found was
inappropriate--would I go to a judge and talk to him about it?
I should. Often I would. I don't recall that phrase right now
from when it circulated in 2001 and what my initial reaction to
it was.
Senator Feingold. But as a general matter, obviously--
Judge Southwick. But as a general matter--
Senator Feingold.--you have the option to write your own
concurring opinion if you don't agree with the language or the
reasoning of the majority opinion. Is that correct?
Judge Southwick. Absolutely.
Senator Feingold. All right.
Let me ask you a bit about this same case that Senator
Hatch was talking about, the Richmond case. One thing I'm
troubled by, is that your court accepted, pretty much without
comment, the conclusion of the hearing officer in the Employee
Appeals Board that the employee's use of the racially offense
term was, in the court's words, ``not motivated by racial
hatred or animosity''. But the dissent gives a much more
complete rendition of what the hearing officer said, and it's
very troubling.
The hearing officer said, for example, that the offensive
term ``is somewhat derogatory, but the term has not been used
in recent years in the conversation that it was used in my
youth, and at that point at that time it was a derogatory
remark. I think that in this context, I just don't find it was
racial discrimination.'' Now, to me, that's a pretty shocking
bit of analysis.
And I just wonder--and I know you were trying to address
this a minute ago and I want to get back to it. I just wonder
whether it crossed your mind, as an appellate judge, that the
judgment of this particular trier of fact might not be the best
to rely on.
Judge Southwick. I do not--and I don't think you're asking
me this. I cannot recall exactly what went through my mind at
that time, but looking at it now, as you ask me about it now,
it would seem to me that we are always looking at whether the
analysis done by whoever the fact finder is we are entitled or
obligated to give deference to, whether it is arbitrary or
capricious, if it's an administrative agency.
That particular analysis that you read does not sound
convincing to me as the best way to explain why this would not
have had an adverse impact on the workplace, or whatever the
other issues were for the Employee Appeal Board.
You started this as kind of a lead-in to it, whether--what
would drive me to write a separate opinion? Not being satisfied
with the analysis of the majority in a significant way, and I
could not get the writing judge to shift enough to agree, might
cause me to write a separate opinion. It did not in this case,
and that particular analysis that the dissent focused more on,
or that language, didn't cause me to write either, obviously.
But that's part of it.
To me, that case was about the review standard and the
deference that is given to administrative agencies. It was a
tough case. Let me assure you and this committee, since it's
maybe a question, that everyone took that case very seriously.
I think, obviously, the employing agency did because they
terminated her. The Employee Appeal Board, at least,
acknowledged the significant unacceptability of that phrase.
The hearing officer may not have looked at it the way you
and I would prefer that it had of been phrased, but I think the
issue in that case is, was the agency that made the decision
that she should not have been terminated for this word within
its range of discretion in doing that?
That is the agency that the legislature gave the authority
to make these decisions, subject to review on the arbitrary and
capricious substantial evidence standard. Based on that, I
thought the majority opinion had said enough.
Senator Feingold. Thank you for those answers.
Now on the custody case that we're talking about, the
concurrence that you joined in also states, ``I do recognize
that any adult may choose any activity in which to engage,
however, I also am aware that such person is not thereby
relieved of the consequences of his or her choices. It is a
basic tenet that an individual's exercise of freedom will not
also provide an escape of the consequences flowing from the
free exercise of such a choice.''
Do you think that a person's sexual orientation is a
choice?
Judge Southwick. I think that is an issue of debate. I
don't want to take a position as to what the best indication of
science is. I know that is a highly controversial point, that
it is solely a matter of choice. But I think what she said,
Judge Payne, in her opinion, and I'm trying to recall exactly
what you read, and I've read it recently, that it may have been
taking--starting the relationship with this other woman was the
choice, but I could be correct--incorrect. The woman moving in.
But in the context of 2001, is all I want to return to.
When that opinion was written, the law in the State of
Mississippi that I was obligated to apply, and the rest of us
on the court was as well, that that was a legitimate factor for
a chancellor, who makes decisions like this, the trial judge on
custody, to consider. It was not an abuse of his discretion, I
decided, for him to have considered that.
Senator Feingold. Do you believe that one of the
consequences of having a same-sex relationship should be to
risk losing custody of your own child?
Judge Southwick. I think, if the law I'm supposed to apply
says that, then my hands are tied. If you're talking to me
generally as a policy matter, I don't think that's my realm.
But I will say--and you know this, and I've said this
already--the legal landscape in 2001 was Bowers v. Hardwick,
which says there was no privacy interest, liberty interest in
even private homosexual relations. In 2003, there became such a
recognized right and that changes the analysis, at least, and
may well change the outcome.
Senator Feingold. Well, why then did you believe it was
necessary to join the concurrence, which I think you'll admit
takes a much harsher stand on the question of the mother's gay
relationship than even the majority opinion does. Because you
were explaining that you were applying the law, but, you know,
you have a choice about what reasoning you go along with here.
Judge Southwick. I joined the concurring opinion because it
added something about policy from the legislature. The first
part of her opinion, Judge Payne's opinion, is talking about
three different statutes which showed the legislature itself
quite recently, the Mississippi legislature, had taken the
position consistent with what we were talking about, again, not
recognizing the change in law that would be coming.
All the majority talked about, if I recall correctly, were
Supreme Court precedents. And I thought the fact that the
policy, which really needs to be set by the legislative branch,
had mirrored, was consistent with what the Supreme Court
authority had meant as well.
Senator Feingold. Do you believe that gay, lesbian,
bisexual, and transgendered Americans are entitled to equal
protection of the laws?
Judge Southwick. Well, I think everyone is entitled to be
treated fairly. If you are talking about, as a fundamental
right, I think the law is evolving as to where the fundamental
rights regarding gay relationship exist. And I will apply the
law rationally, reasonably, and the fairest reasoning and
reading that I can make of the precedents that control.
Senator Feingold. But isn't it the case that all Americans,
regardless of this issue, are entitled to equal protection of
the law?
Judge Southwick. I'm sorry. I cut you off. All people--
Senator Feingold. Isn't it the case that all people, all
Americans are entitled to equal protection of the law, that
it's not just a question of fairness, but they're specifically
entitled to equal protection?
