[Senate Hearing 112-72, Part 3] [From the U.S. Government Publishing Office] S. Hrg. 112-72, Pt.3 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION ---------- JUNE 8, JUNE 22, JULY 13, AND JULY 27, 2011 ---------- Serial No. J-112-4 ---------- PART 3 ---------- Printed for the use of the Committee on the Judiciary CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS S. Hrg. 112-72, Pt.3 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ JUNE 8, JUNE 22, JULY 13, AND JULY 27, 2011 __________ Serial No. J-112-4 __________ PART 3 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 76-350 WASHINGTON : 2012 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- June 8, 2011 STATEMENTS OF COMMITTEE MEMBERS Page Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 1 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 2 prepared statement........................................... 239 PRESENTERS Schumer, Hon. Chuck, a U.S. Senator from the State of New York presenting Alison J. Nathan Nominee to be U.S. District Judge for the Southern District of New York and Katherine B. Forrest Nominee to be U.S. District for the Southern District of New York........................................................... 3 Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana presenting Stephen A. Higginson Nominee to be U.S. Circuit Judge for the Fifth Circuit and Jane M. Triche-Milazzo Nominee to be U.S. District Judge for the Eastern District of Louisiana 4 Vitter, Hon. David, a U.S. Senator from the State of Louisiana presenting Stephen A. Higginson Nominee to be U.S. Circuit Judge for the Fifth Circuit and Jane M. Triche-Milazzo Nominee to be U.S. District Judge for the Eastern District of Louisiana 7 Boozman, Hon. John, a U.S. Senator from the State of Arkansas presenting Susan O. Hickey Nominee to be U.S. District Judge for the Western District of Arkansas........................... 8 Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas presenting Susan O. Hickey Nominee to be U.S. District Judge for the Western District of Arkansas........................... 8 STATEMENT OF THE NOMINEES Forrest, Katherine B., Nominee to be U.S. District for the Southern District of New York.................................. 127 Questionnaire................................................ 128 Hickey, Susan O., Nominee to be U.S. District Judge for the Western District of Arkansas................................... 171 Questionnaire................................................ 172 Higginson, Stephen A., Nominee to be U.S. Circuit Judge for the Fifth Circuit.................................................. 10 Questionnaire................................................ 15 Nathan, Alison J., Nominee to be U.S. District Judge for the Southern District of New York.................................. 93 Questionnaire................................................ 94 Triche-Milazzo, Jane M., Nominee to be U.S. Distrct Judge for the Eastern District of Louisiana.................................. 52 Questionnaire................................................ 53 QUESTIONS AND ANSWERS Responses of Katherine B. Forrest to questions submitted by Senator Grassley............................................... 210 Responses of Susan O. Hickey to questions submitted by Senator Grassley....................................................... 212 Responses of Stephen A. Higginson to questions submitted by Senator Grassley............................................... 214 Responses of Alison J. Nathan to questions submitted by Senator Grassley....................................................... 219 Responses of Jane M. Triche-Milazzo to questions submitted by Senator Grassley............................................... 224 SUBMISSIONS FOR THE RECORD American Bar Association, Benjamin H. Hill, III, Chair, Washington, DC: Katherine Forrest, May 6, 2011, letter....................... 226 Susan Owens Hickey, April 7, 2011, letter.................... 228 Stephen A. Higginson, May 10, 2011, letter................... 230 Alison J. Nathan, April 1, 2011, letter...................... 232 Anthony Forest Products Co., Aubra Anthony, Jr., President and CEO, ElDorado, Arkansas, June 2, 2011, letter.................. 234 Former Supreme Court Clerks, June 8, 2011, joint letter.......... 235 Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New York, prepared statement....................................... 238 Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana, prepared statement............................................. 246 New York City Bar, Elizabeth Donoghue, Chair, New York, New York: Katherine Forrest, June 14, 2011, letter..................... 250 Alison J. Nathan, May 10, 2011, letter....................... 250 Wednesday, June 22, 2011 STATEMENTS OF COMMITTEE MEMBERS Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut.................................................... 253 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 254 prepared statement........................................... 612 PRESENTERS Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania presenting Robert D. Mariani, Nominee to be U.S. District Judge for the Middle District of Pennsylvania; Cathy Bissoon, Nominee to be U.S. District Judge for the Western District of Pennsylvania; and Mark R. Hornak, Nominee to be U.S. District Judge for the Western District of Pennsylvania... 258 Lieberman, Hon. Joseph, a U.S. Senator from the State of Connecticut presenting Christopher Droney, Nominee to be U.S. Circuit Judge for the Second Circuit........................... 255 Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Robert N. Scola Jr., Nominee to be U.S. District Judge for the Southern District of Florida..................... 256 Rubio, Hon. Marco, a U.S. Senator from the State of Florida presenting Robert N. Scola Jr., Nominee to be U.S. District Judge for the Southern District of Florida..................... 257 Toomey, Hon. Patrick J., a U.S. Senator from the State of Pennsylvania presenting Robert D. Mariani, Nominee to be U.S. District Judge for the Middle District of Pennsylvania; Cathy Bissoon, Nominee to be U.S. District Judge for the Western District of Pennsylvania; and Mark R. Hornak, Nominee to be U.S. District Judge for the Western District of Pennsylvania... 260 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island presenting Christopher Droney Nominee to be U.S. Circuit Judge for the Second Circuit................................... 261 STATEMENT OF THE NOMINEES Bissoon, Cathy, Nominee to be U.S. District Judge for the Western District of Pennsylvania....................................... 402 Questionnaire................................................ 403 Droney, Christopher, Nominee to be U.S. Circuit Judge for the Second Circuit................................................. 261 Questionnaire................................................ 264 Hornak, Mark R., Nominee to be U.S. District Judge for the Western District of Pennsylvania............................... 458 Questionnaire................................................ 459 Mariani, Robert D., Nominee to be U.S. District Judge for the Middle District of Pennsylvania................................ 359 Questionnaire................................................ 360 Scola, Robert N., Jr., Nominee to be U.S. District Judge for the Southern District of Florida................................... 517 Questionnaire................................................ 518 QUESTIONS AND ANSWERS Responses of Cathy Bissoon to questions submitted by Senator Grassley....................................................... 589 Responses of Christopher Droney to questions submitted by Senator Grassley....................................................... 591 Responses of Mark R. Hornak to questions submitted by Senator Grassley....................................................... 595 Responses of Robert D. Mariani to questions submitted by Senator Grassley....................................................... 598 Responses of Robert N. Scola, Jr., to questions submitted by Senator Grassley............................................... 601 SUBMISSIONS FOR THE RECORD American Bar Association, Benjamin H. Hill, III, Chair, Washington, DC: Cathy Bissoon, November 18, 2010, letter..................... 603 Christopher Droney, May 6, 2011, letter...................... 604 Mark Raymond Hornak, December 1, 2010, letter................ 606 Robert David Mariani, December 1, 2010, letter............... 608 Robert N. Scola, Jr., May 6, 2011, letter.................... 610 Jayne, Kevin L., New York, New York, February 21, 2011, letter... 622 Lieberman, Hon. Joseph, a U.S. Senator from the State of Connecticut.................................................... 624 Moreno, Federico A., Chief U.S. District Judge, Southern District of Florida, Miami, Florida, July 21, 2011, letter and attachments.................................................... 630 New York City Bar, Elizabeth Donoghue, Chair, New York, New York, June 14, 2011, letter.......................................... 635 Rubio, Hon. Marco, a U.S. Senator from the State of Florida, statement...................................................... 636 Rundle, Katherine Fernandez, State Attorney, Eleventh Judicial Circuit of Florida, Miami, Florida, June 13, 2011, letter...... 638 Wednesday, July 13, 2011 STATEMENTS OF COMMITTEE MEMBERS Page Coons, Hon. Christopher, a U.S. Senator from the State of Delaware....................................................... 649 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 650 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 980 PRESENTERS Barrasso, Hon. John, a U.S. Senator from the from the State of Wyoming presenting Scott W. Skavdahl, of Wyoming, Nominee to be District Judge for the District of Wyoming..................... 643 Begich, Hon. Mark, a U.S. Senator from the State of Alaska presenting Morgan Christen, of Alaska, Nominee to be Circuit Judge for the District of Alaska and Sharon L. Gleason, of Alaska, Nominee to be District Judge for the District of Alaska 648 Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware presenting Richard G. Andrews, of Delaware, Nominee to be District Judge for the District of Delaware.................... 643 Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming presenting Scott W. Skavdahl, of Wyoming, Nominee to be District Judge for the District of Wyoming..................... 642 Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Yvonne Gonzalez Rogers, of California, Nominee to be District Judge for the Northern District of California..................................................... 640 Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska presenting Morgan Christen, of Alaska, Nominee to be Circuit Judge for the District of Alaska and Sharon L. Gleason, of Alaska, Nominee to be District Judge for the District of Alaska 646 STATEMENT OF THE NOMINEES Andrews, Richard G., of Delaware, Nominee to be District Judge for the District of Delaware................................... 828 Questionnaire................................................ 829 Christen, Morgan, of Alaska, Nominee to be Circuit Judge for the District of Alaska............................................. 651 Questionnaire................................................ 652 Gleason, Sharon L., of Alaska, Nominee to be District Judge for the District of Alaska......................................... 730 Questionnaire................................................ 731 Rogers, Yvonne Gonzalez, of California, Nominee to be District Judge for the Northern District of California.................. 780 Questionnaire................................................ 781 Skavdahl, Scott W., of Wyoming, Nominee to be District Judge for the District of Wyoming........................................ 882 Questionnaire................................................ 883 QUESTIONS AND ANSWERS Responses of Richard G. Andrews to questions submitted by Senator Grassley....................................................... 940 Responses of Morgan Christen to questions submitted by Senator Grassley....................................................... 943 Responses of Sharon L. Gleason to questions submitted by Senator Grassley....................................................... 949 Responses of Yvonne Gonzalez Rogers to questions submitted by Senator Grassley............................................... 956 Responses of Scott W. Skavdahl to questions submitted by Senator Grassley....................................................... 959 SUBMISSIONS FOR THE RECORD American Bar Association (ABA), Benjamin H. Hill, III, Chair, Washington, DC: Richard G. Andrews, May 12, 2011, letter..................... 962 Morgan Christen, May 19, 2011, letter........................ 964 Sharon L. Gleason, April 20, 2011, letter.................... 966 Yvonne Gonzales Rogers, May 10, 2011, letter................. 968 Scott W. Skavdahl, February 17, 2011, letter................. 970 Anchorage Association of Women Lawyers, Christine V. Williams, President, Anchorage, Alaska, July 8, 2011, letter............. 972 California Women Lawyers (CWL), Patricia Sturdevant, President, Sacramento, California, June 7, 2011, letter................... 974 Carper, Hon. Tom, a U.S. Senator from the State of Delaware, prepared statement............................................. 976 Boxer, Hon. Barbara, a U.S. Senator from the State of California, prepared statement............................................. 977 Gibbons, Hon. Lile R., a U.S. House of Representative from the State of Connecticut, July 5, 2011, letter..................... 978 Kaplan, Diane, President, Rasmuson Foundation, Anchorage, Alaska, July 11, 2011, letter.......................................... 979 McMillian, Dennis G., former Executive Director, United Way of Anchorage, July 5, 2011, letter................................ 983 Monegan, Walt, former Commissioner, Department of Public Safety, State of Alaska, July 8, 2011, letter.......................... 985 O'Neill, Gloria, President/CEO, Cook Inlet Tribal Council, Anchorage, Alaska, July 1, 2011, letter........................ 986 Sturgulewski, Arliss, Former Alaska State Senator, July 7, 2011, letter......................................................... 988 Wednesday, July 27, 2011 STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement............................................. 1288 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, prepared statement............................................. 1305 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, memberships, activities and awards for Judge Zipps............. 1313 Schumer, Hon. Charles, a U.S. Senator from the State of New York. 989 prepared statement........................................... 1319 PRESENTERS Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting James Rodney Gilstrap, Nominee to be U.S. District Judge for the Eastern District of Texas........................ 991 Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting James Rodney Gilstrap, Nominee to be U.S. District Judge for the Eastern District of Texas............... 990 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona presenting Jennifer Guerin Zipps, Nominee to be U.S. District Judge for the District of Arizona.............................. 993 McCain, Hon. John, a U.S. Senator from the State of Arizona presenting Jennifer Guerin Zipps, Nominee to be U.S. District Judge for the District of Arizona.............................. 992 Schumer, Hon. Charles, a U.S. Senator from the State of New York presenting Andrew L. Carter, Jr., Nominee to be U.S. District Judge for the Southern District of New York; Jesse M. Furman, Nominee to be U.S. District Judge for the Southern District of New York; and Edgardo Ramos, Nominee to be U.S. District Judge for the Southern District of New York.......................... 994 STATEMENT OF THE NOMINEES Carter, Andrew L., Jr., Nominee to be U.S. District Judge for the Southern District of New York.................................. 1042 Questionnaire................................................ 1043 Furman, Jesse M., Nominee to be U.S. District Judge for the Southern District of New York.................................. 1086 Questionnaire................................................ 1088 Gilstrap, James Rodney, Nominee to be U.S. District Judge for the Eastern District of Texas...................................... 1130 Questionnaire................................................ 1131 Ramos, Edgardo, Nominee to be U.S. District Judge for the Southern District of New York.................................. 996 Questionnaire................................................ 997 Zipps, Jennifer Guerin, Nominee to be U.S. District Judge for the District of Arizona............................................ 1199 Questionnaire................................................ 1200 QUESTIONS AND ANSWERS Responses of Andrew L. Carter, Jr. to questions submitted by Senators Grassley and Klobuchar................................ 1262 Responses of Jesse M. Furman to questions submitted by Senators Grassley and Klobuchar......................................... 1265 Responses of James Rodney Gilstrap to questions submitted by Senators Grassley and Klobuchar................................ 1269 Responses of Edgardo Ramos to questions submitted by Senators Grassley and Klobuchar......................................... 1272 Responses of Jennifer Guerin Zipps to questions submitted by Senators Grassley and Klobuchar................................ 1275 SUBMISSIONS FOR THE RECORD American Bar Association (ABA), Benjamin H. Hill, III, Chair, Washington, DC: Andrew L. Carter, Jr., May 20, 2011, letter.................. 1278 Jess Furman, June 8, 2011, letter............................ 1280 James Rodney Gilstrap, May 20, 2011, letter.................. 1282 Edgardo Ramos, May 6, 2011, letter........................... 1284 Jennifer Guerin Zipps, June 24, 2011, letter................. 1286 Law Clerks, former, July 1, 2011, joint letter................... 1292 Law School Classmates, former, July 6, joint letter.............. 1296 Mukasey, Michael B., New York, New York, July 27, 2011, letter... 1314 New York City Bar, Elizabeth Donoghue, Chair, New York, New York: Andrew Carter, July 13, 2011, letter......................... 1316 Jesse Furman, July 13, 2011, letter.......................... 1317 Edgardo Ramos, June 14, 2011, letter......................... 1318 ALPHABETICAL LIST OF NOMINEES Andrews, Richard G., of Delaware, Nominee to be District Judge for the District of Delaware................................... 828 Bissoon, Cathy, Nominee to be U.S. District Judge for the Western District of Pennsylvania....................................... 402 Carter, Andrew L., Jr., Nominee to be U.S. District Judge for the Southern District of New York.................................. 1042 Christen, Morgan, of Alaska, Nominee to be Circuit Judge for the District of Alaska............................................. 651 Droney, Christopher, Nominee to be U.S. Circuit Judge for the Second Circuit................................................. 261 Forrest, Katherine B., Nominee to be U.S. District for the Southern District of New York.................................. 127 Furman, Jesse M., Nominee to be U.S. District Judge for the Southern District of New York.................................. 1086 Gilstrap, James Rodney, Nominee to be U.S. District Judge for the Eastern District of Texas...................................... 1130 Gleason, Sharon L., of Alaska, Nominee to be District Judge for the District of Alaska......................................... 730 Hickey, Susan O., Nominee to be U.S. District Judge for the Western District of Arkansas................................... 171 Higginson, Stephen A., Nominee to be U.S. Circuit Judge for the Fifth Circuit.................................................. 10 Hornak, Mark R., Nominee to be U.S. District Judge for the Western District of Pennsylvania............................... 458 Mariani, Robert D., Nominee to be U.S. District Judge for the Middle District of Pennsylvania................................ 359 Nathan, Alison J., Nominee to be U.S. District Judge for the Southern District of New York.................................. 93 Ramos, Edgardo, Nominee to be U.S. District Judge for the Southern District of New York.................................. 996 Rogers, Yvonne Gonzalez, of California, Nominee to be District Judge for the Northern District of California.................. 780 Scola, Robert N., Jr., Nominee to be U.S. District Judge for the Southern District of Florida................................... 518 Skavdahl, Scott W., of Wyoming, Nominee to be District Judge for the District of Wyoming........................................ 882 Triche-Milazzo, Jane M., Nominee to be U.S. Distrct Judge for the Eastern District of Louisiana.................................. 52 Zipps, Jennifer Guerin, Nominee to be U.S. District Judge for the District of Arizona............................................ 1199 NOMINATIONS OF STEPHEN A. HIGGINSON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; JANE M. TRICHE-MILAZZO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA; ALISON J. NATHAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; KATHERINE B. FORREST, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; SUSAN O. HICKEY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS ---------- WEDNESDAY, JUNE 8, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 2:33 p.m., Room 226, Dirksen Senate Office Building, Senator Al Franken, presiding. Present: Senators Schumer and Grassley. OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator Franken. This hearing is called to order. Before we begin, I'd like to welcome all of you here today to the Senate Judiciary Committee. While the entire Senate must provide their advice and consent to the President on nominations, the Judiciary Committee is uniquely charged with the important duty of evaluating the President's judicial nominees prior to their confirmation by the full Senate. We are honored today to have these accomplished nominees here with us and look forward to hearing from them. Today we will consider five nominations: Steven A. Higginson, for U.S. Circuit Judge for the Fifth Circuit; Judge Jane M. Triche-Milazzo, for U.S. District Judge for the Eastern District of Louisiana; Alison J. Nathan, for District Judge for the Southern District of New York; Katherine B. Forrest, for District Judge for the Southern District of New York; Judge Susan O. Hickey, for District Judge for the Western District of Arkansas. We are fortunate to have some of these nominees home State Senators and Representatives here to introduce them, so we will turn to them shortly. But before we do, I'll turn the floor over to my good friend, the Ranking Member, Senator Grassley, for his opening remarks. STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you, Mr. Chairman. I welcome our nominees, as my Chairman has done, and of course, family and friends who are proud of everybody that's been nominated. Nomination hearings are important events not only for the nominee and for the family, but also for this institution and for the public. The advice and consent function of the Senate is a critical step in the process. This hearing, and other hearings, give Senators further information to consider as we contemplate whether or not to give that consent. In Federalist Papers 76, Alexander Hamilton wrote, ``To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.'' In other words, the Senate has a role in preventing the appointment of judges, or simply political favorites of the President, or of those who are not qualified to serve as Federal judges. So I would remind my colleagues of what then-Senator Obama stated about this duty. Six years ago today, June 8, 2005, in connection with the attempted filibuster of Janice Rogers Brown, he stated: This is Senator Obama: ``Now the test for a qualified judicial nominee is not simply whether they are intelligent. Some of us who attended law school or were in business know there are a lot of real smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence, it is their judgment.'' A few months later, on January 26, 2006 when debating the Alito nomination, then-Senator Obama stated: ``There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether a judge should be confirmed.'' Senator Obama continued, ``I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record.'' So, Mr. Chairman, our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, or a prestigious clerkship. At the beginning of this Congress, I articulated my standards for judicial nominees. I want to ensure that the men and women who are appointed to a lifetime position in the Federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. In applying these standards, I have demonstrated good faith in ensuring fair consideration of judicial nominees. I have worked with the Majority to confirm consensus nominees. However, as I have stated more than once, the Senate must not place quantity confirmed over quality confirmed. These lifetime appointments are too important to the Federal judiciary and the American people to simply rubber-stamp them. I am becoming increasingly concerned about some of the judicial nominations being sent to the Senate. In a few individual cases it's very troublesome. Perhaps the White House has grown tired of my observation that, for most of this President's term, a majority of vacancies had no pending nominee. But in their rush to remedy that situation, I would hope that they would not send up nominees who lack appropriate experience or who otherwise fail to meet the standards I previously mentioned. I am sure it is no surprise to you, but I have a longer statement I am going to put in the record. Senator Franken. That will be included in the record. I thank the Ranking Member, who is very intelligent and all- around nice guy. Senator Grassley. Well, thank you. [Laughter.] [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Franken. Now I'd like to recognize my distinguished colleague, also very intelligent and very all-around--I'm not going to--you know I'm going to recognize a lot of Senators, so I'm going to stop this because Senator Landrieu and Senator Vitter are here, all very nice people. [Laughter.] Senator Grassley. So far he's been very bipartisan. [Laughter.] Senator Franken. And bi-gender, too. [Laughter.] Senator Franken. Thanks for pointing that out. OK. So, Senator Schumer will introduce Ms. Nathan and Ms. Forrest. PRESENTATION OF ALISON J. NATHAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK AND KATHERINE B. FORREST NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Thank you, Mr. Chairman. I appreciate the opportunity to introduce two outstanding nominees. I share another thing in common with my colleague from Iowa. Not only the same first name and the same nickname and the same middle initial, but I have a statement that I'd like read into the record so we can get to the nominees. Senator Franken. Without objection, that will be included in the record. Senator Schumer. Thank you. Anyway, we have two fine candidates for the bench at the Southern District of New York. They have different backgrounds, and each in her own way represents the best that the New York Bar has to offer. First, Alison Nathan is a gifted young lawyer whom New Yorkers would be fortunate to have on the bench, hopefully for a very long time. She's a native of Philadelphia, but has called New York City her home for some time. She graduated at the top of her class from both Cornell University and Cornell Law School, where she was editor-in-chief of the Cornell Law Review; worked as a litigator for 4 years at the preeminent firm of Wilmer Hale, and has served in two of the three branches of government. She clerked for the Ninth Circuit Court of Appeals, Judge Betty Fletcher, and then recently for Supreme Court Justice John Paul Stevens. She served with distinction as Special Assistant to President Obama and as Associate White House Counsel, and now as Special Counsel to the Solicitor General of New York. Ms. Nathan has had a remarkably varied experience, all of it directly relevant to the breadth of perspective and judgment she'll bring to the bench. Katherine Forrest is also young, but an extraordinary, accomplished lawyer whose practice has been particularly well- suited to the needs of litigants in the Southern District. Born in New York City, she received her B.A. from Wesleyan, a law degree from New York University Law School, spent the majority of her career in private practice at the prestigious top-line firm, filled with very intelligent, all-around nice guys and gals, of Cravath, Swaine & Moore, where she was on the National A List of Practitioners. She was named one of American Lawyer's Top 50 Litigators under 45; currently serves as Deputy Attorney General in the Antitrust Division of the Department of Justice, where I know she is very well-regarded and has served with great distinction. I look forward to Ms. Forrest's transition from one position of service to our country to the next, and thank both of these nominees for putting themselves forward to join the Southern District of New York, the bench there. Senator Franken. Thank you, Senator Schumer. Now to Senator Landrieu and Senator Vitter, who will introduce Professor Higginson and Judge Triche-Milazzo. PRESENTATION OF STEPHEN A. HIGGINSON NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT AND JANE M. TRICHE-MILAZZO NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA BY HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA Senator Landrieu. Thank you, Mr. Chairman. I really appreciate the opportunity to present such outstanding candidates to you and to the Committee for your consideration today. I'm going to start by saying I'm going to have to slip out right afterwards, as I'm chairing a hearing in just a few minutes right down the hall. Senator Franken. And the same for every Senator. I know you've got plenty to do. Senator Landrieu. Thank you so much. Senator Franken. And I want to thank all Senators who are here to introduce the nominees. Senator Landrieu. Thank you so much. Let me begin by presenting Mr. Steven Higginson, who is before you today for a nominee--as a nominee to the Fifth Circuit Court of Appeals. Before I begin going into, just briefly, his academic credentials, which are extraordinary, let me say that he's surrounded by a very proud family, including his parents, Charles and Genevra Higginson; his brothers, Timothy and Philip; his children, Christopher, Cadie and Noelle; and his wife, Collete Creppell. I'm very happy, Mr. Chairman, and I think you and the Ranking Member will be very pleased to hear, that this is not the only special occasion of this family, as extraordinary as it is today. His two girls, two of his three children, have just returned from Germany where they played, and won, the World Championship for the U.S. of A on the Girls U-15 Women's Soccer Club. So can we all give them a hand, please? [Applause]. Senator Landrieu. Their Louisiana teammates represented our United States very well on the field. Their father will represent our country and the constituents that we seek to serve each and every day beautifully on this bench, should your Committee and the Senate approve his nomination. I'll have to be honest, Mr. Chairman. When I began my search for someone that could replace Judge Jacques Wiener on the Fifth Circuit, who was an outstanding judge, I was not familiar with Mr. Higginson personally. But as my Committee met and reviewed a list of potential nominees that could serve on this very important and historic bench, his academic record and his achievements literally just jumped off the pages to me as I was reviewing them in some detail. Let me just hit the highlights. He earned his first degree from Harvard summa cum laude. After graduating, he earned a Master's in Philosophy from Cambridge as a Harvard Scholar. With degrees from two of the most prestigious institutions on the planet, he then decided to pursue a J.D. from Yale Law School. When he graduated 3 years later, Steven had earned the extraordinary distinction of being both editor-in-chief of the Yale Law Review and the winner of the Israel H. Perez prize for Best-Written Contribution to the Law Review. After graduating from Yale Law School, he served as clerk to Hon. Patricia M. Wald, who is with us today, from the U.S. Court of Appeals for the District of Columbia and we are honored to have Honorable Patricia Wald with us today. He then went on to serve as law clerk to Brian White on the U.S. Supreme Court, Justice Brian White. Since 1993, he's resided in New Orleans, initially serving as Assistant U.S. Attorney for the Eastern District, doing an outstanding job. Mr. Chairman, after only 2 years in that office he became Chief of Appeals. As Chief of Appeals, he personally handled and supervised all criminal and civil appeals in the District, editing or writing more than 100 appellate briefs and presenting numerous oral arguments before the Fifth Circuit Court of Appeals, a court he is now being nominated to serve. Very briefly and in conclusion, he has, in addition to all of this, become a full-time Associate Professor of Law at Loyola University, and earned the honor of Professor of the Year for each of the 3 years of teaching at Loyola. I don't believe I could have found, if I had looked, anyone more qualified. He is a tremendous intellectual asset, great father, great member of our community, and his character is quite apparent in the achievements represented here. I will submit the rest for the record. [The prepared statement of Senator Landrieu appears as a submission for the record.] Senator Landrieu. Next, I would like to submit an outstanding young woman, Jane Triche-Milazzo, who is already a judge, having been elected a year ago in Louisiana. She is joined by her husband, John Milazzo, her son Richard, her daughter Ann, her stepson Jack, and her godson, Sam. We have very large and extended families in Louisiana. Unable to join Judge Triche-Milazzo is her son Joe, who was deployed just yesterday with the Louisiana National Guard for a tour in Afghanistan. So in both of these families represented, they are carrying the American flag all over this world, literally, and here this morning in the Committee. I've known Jane literally my whole life. She's an outstanding individual, a tremendous citizen of our State. She's demonstrated, through her private practice in a small town in Louisiana, in Napoleanville, Louisiana, and as a judge for Louisiana's Twenty-Third District, that she is qualified, energetic, and ready for this position. She graduated magna cum laude from Nichols State University, a fine university in our State. After graduating, she did not immediately pursue a law degree, which I find very interesting. She thought her first calling might be to teaching, and she got a degree and went into the classroom to teach at the elementary level. But because she came from a family of outstanding lawyers, she eventually found her way to law school, getting her J.D. from Louisiana State University, and after law school spent 6 years as Associate Attorney at the Napoleanville law firm before being promoted to partner. She has a long list of accomplishments, including LSU Law School Board of Trustees, American Bar Association, Fifth Circuit Court Bar Association, Judicial Bar Association, Baton Rouge Bar Association, et cetera. She was, again, elected first female judge in the history of Louisiana's Twenty-Third judicial district. I am so pleased and honored to present both of these, Mr. Chairman, for your consideration, and the Committee. I know that as you review their resume and see the character that these two people will bring to the bench, Mr. Grassley and Mr. Franken--Senator Grassley and Senator Franken--you will not be disappointed should you see them through to the Senate. Thank you. Senator Franken. Thank you, Senator Landrieu. Senator Vitter. PRESENTATION OF STEPHEN A. HIGGINSON NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE FIFTH CIRCUIT AND JANE M. TRICHE-MILAZZO NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA BY HON. DAVID VITTER, A U.S. SENATOR FROM THE STATE OF LOUISIANA Senator Vitter. Thank you very much, Mr. Chairman, Ranking Member Grassley. You know, when I was listening to the Ranking Member's comments quoting the Federalist Papers, it just struck me, and I hope we all pause occasionally and are properly thrilled and honored about our personal role in things that the Constitution put in place and that the Federalist Papers were about. Maybe we're so busy we don't do that often enough, but it struck me at that moment. I'm personally honored and thrilled to be a small part of this process. I know our nominees and their families feel that way, particularly today. And I think Senator Landrieu and I, being so united and so enthusiastic--and we are--about our two Louisiana nominees, is a great example of how it's supposed to work, as cited in the Federalist Papers and how it has worked in practice in this case, and that's a great thing. And so I certainly join Mary in being extremely, not just supportive, but enthusiastic about our nominees. Steven Higginson. Mary outlined most of his background. He has unbelievable academic and intellectual credentials that are unquestioned. He also has served as an Assistant U.S. Attorney, particularly focusing on appeals. In that role he has gotten high, high praise from every part of the Bar, every part of the bench. He's just won the respect of everyone in the community based on his work ethic, and his honesty, and his integrity, and his dedication to the job. In that, he has authored over 100 Federal appellate briefs. He's reviewed more than 300 additional Federal appellate briefs. Obviously his academic background, his clerkship with Justice White, other parts of his background, have served him exceedingly well in that regard. Because of that he also won the Excellence in Law Enforcement award from the New Orleans Metropolitan Crime Commission, and a lot of that has to do with, he was very involved, and a leader, on many of our most important and most difficult recent public corruption cases. I can tell you, being a Louisiana citizen, his and others' work on those public corruption cases has been an enormous public service that we're all grateful for. So I'm really, really excited to join with Mary in wholeheartedly supporting this nomination. I also certainly join with her, and I'm extremely supportive of, the nomination of Judge Jane Triche-Milazzo as well. Again, I agree with Mary. I think an interesting and really helpful part of her background is that she didn't go immediately into law. She was a school teacher, elementary school teacher, a very good one before going to LSU Law School. Then she practiced law and has served as a State Court judge on Louisiana's Twenty-Third Judicial District Court for several years and has won everyone's respect there. I also want to mention the dedication and public service of her family, including her son who is currently in the U.S. Army and was just deployed to Afghanistan. So, we certainly thank Judge Triche-Milazzo and her family and her son for that dedication and public service and sacrifice of the entire family. So I'm delighted to join with Mary in strongly endorsing both of these nominees, and thank you all for having this hearing that includes them both. Senator Franken. Thank you very much, Senator Vitter. Let's go now to Senator Boozman, who will talk about, I guess, Judge Hickey. PRESENTATION OF SUSAN O. HICKEY NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON. JOHN BOOZMAN, A U.S. SENATOR FROM THE STATE OF ARKANSAS Senator Boozman. Thank you, Chairman Franken and Ranking Member Grassley, for allowing me to speak at this important hearing today. I am proud to be here and join with my senior Senator from Arkansas, Mark Pryor, to introduce and support Susan Hickey's nomination as U.S. District Judge for the Western District of Arkansas. Her extensive experience and her impressive background unanimously qualify her for the position of District judge. Born in Dallas, Texas, Susan moved to the State of Arkansas when she was 5 years old. She graduated from Flippin High School and was valedictorian of her class. A fellow Razorback, she attended the University of Arkansas, where she received a bachelor's degree in Psychology. She then continued her education at the University of Arkansas School of Law, where she impressively completed her law degree in only two and a half years. After law school, Susan moved to South Arkansas and was employed at a private law firm, and later Murphy Oil Corporation. After taking time off to be with her three sons, she clerked at the U.S. District Court in El Dorado, before being appointed by Governor Mike Bebe to fill the position of Circuit Judge for the Thirteenth Judicial District in September of 2010. One of the most important things that we do in the Senate is the confirmation of judges, the process of selecting people with the right temperament and the right qualifications. I believe that Susan Hickey will do a great job and that we will all be very proud of her future service on the bench. I congratulate her on her nomination and strongly support her confirmation. Thank you, and I yield back. Senator Franken. Thank you, Senator. We'll go to Senator Pryor. PRESENTATION OF SUSAN O. HICKEY NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON. MARK PRYOR, A U.S. SENATOR FROM THE STATE OF ARKANSAS Senator Pryor. Thank you. Thank you, Mr. Chairman and Senator Grassley. Thank you all for having us here today. I would like to thank the family and friends of Susan who have made the trip to Washington, DC to be with her on this very special day, her husband Joe Hickey, along with her two sons, Patrick and Michael Hickey are here. She also has two special friends in attendance, Becky and Ernie Cagle. So I want to thank all them for being here. Mr. Chairman, I am honored to sit before you today and recommend Susan for confirmation as a Federal judge for the Western District of Arkansas. Throughout the confirmation process, I believe this Committee will come to understand why Susan has earned a reputation, in legal circles and around the State of Arkansas, as a hard worker and as a brilliant lawyer. While this Committee has seen more than its fair share of polarizing nominees, you will find that Susan is not. She is well-respected in Arkansas legal circles and has a strong commitment to a fair, impartial legal system Susan Hickey is currently a Circuit Judge for the Thirteenth Judicial District in El Dorado, Arkansas, where she has jurisdiction over civil, criminal, juvenile, domestic relations, and probate matters in six counties. She also served as a career judicial clerk to Judge Harry Barnes and the Western District of Arkansas, who she will replace if she's confirmed. She started her career as a lawyer and a staff attorney at Murphy Oil Corporation in El Dorado from 1981 to 1984. She earned her law degree at the University of Arkansas School of Law in 1980. She received her B.A. from the University of Arkansas in 1977. As you all know from my background as Attorney General, I have a lot of roots in the Arkansas Bar and Arkansas legal community, and as such have a lot of friends and acquaintances, both personal and professional, who do not hesitate to give me advice and counsel regarding legal issues, especially concerning Federal judgeships. When Susan's name began to circulate for this nomination, I only received praise from her colleagues. Susan has the smarts, the credentials, the experience, and the judicial temperament to be a great Federal judge. In my mind, she has