Judge Southwick. All people are entitled to equal
protection. I was just trying to make the point that what the
level of this protection is, the level of scrutiny on various
kinds of limitations that might be imposed, has not yet been
fully explained.
Senator Feingold. Judge, do you stand by the majority
opinion you joined in Richmond and the concurrence you joined
in S.R. v. L.W.?
Judge Southwick. Stand by them. I believe the Richmond
opinion was correct. I didn't write it. I joined the
concurrence. I believe, whatever the reasons were that I joined
at the time, that it did add, at least in talking about the
statutes, very important additional policy considerations,
which is that the legislature has spoken. If you say I'm
endorsing everything in an opinion that I did not write every
word, every phrase, I do not.
Senator Feingold. You're not disassociating yourself from
either opinion?
Judge Southwick. I agreed with them at the time. I agree
with the outcome at that time as being correct. But all I'm
saying is, I didn't write them. The precise language is not
necessarily what I would have chosen. I would have to--I
haven't gone through my mind of how I would have written such a
thing.
Senator Feingold. Well, I appreciate it.
There's certainly nothing the judge has said that suggests
that he's separating himself from his agreement with those
opinions at this point. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Coburn?
Senator Coburn. Just a short followup from Senator
Feingold. If I'm a homosexual male and I'm in front of your
court, will I have the same access to your court as anybody
else?
Judge Southwick. Absolutely.
Senator Coburn. Will I have the same treatment as anyone
else?
Judge Southwick. You will.
Senator Coburn. Will the law apply to me equally, as it
does to anyone else?
Judge Southwick. It will.
Senator Coburn. Thank you. I have no other questions.
Senator Whitehouse. Senator Kennedy?
Senator Kennedy. Thank you. Thank you, Mr. Chairman. I
regret I was not here earlier for the presentation.
I congratulate you on the nomination. The Fifth Circuit, as
you know, has played an extraordinary role in the history of
this country. I was fortunate to be here at the times where
some of the great giants of the judicial system were really
awakening the conscience of the Nation with regards to issues
on race. They had a very, very powerful impact in terms of the
Nation itself and development of various legislation.
We were always mindful that there's a large minority
population that this Fifth Circuit deals with, and issues of
fairness, protection of equal rights, and civil rights are
obviously matters of enormous importance. They are important in
any place, but obviously with the make-up of the particular
population, has additional kinds of relevancy, I think, with
regards to those who are going to serve on the court.
And I know you responded to Senator Feingold with regard to
the Richmond case. I listened to his questioning you about your
view, still, which you have signed on for that opinion, and I
listened carefully to your answer.
I was just wondering why you would not say, well, certainly
in retrospect, I wish I'd had a separate opinion, I wish I'd
wrote a separate opinion on this, because even in retrospect,
having listened to the dialog, the concerns--maybe you missed
that in the first part, although it's very difficult to
understand, particularly when that word is used, that people--
the degree of offensiveness and the degree that they are
concerned, or worried, or upset, and trying to measure that is
fairly obviously obnoxious word under any kind of set of
circumstances.
But I was just listening to the response to Senator
Feingold when asked if you still would have signed on to that
part, and you're telling us here today that you would have. Not
that you ought to change just because you are here before the
committee, but I think many of us would say, well, given all of
the kinds of concern about this--all of us alter and change our
positions, you know. When we're asked about it, to try and
sound noble, we quote Lincoln, you know. But, you know, there
are important changes in life and people do change their mind
and people learn. I mean, this is a terrific process.
But it is troublesome, when you're asked about whether now,
given all of the kinds of considerations on this, whether you
wouldn't have said, look, I did it at the time, but, you know,
knowing what I know now, I wish I had written a separate
opinion on that part.
Judge Southwick. Well, Lincoln has too many things to
quote, Senator. But one that strikes me right now is, ``Don't
change horses in midstream.'' I think when I got on the
majority opinion horse I relied that--I looked at it very hard.
The person--the judge who wrote it was an extraordinarily able
judge. I think the opinion is carefully written and it's
written to give deference to the agency that's supposed to make
the decisions about the kinds of things you're talking about,
Senator.
What is the proper reaction to something that's totally
inappropriate as this in the workplace? That's certainly to
take every step to make the employee realize that that is
unacceptable, cannot be done. But where to go from there? You
have an employee who made a mistake, a serious mistake. What
does the agency need to do about it? The Employee Appeals Board
made its decision, and we, at the appellate level, were
applying our review standard to that.
If you're saying, in light of all of the criticism today do
I wish I had written a separate opinion or whatever else, I
just can't go back on the analysis that I did there. If I had
the same case in front of me in the future, should I be
fortunate enough to be a judge to have a case like that, I
would certainly evaluate.
I mean, the important thing for all of us is constantly to
be aware of how what we do as judges affects people. I have
tried to do that, and every day is a learning experience, I
hate to admit, of new things that I need to take into
consideration.
So in the future, in a case like that I would certainly
consider what has happened, if I'm in a position to make
decisions in the future.
Senator Kennedy. Well, I appreciate it. Lincoln, of
course--``Ralph Waldo Emerson'' said ``consistency is the
hobgoblin of little minds'' as well, so we can go around. But
the real issue on this thing is, that word, whether there's any
way that anybody can understand it in any other kind of
framework, that it was derogatory and always offensive.
Let me go to the issues on consumer and workers' rights,
the protecting of workers that you had on--I think you're
familiar with the Canon MidSouth X-Ray Company. You're familiar
with that case. You had an individual who was--some of your
decisions--just in looking through the workers' rights case,
some of your decisions seem to bend over backward in favor of
the larger corporation at the expense of individual Americans.
The dissent in the Canon case denied the claims of a
darkroom technician who became ill, suffered severe seizures,
headaches, nausea, being forced to handle toxic chemicals at
work without proper safety precautions.
The employer had ordered her supervisor not to tell her
that the darkrooms were dangerous, not to take any safety
precautions. After many years, she finally found a doctor who
diagnosed her illness as caused by toxic chemicals at her job.