all the tools, and I believe the members of this Committee will also find that this candidate exemplifies the proper credentials and temperament to do so. Thank you, Mr. Chairman. Senator Franken. Thank you, Senator Pryor. Before we turn to our first panel, Professor Higginson, I would just like to add to the record this letter from Senator Gillebrand offering strong support for the nomination of Ms. Nathan. [The prepared statement of Senator Gillebrand appears as a submission for the record.] Senator Franken. OK. Now we will begin our first panel. Professor Higginson, will you take your seat? Well, actually, why don't you not--just stand and raise your right hand. There you go. [Whereupon, the nominee was duly sworn.] Senator Franken. Thank you. Now, is your daughter the soccer player here? Professor Higginson. Yes. My twin daughters are. They're both here. Senator Franken. Yes. OK. You can stay seated, or you can stand doing this. I just want to give you--feel free to introduce your family however you want, standing or sitting. [Laughter.] STATEMENT OF STEPHEN HIGGINSON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT Professor Higginson. I'd like to first thank the Senate, Chairman and Ranking Member, for allowing me to appear before the Senate and this Committee. That's a great honor and I'm grateful. I'd also like to thank Senator Landrieu for recommending me to the President, and the President for nominating me, and thank Senator Vitter for his support and his kind words today. Additionally today, thank you, I'm joined by my family. My parents are here, my mother and father in the front row. Senator Franken. Hi. Welcome. Professor Higginson. They're not the soccer players. [Laughter.] Senator Franken. Oh. They're the grandparents of. Professor Higginson. The grandparents of the soccer players. Senator Franken. Yes. Professor Higginson. The two soccer players, daughters, twins, are Cadie and Noelle here. Senator Franken. And this is a full team? It's not two people soccer? [Laughter.] Professor Higginson. It's a full team. Senator Franken. Other people won it too, right? Congratulations. Thank you for winning on our behalf. [Laughter.] Professor Higginson. And my son Christopher is also a player. I'm very proud of all my children. He's there. Senator Franken. How are you doing? Professor Higginson. And my two brothers, Timothy and Phil, have come from Chicago and North Carolina. And also seated here is Judge Patricia Wald, who was my first judicial employer and role model. I'd like to also thank quite a few friends who have traveled from out of State here. Senator Franken. OK. Well, welcome to all of you. Again, congratulations to the twins for representing our country so well in Germany. And Professor Higginson, you have--as you were being introduced, I was--that was--that's a pretty stunning resume there, I must say. And--and also a very bipartisan--did you see that, how bipartisan that was, and how enthusiastic they were? That will make you happy, right? [Laughter.] Senator Grassley. Well, you make the Senate look good, too. Senator Franken. Yes. Yes. Well, I'm saying they do. OK. You have spent the majority of your career as a Federal prosecutor, dealing with issues from FDA enforcement against criminal drug manufacturers, to accountability for political corruption. You have received some of the Department of Justice's highest awards for your work in this field. If you are confirmed, how will your perspective on cases change? Professor Higginson. My perspective on cases, I think, would in some ways be the same, and in other ways different. To elaborate, as an advocate and having had the opportunity to be in the courtroom for 20 years, I feel that I do know the rules and the importance of professional courtesy and the importance of the adversarial process. Specifically, having been a public servant for the Department of Justice and representing the people of the United States, I do understand that my duty has always been to faithfully apply and take care that laws are executed. Additionally, that the duty of a Federal prosecutor or public servant is to see that justice is done. I think those qualities will transfer well. On the other hand, of course, a judge has to be impartial, is not a specific advocate. I think the last 15 years of my appellate work specifically might be of assistance to the Fifth Circuit because I'm very familiar with the procedures there and the rules, and I've been in front of that court and I revere it greatly. Senator Franken. Now, you're a professor. You talked about applying the law, right? And I know you talk to your students about that. So let's talk about applying the law. What extent do you think that life experience enters into that? I know that it's, in theory, you know, not supposed to, but then again it does, I would think. Right? Am I--discuss---- Professor Higginson. Well, Senator, I think--I discuss---- [Laughter.] Professor Higginson. Life experiences and personal viewpoints stop at the courtroom door. There is no room for them in the role of the judge at all. Now, that said, I do think there are temperamental qualities of a judge that are important. Everybody who walks into a court--I certainly know this having been an attorney--every litigant, every party wants to feel welcome when they walk into a court in the United States. I also think it's very important for Federal judges at any level to remain humble, to realize that they serve the people and therefore not to be arrogant, because the indispensable quality of a judge is to be open-minded, to consider the law fully, to apply the facts, but exclusively that. So in terms of life experiences, those have no role in the decisionmaking of a judge. But I do think that they are important in terms of respecting litigants and opposing views and not pre-judging anything until the parties all feel they've heard. I know, having lost cases, that the most important quality and wonderful quality of our system of justice is that you know you've been heard. Senator Franken. OK. Well, thank you, Professor Higginson. You just seem unbelievably qualified and I--and your Senators seem to be quite enthusiastic about your nomination. In fact, they said so many times. [Laughter.] Senator Grassley. Are you going to swear him in? Senator Franken. I swore him in. Senator Grassley. Oh, you did that? Senator Franken. Yes. Senator Grassley. How did I miss that? I wasn't sleeping, I'm sure. Senator Franken. No. I think you were reading something important. I swore you in. Professor Higginson. Yes, you did. Senator Franken. Yes, I did. OK. [Laughter.] Senator Grassley. I saw him stand up, but you made him sit down right away. Senator Franken. Well, that's what confused you. Senator Grassley. OK. Senator Franken. Thank you. We'll go the Ranking Member. Senator Grassley. In answer to his question, you seem to be a pretty good person that I think I'd want on the bench, and I don't know much about you yet. But at least I liked that last answer you gave about leaving personal feelings at the courtroom door. As I'm sure you're well aware, there are currently several constitutional challenges to the Congress' authority under the Commerce Clause to mandate everyone purchase health insurance as required under the Patient Protection and Affordable Care Act. As a Professor of constitutional law--and I'm looking at you in that position right now where you are--I'm interested in learning more about your understanding of Congress' authority under the Commerce Clause and its potential application to an individual mandate. Several commentators, including Professor Goodwin Liu, have said that Lopez and Morrison are difficult or incoherent standards in outlining the limitations of the Interstate Commerce Clause. How would you describe the limitations on Congress' power under the Commerce Clause? Before you answer that, I'd like to say that most people that come here to answer our questions would say something like this in answer to that question: ``if confirmed, I'll follow the law and the precedents.'' That's not really an answer because you're a constitutional law professor and understand the Commerce Clause better than this farmer does, because I'm not a lawyer. And so I'd like to have you answer it from the standpoint as, if I'm one of the students in your class. How far does the Commerce Clause go? Professor Higginson. Senator Grassley, thank you for that question. All Congress' powers are few and defined, and that includes the enumerated powers which also includes the Commerce Clause. The Commerce Clause has been the basis for many Federal criminal statutes that I've had to enforce, so I'm acutely aware of the limits of the authority of Congress to regulate or prescribe activities. So being specific, for example, in my practice, arson, Hobbs Act, many crimes we pursue we have to be very sensitive to the limits of Congressional authority. Now, as a judge, separately, I would be very mindful of the fact that Congress makes the law. Judges don't make the law, judges interpret the law. If Congress exceeds its authority, however, it is the job of the judge to declare an act that is repugnant to the Constitution void. Specifically turning to your Commerce Clause question, it would be important--if I were teaching my students, I would--I would teach at a level of generality that would not face me if I were a judge. If I were a judge, it would be imperative for me to know the facts and to apply controlling law to those facts, with the benefit of the judicial process. And I want to emphasize that. Whenever I walk into a court I try never to say or write anything that I can't support with a citation to the record or to a citation of controlling or persuasive authority. It is not a judge's responsibility to do anything other than that. But you've asked me to elaborate my views as a teacher, and the cases you described do cover the terrain of the Commerce Clause scope. Morrison and Lopez were limitations on Congressional authority. After that, there was another case, the medical marijuana case out of California, Rake, which defined further the scope of the Commerce Clause without trying to describe what an outcome might be as to cases that are presently pending in courts and that will work their way to the Supreme Court, which then, if I'm confirmed, I'd be an intermediate court, obligated to follow that law. I will say that Congress' authority to regulate activity is limited to regulating three types of activity. This is spelled out in the cases you described: instrumentalities of commerce, channels of commerce, and activities that substantial affect interstate commerce. In that context, the question you asked, I would have to define to my students more, well, what is the activity being looked at? Is it economic in nature? Is it purely interstate, in which case Congress and the Tenth Amendment might have fewer powers? So it takes me about 2 weeks, in my constitutional law class, to elaborate an answer to that question. But I hope that gives you some insight. Senator Grassley. Don't take 2 weeks this time. Professor Higginson. OK. [Laughter.] Senator Grassley. Well, listen. That gets me to something then that I think Congress is doing for the first time, mandating that--saying that Congress can force people to do something that I would call economic inactivity. Under your understanding of the Lopez and Supreme Court precedent, does Congress then have the authority to regulate economic inactivity? An example of that is, if I don't want to buy health insurance, does the Federal Government give--can Congress make me buy health insurance? But don't concentrate on the health insurance, concentrate on the inactivity. Can Congress regulate economic inactivity? Professor Higginson. Senator Grassley, again, if I were confirmed to sit in an intermediate court position I would be obligated to follow the law. There is guiding Supreme Court law on these issues; we've mentioned three cases. But by your reference to the view that Congress could be coercing activity, that does implicate other limitations spelled out by the Supreme Court: the Prince decision, South Dakota v. Dole. There are a legion of cases that you correctly do point out that Congress' authority is limited and those would have to be sensitively applied and considered. I can assure you that if I were confirmed to be a judge I would assiduously do that, but only in the context of facts presented directly to me. It would be crucial, for me to answer the question you're asking, to be able to look at your piece of legislation, to look at what Congress explicitly has written. I do understand that several District Courts have come to different conclusions, so again, this is an issue that there will be guidance on. Senator Grassley. Well, is there any precedent of any court to force people into economic activity that they might not want to get into? Professor Higginson. I'm pausing so I don't misspeak. I think that that question is not one that I've studied closely. Again, the cases are---- Senator Grassley. You probably haven't studied it closely because I don't think there's any precedent in that area. Professor Higginson. Yes. And in that context, if I were in a--if I were honored to be a judge and it were an issue of first impression, I would turn first to the text of the statute, then I would turn to the text of the Commerce Clause and other power-restricting features in the Constitution, and additionally, given your facts, I suppose---- Senator Grassley. Let me ask one more question. Senator Franken. Take as much time as you'd like. Senator Grassley. Well, it kind of gets back to this then. Is there any meaningful distinction to be drawn between the Commerce Clause and what Congress says the Commerce Clause can do? Is there any distinction to be drawn between economic activity and economic inactivity? Professor Higginson. Well, the focus on economic activity has been a salient feature of the Supreme Court decisions, and if confirmed, I would apply and diligently look into that issue, the--the importance of it being economic activity. Senator Grassley. Under the U.S. Constitution, States are considered to have general police powers that permit them to enact laws for the general welfare, morals, health, and safety of their citizens--in fact, maybe to do some things that even the Federal Government can't do. Do you believe that the Commerce Clause grants Congress a power that is analogous to the general police powers of the States? Professor Higginson. Absolutely not. Senator Grassley. I guess that's it, Mr. Chairman. Senator Franken. Thank you, Senator, Ranking Member. Senator Grassley. OK. Senator Franken. Thank you, Professor. You may step down now, and we'll proceed. You're excused, I guess. And we will proceed to our second panel. Thank you very much again, Professor. And thank you to your family for--for being here. 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Will you all place take your seats on the panel? OK. I'm sorry. Actually, I would now ask you to stand and be sworn. [Whereupon, the witness was duly sworn.] Senator Franken. Thank you. Now I'd like to invite you, and we'll start with Judge Triche-Milazzo, then going down the table. I'd like you all to introduce any friends and family that you have attending. STATEMENT OF JUDGE JANE M. TRICHE-MILAZZO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA Judge Triche-Milazzo. OK. Thank you, Senator. First, I'd like to thank the Committee for inviting me here today to consider my nomination. I certainly want to thank President Obama for the honor of this nomination, and Senator Landrieu's recommendation of me to the President and her very, very kind words today, as well as those of Senator Vitter. I appreciate his support during this process. I have with me my husband John, son Richard, a daughter, Anne, son Jack, my nephew Sam, and somebody's not happy to be here. [Laughter.] Judge Triche-Milazzo. And dear friends, Crissy Chaney, Jennifer Walsh, and some other friends. Three of my children could not be here. Jerome and Jennifer are watching it on webcast, along with my father. My youngest son Joseph actually left today for Afghanistan. He's with the unit--Combat Engineering Unit out of Baker, Louisiana. He's with me in spirit, and I am with him. Thank you very much. Senator Franken. Thank you. Your son is Joe, right? Judge Triche-Milazzo. Joe. Senator Franken. Yes. Well, thank Joe for us, would you? Judge Triche-Milazzo. I will. I will. Senator Franken. OK. Thank you. Judge Triche-Milazzo. Thank you very much. Senator Franken. Ms. Nathan. 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NATHAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Ms. Nathan. Thank you, Mr. Chairman. And I thank you and Ranking Member Grassley, and Senator Leahy for scheduling this hearing and allowing me the great privilege of being here before you today. I'd also like to thank Senator Schumer for his generous introduction and for recommending me, and Senator Gillebrand for her support as well. And I thank the President for nominating me. I would like to introduce my family. I'm here with my partner, Professor Margaret Satterthwaite. I'm grateful every day for Meg's friendship, love and support. She's here, as you've heard, with the apples of my eye, my twin sons, Nathan and Oliver, who will turn two this July. My parents, Ellen and Bill Nathan are here. They typically seek only to be known as Nathan and Oliver's grandparents, which they adore being. Senator Franken. Welcome. Ms. Nathan. I know they're very proud to be here, and I'm grateful that they are, and for their love and support. Meg's mom, Sara Satterthwaite, is here, and her husband, Neal Freming. Watching by webcast is my brother, Dr. David Nathan, and his wife Libima Nathan, from their home in Salt Lake City, Utah. The person for whom I currently work is here, the Solicitor General of the State of New York, Barbara Underwood. I'm grateful that she is here, and for her support. And then I would simply note that I'm joined by a number of friends and former colleagues from my service in the White House Counsel's office; from my prior law firm of Wilmer, Hale, Cutler, Pickering & Dorr; from my year that I had the great privilege to clerk for Justice Stevens, there are a number of fellow clerks from that year here as well; and several friends who traveled from New York City to be here today. I'm grateful to them and I thank you for allowing me to introduce them. I look forward to the Committee's questions. Senator Franken. Thank you. And welcome to all of you. Ms. Forrest. 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FORREST, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Ms. Forrest. Thank you, Senator. I'd like to thank the Committee for holding this hearing and for the great honor to appear here today. I'd like to thank the President for the confidence that he showed in me for this nomination, and to Senator Schumer for the recommendation. I'd also like to thank some folks who are with me here today, as well as a few who could not make it. My husband could not make it. He is with my son, who is 9 years old and who had the great honor himself of graduating from the 4th grade today, and had a moving up ceremony, a very important event in his life. They are watching it on webcast. So, Dylan Baldwin, congratulations to my son. Senator Franken. Congratulations. Ms. Forrest. Yes. I also have here with me today my daughter Jane, who is 12 years old and has taken the day off from school to be here; my sister Bellamy, her husband Nathan; my brother Christopher; his wife Trish. I also have my very dear friend John Hagen, who is somewhere back there, and I've got several people from my former law firm, Cravath, Swaine & Moore, including Evan Chesler, the presiding partner of Cravath, Swaine & Moore, Sandra Goldstein, the head of litigation, and my former law partner, Michael Reynolds. I also am very honored and gratified to have a number of individuals who I work with currently at the Department of Justice who have taken time out of their busy day to have come here today and to support me in this day. Thank you very much. I look forward to your questions. Senator Franken. Well, thank you. And thank you all for being here today. And your son watching on the webcast, congratulations, and good luck in the 5th grade. [Laughter.] Senator Franken. Judge Hickey. 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HICKEY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS Judge Hickey. Senator Franken, I would like to thank you and Senator Grassley for allowing me to be here today at this hearing. I would also like to thank the President for the nomination. I am truly honored. I would like to thank both Senator Pryor and Senator Boozman for their support and their kind words in introducing me. I wanted to also thank all the people back home that supported me during this long process. I want to introduce my family: my husband Joe is back there, of 30 years; my oldest son Patrick is here, who flew in from Nebraska this morning and then changed in the Senator's office; my middle son Michael, who's down from New York; my youngest son Joseph is back in Arkansas. He's going to summer school at the University of Arkansas and he had a test today and couldn't get away. I want to introduce two special friends, Becky and Ernie Cagle, who came in from El Dorado to support me. Thank you. 