Seven of your colleagues on the court ruled that she was
entitled to a trial to hold the company accountable for the
damage to her health, but you have denied the claim, arguing
the statute of limitations had run out. She should have figured
it out on her own, even before the doctor made the diagnosis
that her illness was related to her work.
The majority opinion stated that she lacked any specialized
training and was, just by all accounts, a darkroom technician
who cannot reasonably be expected to diagnose a disease on
which the scientific community has yet to reach an agreement.
Why did you think it was reasonable to require her to figure
out that her illness was work-related?
Judge Southwick. Senator, I don't think I was deciding
that. It was my interpretation, from controlling case law and
the general statute of limitations in Mississippi that we were
applying, that that had already been decided.
There were two statutes of limitation that were being
discussed, and we all agreed on which one applied. This was not
medical malpractice. It was not in any of the other specific
areas of claims where different statute of limitations would
apply, so it was the general 3-year statute of limitations, 6-
year at one point. I don't remember now where in the change of
that statute this particular case arose.
And the statute simply said that, within 6 years--or 3
years--of the injury the claim had to be brought, and there was
case law as to what that meant. I talked about a medical
malpractice statute of limitation as a comparison.
Under that statute, the cause of the injury--I don't think
that's the phrase of the statute, but the causation--must be
known, or reasonably known, before the statute of limitations
begin.
When this came up--when this issue came up in the last few
days, a colleague of mine looked at the developments of the law
since this case. In 2005, when I was gone, the State Court of
Appeals, the best I can tell, agreed with my interpretation
without signing it, that that is the way the statute of
limitations is to be interpreted, and the Supreme Court, in
February, just a few months ago, agreed on the basic point that
it's the knowledge of the injury and not the knowledge of the
causation.
Now, sir, I agree with you 100 percent that that is a very
harsh case for a lot of plaintiffs, and what they need to do
and how all that works is a difficult matter for them to figure
out.
But my duty as a Court of Appeals judge is to apply the
statutes passed by the legislative bodies, to apply them and to
apply the interpretations that controlling legal authority
does--has come up with. And that will lead to harsh results.
And I--it's not my purpose in being an appellate judge to lead
to harsh results, but if that's where the legal analysis takes
me, I feel obligated to go there.
Senator Kennedy. Well, it seems that your view would give
the company a free ride on this, even though it tried to hide
the truth from the victim. You had concerns that we have--in
private practice, you had a large portion of your work
involving defending oil and gas companies, so we've got to try
and find out whether that's your practice on it. Let me ask you
about--oh. Is my time up?
Senator Whitehouse. We'll probably have a second round.
Senator Kennedy. OK. All right. Fine. I thank you. I
apologize.
Senator Whitehouse. Senator Durbin?
Senator Durbin. Judge Southwick, thank you for joining us
today.
I think it is very clear that the context of your
nomination is a big part of our deliberation, and I think you
must understand that from some of the questions that have been
asked of you. It is my understanding that President Bush has
submitted 10 nominees for the Federal bench in Mississippi, 7
at the District level, 3 at the Fifth Circuit, and not one has
been an African-American.
Mississippi being a State with more than a third of the
population African-American, you can understand why the
African-American population feels that this is a recurring
pattern which does not indicate an effort to find balance on
the court when it comes to racial composition, or even to give
African-Americans a chance in this situation.
But having said that, I believe you have the right to be
judged on your own merits in terms of your own nomination, and
I'd like to ask you a couple of questions, if I can.
Now that we're going through this whole inquiry about the
dismissal of U.S. Attorneys, we are finding that there's been
an involvement of the White House in a lot of decisionmaking at
the Department of Justice. One of the things that seems to be
recurring is this theme that membership in the Federalist
Society is a good box to check if you want to be viewed
favorably by the Bush administration.
You were a member of the Federalist Society and wrote
articles for the Federalist Society. Could you describe to me
why you joined the organization and what you think it
represents?
Judge Southwick. I may be forgetting, Senator. I think I
wrote one article. But you're absolutely right, I did write
something for one of their newsletters on judicial elections
and the First Amendment.
I joined when I was here in the Department of Justice in
1989 to 1993. I don't remember when, exactly. The meetings were
convenient. The Assistant Attorney General, who was in charge
of the division I was in--I was a Deputy Assistant--a Deputy
Assistant--went to them.
I found them intellectually challenging. Some very
impressive intellects were there, talking about issues that, in
my practice in Mississippi, had not been particularly front
burner.
And I saw it as a--not to be too obvious--a conservative
legal organization trying to provide its members, similar-
thinking individuals, an opportunity to work on ideas and work
on different policy, and different ways to implement that
policy.
Senator Durbin. Was this considered a good professional
move for a young Republican attorney to be part of the
Federalist Society, to have that on the resume?
Judge Southwick. It probably was. I'm not saying that that
would have been one of the factors that I would have
considered, but I'm not saying that that's--that I didn't have
some interest in finding out what it was about. And so it
wasn't just to be pleasant and supportive to my friend, Stewart
Gerson, who was Assistant Attorney General. He invited me. It
was interesting, and I went to it.
Senator Durbin. About 8 years you were a member, is that
correct?
Judge Southwick. I really have not checked. I guess I could
ask the Federalist Society when I got out. But I stayed. There
really was an organization for a while in Mississippi. I
remember going to a talk occasionally. I wasn't nearly as
active, with all due respect for those who were running it, in
Mississippi as I was up here.
Senator Durbin. I do not want to paint a sinister picture
of the Federalist Society, but it is an amazing coincidence
that so many nominees have that in their background.
In the history of civil rights in the South, which I'm sure
you're more aware of than I am, there have been some
interesting heroes, and one of them was Judge Frank Johnson in
Alabama.
Congressman John Lewis credits Judge Johnson and his
courage with allowing the Selma march to take place and really
giving an opportunity for that movement to evolve. Had he not
shown that courage, at great personal and professional expense,
John Lewis and others think it might have taken many more years
to reach the achievements that they reached.
So when you look back at your career in public service, can
you point to an example of something that you have done, on the
bench or otherwise, where you really stepped out and subjected
yourself to criticism for taking an unpopular view on behalf of
the dispossessed, or minorities, or poor people where it may
have subjected you to criticism for showing courage in trying
to side with a position that you thought was right and might
not have been popular?
Judge Southwick. I wish those came readily to mind. Perhaps
I just didn't keep enough of a catalog of experiences. You
mentioned Frank Johnson, a conservative Republican, but
probably never a member of the Federalist Society.
Senator Durbin. An Eisenhower Republican. Yes.
Judge Southwick. Alabama Republican. And I--not because of
this hearing, or not because of anything else, but judges, and
Federal judges, and Fifth Circuit judges fascinate me.
I read Taming the Storm by Jack Bass on Judge Johnson just
a few months ago. His career is an inspiration to anyone who
wants, no matter their political background, no matter what
they have done before arriving at the bench, to apply the law
even-handedly and imaginatively to the issues that come before
him. I don't want to get into analogies of former colleagues of
yours, U.S. Senators. I'm no Frank Johnson, I know that.
Senator Durbin. None of us are. But can you think of a time
in your life or career where you did bend in that direction, to
take an unpopular point of view on behalf of those who were
voiceless or powerless and needed someone to stand up for their
rights when it wasn't a popular position?
Judge Southwick. I hope that a careful look--and the answer
is, no, I cannot think of something now. But if I can give you
this answer. I cannot recall my opinions, and I don't think of
them in those terms.
I think of them in terms of not considering the reaction,
not looking at the result and working backward, but following
through and, no matter how popular or unpopular the decision
may be, to come to the conclusion that I think is compelled by
controlling authority.
Senator Durbin. I hear that often and it's certainly a
reasonable answer. But I find many times, when it comes to
legislation, and I think when it comes to ruling on court
cases, you really have a chance to make a judgment. It isn't so
clearly one way or the other, it's a matter of deciding what
the compelling situation or values are that are at stake. I
think that's what I was looking for in that question.
May I ask you about this Richmond case just for a moment?
The Supreme Court, even the most conservative members of our
U.S. Supreme Court, when they considered a case not long ago
involving cross burning, said, really, this is a symbol that
everyone understands. It goes way beyond an expression, way
beyond free speech, and clearly is so inherently evil in the
minds of so many Americans, that it has to be treated
differently.
As you reflect now on the Richmond case and the use of the
``N'' word, can you draw any conclusions from our reaction to
it and the fact that your participation in that case leads
people to conclude that you were insensitive?
Judge Southwick. I certainly see that. I certainly see that
as being the reaction from some quarters. There was press
coverage of the case when it was handed down. And that's part,
I think--that's part of what judges need to do, though, is to
look at cases and decide them fairly, honestly, and not worry
about public reaction.
Now, you're raising a slightly different point, and I will
accept that. You're saying the public reaction, in itself, is a
sign of the error, that this is a more fatal word than we gave
it credit.
And I will say that there is no worst word. I think the
majority opinion for the Supreme Court of Mississippi used some
words they could come up with which would be the worst for
other races and then compare to using that word that was the
subject of that case. And it is unique, I suppose. I hope it's
unique. I can't think of anything else right now. Cross
burning, maybe.
What the factual issue, to some extent, in that case was,
the Employee Appeals Board that we were reviewing, who has the
authority by State law to make these decisions, was clearly in
error to say that it was not so damaging that this woman needed
to be fired, that she had no further employment life after
that, that she couldn't in some way survive having used that
word, no matter the context and whatever else.
And it could be that that word is so serious that every
workplace is permanently damaged insofar as that worker is
concerned. I didn't see that evidence in the record. You're
saying, should I have been more aware of it myself? I have
certainly seen this again.
But I do want to emphasize that everyone in this case took
it extraordinarily seriously, including the writing judge for
the Mississippi Court of Appeals, who I think treated the issue
well.
Senator Durbin. Thank you very much, Judge.
Thank you, Mr. Chairman.
Senator Whitehouse. I would like to ask you to do me one
favor, and then if Senator Hatch would like to close before we
excuse this witness. I assume you have access to Google?
Judge Southwick. Oh, yes. I think I have heard of that.
Senator Whitehouse. Do me a favor and Google the phrase
``homosexual lifestyle'' and take a look at the context in
which the top, I don't know, 50 or 60 hits come back to it. And
the record will be open for a week. I'd love you to get back to
me with your thoughts about that, and in particular whether,
having seen the context in which that phrase is used, having
seen the loaded nature of it, I'd love to urge you to never use
that phrase in an opinion written on behalf of the Fifth
Circuit Court of Appeals of the United States of America.
Judge Southwick. Senator, I thank you for that suggestion
as a more loaded phrase than I must have given it weight 6
years ago.
Senator Whitehouse. I appreciate that.
Senator Hatch, would you like to say something in
conclusion?
Senator Hatch. Well, the only thing I would add is, you're
clearly highly qualified. You're clearly a very good person.
You're clearly a person who applies the law, regardless of
public opinion, which is what an appellate judge should do.
You're clearly a person who's learned in the law and you have
the backing of the whole American Bar Association.
Now, I hope that, around here, being a member of the
Federalist Society is not a disqualification because it is not
a political organization. It basically stays out of politics.
The prime function of the Federalist Society, as I view
it--as a member of the board of advisors, by the way--is to
hold conferences where they bring people from all points of
view, from the left to the right, to discuss majors issues in
the law. And they've done a pretty good job throughout the
country.
Naturally, since it's considered more of a conservative
society than a liberal society, then naturally, I suppose, the
Republican administrations have always looked to the Federalist
Society for some of their leading lights in law, most all of
whom are Law Review graduates from major law schools or from
law schools around the country.
So I hope that, by implication, some of these comments
don't denigrate the Federalist Society, which I think does a
very, very good job of helping to discuss the various
ramifications of some of the most important decisions and laws
today.
Now, you've made it very clear that you're not here to
defend the Federalist Society and that you had a limited
relationship there. I think the important thing here is that
you've demonstrated here today an adherence to the law, even
sometimes when it's difficult to adhere to.
And should you ever get on the Supreme Court of the United
States of America, maybe you can make some of those ultimate
fine decisions that have to be made. But until then, you pretty
well have to abide by the law, even if you would like to change
the law, unless there is some give and take where you can
change it.