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Well, thank you. And thank--again, thank you to all the family members and friends. You should be very proud. Ms. Forrest, I know you've done a significant amount of work protecting intellectual property, specifically copyrighted work. Can you tell me about the challenges of this kind of work, and specifically, how do you keep up with technology to keep copyrighted works protected? Ms. Forrest. Thank you for the question, Senator. I have done a number of cases in the Internet space in particular related to copyrighted work, as well as I sort of sub-specialty in the choreography area. In terms of the technology, the world is changing very, very quickly in the digital environment. There were cases when I was early on in my career as a partner which had one kind of technology, the MP3.com technology, where I essentially had to be tutored by individuals who were knowledgeable in that. Those technologies changed. They grew over time to peer-to-peer file- sharing technology. I most recently did the Lime Wire case, which was a peer-to-peer file-sharing technology. To keep abreast of technology I think is something that is a bit of a challenge. However, I do not have a technology background. It is something which judges can understand and can learn. Certainly as a practitioner, I was able to do so by speaking with people who were knowledgeable in the field. There is an awful lot of information that is available to people right now in the technology area that assisted me with my cases, and if I were confirmed as a District Court judge I would intend to bring that digital experience to the bench, and also to keep abreast of the technologies as they continue to develop. No doubt they will; it's a very changing, fast-paced environment. Senator Franken. I'll say. Judge Hickey, you spent several years serving as a senior law clerk for Judge Harry Barnes, whose seat you are nominated to fill. Judge Hickey. Yes. Senator Franken. I think this would be a unique and very effective way to learn how to do the job you're nominated to fill. Can you tell us a little bit more about your responsibilities as a clerk to Judge Barnes and how this prepared you to be a Federal judge? Judge Hickey. Senator, thank you for the question. I was lucky in that my--my judge allowed me, as a senior law clerk, to take part in all matters that were before the court, from the time that the case was filed till the final disposition. We--I went to status conferences, I went to jury trials, I went to--I was basically there every step of the way. And seeing how the court works and seeing what a good judge does, which I believe, of course, that he is--is a wonderful judge, that it helped me understand the process of the judicial system, what it takes to move a docket along, what it takes to be a good judge, have even temperament, to be respectful to the parties, know that people need their day in court, and to work toward giving them that day in court. I think that it was a good experience. I think it was a learning experience, and hopefully, if I am confirmed, that I will be able to carry that experience onto the bench. Senator Franken. Thank you. Ms. Nathan, I understand that, like a number of nominees that have come before this committee, you have done extensive pro bono work on death penalty cases. My understanding is that you've never challenged the constitutionality of the death penalty itself, and that you focused instead on challenges to specific execution practices and whether or not they comply with the Eighth Amendment's prohibition on cruel and unusual punishment. Can you tell me more about your pro bono death penalty work? Ms. Nathan. Thank you, Mr. Chairman, for the opportunity to answer that question. I have, in a pro bono capacity, represented or participated in litigation involving individuals who face the death penalty and I raised, as a lawyer in those cases, a number of issues. It's correct, I've not challenged the constitution--I don't--none of those cases raised the question of the constitutionality of the death penalty. The Supreme Court has said repeatedly that the death penalty is constitutional. I did participate in a--in a case challenging a particular protocol with respect to lethal injection. The Supreme Court ultimately ruled, in the Baize case, that the lethal injection method was constitutional. If I were so fortunate as to be confirmed, I would certainly follow the court's guidance and apply that law. Senator Franken. Thank you. Ranking Member. Senator Grassley. Thank you very much. I'm going to have questions for each of you, a few more questions for some than the others, so if you don't get asked a lot of questions, don't worry about it. I'm going to start with Ms. Nathan. In 2006, you authored an article highly critical of the so-called habeas-stripping provisions of a version of the Military Commissions Act. In that article you referenced September the 11th and said, ``Let it not also be the day, as the Bush administration would have it, that heralded the loss of the fundamental principles and structure of our Constitutional heritage.'' Do you still believe that the Bush administration heralded September 11th as the day our Nation lost ``the fundamental principles and structure of our Constitutional heritage'' ? Ms. Nathan. Thank you, Senator Grassley, for the question. I--I don't believe that's the case. I--I wrote that commentary in the role of somebody advocating for--essentially to the Congress for a particular piece of legislation. I'm not--I have not kept up as an expert in this area of law, and there's obviously been a great deal of development since then. I do believe that the Supreme Court, in the Boumediene case, ultimately concluded that there had not been an adequate substitute for habeas in this area, and any other. I would certainly follow the Supreme Court guidance. I--I did say in that article, and I believe it as a New Yorker who works two blocks from the World Trade Center site, that September 11th was a horrific day and--and it's important to our National security for there to be judges who follow the law in this area to the extent questions come before them, and that Congress act as it has in this area. Senator Grassley. I think you answered my second question. Let me ask it anyway so you know where I was going, but I think you've said basically that that's not a temperament that a Federal judge should have. The question was, do you think this remark reflects the temperament that a Federal judge should demonstrate? Ms. Nathan. Thank you, Mr. Chairman. I think it's critically important that a Federal judge have a judicial temperament that is without bias, without impartiality, that is calm and open to argument, and that is forceful in the application and adherence to the rule of law. I think that's critically important. Senator Grassley. My third question is, you co-signed a letter to Congress in opposition to that provision in 2006. Your letter states, ``The bill abandons our longstanding constitutional protections . . . against denying individuals the opportunity to defend themselves through access to exculpatory evidence known to the government.'' The United States, however, does not have a long history of providing exculpatory evidence to those captured during wartime as opposed to people that committed crimes in this country--or violated laws in this country. Given your strong views on the subject, would you recuse yourself from terrorism cases involving non-U.S. citizens? And if you wouldn't recuse yourself, have you changed your mind then about that statement? Ms. Nathan. Thank you, Senator Grassley. In any recusal question I would look carefully and closely at the Code of Judicial Conduct, at any recusal-related statutes. I'd speak to colleagues. I can assure you that if I am fortunate enough to be confirmed, I would scrupulously follow any recusal requirements. Senator Grassley. OK. In your Cornell Law Review note you said that, ``Nearly all Federal and State courts agree that the Second Amendment does not guarantee an individual the private right to bear arms, unrelated to a State's right to maintain a militia.'' We've had a couple of Supreme Court decisions, I presume, since you wrote that note. Do you still hold the view that the Second Amendment protects a collective right to bear arms, but not an individual right? Ms. Nathan. Thank you, Senator Grassley. It's certainly true that since that time the Supreme Court, in Heller, held that that Second Amendment contains an individual right, and in McDonald that it's a fundamental right. I would have no hesitation in following that and related precedent. Senator Grassley. Yes. My last question deals with your basic qualifications. I want to ask you a couple of questions about that, but before I do, the American Bar Association's Standing Committee has guidelines, and those guidelines provide that ``a prospective nominee to the Federal branch ordinarily should have at least 12 years experience in the practice of law.'' The ABA Committee also considers ``substantial courtroom and trial experience as a lawyer or trial judge important.'' Given the dates of your graduation from law school and the dates of your Bar memberships, do you believe that you meet the ABA's standard? Ms. Nathan. Thank you, Senator Grassley. I--I understand the weightiness of the job of a District Court judge and I--I do believe that I am qualified, based on the set of experiences that I've had and the set of skills that I have. And the experiences that I believe prepare me for the job include the work that I do now in the State Solicitor General's Office and the Office of the Attorney General of New York, where I litigate matters in both trial court and appellate court, issues of State law and Federal law, civil and criminal. I litigated for several years at the law firm of Wilmer, Hale. I have participated in both the executive branch and the judicial branch, and I've taught civil procedure and criminal procedure. And I do believe that these experience and skills prepare me now for the job of District Court judge, and I can assure you that if the Senate--if I am so fortunate as to be confirmed, I would do what I've done in all of these professional endeavors, which is to bring analytical ability and I hope good judgment and extreme work ethic to any questions or issues that face me, and I would work hard at that every day. Senator Grassley. Thank you for your answers. I think I'll go, now, to Ms. Hickey. I would also follow a little bit on what I just asked Ms. Nathan about what appears to be some lack of experience, and particularly litigation experience. According to your questionnaire, you have never tried a case and your only litigation experience appears to have been as staff attorney for the Murphy Oil Company for two to 3 years immediately after law school. So I'd like to have you have a chance to tell the Committee about your experience that qualifies you to serve in the position of Federal District judge. Judge Hickey. Thank you, Senator, for the question. I have not been a litigator, but my experience is on the side of the court, from the perspective of the court. As a senior law clerk for a District judge, I worked on all aspects of the cases that were before the court from the beginning of the case being filed until the disposition of that case. That included not only the motions of litigants, but it also included the trial work of the litigants. I understand what a trial judge does. I know what litigants do. I understand the rules of civil and criminal procedure. I under--the rules of evidence. And that experience working in the court system gives me a different perspective as an advocate. I--the court is to be neutral. They are to be the-- the person who calls the balls and strikes of--of the courtroom. And working in the court system, I know that and I can be neutral and that's what I've learned being a law clerk. But also, I've been a sitting judge. I've presided over cases since September of last year in the Sixth County Circuit. I handle mostly criminal--my docket is mostly criminal, but I've also handled civil cases and divorce cases, juvenile cases. I preside over a drug court in Union County. So I believe that my experience has qualified me to be a judge, and if I am so fortunate to be confirmed, I believe that I have the temperament, the qualifications, the background to be a District Judge. Senator Grassley. Do you have any--you just referred to your State court experience, so I won't repeat that. But do you have any additional judicial experience that is not reflected in your questionnaire? Judge Hickey. I have--you mean, trial work experience, Senator? Is---- Senator Grassley. Yes. Judge Hickey. OK. OK. I have tried both criminal matters, I have tried aggravated robberies, I have tried civil matters having to do with contracts. I have tried bench trials and jury trials. Senator Grassley. My last question for you might reflect that I don't accept what you've already given, but it is somewhat limited experience. So let me ask this question: are there any skills or experiences that you don't have that you think are necessary for a Federal judge to have? And if so, how would you plan to make up for any lack of experience you have? Judge Hickey. I--I do not believe that I--that I have any skills that are lacking to be a District judge, Senator. I believe that the experiences that I have sitting on the side of the court have--has given me the perspective and the background that--that it takes to be a District judge. Senator Grassley. OK. I will ask, now, Ms. Triche-Milazzo. You have very little experience in U.S. Federal courts. This lack of experience is complicated by the fact that a majority of your practice has been in Louisiana, a State with a very unique legal system based largely on French and Spanish civilian law. What assurances can you provide future litigants that you will know and understand the procedures of our Federal court system, as expected of all Federal judges? Judge Triche-Milazzo. Thank you, Senator. When I first came to practice, I went immediately into practice with my father. At that time he was engaged in substantial Federal litigation and I sat through many of those cases. So it's not that I come to--to this Committee having had no Federal experience, I have. But it would be disingenuous if I said that that was the majority of my experience. Over the past 3 years, I've presided as a State court judge and during that time I have followed the Louisiana Code of Evidence, that I can assure you is fashioned in large part after the Federal Code of Evidence. So I'm quite comfortable that I could make that transition. Additionally, Senator, I've followed the Louisiana law. I-- I am aware that there will be a transitional period, but I can assure you that my work ethic is such that I will make that transition as smoothly as possible and put in the necessary hours and the work to make that transition effectively. Thank you. Senator Grassley. OK. What about this aspect of Louisiana law, and I'm surely not--well, I've told you so many times. My colleagues get tired of me saying I'm not a lawyer, but I'm not a lawyer. It's my understanding that judges in Louisiana are not bound by stare decisis, as are judges under our traditional common law system. If confirmed, would you adhere to precedent rather than your personal interpretation of statute? Judge Triche-Milazzo. Yes, sir, Senator. Very frankly, we are bound. We call it jurisprudence constante in Louisiana. But we are bound by the statute. What I think--and--and then the interpretations as provided by the higher courts in Louisiana. So this is not a concept that is foreign to me. I'm very comfortable that I'll abide by my obligation to follow the--the pronouncements of the Supreme Court, in my case, the Fifth Circuit Court of Appeals. Senator Grassley. If you can educate this non-lawyer on that point that you just made, what's the difference between what we consider stare decisis and whatever you said was the case in Louisiana? [Laughter.] Judge Triche-Milazzo. Theoretically, under Louisiana law we are bound by the code and the higher courts give us guidance. That's in theory. But let me assure you that Louisiana judges and Louisiana lawyers look to the interpretation by the higher courts as being binding. Senator Grassley. OK. And my last question will go to Ms. Forrest. Again, this question deals with lack of experience, but in this case in the area of criminal law. According to your questionnaire, 98 percent of your career has been in civil practice. If confirmed, how will you prepare yourself to handle a variety of criminal issues that a District judge confronts? What assurance can you provide future litigants that your judgment is sound and well-informed and fair when it comes to criminal law? Ms. Forrest. Thank you for the question, Senator. It is true that the majority of my practice was 20-plus years doing complex civil litigation. However, I have been a Deputy Assistant Attorney General for the Antitrust Division of the Department of Justice for now 8 months. During that time I run criminal and civil operations. As the person in charge of criminal operations, I oversee a docket of over 100 cases where I'm responsible for all aspects of the investigation of the matters that come before the Division. I deal with plea agreements, I deal with sentencing guideline issues. So I have begun the process of educating myself. I do understand very seriously that there is more to be learned. That is always the case when you are entering into new areas of the law. My work ethic is such that I have no doubt that I will be able to acquire the skills necessary to be able to oversee all aspects of the criminal matters that come before me. Senator Grassley. Thank you, Mr. Chairman. Thank you all very much for answering my questions. Senator Franken. Thank you, Senator Grassley. Senator Grassley. I'll probably submit some questions for answer in writing to some of you. Senator Franken. OK. Great. Before I adjourn this panel I'd like to introduce into the record a quite remarkable letter from 27 of Ms. Nathan's former co-clerks from when she clerked with the U.S. Supreme Court, and I would note that this includes former clerks for not just Justice Stevens, whom you clerked for, but also former Chief Justice Rehnquist, Justice Thomas, and Justice Scalia, who are, I think, recognized as maybe the more conservative justices in the court at that time. Senator Grassley. Strict constructionalists. Senator Franken. I'm not a lawyer either. So, no. I actually--strict constructionalists in a certain way. But, yes. Good. Let me read the conclusion from this letter: ``We have all known Ms. Nathan for at least a decade now and we all believe that she has the necessary qualifications and characteristics to make an exemplary Federal District judge. If confirmed, we are confident that Ms. Nathan will listen carefully to all those who come before her and that she will make thoughtful judgments based on the law. We recommend her for this position without hesitation and without reservation.'' This will be submitted into the record. [The letter appears as a submission for the record.] Senator Franken. I'd like to thank all of you, Ms. Forrest, Judge Hickey, Ms. Nathan, and Judge Triche-Milazzo. Thank you so much. I'll just--I just, in closing, would like to thank the Ranking Member. Senator Grassley. I get paid for doing this. Senator Franken. I know you get paid. You get the big bucks for doing this. [Laughter.] Senator Franken. And I want to thank each of you for your testimony. We will hold the record open for a week so the Ranking Member or whoever wants to can submit questions to the nominees, and any other materials. This hearing is adjourned. [Whereupon, at 3:45 p.m. the hearing was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T6350.184 [GRAPHIC] [TIFF OMITTED] T6350.185 [GRAPHIC] [TIFF OMITTED] T6350.186 [GRAPHIC] [TIFF OMITTED] T6350.187 [GRAPHIC] [TIFF OMITTED] T6350.188 [GRAPHIC] [TIFF OMITTED] T6350.189 [GRAPHIC] [TIFF OMITTED] T6350.190 [GRAPHIC] [TIFF OMITTED] T6350.191 [GRAPHIC] [TIFF OMITTED] T6350.192 [GRAPHIC] [TIFF OMITTED] T6350.193 [GRAPHIC] [TIFF OMITTED] T6350.194 [GRAPHIC] [TIFF OMITTED] T6350.195 [GRAPHIC] [TIFF OMITTED] T6350.196 [GRAPHIC] [TIFF OMITTED] T6350.197 [GRAPHIC] [TIFF OMITTED] T6350.198 [GRAPHIC] [TIFF OMITTED] T6350.199 [GRAPHIC] [TIFF OMITTED] T6350.200 [GRAPHIC] [TIFF OMITTED] T6350.201 [GRAPHIC] [TIFF OMITTED] T6350.202 [GRAPHIC] [TIFF OMITTED] T6350.203 [GRAPHIC] [TIFF OMITTED] T6350.204 [GRAPHIC] [TIFF OMITTED] T6350.205 [GRAPHIC] [TIFF OMITTED] T6350.206 [GRAPHIC] [TIFF OMITTED] T6350.207 [GRAPHIC] [TIFF OMITTED] T6350.208 [GRAPHIC] [TIFF OMITTED] T6350.209 [GRAPHIC] [TIFF OMITTED] T6350.210 [GRAPHIC] [TIFF OMITTED] T6350.211 [GRAPHIC] [TIFF OMITTED] T6350.212 [GRAPHIC] [TIFF OMITTED] T6350.213 [GRAPHIC] [TIFF OMITTED] T6350.214 [GRAPHIC] [TIFF OMITTED] T6350.215 [GRAPHIC] [TIFF OMITTED] T6350.216 [GRAPHIC] [TIFF OMITTED] T6350.217 [GRAPHIC] [TIFF OMITTED] T6350.218 [GRAPHIC] [TIFF OMITTED] T6350.219 [GRAPHIC] [TIFF OMITTED] T6350.220 [GRAPHIC] [TIFF OMITTED] T6350.221 [GRAPHIC] [TIFF OMITTED] T6350.222 [GRAPHIC] [TIFF OMITTED] T6350.223 [GRAPHIC] [TIFF OMITTED] T6350.224 [GRAPHIC] [TIFF OMITTED] T6350.225 NOMINATIONS OF CHRISTOPHER DRONEY, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE FOR THE SECOND CIRCUIT; ROBERT D. MARIANI, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; CATHY BISSOON, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; MARK R. HORNAK, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND, ROBERT N. SCOLA, JR., NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA ---------- WEDNESDAY, JUNE 22, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:35 p.m., Room 226, Dirksen Senate Office Building, Hon. Richard Blumenthal presiding. Present: Senators Whitehouse and Grassley. OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Blumenthal. Good afternoon. I am pleased to call to order this nominations hearing. I want to thank my colleagues for being here, and everyone who is attending this hearing of the Senate Judiciary Committee. I am grateful to Chairman Leahy for giving me this opportunity to preside this afternoon and to Senator Grassley, the Ranking Member, for being here with us. And I know that I am joined by Senator Grassley in the strong feeling that we have an obligation to move forward and advance this nominations process in the Senate, and I am encouraged by the spirit of bipartisanship that I have seen in my short time on the Judiciary Committee and in the U.S. Senate. And, obviously, we are responding to very widely and strongly felt feelings on the part of the American public that they want us to work together in a bipartisan spirit to advance the Nation, to create jobs, and to make sure that our justice system works efficiently. There are still over 90 Federal judicial vacancies and nearly half of those vacancies have been declared judicial emergencies. And I am very pleased that this afternoon we will take another step toward filling some of those vacancies with some very distinguished nominees. I hope that we will be joined by other of my colleagues on the Judiciary Committee. But in the meantime, I would like to yield to the Ranking Member, Senator Grassley, for any remarks he may have. STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. I, of course, welcome all of the nominees who are coming before the committee, and particularly know that their family and friends are proud of them. As I mentioned at our last nomination hearing, this is an important event for the nominees, as well as for the institution and for the public. The nominations before us today illustrate the critical role of the constitutional advice and consent function of our Senate. This Committee previously reviewed the qualifications of a nominee to the seat to which Judge Droney is now nominated. The Committee found that nomination to be lacking and returned it to the President without final action. The three district nominees from the President were first nominated shortly after the election last November. I would note that there is a new Senator from Pennsylvania, and when the nominations were resubmitted to this Congress, I made sure that the rights of that Senator were protected. Working with the chairman, we agreed that all home State Senators, particularly the new Senators, would be given time to review nominations and return blue slips before proceeding, and I, obviously, thank Chairman Leahy for that courtesy to us as a minority. I think that this was a fair process to the Senate, as well as to the nominees. We know it is crucial for nominees to have the support of home State Senators. Generally, nominations do not move forward without their support. We have arrived at the point where we can now consider the nominations. I look forward to the testimony of the people before us. So I will have questions. I have a much longer statement that talks about each nominee but I am not going to read it. I am going to put it in the record. And I would ask that the nominees read what I had to say about them. Senator Blumenthal. Without objection, that statement will be in the record. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Blumenthal. And we are going to proceed from Senator Lieberman onward in introductions. But let me just say that we are going to welcome, first--and he will introduce him--Judge Christopher Droney, who has been nominated to be a judge on the Court of Appeals for the Second Circuit. He is from the State of Connecticut and he has served on the United States District Court for the District of Connecticut for 14 years. After Senator Lieberman, we will hear from Senator Nelson, who will welcome Robert Mariani--I am sorry--who will welcome Robert Scola, who has been nominated to be a United States District Judge for the Southern District of Florida. For the last 16 years, Judge Scola has served as a state circuit judge for the 11th Circuit of Florida, and he previously worked both as a criminal defense attorney and as a state prosecutor. And he will be introduced by both Senator Nelson and Senator Rubio, if he arrives. We also want to welcome Robert Mariani, who has been nominated to be a United States District Judge for the Middle District of Pennsylvania. He has worked as a solo practitioner in Scranton, Pennsylvania since 1993, and he has an impressive resume as a litigator in private practice. He will be introduced by his home State Senators, Casey and Toomey, who are both here. Thank you. And we also welcome Judge Cathy Bissoon and Mark Hornak, who have both been nominated to be United States District Judge for the Western District of Pennsylvania. Mr. Hornak has worked in private practice in Pittsburgh for the law firm of Ingersoll & Rooney for nearly his entire legal career. And both of them will be introduced by, again, Senators Casey and Toomey. So with that, Senator Lieberman, the floor is yours. PRESENTATION OF CHRISTOPHER DRONEY, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Lieberman. Thank you very much, Chairman Blumenthal. It is an honor to be here to introduce Judge Droney to the committee, Senator Grassley. I must say it is a special personal pleasure to see you, Senator Blumenthal, chairing this hearing. It really is a personal thrill for me to be able to introduce Judge Droney to the Committee as a nominee for the second circuit court. I have known Chris Droney and his family for a long time. Let me just say, by way of introduction, that his wife, Liz, and his three daughters, Sarah, Emily and Katherine, are here, and they are the best argument for voting to confirm Chris Droney, even though he has an extraordinary record. I first came to know Chris when he was a private attorney in the Hartford area and involved in West Hartford town government as a member of the town council and then ultimately as mayor. In 1993, President Clinton nominated Chris to be our U.S. Attorney in Connecticut. Incidentally, we were both remembering, when I had the honor of swearing him in as U.S. Attorney in the fall of 1993, he was holding one of his daughters in his hand. This would be hard to do today. We have come a long ways, and Chris did a great job as U.S. Attorney for the 4 years he served in that capacity, initiating cooperative law enforcement efforts against gangs, health care fraud and financial fraud investigations, and trying some major cases in Connecticut and across New England, including some successful arguments before the United States Second Circuit Court of Appeals. In 1997, President Clinton nominated Chris Droney to be a member of the district court in Connecticut. I remember saying, when I had the honor to introduce him that day before this committee, that I hoped that I would--that Chris was young enough and I hoped that I would serve long enough in the U.S. Senate that I would be able to return when he was nominated for a higher court, because I felt sure that his service on the district court would justify that nomination. You can see what I meant when I said that it is a real personal thrill to be here today to actually introduce him. He has served with great distinction for 13 years as a member of the district bench, presiding over hundreds of Federal, civil and criminal trials. He has a profound commitment to the rule of law, widespread respect he enjoys among lawyers practicing in the Federal courts. To my way of thinking, he is just a mainstream, bright, sensible jurist. In fact, during his 13 years as a district judge, Judge Droney has served on second circuit panels a number of times and actually written opinions for the second circuit court on topics as varied as antitrust law, criminal procedure, and Federal labor law. So this is a person of great character, hard work, and a real love for the law. He has shown that as U.S. Attorney, as a district judge, and I am confident, with the support of this Committee and our colleagues in the Senate, that he will do the same on the second circuit court. Actually, his nomination was unanimously confirmed by the Senate in 1997 to the district court. That does not happen much anymore, but since Leon Panetta was confirmed 100-0 the other day, I want to say that I hope we can do the same for Chris Droney when he comes before the Senate. With that, I introduce him to this honorable committee. Thank you, Mr. Chairman. Senator Blumenthal. Thank you, Senator Lieberman. Senator Nelson, thank you for being here today. I might say, about all of my colleagues, that your being here really is very meaningful to the Committee and to the nominees who are here today for this hearing. Senator Nelson, thank you very much. PRESENTATION OF ROBERT N. SCOLA, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORDIA Senator Nelson. And, Mr. Chairman, as Senator Lieberman just mentioned, it is nice when you have a nominee up for confirmation before the Senate like Leon Panetta. I saw him today and, through mock surprise, said, ``Boy that was a squeaker getting you through.'' And, likewise, I bring to the Senate--Senator Rubio and I both bring to the Senate a judge that is one of the most esteemed and respected judges in a huge, huge state court district, and that being Miami-Dade County. And the even better news is that Judge Scola is married to a judge, Judge Jackie Scola. So we are getting two for the price of one. And their whole family is here today, their sons, Bobby and Billy, and the judge will introduce them later on in his testimony. I could go through all the particulars, but you know the tremendous bipartisan process that we have in Florida, where we try to take politics out of the selection of our judges by impaneling a judicial nominating commission that is done by custom rather than law and has been done by the two Senators from Florida for some period of time. And they go through all of the applications. They receive the applications. They do the interviews, and they select, from outstanding applicants, three for a particular vacancy and those three are submitted to the two Senators, who then interview them. And then with our recommendations, it goes on to the White House. Now, the President, of course, constitutionally, is going to be the one to make the nomination, but since we do the confirmation, it is a collaborative process. And it is working and it is working well, and it has produced the kind of quality that we find in this nominee, Judge Scola. And, Marco, I just told them about our bipartisan process. And so Judge Scola is a product of that. He, without a doubt, over and over, it has been told to me as I run into members of the bar in Miami, that this man is outstanding and he deserves this appointment. So I ask you all to consider that. As you said, Mr. Chairman, he has been a prosecutor. He has been for years a circuit judge in the state court system. He is an adjunct professor at Florida International University College of Law and the University of Miami School of Law. And he is a faculty member of the Florida New Judges College and the Florida College of Advanced Judicial Studies. So you have here all in one package--scholarly, well thought of, ethical, experienced, jurist and longstanding member of the bar, and, of course, Senator Rubio and I highly recommend him. Senator Blumenthal. Thank you, Senator Nelson. Thank you for being here. And thank you to Senator Rubio for joining us. I know you had another obligation and appreciate your being here. If you would like to introduce Judge Scola. PRESENTATION OF ROBERT N. SCOLA, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORDIA BY HON. MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF FLORDIA Senator Rubio. Sure, Mr. Chairman. Thank you. And I will be brief, because I think Senator Nelson has touched upon all these things and just echo all of that and tell you that Judge Scola is very well regarded in the legal community, particularly in south Florida, where I am from. I have had numerous friends of mine in the legal community call and recommend him. And so we are proud to present him to the Committee and we know you will give him your full and fair consideration. It is an honor to be here with him. I know he will introduce his family in a moment, and I think you will be impressed by his resume. Senator Blumenthal. Thank you very much. Now, I would like to turn to Senators Casey and Toomey. PRESENTATION OF ROBERT D. MARIANI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; CATHY BISSOON NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND MARK R. HORNAK, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. ROBERT P. CASEY JR., A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Casey. Thank you, Mr. Chairman. We are honored to be here and want to thank you for this opportunity. It is a great honor to be able to introduce, in this case, three Pennsylvanians to be considered before this committee, and I want to thank you and thank Senator Grassley. I am particularly grateful for the work done by Senator Toomey. As is true in a number of states, there is a process that results in individuals being considered and then recommended to come before this Committee and it is a process that I have worked on over a number years with Senator Specter and have continued that work with Senator Toomey and I am grateful for all the work that he put into this today to make this possible. I will do a very quick biographical sketch--it will not do justice to the achievements and the resumes--of each of our nominees. But before I do that, I wanted to say two things. One is that often, I think, when we have hearings in Washington that involve something as fundamental as the confirmation of judges, we can often lose sight of how critical this is to our system of justice and, also, how, even with all of our challenges and all of our problems in the United States, our system of justice is still the envy of the world. It separates us from almost every country in the world and the basic problem that a lot of nations have is they can never get to the point where they have a system of justice that is strong, that people have confidence in, and that delivers justice on a regular basis. So we should be very proud that we have such a system in place. Second, I would say, with regard to the nominees, they come here with their experience and they come here with their achievements and their commitments about the future, if they were to become Federal judges. But each of them, in their own way, comes with their families, as well, and it is a commitment that families make leading up to today and beyond today, and we especially want to commend the work and the commitment of each member of these three nominees--Bob Mariani's family and the families of Cathy Bissoon and Mark Hornak. Let me just do a quick sketch for each of them. I have known Bob Mariani the longest of the three. I practiced law in the same town, in the same bar with him. And even then, all those years ago, he commanded great respect, starting from the time he left Syracuse University for his law degree. As you will hear more of, he has practiced law as a civil litigator for more than 3 decades, almost 35 years now. He has run a business. Obviously, when you are a lawyer that--for a good part of his life as a lawyer, as a sole proprietor running that business and doing all the things you have to do to run a business. So I cannot say enough about his ability, his integrity, and his commitment to do justice. And I think our only regret here today is that his wife, Sally, is not with us today. We are thinking of her today and remembering her. I knew her, as well, from the neighborhood that we live in. I am so grateful to Bob and his family for making this commitment. Cathy Bissoon, if you look at her story, her resume, it is a remarkable American story of achievement and success and overcoming obstacles. A graduate of Harvard Law School, serving as a magistrate judge in our Federal system in the Western District of Pennsylvania, a member of a number of major law firms in Pennsylvania, in Pittsburgh, Pennsylvania. But I think more than anything else, you can see from her background that it is a story of great achievement, and I have no doubt that she will do a great job as a member of the United States District Court for the Western District of Pennsylvania. Second, in the Western District of Pennsylvania, Mark Hornak. Mark I have known for the better part of 15 or more years. He is a graduate of the University of Pittsburgh Law School. He has been, as you noted earlier, at Buchanan, Ingersoll & Rooney, that law firm, in one iteration or another, all these years, since, I guess, 1982. A tremendous lawyer, great skill and ability and commitment to public service. And I am grateful that his family is with him today. So I could say about all three--Bob Mariani, Cathy Bissoon and Mark Hornak--that they are all--each one of them and in a collective sense, as well--fully qualified and prepared and I think in each instance we will have the kind of integrity and the kind of commitment to honesty in the rule of law and a commitment to justice that will serve the Western District of Pennsylvania well, in the case of Cathy Bissoon and Mark Hornak, and in the case of Bob Mariani, the Middle District of Pennsylvania. I cannot say enough about them. I am grateful to be here, and I am also to be joined by Senator Toomey. Senator Blumenthal. Thank you, Senator Casey, for those very meaningful and significant comments. And, Senator Toomey, if you would care to follow him. PRESENTATION OF ROBERT D. MARIANI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; CATHY BISSOON NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND MARK R. HORNAK, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. PATRICK J. TOOMEY, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Toomey. Thank you very much, Mr. Chairman and Ranking Member Grassley. Let me thank each of you and Senator Leahy, as well, for the courtesies you have extended to me as we have gone through this process. Thanks, also, for giving me this chance to help to welcome Judge Cathy Bissoon, Mark Hornak, and Robert Mariani before the committee. The President first nominated these really outstanding individuals for the Federal bench in Pennsylvania last year, before I was sworn into the Senate, as Senator Grassley observed. They were re-nominated in early January and I was pleased to submit the blue slips and to support them. And I also appreciate your timely scheduling of this hearing. Before I talk briefly about the nominees, I just wanted to note how pleased I am to be here alongside my colleague, Senator Casey. In my brief time, about 6 months thus far here in the Senate for me, he and I have not only been working to advance these three nominees, but also in really a genuinely bipartisan fashion, we have been working to help with the remaining five Federal district court vacancies in Pennsylvania, and I see today's hearing as an important milestone in making real progress in this direction. Over the last few weeks and after a thorough review process, I have had the opportunity to sit down with and to discuss at some length with each of the Pennsylvania nominees before you today. As you have heard, they each have very different legal backgrounds, but I am confident that each of these distinguished nominees carry the important qualities that Pennsylvania and America really need on the Federal bench-- intellect, experience, integrity, a commitment to public service, impartiality in justice. Since Senator Casey has already talked a fair amount about the backgrounds of these nominees, I will not take too much time, but let me just touch on some of the items that you have heard. Judge Bissoon is, of course, a very well respected Federal magistrate judge, and I agree she has a very compelling life story. She is widely lauded in the community for her commitment to mentoring young lawyers, in particular, and encouraging greater diversity in the legal progression. Mr. Hornak is an active and very well respected member of both the Pittsburgh legal community and the community at-large, serving, as he does, on the board of a number of nonprofit organizations, including the Steel Valley School District, the Pittsburgh Foundation, and the Girl Scouts of America. And, last, Mr. Mariani, a litigator with over 3 decades of experience, is an expert in his field, one of the top lawyers in the Scranton area, and deeply committed to his family and his community. So all three Pennsylvania nominees before you today have extensive experience in the courtroom. They have excelled at their craft. They are well respected members of their communities, and they have already presided over legal disputes, whether that be as a magistrate judge, as an arbitrator, or as a mediator. They have also pledged to be impartial, fairminded upholders of the law. Taken together, I believe that these attributes will serve them very well, if they are confirmed for the bench, and I hope that the Committee favorably reports all three nominees to the full Senate, which I hope will then promptly confirm them. Again, thanks very much for providing me the opportunity to say a few words and to welcome and to recommend Judge Bissoon, Mr. Hornak, and Mr. Mariani to the Committee today. Senator Blumenthal. Thank you, Senator Toomey and Senator Casey. I might just explain to the folks who are visiting that Senators often have other obligations, cannot stay for the whole hearing. So we thank you for being here and for making this hearing informed about the unique perspectives that you bring to each of these nominees. I am going to ask Senator Whitehouse to comment. He is a member of this Committee and he may not be able to stay himself for the full hearing, but I think he wants to make some remarks about one of the nominees. PRESENTATION OF CHRISTOPHER DRONEY, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND Senator Whitehouse. I cannot stay, but I appreciate both your courtesy, Mr. Chairman, and the Ranking Member's courtesy, Senator Grassley's courtesy, in allowing me just to say a brief word. I know that as the chief law enforcement officer for your home State of Connecticut for many, many years and a very distinguished practitioner who I think probably has more Supreme Court arguments than anybody in the Senate does, you are keenly aware of the talents that Chris Droney brings to the table. I just wanted to share briefly that he and I were United States Attorneys