So this is important. I think you've handled yourself very
well here today.
Judge Southwick. Thank you, Senator.
Senator Hatch. You have the backing of two great Senators
and, I would suggest, a whole lot of other very fine Senators
who would love to see you serve in the judicial branch of this
Government from a Federal standpoint.
I want to commend you for the life you've lived, the work
you've done, the background you have, the intelligence that
you've displayed, and the willingness to serve in these
positions.
One of the things we've got to do, Mr. Chairman, is we've
got to elevate judicial salaries so that we can keep the best
and the brightest coming to the court. And you're clearly one
of the best and the brightest.
But we're seeing a shift right now, where some of the best
and brightest are not willing to serve in the Federal courts
any more because Law Review graduates make more than they do
right out of law school. And when you have a Law Review
graduate starting at $200,000 a year, plus a signing bonus of
another $200,000, you can see why that's kind of not the way to
treat the Supreme Court Justices, and certainly the Chief
Justice, of the United States of America.
So I'm counting on you, Senator, to help us to change that
salary structure, even though it may mean placing the Federal
judiciary above ourselves.
Senator Whitehouse. Point taken, Senator Hatch.
Senator Hatch. All right. I'm counting on you. From here on
in I'm going to hold you to that.
Senator Whitehouse. Just point taken.
[Laughter.]
Senator Hatch. That's great. That's great. Well, I just
want to personally thank you for being willing to serve. As you
know, we're all concerned about justice, equality, and equal
treatment under the law, just to mention three very important
aspects. And I have every knowledge of your background, that
you're as committed to doing right in those areas as anybody
we've ever seen here. So, I'm grateful that you're willing to
serve.
Thank you.
Judge Southwick. Thank you for your comments, sir.
Senator Whitehouse. Judge Southwick, thank you for your
testimony today. You are excused. But the record of this
proceeding will remain open for a week for anyone who wishes to
fill in with further information.
Senator Hatch. Mr. Chairman, I have to leave, but I want to
say that I certainly support the other two nominees. I will do
everything in my power to make sure that we get all three of
you through as quickly as possible. I am, again, expressing my
gratitude to Senator Leahy for being willing to go ahead with
these hearings and to push these nominees. That means a lot and
I appreciate that.
Senator Whitehouse. I appreciate that, Senator Hatch. And
as everybody knows, he is a very distinguished former Chairman
of this committee, so his words to that effect are very
significant and carry great weight.
Would Judge Neff and Magistrate Judge O'Grady come forward
to be sworn, please?
[Whereupon, the witnesses were duly sworn.]
Senator Whitehouse. Please be seated. Welcome.
Do either of you have a statement of any kind you would
like to make?
STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MICHIGAN
Judge Neff. I just would like to thank you, Senator
Whitehouse, for your chairing of this committee, and for the
Committee itself, for holding this hearing. Special thanks to
Senators Levin and Stabenow for their kind remarks in
introducing me, and in forwarding my name to President Bush.
And thank you to President Bush for his nomination to serve on
the Western District of Michigan. It's a great honor to be here
and to be a nominee.
Thank you.
[The biographical information of Judge Neff follows.]
[GRAPHIC] [TIFF OMITTED] T7449.036
[GRAPHIC] [TIFF OMITTED] T7449.037
[GRAPHIC] [TIFF OMITTED] T7449.038
[GRAPHIC] [TIFF OMITTED] T7449.039
[GRAPHIC] [TIFF OMITTED] T7449.040
[GRAPHIC] [TIFF OMITTED] T7449.041
[GRAPHIC] [TIFF OMITTED] T7449.042
[GRAPHIC] [TIFF OMITTED] T7449.043
[GRAPHIC] [TIFF OMITTED] T7449.044
[GRAPHIC] [TIFF OMITTED] T7449.045
[GRAPHIC] [TIFF OMITTED] T7449.046
[GRAPHIC] [TIFF OMITTED] T7449.047
[GRAPHIC] [TIFF OMITTED] T7449.048
[GRAPHIC] [TIFF OMITTED] T7449.049
[GRAPHIC] [TIFF OMITTED] T7449.050
[GRAPHIC] [TIFF OMITTED] T7449.051
[GRAPHIC] [TIFF OMITTED] T7449.052
[GRAPHIC] [TIFF OMITTED] T7449.053
[GRAPHIC] [TIFF OMITTED] T7449.054
[GRAPHIC] [TIFF OMITTED] T7449.055
[GRAPHIC] [TIFF OMITTED] T7449.056
[GRAPHIC] [TIFF OMITTED] T7449.057
[GRAPHIC] [TIFF OMITTED] T7449.058
[GRAPHIC] [TIFF OMITTED] T7449.059
[GRAPHIC] [TIFF OMITTED] T7449.060
[GRAPHIC] [TIFF OMITTED] T7449.061
[GRAPHIC] [TIFF OMITTED] T7449.062
[GRAPHIC] [TIFF OMITTED] T7449.063
[GRAPHIC] [TIFF OMITTED] T7449.064
[GRAPHIC] [TIFF OMITTED] T7449.065
[GRAPHIC] [TIFF OMITTED] T7449.066
[GRAPHIC] [TIFF OMITTED] T7449.067
[GRAPHIC] [TIFF OMITTED] T7449.068
[GRAPHIC] [TIFF OMITTED] T7449.069
[GRAPHIC] [TIFF OMITTED] T7449.070
[GRAPHIC] [TIFF OMITTED] T7449.071
[GRAPHIC] [TIFF OMITTED] T7449.072
Senator Whitehouse. Thank you.
Judge O'Grady? Before you say anything, I want you to know
that I've done a little bit of homework on you.
Judge O'Grady. You have?
Senator Whitehouse. You were an Assistant U.S. Attorney in
the Eastern District of Virginia.
Judge O'Grady. I was.
Senator Whitehouse. And you served at the time that I
served as U.S. Attorney for Rhode Island.
Judge O'Grady. And I knew that about you, Mr. Chairman.
Senator Whitehouse. So I know your former boss, Helen
Feahy.
Judge O'Grady. All right.