together. In the world of 93 United States Attorneys, there is a certain amount of sort of jockeying and prestige and trying to sort out---- Senator Blumenthal. I would not know that. Senator Whitehouse [continuing]. Trying to sort out who the really superstar ones are and all of that. And not only did I have a very high regard for Chris Droney during his time as United States Attorney, but I believe that all of his colleagues did. He was seen as one of the finest of the U.S. Attorneys, and that is a pretty competitive crowd. So I just wanted to stop by briefly to wish him well, to hope that his process is uncontroversial and smooth, and, of course, if there is anything that I can do to assist with any of my colleagues in trying to understand how good a nominee he is, to see to it that they agree that he should be noncontroversial, I am all in for that. He is a very good lawyer, he has been a great U.S. Attorney, and I look forward to his smooth confirmation. Thank you, Mr. Chairman. And I thank the Ranking Member, also. Senator Blumenthal. Thank you, Senator Whitehouse. And let me say that I bring a little bit of the same perspective, having been United States Attorney in Connecticut for 4.5 years before I was Attorney General, and I have worked with Judge Droney both as a United States Attorney, when he served in that position, and then later as a judge when my office--and I personally had cases before him. So today is a day of particular pride for me as a citizen of Connecticut, as a public official, as well as a member of the bar in Connecticut, a former prosecutor, and now a Senator, to be presiding. Judge Droney brings to this nomination a really rare, if not unique set of qualifications and experience. Having been a prosecutor, as well as a private practitioner, and a citizen involved in his community, speaking to some of the qualifications that Senator Lieberman mentioned in his very able opening remarks. I had occasion to work with Judge Droney when he was United States Attorney on some of the most challenging and difficult cases and observed those cases that he had. He was particularly successful in prosecuting street gangs. He presided in an office that pursued more than 150 gang-related convictions, securing very significant sentences and other results. And he succeeded in coordinating state, local and Federal prosecutorial and law enforcement officials to crack down on street crime and organized crime, deterring that kind of activity, as well as prosecuting it. He served as a member of the United States District Court for the District of Connecticut for 14 years and, in that capacity, presided over more than 3,000 civil cases and nearly 400 criminal cases, and he had very significant experience on the court of appeals to which he has now been nominated, where he served as a visiting judge on more than 50 appeals. He has written more than 700 opinions, including six while sitting by designation on the second circuit. I might say by way of qualification, or disqualification, he has presided as a judge over a number of arguments and cases that my office had before him as an attorney general, and we won some and we lost some, but we always had extraordinary and deep respect for the scholarship and judgment that Judge Droney brought to those cases. He has also been involved in his community, very significantly in the Science Museum of Connecticut, St. Francis Hospital and Medical Center, the American Cancer Society's Connecticut chapter, and he has received numerous awards. These distinctions are all in the record and I am not going to go over them in great detail, but I might just mention for the record that the ABA standing Committee on the Federal Judiciary unanimously rated Judge Droney well qualified, which is its highest ranking. He is accompanied today by his family, which, as Senator Lieberman mentioned, is one of his major, I think, distinctions. His wife, Elizabeth, and his daughters, Emily, Sarah and Katherine. And I might just say to the families of all the nominees--I know Judge Droney personally, I do not know the others--but you should all be very, very proud of the family members who are before this committee. They have served with tremendous distinction and great dedication as public servants to this point in their lives and whatever the outcome before the U.S. Senate, you should be very, very proud of what they have done for this Nation. So having said that, I am going to ask Judge Droney to please take the witness stand, and we will give you the opportunity to make an opening statement; first, to be sworn and then to make an opening statement. [Nominee sworn.] Senator Blumenthal. Thank you. Please be seated. And if you would like to make an opening statement, please feel free. STATEMENT OF HON. CHRISTOPHER DRONEY, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SECOND CIRCUIT Judge Droney. Thank you, Mr. Chairman. I do not have an opening statement to make. I would like to thank the Committee for having the hearing. Senator Blumenthal. Please turn on your microphone. Thank you. Judge Droney. Thank you, Mr. Chairman. I would like to thank, first, the Committee for having the hearing. I would like to thank you, Senator Whitehouse and Senator Lieberman for their very kind words today and their comments earlier. I do not know if it is necessary to introduce my family again, but I will. My wife, Liz, is here and my daughters, Sarah, who is studying for the Connecticut bar is here. Emily is a registered nurse in Hartford, she is also here. And then Katherine, my youngest, just finished her freshman year in college. So I know that they are very proud and happy to be here, as well. And I am happy to answer any questions you might have. 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Thank you. I will begin with some questions and then ask Senator Grassley whether he has any. One aspect of your background that has not been mentioned and I should have made reference to it has been your service as the deputy mayor and then mayor of West Hartford. And I wonder if that experience, combined with your prosecutorial and your judicial experience, has given you a perspective on what you will be doing as a judge on the second circuit, if confirmed. Judge Droney. I think it was very important experience for me in all the different roles that I've had. I think service in local government like that teaches you to be fair to people, to be patient, to listen to everybody, and to, also, understand that just because someone is better educated than someone else doesn't mean that person is more intelligent than the one who hasn't the benefits of a great education like I have. I hope I have brought those qualities to my other positions, too, as U.S. Attorney and as a trial judge. Senator Blumenthal. And how would you describe your view of the role of precedent or decisions by higher courts in what you do as a judge? Judge Droney. Well, I certainly follow precedent, I'm bound to it, of the Supreme Court and the second circuit. I hope and I think that I have demonstrated that over my 14 years as a district judge, that my own personal views have no place in adjudicating those cases and I am bound by those decisions of the higher courts. Senator Blumenthal. I am happy to turn to the Ranking Member, Senator Grassley. Senator Grassley. First of all, congratulations. Judge Droney. Thank you, Senator. Senator Grassley. I should say you are lucky you earned it, but all these nice comments about you. When you served as U.S. Attorney in Connecticut, the New York Times quoted you as saying, ``I believe in redemption, but I also believe in paying for your sins.'' Has your time on the Federal bench changed your views you originally held as a U.S. Attorney and if so, how? Judge Droney. I don't think so. I think certainly there is a role for punishment. It's one of the things we think about in applying the Federal sentencing statute. I think it was appropriate in that particular case. It was a gang member who was sentenced to prison and he was arguing in that article that he shouldn't have received a sentence of imprisonment. But I had hoped that he turned his life around and was going to return as a contributing member of society, but he also, I think, had to pay for some of the misdeeds that he had a member of the Los Solidos. I still believe--I still believe generally in those principles that I articulated in that article. Senator Grassley. One, I ask the next question because of your position as a district judge and it is in regard to the issue of terrorism, and I only want to quote Attorney General Holder, because he has a very good quote about Article 3, court system, ``our most effective terror-fighting weapon.'' What is your reaction to the statement, based on your experience as an Article 3 judge? Is this a burden the Attorney General should put on our court, and what do you think the court's proper role would be in the war on terror? Judge Droney. Well, I think it's for people than I to decide where those cases should be placed. I know it has received a lot of attention, even this week, about whether they should be tried in military tribunals or in the district court. All I can say is if I have one of those cases, I would certainly adjudicate it and follow the law. But I think as to the decision as to where is the proper forum, I don't think that's something that at least I have encountered. It's possible, I think, that it could come before me, but I think that it's a prosecutorial decision rather than a judicial decision typically and the Attorney General would make that call, I believe. Senator Grassley. In your questionnaire, when you were nominated for district judge, you said that judges should use, ``traditional methods of legislative interpretation when defining the intent behind certain laws and their scope.'' What specifically do you consider--let me go to my second question. There has been renewed interest in textualism, including criticism of the use of legislative history and statutory interpretation. How does this approach fit into your view of traditional methods of legislative interpretation? Judge Droney. Well, I think my views are the same now as they were 14 years ago when I provided that answer to you. I think it was to you, Senator. And it is that, of course, the first thing that we should look to is the language of the statute or the Constitution itself and try to be guided by that. Second, we do--I still think it is appropriate to look at legislative history. At times, it's hard to figure it out, but it's our obligation to do our best to see what the legislature intended in passing that statute. And then, finally, of course, the decisions of the higher courts in interpreting the statute, they should be of some guidance, too, and, as I mentioned before, are binding, if it's a precedent that's right on point. Senator Grassley. Now, you have been a judge for 14 years. And if confirmed to the second circuit, how would your approach to judging change and, specifically, do you think that this will be a difficult transition for you to make? Judge Droney. I don't think my approach will change. As Senator Blumenthal, as the Chairman has pointed out, I have sat on the second circuit eight times in my time as a district judge by invitation. So I have, I think, a pretty good idea of how the court works. I still, of course, have a lot to learn, but I still think I'd be guided by the same principles. And, also, as I think either Senator Blumenthal or Senator Lieberman pointed out, I've written, I think, over 700 opinions and, as you well know, the job of a district judge is not just to try cases and preside over court hearings, but also to write a lot, and I have done that. So I think I've had a lot of experience in that and, as I've mentioned, I still think I have some to learn, but I think I'm very well prepared for that, if I'm fortunate enough to be confirmed. Senator Grassley. Here is kind of a philosophical approach to how you might judge, and I am going to quote President Obama. He has said that he hopes judges would reach decisions based on, ``a broader vision of what America should be.'' Do you believe judges should consider, ``their broader vision of what America should be'' when deciding cases? Judge Droney. Well, I certainly don't think my personal views should be involved in deciding cases. As I've mentioned, I do strongly believe that the decisions of the higher courts should bind the lower courts, and I think I've demonstrated over the 14 years that I've followed those rules, and that's the way I've approached my judging, without--I hope and I think, without having my personal views come into play. Senator Grassley. This will be the last question, but I might submit some for answer in writing. We recently had Brown v. Plata, the case about the 30,000 prisoners from California prisons. Judge Scalia dissented, and you do not have to comment on what he said, but it is kind of a basis for my question, that gets to a broader question, in writing about these types of injunctions, that it turned judges into, ``long-term administrators of complex social institutions, such as schools, prisons and police departments, requiring judges to play a role essentially indistinguishable from the role ordinarily played by executive officials.'' Do you believe that structural injunctions like this are consistent with the judicial power called for in Article 3 in the U.S. Constitution? Judge Droney. Well, I know the Supreme Court has recently, not just in that California case, but in the last 10 years or so, has reminded all of us that it's better to have those big organizations run by state agencies, because they are better equipped than a district judge to do that, and I firmly believe in that. But I also, from the Supreme Court decision, know that there are times when the constitutional violations are such that the courts have to intervene and we shouldn't shy away from that. But I do agree that, generally speaking, those agencies, those departments are better served by a state agency running them. They are better equipped to do that. Senator Grassley. Thank you, Judge Droney. Judge Droney. Thank you, Senator. Senator Blumenthal. Thank you, Senator Grassley. There are no other members here, but we really want to thank you very much for being here to testify. And we will turn now to the next panel. Thank you. Judge Droney. Thank you very much. Senator Blumenthal. I am going to ask now Judge Bissoon, Mr. Mariani and Mr. Hornak to please take the stand. And Judge Scola, as well, I am sorry. I know you would not want to be left out. [Nominees sworn.] Senator Blumenthal. Please be seated. Why do we not go in order from Mr. Mariani across the table, if any of you would like to make opening statements or introduce your families. STATEMENT OF ROBERT D. MARIANI, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Mr. Mariani. Thank you, Senator. I would like to introduce my three children behind me, my son, Robert, and my daughters, Christine and Jeanne Michele. I'd like to thank you and Senator Grassley for the opportunity to respond to your questions, and I'm particularly appreciative of Senators Toomey and Casey being here to speak on my behalf. Senator Blumenthal. Thank you. Judge Bissoon. 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CATHY BISSOON, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA Judge Bissoon. Thank you, Senator Blumenthal. Thank you for presiding today. I have a slightly longer introduction because I have a much bigger group here today. Senator Blumenthal. Take your time. Judge Bissoon. First of all, I would like to thank the President for his nomination. I would like to thank Senator Casey for his kind words today, as well as his recommendation, and Senator Toomey for his generous introduction and his support in this process. Thanks to the committee, including Chairman Leahy and Ranking Member Grassley, for convening this hearing today. I have a number of family members here with me today. I'm joined by my husband, Greg Bradley, and I can assure you that I would not be sitting here but for him. Our two biggest joys in our life, my kids, Maya and Aiden Bradley. My mother is here, Ann Bissoon; my sister, Cindy Wolff, and my brother, Ronald Bissoon. I also have a cousin here, Nicholas Ramcharitar; and, my mother-in-law, Mildred Bradley. I'm joined by several friends here today, as well. Michael Braxton (ph), Michael Palace (ph), Svitlana Gordetsky (ph), Jim Genstein (ph). Several members of my staff, Jim Imhoff (ph), David Dumonte (ph), Richard Ting (ph), and a former law clerk, Shwayda Gupta (ph). I also have a large contingent looking on on the Webcast. So I just want to acknowledge my court family, as well as my Girl Scouts in Girl Scout Troop 51023, who I know are watching, as well. Thank you for the opportunity, and I welcome the committee's questions. Senator Blumenthal. Thank you, Judge. Mr. Hornak. 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HORNAK, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA Mr. Hornak. Mr. Chairman, thank you very much. I'd like to begin by thanking this committee's Chairman and its Ranking Member for affording me the privilege of appearing today and responding to your questions. I'd like to express my appreciation to you, Senator Blumenthal, for chairing today's hearing. On behalf of myself and my entire family, I would like to say thank you to Senators Casey and Toomey for their generous introductions and taking time from their busy schedule to be here today to introduce all of us and for their support through this process. I would also like to thank the President of the United States for his trust and confidence in submitting my nomination to the U.S. Senate. If I may take a moment to introduce my family, Mr. Chairman. With us today are my wife of nearly 30 years, Beth, without whom nothing in our family would be possible. She is the soul and inspiration of our home. Also with me are our five children. I'll start at the oldest. Our oldest son, Sam, who attended college here in the District, recently completed his law studies at the University of Pittsburgh and is studying for the bar; our oldest daughter, Rachel, who is a resident of the District, also attended school here and works in Washington; our daughter, Becca, who attends college in the Commonwealth of Virginia; our daughter, Mary, who is about to become a high school senior; and, last, but not least, our 9-year-old son, Matthew. It is a special blessing that with us today is my mother, Marge Hornak, from Pittsburgh, Pennsylvania. And I'm also proud that my cousins, Diane Reed and John Somyak (ph), could join us. Back in Pittsburgh are my wonderful mother-in-law, Betty Meyer, and my dear brother, Matthew and his family. And watching on the webcam is my assistant, Pat Smith. Thank you, Senator. Senator Blumenthal. Thank you, Mr. Hornak. Judge Scola. 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ROBERT N. SCOLA, JR., NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA Judge Scola. Thank you. I want to start by thanking Senator Blumenthal for chairing this Committee and Ranking Member Grassley for participating and considering my nomination. I want to thank President Obama for the confidence he placed in me with this nomination, and Senators Nelson and Rubio for honoring me with their presence today and for their support throughout this process. I also want to thank Senator Rubio's predecessor, former Senator George LeMieux, for his support while he was in office during this process. And I'm very pleased today to have with me my wife of 25 years and the love of my life, Jackie Scola, who is a judge in Miami, as well. Our two sons are here, Bobby, who just graduated from Tufts University, and Billy, who will be a senior in high school. Stephanie White, who is Bobby's girlfriend, is here, and Evan Helguero-Kelley, a friend of Billy's and a close friend of our family's; my sister, Nunziata Reynolds, who is an attorney in Massachusetts; my step-mom, Marilyn Scola, who was a great second mom to me growing up; and, also, a close family friend, Cheryl Goldstein, is here. Unfortunately, my mom and dad are no longer with us, having passed away. And they had a tremendous influence on my life, particularly my dad, who inspired me to be a judge. And I know that they're looking down with pride upon these proceedings. I also have a number of close friends and family watching on the Web. My wife's parents, Dr. William Hogan, and his wife, Mary Hogan, as well as my wife's mom, Barbara Hogan, are watching, and my eight other brothers and sisters and step- brothers and sisters, Gay, Tony, Jimmy, Nicky, Cathy, John, Paul and Sarah are watching from California to Switzerland and places in between. And Armano Garlifick (ph) and his family are watching from Puerto Rico. And I'd be happy to answer any questions that you have. 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Thank you very much, Judge Scola. Let me say by way of preface, to each of you, thank you for being willing to take on this responsibility. As you well know from your experience, and I do as mine, having appeared before numerous district judges, you will be, if confirmed, the face and voice of justice for countless individuals who will come before you, some of them in very desperate circumstances, some of them as criminal defendants about to be sentenced, some of them as people about to become citizens, and you will be, for them, the source of an aspiration and dream or potentially punishment and you will need to address each of them with the kind of care and sensitivity, as well as intellect, that your background has prepared you to provide. And talking about background, Mr. Mariani, by asking you, because you have had extensive experience as a labor lawyer and you have acted as an impartial mediator and arbitrator in a large number of cases. Can you perhaps describe for the Committee how that background would prepare you for your duties as a United States district court judge? Mr. Mariani. Thank you, Senator, for the question. As an arbitrator, I have, on many occasions, been confronted with deciding cases of some complexity, recognizing the rights of both litigants to the matter. That has certainly developed my sense of fairness in adjudication. As a litigator, I have brought many, many cases to court, particularly in the Federal courts, where I have had experience with virtually all of the Federal employment statutes that are in effect today. That, again, has given me, in my view, a very keen sense of what it takes to be a judge, particularly-- particularly the qualities of integrity, impartiality, and that would be the approach I would take, if I were to be confirmed. Senator Blumenthal. And your experience is primarily in the civil area. You feel that you would be qualified, also, to preside over criminal matters. Mr. Mariani. I do, Senator, and I will tell you that it has been many years since I have had a matter of criminal nature to be involved in. So as a consequence of that, I will tell you that I am absolutely dedicated to making sure that as those cases come before me, I am well acquainted with both the substantive criminal law, as well as the criminal procedures that will be used in those cases. I consider that a personal goal of mine, if I am confirmed. Senator Blumenthal. Thank you. And one last question for you, Mr. Mariani. What do you view as the role of precedent in guiding a district court judge? Mr. Mariani. Well, in particular, as a district court judge, I feel I am duty-bound to follow the precedents on matters that come before me. That's particularly true, of course, with respect to the precedents of the United States Supreme Court, and, as well, the court of appeals for the third circuit. I regard that as the way to approach every case, beginning with the statute, where you must read the statute and be guided by it, but then, also, pay close heed to what the Supreme Court has said, as well as the court of appeals in my circuit. Senator Blumenthal. Thank you. Judge Bissoon, you have been a judge magistrate since 2008, I believe. And I wonder if you could tell the Committee how you think that experience has prepared you for a United States district court judgeship, if confirmed. Judge Bissoon. Thank you very much for the question, Senator. I am fortunate to be in a district where magistrate judges have significant authority over cases. We have a very robust consent system in our court, and when the parties consent to my jurisdiction, I sit as the district judge in those cases. And so I do do that quite regularly. I do not have the same level of criminal experience. I deal with preliminary criminal matters, preliminary hearings, detention hearings. I deal with issues of probable cause and issuing search warrants and arrest warrants, as well as complaints. And it's been a while since I've done any felony criminal work. I did some work as a law clerk, but not for a while. But I would look to certainly lean on my colleagues, my Article 3 colleagues on the bench and look to their expertise and use all available resources to master that area. Senator Blumenthal. But you certainly have a familiarity with the Federal criminal statutes. Judge Bissoon. Absolutely. Senator Blumenthal. And let me ask you the same question about the role of precedent in informing and shaping the opinions of a district court judge. Judge Bissoon. Well, I certainly agree with Mr. Mariani. It is the cornerstone of what we do as judicial officers. We are bound by precedent, both the precedent of the Supreme Court, as well as the court of appeals for the third circuit. Senator Blumenthal. Whether you agree or disagree. Judge Bissoon. Regardless of whether I agree or disagree. Senator Blumenthal. Thank you. Mr. Hornak, let me ask you. You have been an attorney. You have very extensive experience as a mediator and arbitrator in a variety of civil cases. Do you think that experience, as well as your experience as an advocate will guide you as a United States district court judge, if confirmed? Mr. Hornak. Thank you for the question, Mr. Chairman. The short answer is yes. I've been very fortunate over the course of nearly 30 years of practicing law to have had the privilege of representing clients in a wide array of areas of practice, ranging from workplace issues to construction law to representing government officials, local units of government. And the court in which Judge Bissoon sits has a very extensive alternative dispute resolution program and I've been very fortunate to have been selected by the parties and approved by the judges to serve as a mediator in a wide array of cases, and I believe that has given me an exposure to the breadth of the matters that would come before our district court in Western Pennsylvania. Senator Blumenthal. And do you share the views that have been articulated by Judge Bissoon and Mr. Mariani that precedent should be binding on United States district court judges? Mr. Hornak. I absolutely do share them. I believe that adherence to precedent by our trial judges is really central to litigants and society having confidence in courts. It is adherence to the precedent and the commitment to following it that allows people to have predictability in our legal system. Senator Blumenthal. Thank you. Judge Scola, you have served as a state circuit court judge for the Eleventh Judicial District of Florida in Miami-Dade County for 16 years, and you have worked on a vast variety of cases, because the court, I believe, is one of general jurisdiction. And I wonder if you could tell us how you think that experience would shape your views as a United States district court judge, if confirmed. Judge Scola. Thank you for the question, Chairman Blumenthal. I have had the opportunity to sit in the criminal, the family, and the civil or general jurisdiction divisions over the past 16 years, and I also, during my 9.5 years as a private attorney, tried a number of cases in Federal court. So I have some familiarity personally with the issues that are brought up in Federal court, particularly criminal issues. And I think there are a lot of parallels to judging, whether you're in state court or Federal court. Certainly, some of the rules of procedure are different and some of the substantive laws are different, but one of the reasons I'm applying is because I'm looking forward to the challenge of learning a new area of law and relying on the lawyers to educate me and apply those new laws. But I think a lot of the things I do in state court will apply to how I judge in Federal court, if I'm fortunate enough to be confirmed by this Committee and the Senate. Senator Blumenthal. And I think you have presided over about 600 cases that have gone to final judgment, including about 33 percent of that number being jury trials; have you not? So you have extensive experience in presiding over juries. Judge Scola. Yes, sir, particularly in--I'm in the family division now, where there are no juries in Florida. Those are all non-juried proceedings. But in the criminal division and the general jurisdiction division, I was very active trying jury trials. Senator Blumenthal. I believe that before serving on the bench, you were a defense attorney and a prosecutor for various periods of time. Is that true? Judge Scola. Yes, sir. I started in the state attorney's office in 1980 and I was there 6.5 years, and that's when we were the murder capital of the country. I tried over 25 murder trials as a prosecutor and several death penalty cases and then was 9.5 years as a criminal defense attorney in state and Federal courts. Senator Blumenthal. And I presume that experience also would help you as a judge, even though it is on the Federal bench rather than in the state courts. Judge Scola. I think having been both a prosecutor and a defense attorney, seeing the justice system from both sides and now being in the middle, hopefully I've been in the middle, for the last 16 years, I think all of those together have given me a good perspective on what I need to do. Senator Blumenthal. And one last question on the role of precedent for a district court judge, Federal trial judge, your view as to the binding effect, or not, of higher court decisions. Judge Scola. I think my colleagues from the Commonwealth of Pennsylvania have accurately summed up our role as judges regarding precedent, and I would definitely follow the precedent of the United States Supreme Court and the eleventh circuit court of appeals, if I am fortunate enough to be confirmed. Senator Blumenthal. Thank you very much. I am happy to yield to the Ranking Member, Senator Grassley. Senator Grassley. Congratulations to all of you. I am going to do the same thing and ask each of you different questions. I am going to start with Bissoon. You have promoted diversity in the courts and in the legal profession for many years, particularly as director of diversity at Reed Smith. I have three questions along this line. To what degree should the legal profession or the courts mirror the ethnic composition of the community? Judge Bissoon. Thank you for the question, Senator. As far as I'm concerned, I think that it is very useful for the community, particularly young people, to see people who look like them in the court system. I have looked at myself as a role model for young people, in particular, to show them that people of color can achieve great things. Senator Grassley. Then it would be natural to follow-up with this question. How much consideration should be given to diversity or other concerns of racial or ethnic justice in your decisions as a judge? Judge Bissoon. I would say absolutely none, sir. Senator Grassley. Thank you. And, last, what about diversity in the courtroom--and you just spoke to this on the first one, but let me ask a little more specific. What about diversity in the courtroom, particularly jury panels, what are your views on that and how would you approach the question, if confirmed? Judge Bissoon. I honestly have not really given much thought to the issue of diversity in jury panels. When I--I mean, I use the term ``diversity'' perhaps a little more broadly than some, and so I really look at diversity as a broadness of perspectives and backgrounds, and I think that our jury system is designed so that it is--it pulls from those various sectors geographically and I think that is what it is supposed to do. Senator Grassley. So your answer, I think, would respond more to what the pool is---- Judge Bissoon. Correct. Senator Grassley [continuing]. As opposed to what would actually be selected for the courtroom. Is that what you are saying? Judge Bissoon. I suppose that would be what I was getting at, Senator Grassley. I don't think that I have a role in seeing that juries are diverse. I think that our system is designed so that it achieves that. Senator Grassley. Mr. Hornak, while speaking at the 2004 commencement ceremonies at your alma mater, you spoke at length about preserving civil liberties during wartime. You noted, ``These are indeed times of great challenge, but not times any more difficult than the previous generation saw.'' Do you believe Americans have sacrificed liberty and freedom since 9/11 and if so, what is it that has been sacrificed? Mr. Hornak. I don't--thank you for the question, Senator, and the opportunity to address it. I don't believe, as I think about it, that there has been a loss by Americans of civil liberties or freedoms. I think my remarks were aimed that at times of great challenge for our Nation, our responsibilities as citizens and as leaders in our society is heightened, to make sure that as we protect our country and protect our Nation and watch out for our security, that we remain true to all of our constitutional values. And I think our history has taught us, as a Nation and as a society, we're capable of doing those things at the same time. It just requires a lot of attention and a lot of work. Senator Grassley. During wartime and other instances of national emergency, do you believe the judiciary owes any extra deference to the political branches? Mr. Hornak. Senator, thank you for the question. I have not given that topic a lot of thought. I do believe that one of the cornerstones of the obligations of the judicial branch are to have great respect for the role of the executive, for the President, in his capacity as commander-in-chief, and respect for the role of Congress, as the legislative branch of the government. And it's often in times of peril and of national challenge that those other branches of government take on special responsibilities, and I think it's an obligation of the judge and the judiciary to have respect for the roles that the other branches of government play. Senator Grassley. Thank you. And, Mr. Mariani, in a newspaper editorial, you argued that employees who want to unionize are often intimidated by their bosses to vote against forming a union. A card check, you said, ``would eliminate all of that.'' It is my understanding that card check bypasses the secret ballot elections. I would like to have you explain how card check better protects employees from coercion when employees within face pressure from both management and unions on how to vote. I do not ask that question from not having some experience, because I was a member of the International Association of Machinists from 1961 to 1971, and I have been in this environment a little bit. Go ahead. Mr. Mariani. Thank you for the question, Senator. Actually, I think the use of the card check as opposed to the typical petition to the National Labor Relations Board for an election doesn't really change the atmosphere in which elections are conducted. I think, for the most part, elections are fairly conducted. I think the National Labor Relations Board's role to supervise the elections is well carried out. Many times, the words have been used that the elections should be carried out in laboratory conditions, and, in fact, I believe that has been the case over my time as a lawyer. Senator Grassley. The doctrine of at-will employment has been a longstanding feature of our law. It has been accredited for helping promote a culture of entrepreneurism and economic growth. Yet, you have said that, ``It just does not seem fair,'' that at-will contracts should form the dominant employment relationship in the United States. You have also said that the principles behind at-will employment are, ``unfair and egregious.'' To what extent do you view employment as a right or an entitlement? Mr. Mariani. I do not view employment as a right or entitlement. I will also tell the Senator that I recognize in my state that the at-will employment rule has become bedrock, well established law for many, many years, and it is that, in my view, that would govern, to the extent that matter would come before me. I do not see my personal views on the employment at-will rule to have any role in my role as a Federal judge and adjudicating controversies where state law may be in issue. That is still the law and I'm duty-bound to follow it. Senator Grassley. I would like to have you tell me what you meant by this statement and whether you stand by it. You have also said that union protections are necessary if we are to remain, ``a proud democracy.'' Mr. Mariani. In my view, Senator, if a free society recognizes, as it has for so many years since the Wagner Act was passed in 1935, the right of employees to collectively bargain. It has been a right that has been time and time again upheld, and I believe that then, when it was passed, as now, it serves a salutary role in promoting democracy. But, again, for purposes of my role as a Federal judge, the mission I have is to follow the law as it is given to me by the Supreme Court of the United States and by the Third Circuit Court of Appeals. Senator Grassley. I only have two other questions, if you think I am spending too much time with you. In 1984, you successfully argued a precedent-setting case that allowed unionized employees to still collect unemployment compensation during a strike. Do you still believe that a court made the right decision in that case? Mr. Mariani. Well, I will tell you that the Pennsylvania Supreme Court allowed argument and re-argument on that issue before it was decided. I think they struck a very careful balance, making sure that the collection of unemployment compensation benefits will determine--would be determined, in large part, upon which party, union or employer, or responsibility for the work stoppage. I recall Justice Nix, at that time, of the Pennsylvania Supreme Court saying that the rule would enhance the clarity and predictability that both sides in a labor dispute require, and I believe that case still to be good law. Senator Grassley. My last question for you is kind of along the lines of these views that you have expressed either today or previously and using them as background for this question. What evidence can you provide the Committee that should labor-management issues come before your court, that you would remain neutral and be fair to all parties? Mr. Mariani. Thank you for the question, Senator. Thank you very much. I can assure the Senator that I do not come to the bench with any predisposition whatsoever with respect to labor- management issues. I have represented employers in those kinds of matters, as well, although the bulk of my work has been with labor. But, again, I can tell you that I bring no predisposition whatsoever to the bench. I have long recognized over the course of my career that each case must be decided on its merits and the merits sometimes fall one way or the other, and that is the approach I will take. Senator Grassley. Just one question of you, Mr. Scola, and do not feel badly if I only ask you one and the others more. You have been a Florida State court judge for many years. What is the most difficult decision you have ever had to make as a judge? Judge Scola. I was called upon on two occasions to consider whether or not to impose the death penalty, and they were two men who ultimately I determined did deserve the ultimate punishment, but--and I did impose the death penalty. But I think when you are called upon to make a decision of that magnitude, it is a very solemn responsibility and very difficult one and--but I did consider it and imposed the sentence. So I think that was probably the hardest thing I did as a judge. Senator Grassley. I thank all of you and I congratulate all of you. Judge Scola. Thank you. Mr. Hornak. Thank you. Mr. Mariani. Thank you very much, Senator. Senator Blumenthal. Thank you all for your candid and forthcoming responses and for your willingness to undertake this very important responsibility. I am going to adjourn the hearing. The record will remain open for 1 week in case any Senators have follow-up questions for the nominees. And thank the visitors for attending, as well. Thank you very much. This hearing is adjourned. [Whereupon, at 3:44 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T6350.539 [GRAPHIC] [TIFF OMITTED] T6350.540 [GRAPHIC] [TIFF OMITTED] T6350.541 [GRAPHIC] [TIFF OMITTED] T6350.542 [GRAPHIC] [TIFF OMITTED] T6350.543 [GRAPHIC] [TIFF OMITTED] T6350.544 [GRAPHIC] [TIFF OMITTED] T6350.545 [GRAPHIC] [TIFF OMITTED] T6350.546 [GRAPHIC] [TIFF OMITTED] T6350.547 [GRAPHIC] [TIFF OMITTED] T6350.548 [GRAPHIC] [TIFF OMITTED] T6350.549 [GRAPHIC] [TIFF OMITTED] T6350.550 [GRAPHIC] [TIFF OMITTED] T6350.551 [GRAPHIC] [TIFF OMITTED] T6350.552 [GRAPHIC] [TIFF OMITTED] T6350.553 [GRAPHIC] [TIFF OMITTED] T6350.554 [GRAPHIC] [TIFF OMITTED] T6350.555 [GRAPHIC] [TIFF OMITTED] T6350.556 [GRAPHIC] [TIFF OMITTED] T6350.557 [GRAPHIC] [TIFF OMITTED] T6350.558 [GRAPHIC] [TIFF OMITTED] T6350.559 [GRAPHIC] [TIFF OMITTED] T6350.560 [GRAPHIC] [TIFF OMITTED] T6350.561 [GRAPHIC] [TIFF OMITTED] T6350.562 [GRAPHIC] [TIFF OMITTED] T6350.563 [GRAPHIC] [TIFF OMITTED] T6350.564 [GRAPHIC] [TIFF OMITTED] T6350.565 [GRAPHIC] [TIFF OMITTED] T6350.566 [GRAPHIC] [TIFF OMITTED] T6350.567 [GRAPHIC] [TIFF OMITTED] T6350.568 [GRAPHIC] [TIFF OMITTED] T6350.569 [GRAPHIC] [TIFF OMITTED] T6350.570 [GRAPHIC] [TIFF OMITTED] T6350.571 [GRAPHIC] [TIFF OMITTED] T6350.572 [GRAPHIC] [TIFF OMITTED] T6350.573 [GRAPHIC] [TIFF OMITTED] T6350.574 [GRAPHIC] [TIFF OMITTED] T6350.575 [GRAPHIC] [TIFF OMITTED] T6350.576 [GRAPHIC] [TIFF OMITTED] T6350.577 [GRAPHIC] [TIFF OMITTED] T6350.578 [GRAPHIC] [TIFF OMITTED] T6350.579 [GRAPHIC] [TIFF OMITTED] T6350.580 [GRAPHIC] [TIFF OMITTED] T6350.581 [GRAPHIC] [TIFF OMITTED] T6350.582 [GRAPHIC] [TIFF OMITTED] T6350.583 [GRAPHIC] [TIFF OMITTED] T6350.584 [GRAPHIC] [TIFF OMITTED] T6350.585 [GRAPHIC] [TIFF OMITTED] T6350.586 [GRAPHIC] [TIFF OMITTED] T6350.587 [GRAPHIC] [TIFF OMITTED] T6350.588 NOMINATION OF MORGAN CHRISTEN, OF ALASKA, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT; SCOTT W. SKAVDAHL, OF WYOMING, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF WYOMING; SHARON L. GLEASON, OF ALASKA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ALASKA; YVONNE GONZALEZ ROGERS, OF CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA; AND RICHARD G. ANDREWS, OF DELAWARE, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE ---------- WEDNESDAY, JULY 13, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:35 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Christopher A. Coons, presiding. Present: Senators Coons, Feinstein, Franken, Grassley, and Hatch. Senator Coons. Good afternoon, everyone. I am pleased to call to order this nominations hearing of the Senate Committee on the Judiciary. I would like to welcome each of the nominees, their families, friends, and supporters to the U.S. Senate and congratulate them on their nominations. I would also like to welcome those of my colleagues who are here to introduce several of the nominees today. Due to the large number of home State Senators here to give introductions, I will hold off on my opening statement until the introductions are complete. Today we will hear introductions by each