Senator Whitehouse. And as part of my due diligence as the
Chairman of this committee, this panel, I gave her a call
yesterday to check you out. Her reaction was quite impressive.
She essentially burst out, saying, ``Oh, he'd be a wonderful
judge.'' And then she went on to say how conscientious you had
been as Assistant U.S. Attorney, how hardworking you had been,
what an asset you had been to the office, how valuable you were
as a member of her staff.
And in addition, she also said that you were one of the
nicest people she'd had the occasion to work with in a position
where being nice isn't always part of the job description, and
that you were viewed with great affection by your colleagues as
a very kind and thoughtful person. So, it was a wonderful
series of accolades and I thought I should pass those on to you
now where they can be a part of the record of this proceeding.
Judge O'Grady. Well, I'm very thankful that you made that
call.
Senator Whitehouse. Glad it worked out that way.
STATEMENT OF LIAM O'GRADY, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF VIRGINIA
Judge O'Grady. I happen to feel the same way about Ms.
Feahy. She was a wonderful U.S. Attorney. We were Assistant
Commonwealth Attorneys together in Arlington County, and then
followed and supported each other during our careers. I very
much believe the way that she practiced law was an appropriate
way to practice law. So, we are both in each other's camps, and
have been for many, many years.
I'd like to thank you, sir, and other members of the
committee, Senator Brownback, for graciously granting me the
opportunity to come here today. I know that your staffers have
worked very hard as well. As Judge Neff has said, it's a
wonderful honor to get this far and to be here today. It's a
privilege.
I realize that you take your jobs very seriously, and it's
extremely important to you and to the entire Senate that you
choose the right people for these very important positions.
Again, I thank you for the opportunity to appear here today.
[The biographical information of Judge O'Grady follows.]
[GRAPHIC] [TIFF OMITTED] T7449.073
[GRAPHIC] [TIFF OMITTED] T7449.074
[GRAPHIC] [TIFF OMITTED] T7449.075
[GRAPHIC] [TIFF OMITTED] T7449.076
[GRAPHIC] [TIFF OMITTED] T7449.077
[GRAPHIC] [TIFF OMITTED] T7449.078
[GRAPHIC] [TIFF OMITTED] T7449.079
[GRAPHIC] [TIFF OMITTED] T7449.080
[GRAPHIC] [TIFF OMITTED] T7449.081
[GRAPHIC] [TIFF OMITTED] T7449.082
[GRAPHIC] [TIFF OMITTED] T7449.083
[GRAPHIC] [TIFF OMITTED] T7449.084
[GRAPHIC] [TIFF OMITTED] T7449.085
[GRAPHIC] [TIFF OMITTED] T7449.086
[GRAPHIC] [TIFF OMITTED] T7449.087
[GRAPHIC] [TIFF OMITTED] T7449.088
[GRAPHIC] [TIFF OMITTED] T7449.089
[GRAPHIC] [TIFF OMITTED] T7449.090
[GRAPHIC] [TIFF OMITTED] T7449.091
[GRAPHIC] [TIFF OMITTED] T7449.092
[GRAPHIC] [TIFF OMITTED] T7449.093
[GRAPHIC] [TIFF OMITTED] T7449.094
[GRAPHIC] [TIFF OMITTED] T7449.095
[GRAPHIC] [TIFF OMITTED] T7449.096
[GRAPHIC] [TIFF OMITTED] T7449.097
[GRAPHIC] [TIFF OMITTED] T7449.098
[GRAPHIC] [TIFF OMITTED] T7449.099
[GRAPHIC] [TIFF OMITTED] T7449.100
[GRAPHIC] [TIFF OMITTED] T7449.101
[GRAPHIC] [TIFF OMITTED] T7449.102
[GRAPHIC] [TIFF OMITTED] T7449.103
[GRAPHIC] [TIFF OMITTED] T7449.104
Senator Whitehouse. Well, you are both very welcome here.
The fact that you are here today speaks very highly of the
accomplishments that you have achieved in your professional
lives, it also speaks very highly of the way you have served
your communities and the standing that you have in your
communities, that you've risen to the point where you have
become a nominee for these positions.
And certainly the extremely kind words that Senator Levin
and Senator Stabenow had to say about Judge Neff, and that
Senator Warner had to say about you, and the kind words that I
know Senator Webb put into the record because he could not be
here today about you, Judge O'Grady, are a testament to lives
well lived, and we appreciate that you are here.
Senator Brownback?
Senator Brownback. Thank you very much, Mr. Chairman.
Welcome, both. Congratulations on being here at this
nomination. Judge Neff, I think I chaired the hearing last year
with you being here.
Judge Neff. You did.
Senator Brownback. There's been a series of things that
have happened since that time period, and I want to go just a
little bit into those. Then I want to ask some factual setting
questions, and I want to ask some legal opinion questions, if I
could, of you.
As you know, I chaired the hearing with several people from
the Western District of Michigan that were up. I then was
traveling in Michigan, and a number of people raised an issue
with me that I did not know about prior to the hearing taking
place. Then we were past the hearing phase and it was going to
the floor and there wasn't a chance to get your comments on the
record, and I wanted to get those on the record. We weren't
able to do it last year.
I'm very pleased you're willing to come up this year to
answer these questions. These are a series of factual
questions, a series of legal questions I would like to ask you
about.
I reviewed your resume at length and wanted to go through
this set of questions because of its bearing on a current set
of legal controversies that are pending in front of the court.
That's the issue. These are active legal matters.
We need to be sure that, when judges go on the bench, that
they are able to hear cases fairly and in an unbiased fashion.
There are things sometimes that show up in the background that
you ask questions, can they be fair and unbiased on a series of
cases that would come up? So, that's what I want to ask you
about.
This surrounds something that was reported in the New York
Times. And what I'd like to do is give you a chance to explain,
factually, the setting that took place. It was reported in the
New York Times that you, to use their terms ``led the ceremony
of a same-sex commitment ceremony in Massachusetts in 2002.''
I'd like to get your statement. Is that accurate of what the
New York Times reported, and what is it, factually, that took
place there in Massachusetts in 2002?
Judge Neff. Well, let me say, first, Senator, that I
appreciate the opportunity to appear and to clear the air for
whatever concerns you may have. As you probably are aware, I
did not author the announcement that appeared in the New York
Times and had nothing to do with the language that was used
there.
I did not, in fact, lead the ceremony. I was there, really,
in two capacities. My family and I were there as guests, and I
also participated as the homilist in the formal ceremony
itself. And to give you a little factual context for our
attendance at the ceremony, the Neff and Curtain families lived
side by side, sharing a common driveway, for 26 years. We were,
and are, a part of each other's extended families. The Curtains
have two daughters, who were about 8 and 10 years older than
the Neff daughters. They were baby-sitters for us.
They were, in practicality and in spirit, older sisters for
the Neff girls. Our families grew to be close friends. We
still, to this day--even though the Curtains have moved to a
condominium nearby, we still celebrate Christmas Eve together
as families, and whatever kids are home for the holidays are
part of that.
Whenever our parents were still alive and came to visit on
Christmas or other holidays, they were part of that whole
extended family, and it's still true. Colleen Curtain's mom is
still alive and we still see her for holidays.
When my daughter Jenny, who's here today, was married last
fall, Colleen hosted a bridal shower for her. Colleen's mom
came over from Flint, Michigan to be part of that bridal
shower. So we were there as a family, celebrating with another
family, a very important event in Mary Curtain's life.
Mary is someone who is important to us and whom we love.
And when--it was a foregone conclusion that we would be invited
and that we would attend. And when she and Karen, her partner,
invited me to deliver the homily, I was pleased to do that. So
that's the factual context of our appearance and participation
on September 21, 2002.
Senator Brownback. What was the event?
Judge Neff. Well, it was really a two-part event. The first
part of it was a commitment ceremony, for want of a better
description, that was, in fact, led by a minister of the United
Church of Christ, I believe. It was very brief, I think
probably not more than 20 minutes in total.
But preceding it was--the night before there was a
rehearsal party for every--for all of the guests, because
everybody was from someplace else. The Curtains hosted a lovely
dinner at a hotel there in western Massachusetts.
On the day of the ceremony, before the ceremony itself,
there was a cocktail party. And after the brief ceremony, there
was a dinner and a band and dancing, and it was a wonderful
party.
Senator Brownback. But the ceremony itself you classify as
what you would call a ``commitment ceremony''?
Judge Neff. It was--that is, I think, what it was called at
the time. Yes.
Senator Brownback. Was it a marriage ceremony?
Judge Neff. It was not.
Senator Brownback. OK.
And your part was as a homilist?
Judge Neff. That's correct.
Senator Brownback. Did anybody else give a homily at the
ceremony?
Judge Neff. I really don't remember for certain. There were
other people who spoke and the minister who led the ceremony
spoke. Whether what she said could be described as a homily, I
really don't recall.
Senator Brownback. The reason I want to ask this is because
of the legal issues surrounding the question, by the court's
interpretation, of what the Constitution requires in
guaranteeing whether or not the country must give same-sex
unions equal force and authority as marriage has been given
between a man and a woman. This is an active legal issue, as
I'm sure you're familiar with, at the present time.
Senator Whitehouse. May I ask the Senator a question? Would
you yield just a second?
Senator Brownback. Sure.
Senator Whitehouse. The court that you're referring to,
just so the record is clear and so that I can follow the
discussion, is which court?
Senator Brownback. Both Federal and State courts. This is
an active issue in the Federal courts and I believe Nebraska
has ruled on this. It's gone up to the circuit courts there,
and it's been an active issue in States.
Senator Whitehouse. OK. Not a specific court or a specific
court proceeding at this point.
Senator Brownback. It's an active legal issue around the
country.
Senator Whitehouse. OK. Thank you. I'm sorry to interrupt.
Senator Brownback. No problem.
If I could ask you a series of legal questions. Do you
believe the Constitution creates a right to same-sex marriage
for the citizens of Michigan?
Judge Neff. I think that that is a question of, as you
indicate, Senator, continuing legal controversy. It is a
question which may very well come before me as a Court of
Appeals judge in the State of Michigan, because I think, as you
are aware, in Michigan we have both statutory rulings on that
and we have a constitutional amendment that was passed in 2004
dealing with that.
And because of that, I think that it is improper for me,
unethical for me, to speak to whether I believe or don't
believe the legal effect of that, because that is, as you say
in your terms, an active legal issue, both in the Federal and
the State courts and one to which I simply cannot offer an
opinion that would indicate any prejudgment on my part should
that issue come before me, and it may very well.
Senator Brownback. What is your understanding of the
current state of the law in this regard in Michigan?
Judge Neff. Well, it's not entirely settled. There are at
least two cases of which I am aware that are currently pending
in the Court of Appeals dealing with the amendment that was
passed in 2004, and I do not know whether either of them has
reached decision. I don't believe that they have. So, again,
the issue is, it's one that is not settled yet. We have--we
obviously have a constitutional amendment and that has not yet
been--made its way through the courts.
Senator Brownback. A constitutional amendment passed by the
people of Michigan?
Judge Neff. That's correct. Reached the bell via
referendum, I believe.
Senator Brownback. And the text of which reads--are you
roughly familiar with the text of that?
Judge Neff. Very roughly.
Senator Brownback. Could you describe what that is?
Judge Neff. It has to do with language that indicates that
marriage is between a man and a woman. And if I am not
mistaken, it also deals with the benefits of marriage, the
kinds of mutual benefits, such as health insurance and so
forth. Those are the kinds of issues that are currently pending
in the courts.
Senator Brownback. And Michigan also has a statutory
defense of marriage law. Is that correct?
Judge Neff. Yes, that's correct.
Senator Brownback. What's your understanding of what that
law provides?
Judge Neff. I really don't have an understanding of it. I
have never had the occasion to review it and have no opinion
with regard to it.
Senator Brownback. With the understanding, though, of the
constitutional amendment in Michigan, if a family member or
close friend asked you today to participate in a same-sex
marriage ceremony in Michigan, would you do so?
Judge Neff. My understanding of the law in Michigan is that
there is no such thing permissible as same-sex marriage. It
does not exist as a legal entity. And so to participate--my
answer is, no, I wouldn't participate. I don't see how I could.
Senator Whitehouse. Senator, your time has considerably
expired and I'm just wondering what your plans are.
Senator Brownback. I'd like to ask two more questions, if I
could. If you want to bounce back to me for another round, I'd
be happy to do that.
Senator Whitehouse. If you'd do two more questions, then
conclude. I know that Judge O'Grady's children are here, very
patiently, and I'm sure they're eager to move on.
Senator Brownback. I wouldn't take the committee's time on
this, but this has been an issue that there's been a series of
real questions about what factually took place, and what's the
judge's view, potential Federal judge's view, of the law and
whether the judge could fairly interpret that. This is--
Senator Whitehouse. Well, since it's just the two of us,
why don't we go ahead and proceed to the two remaining
questions, with due regard for the well-tried patience of the
O'Grady children.
Senator Brownback. And I apologize to you for that. I wish
this were not the case. It's just, this has been something
that's bounced around for some period of time, and this is the
chance, really, for all parties to put forward what it is that
we ought to know, the judge's view of the law, and factually.
So that's why I was taking that, and I apologize to the family
for this.
Would you acknowledge that neither the U.S. Supreme Court,
nor the Sixth Circuit Court of Appeals has recognized a right
to same-sex marriage?
Judge Neff. I believe that's correct.
Senator Brownback. Judge Neff, do you believe you can apply
the law of the State of Michigan, which does not allow unions
of same-sex couples, without regard to your personal views on
the subject?
Judge Neff. Senator, unequivocally, I do. I have spent the
last 18 and a half years of my life demonstrating that I can
apply the law fairly and impartially in each and every
individual case that comes before me. My job as a judge is to
level the playing field, not to play in the game, and to
enforce the rules, not to make them. I am reminded of that
regularly.
Whatever the issue, I recognize that I have to park my
personal views, whatever they are, at the door of the
courthouse before I walk in. And I think that 18 and a half
years of deciding cases, from 174 Michigan appeals reports, to
274 Michigan appeals reports, demonstrate that.
Senator Brownback. Thank you.
Thank you, Mr. Chairman.
Senator Whitehouse. Good. Well, we certainly thank the
witnesses for attending. We wish you well as the nomination
process goes to its conclusion.
The record of these proceedings will remain open for a week
in case anybody wishes to supplement the record, but other than
that, both nominees are excused and the Committee will stand in
recess.
Thank you.
[Whereupon, at 12:01 p.m. the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC] [TIFF OMITTED] T7449.105
[GRAPHIC] [TIFF OMITTED] T7449.106
[GRAPHIC] [TIFF OMITTED] T7449.107
[GRAPHIC] [TIFF OMITTED] T7449.108
[GRAPHIC] [TIFF OMITTED] T7449.109
[GRAPHIC] [TIFF OMITTED] T7449.110
[GRAPHIC] [TIFF OMITTED] T7449.111
[GRAPHIC] [TIFF OMITTED] T7449.112
[GRAPHIC] [TIFF OMITTED] T7449.113
[GRAPHIC] [TIFF OMITTED] T7449.114
[GRAPHIC] [TIFF OMITTED] T7449.115
[GRAPHIC] [TIFF OMITTED] T7449.116
[GRAPHIC] [TIFF OMITTED] T7449.117
[GRAPHIC] [TIFF OMITTED] T7449.118
[GRAPHIC] [TIFF OMITTED] T7449.119
[GRAPHIC] [TIFF OMITTED] T7449.120
[GRAPHIC] [TIFF OMITTED] T7449.121
[GRAPHIC] [TIFF OMITTED] T7449.122
[GRAPHIC] [TIFF OMITTED] T7449.123
[GRAPHIC] [TIFF OMITTED] T7449.124
[GRAPHIC] [TIFF OMITTED] T7449.125
[GRAPHIC] [TIFF OMITTED] T7449.126
[GRAPHIC] [TIFF OMITTED] T7449.127
[GRAPHIC] [TIFF OMITTED] T7449.128
[GRAPHIC] [TIFF OMITTED] T7449.129
[GRAPHIC] [TIFF OMITTED] T7449.130
[GRAPHIC] [TIFF OMITTED] T7449.131
[GRAPHIC] [TIFF OMITTED] T7449.132
[GRAPHIC] [TIFF OMITTED] T7449.133
[GRAPHIC] [TIFF OMITTED] T7449.134
[GRAPHIC] [TIFF OMITTED] T7449.135
[GRAPHIC] [TIFF OMITTED] T7449.136
[GRAPHIC] [TIFF OMITTED] T7449.137
[GRAPHIC] [TIFF OMITTED] T7449.138
[GRAPHIC] [TIFF OMITTED] T7449.139
[GRAPHIC] [TIFF OMITTED] T7449.140
[GRAPHIC] [TIFF OMITTED] T7449.141
[GRAPHIC] [TIFF OMITTED] T7449.142
[GRAPHIC] [TIFF OMITTED] T7449.143
[GRAPHIC] [TIFF OMITTED] T7449.144
[GRAPHIC] [TIFF OMITTED] T7449.145
[GRAPHIC] [TIFF OMITTED] T7449.146
[GRAPHIC] [TIFF OMITTED] T7449.147
[GRAPHIC] [TIFF OMITTED] T7449.148
[GRAPHIC] [TIFF OMITTED] T7449.149
[GRAPHIC] [TIFF OMITTED] T7449.150
[GRAPHIC] [TIFF OMITTED] T7449.151
[GRAPHIC] [TIFF OMITTED] T7449.152
[GRAPHIC] [TIFF OMITTED] T7449.153
[GRAPHIC] [TIFF OMITTED] T7449.154
[GRAPHIC] [TIFF OMITTED] T7449.155
[GRAPHIC] [TIFF OMITTED] T7449.156
[GRAPHIC] [TIFF OMITTED] T7449.157
[GRAPHIC] [TIFF OMITTED] T7449.158
[GRAPHIC] [TIFF OMITTED] T7449.159
[GRAPHIC] [TIFF OMITTED] T7449.160
[GRAPHIC] [TIFF OMITTED] T7449.161