nominee's home State Senators from each delegation in order of their seniority. I know that my colleagues' schedules are quite demanding, so please do feel free to leave if you so choose after you have concluded your introductions. Following opening statements and introductions, each of the nominees will be permitted to give an opening statement, and I encourage them to also recognize their loved ones and supporters when their respective panels are called. We will begin, therefore, with Hon. Yvonne Rogers, who is nominated to be a district judge for the Northern District of California, and I will invite Senator Feinstein to proceed. PRESENTATION OF YVONNE GONZALEZ ROGERS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you very much, Mr. Chairman. It is a great pleasure for me to introduce and express my support for Judge Yvonne Gonzalez Rogers whom the President nominated to be a United States District Judge for the Northern District of California. She is a well-regarded judge with a proven record of success and dedication in Northern California. Her nomination is also historic. She will be the first Latina district judge for the Northern District of California. Judge Gonzalez Rogers has been screened and recommended to me by a bipartisan screening selection Committee that I have used these past 18 years. This Committee reviews candidates for their legal acumen, professionalism, breadth of personal experience, judicial temperament, and overall commitment to excellence in the field of law. And so Judge Gonzalez Rogers stood out because of her impressive record, her life of service, and her dedication to her community. She also has Senator Boxer's strong support as well. Judge Gonzalez Rogers represents an American success story. Her parents were each the eldest of nine siblings and grew up in South Texas, and Spanish was their first language. Her father served in the United States Army and went to college with assistance from the GI bill. Of her parents, her 16 aunts and uncles, and their children, Judge Gonzalez Rogers is one of only three family members to attend college. Her path in life has been extraordinary, rising from modest beginnings to graduating from one of the best universities in the country--Princeton. During school breaks and weekends, she worked cleaning houses and cutting grass to help pay her tuition. She took pride in the callused hands she got doing that work. She excelled at Princeton, graduating cum laude. She then went on to attend two of the best public law schools in the country: the University of Texas at Austin and the University of California at Berkeley. She began the practice of law at the prestigious San Francisco firm Cooley LLP, where she had a distinguished career in private practice and continued to break down barriers. When she began practicing, no Latina woman had been elected into the partnership ranks of any major San Francisco law firm. She worked her way up the ranks, starting as a young associate in complex litigation in 1991. In her own words, she worked hard to break that mold by becoming an excellent attorney worthy of invitation to the partnership. Over years of litigating complex cases, she did just that. By all accounts, she was intelligent, balanced, reasonable, and represented her clients extremely well. She built a sterling reputation as an attorney and was elected to Cooley's partnership in 1998. In 2003, she took time away from the practice of law to devote time to her children, who I believe are here today. Judge Gonzalez Rogers and her husband, Matt, have three young children--Christopher, 16; Maria, 12; and Joshua, 10--and they are very excited not only to support their mother's nomination, but also to tour the Capitol tomorrow. So even while away from the practice of law, Judge Gonzalez Rogers has remained passionately dedicated to her community. For example, she served as the foreperson of the Alameda County civil grand jury. Now, in Alameda, the civil grand jury is an active, investigative division of the county court system that holds the county government accountable. As foreperson, Judge Gonzalez Rogers oversaw all of the grand jury's investigations, including major reviews of the county hospital system and the county office of education. In addition, she served as a pro tem judge on the superior court, sitting in for absent judges and providing mediation assistance in civil cases, often managing over 100 cases a day. She also worked hard as a strong advocate for Piedmont Public Schools. As the co-chair of Citizens for Piedmont Schools, Judge Gonzalez Rogers helped lead a campaign to pass funding measures for the local public schools. The campaign was successful, passing those measures with over 80 percent of the votes each. That is pretty rare in California. She also committed herself to being directly involved in her children's schools, serving on the PTA of Piedmont Middle School as president of the Wildwood Elementary School Parent Board. As a former mayor, I know how valuable it is for members of the community to contribute to making your community a better place, and I would like to applaud Judge Gonzalez Rogers' extraordinary record of service. In 2008, the California Governor, Arnold Schwarzenegger, appointed her to be a judge of the Alameda County Superior Court. The president of the State bar praised her nomination, saying, ``There are certain skills they look for in a judge: be well prepared, a good listener, have good judgment, and be decisive.'' She demonstrates all of those skills. So by all accounts that I can find, she has been an outstanding superior court judge, handling substantial criminal and civil caseloads. And during the past few years, she has presided over a criminal calendar, conducted over 30 jury trials, and hundreds of hearings on all kinds of civil cases. She oversees a civil docket now of more than 500 civil cases. So she has a great record. She has the breadth of experience in private practice. She has been on the bench, and she has served in public service, and she is prepared to hit the ground running as a Federal judge. So I hope that you will agree with me, Mr. Chairman. I believe she will be a fine addition to the Federal bench, and I urge my colleagues to support her nomination. Thank you, Mr. Chairman. Senator Coons. Thank you very much, Senator Feinstein. Next we welcome Hon. Scott Skavdahl. Judge Skavdahl currently sits as a magistrate judge of the District of Wyoming, and he is nominated to serve as a district judge on that same court, and both of his home State Senators are here to offer introductions and encouragement, and I invite Senator Enzi to proceed. PRESENTATION OF SCOTT W. SKAVDAHL, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF WYOMING, BY HON. MICHAEL B. ENZI, A U.S. SENATOR FROM THE STATE OF WYOMING Senator Enzi. Thank you, Mr. Chairman. I am pleased to have the opportunity to introduce Judge Scott Skavdahl, who has been nominated by the President to serve as a judge for the United States District Court for the District of Wyoming. His nomination was submitted by our Governor Freudenthal, who is a Democrat, and is supported by both Senators, as is demonstrated by the two of us being here to introduce him. I want to thank the Chairman and Senator Grassley and all the staffs for scheduling this hearing and Senator Coons for chairing this hearing and getting it done so promptly. While Judge Skavdahl grew up in Harrison, Nebraska, he has established deep roots in Wyoming. He first moved west to our great State to play football for the University of Wyoming, where he received his undergraduate degree and law degree. He walked onto the team and played Division I football after graduating from a high school of less than 50 students. While others might have been discouraged or intimidated, Scott committed and played for the Cowboys for 4 years. Judge Skavdahl has been described as an incredibly smart and hard-working attorney and judge. Between his time in private practice and his service on the judicial bench, he knows the issues that face the people of Wyoming. I have heard nothing but good things about his approach to the law and his demeanor as a judge. The judge has lengthy experience already as a judge, making him uniquely qualified for this position. He is currently a full-time magistrate judge for the District of Wyoming and served as a judge on the Seventh Judicial District Court in Casper, Wyoming, from 2003 to 2011. The judge has also served as a part-time United States magistrate judge from 2001 to 2003. From 1994 to 1997, he served as a judicial law clerk to Chief Judge William F. Downes of the United States District Court for the District of Wyoming. He is now poised to fill Judge Downes' seat. Through his experience, Judge Skavdahl already knows the administrative ins and outs of the District of Wyoming. I also want to mention how important this judgeship is to Wyoming. While Senators disagree at times about specific nominees, we can all agree that without judges in place, our legal system slows down and does a disservice to the people we represent. Judge Downes announced his retirement nearly a year ago with the hopes that his seat would not remain vacant and that the nomination process would run efficiently. I am pleased the Senate Judiciary Committee is moving quickly and thoroughly on this nomination, and I appreciate the Committee's time and look forward to your approval of the nomination of this judge. Senator Coons. Thank you, Senator Enzi. Senator Barrasso. PRESENTATION OF SCOTT W. SKAVDAHL, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF WYOMING, BY HON. JOHN BARRASSO, A U.S. SENATOR FROM THE STATE OF WYOMING Senator Barrasso. Thank you very much, Mr. Chairman. Thanks for allowing me the opportunity to join my colleague Senator Enzi in supporting Scott Skavdahl's nomination to be the United States District Judge for the District of Wyoming. As Senator Enzi has said, Scott came to Wyoming, played football for 4 years at the university, and I can personally attest to his orthopedic injuries. [Laughter.] Senator Barrasso. He graduated from the University of Wyoming College of Law, and in the 19 years since his graduation, he had distinguished himself both as an attorney and as a trial judge. He worked in private practice. He clerked for U.S. District Judge Bill Downes and then was appointed by former Governor Dave Freudenthal to serve as a district court judge for Wyoming's Seventh Judicial District. In Wyoming, district court judges are required to stand for retention every 6 years. Judge Skavdahl was up for retention in 2010. Prior to the November election, members of the Wyoming State Bar were surveyed on their views of sitting judges, and the results of the survey are very telling about Judge Skavdahl. He exceeded the average score of all judges in every single category. He was recognized by members of the bar for his integrity and his ethics to carry out his duties, for his reasoned decisions, for the manner in which he conducts himself in the courtroom, for being prepared, and for his knowledge of the law. Ninety-six percent of the attorneys surveyed supported the retention of Judge Skavdahl. In November, the voters agreed with the findings of the Wyoming Judicial Advisory Panel by overwhelmingly retaining Judge Skavdahl. So, Mr. Chairman, you have before you an outstanding individual in Scott Skavdahl. He is an excellent choice to fill the seat of retiring Federal Judge William Downes. Judge Skavdahl is joined here today by his wife, Cidne; their daughter, Caitlyn; and his father, John. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator Barrasso, and thank you to both Senators from Wyoming. I am proceeding now in order of seniority. I would like to invite Senator Carper to introduce our nominee from the State of Delaware, Rich Andrews. PRESENTATION OF RICHARD G. ANDREWS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE, BY HON. THOMAS R. CARPER, A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Carper. Thanks, Mr. Chairman. This reminds me of the last time, about a year or so ago, we had a hearing for another fellow who was nominated to be a district court judge in Delaware, and the person presiding that day was your immediate predecessor, Ted Kaufman, and I had the privilege of introducing our nominee. You may recall that in the audience that day was the legendary University of Delaware professor Jim Soles who has recently passed away. So we had not only the nominee here, but both Senators, one presiding and one introducing, and the mentor, if you will, lifelong mentor for the nominee in the audience. That was a very special day. This is a special day, too, and I am pleased to present to this Committee our nominee for the district court vacancy. Before I start, I just want to say to the other nominees that are here in the room, whether they might be from Alaska, whether they might be from Wyoming, but interestingly enough, these are three at-large States where we have more Senators--we all have more Senators than we have Representatives, and then also our nominee from California. Just a special thanks to our nominees for your willingness to serve and to your families for your willingness to share your husband or your wife or your mom or your dad with the people of this country. Last year, I was pleased to provide the President with the names of three superbly qualified Delawareans for him to consider for the open seat in the U.S. District Court in Delaware. I believe any one of them would have made excellent additions to the court, and all of them uphold the high regard in which this court is held. As the Chairman knows, we have four judgeships on that court, and we have had--for some period of time, we actually had only two people serving. Now we are back up to three, and hopefully we will soon be at four. The President has made, I believe, a strong choice in nominating Richard G. Andrews for this judicial appointment. Again, I believe our Nation is fortunate and our State if fortunate having someone with his outstanding credentials who stepped forward to do this important work. Mr. Andrews' education, his background, and his legal experience make him superbly qualified for this position. I kid him. He was unable to get into Ohio State as an undergraduate, but he did get into Haverford, which is not a bad school, right across the line from us in Delaware. He graduated at a Bachelor of Arts in political science. Then he earned his law degree at the University of California in Berkeley where he served as note and comment editor for the California Law Review. I asked him, I said, ``Is that some kind of gossip column, the note and comment editor for the California Law Review? '' He insists it was a legitimate position and a real job and one that was sought after. I am sure it was. But after law school, Rich Andrews launched his career as a clerk for the legendary Collins J. Seitz, who was the chief judge of the Third Circuit Court of Appeals, a revered name in our State, as our Chairman knows. Following his clerkship, for 23 years Rich Andrews served as a prosecutor in the U.S. Attorney's Office in Wilmington, Delaware, serving in a number of high-profile positions and eventually rising to the position of Assistant U.S. Attorney. As Senator Coons knows, in addition, on three separate occasions Rich Andrews stepped up to serve as Acting U.S. Attorney when the incumbent had resigned. I like to kid him and say he has probably served more time as the Interim U.S. Attorney than some people have served as U.S. Attorney. So he got just really a wealth of experience there. During his time with the U.S. Attorney's Office, Rich prepared and prosecuted countless Federal cases--and I think he told me how many, but it is a huge number--and in so doing gained wide-ranging trial experience that he will draw upon heavily while serving as a district court judge, if confirmed. Currently Rich Andrews serves as a State prosecutor for the Delaware Department of Justice where he manages the criminal division, oversees more than 70 deputy attorneys general, makes critical decisions about how to proceed in high-level criminal cases. He is also the supervisor there for State Attorney General Beau Biden. I said that with a smile. But he is a senior guy on the Attorney General's team. In his free time Rich Andrews has coached for the Concord Soccer Association of Delaware for more than a decade, and I understand that Rich has also spent the last 4 years grading answers for the Delaware Bar exam. I say, for you no purgatory, straight to heaven, Rich. [Laughter.] Senator Carper. Finally, in addition to his professional experience, Rich is a family man and a person of great character. He is joined today by his wife, Cathy Lanctot. Cathy is sitting right behind him over there, and Cathy is in the green. And Cathy is--I said, ``What kind of name is that, Lanctot? You do not see that name every day.'' And she says it is French Canadian, so bienvenue. Cathy is associate dean and professor of law at the Villanova University. And when he testifies here today at this table, if you watch carefully, you can see her lips move. In the case of my family, my wife is far brighter than me, and he married up as well. Their son, Peter, will be a rising sophomore at Columbia University. Their daughter, Amy, will be a senior, and she is also the student council president at Mount Pleasant High School, a place that our Chairman knows well, and a place where I literally run every Sunday morning. It is one of the places I run when I go out for a run early Sunday mornings. So I feel like I am a Green Knight along with her, but she is not just any student there. She is the leader of the student body, elected by her peers. In every facet of his life, Rich Andrews has performed with distinction, and let me just conclude by saying that I am proud to have the privilege of introducing someone who has provided and who will continue to provide exemplary service for the people of our State and Nation. His sound legal judgment, his tireless work ethic, and his experience as a Federal prosecutor have prepared Rich Andrews well to fill this seat on the U.S. District Court in Delaware, and I urge our colleagues on this Committee and in the Senate as a whole to move quickly on his confirmation. I thank you for this opportunity to introduce him today, Mr. Chairman and colleagues. Senator Coons. Thank you, Senator Carper. If I might, I will briefly add to your comments of introduction of the nominee. Senator Carper. You may want to correct parts of it. Senator Coons. I may be tempted, but the record I think will stand for itself, particularly with regard to the location of your Sunday morning running habits. Rich Andrews is, as you have heard at length from Senator Carper, a distinguished public servant in Delaware who has served us 30 years, and in his current role as State prosecutor, someone who has led both policy formation and supervised literally tens of thousands of prosecutions in Delaware's State court system. He has tried 50 felony jury cases and argued 17 cases before the Third Circuit Court of Appeals. He has in my view all the qualities that will make an outstanding district judge in any court, but his familiarity in particular with Delaware, its legal community, its long tradition of decency and civility makes him in my view an ideal candidate for the District Court of Delaware. I simply will close by saying that Rich in my view has established himself as a talented, dedicated, and humble public servant who possesses a strong work ethic and the highest integrity and intellect, and we are grateful he will have the opportunity, God willing and the Senate acting, to continue to serve the people of our great State as a district court judge, and I join Senator Carper in welcoming Cathy, Peter, and Amy as well. Thank you, Senator Carper, for introducing Rich Andrews to our panel today. Finally, we welcome Hon. Morgan Christen and Hon. Sharon Gleason. Judge Christen is nominated to be a circuit judge for the Ninth Circuit Court of Appeals, and Judge Gleason is nominated to be a district judge for the District of Alaska. Judge Christen and Judge Gleason will be introduced today by their home State Senators, Senator Murkowski and Senator Begich. Senator Murkowski, please proceed. PRESENTATION OF MORGAN CHRISTEN, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, AND SHARON L. GLEASON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ALASKA, BY HON. LISA MURKOWSKI, A U.S. SENATOR FROM THE STATE OF ALASKA Senator Murkowski. Thank you, Mr. Chairman. It is not very often that I get to come to the Judiciary Committee to introduce Alaskans to you, so today is a special treat. As Senator Carper said, it is a special day for Delaware as he made the introduction. It is not only special for Alaskans. Today is a historic day for us in Alaska. We are a very young State. We are just a little over 50 years old as a State, and since Alaska was admitted as a State, only two Alaskans have served on the Ninth Circuit: Robert Boochever, who was appointed by President Carter back in 1980; and then Andrew Kleinfeld, appointed by President Bush in 1991. Both of these individuals are currently on senior status. The President has nominated Justice Christen to succeed Judge Kleinfeld on the Ninth Circuit. Further, only ten individuals have served on the U.S. District Court for Alaska. None of those individuals on either court have been women. So while it is historic whenever a vacancy arises on either court, today's hearing is especially historic because, if confirmed, Morgan Christen and Sharon Gleason will be the first two Alaska women to serve on the Federal bench. As a member of the Alaska Bar and as the senior Senator from Alaska, let me say that the President could not have nominated two more qualified individuals to fill these seats. And in saying that, I speak not only for myself but for also a broad segment of those who are involved in the justice system in Alaska. Both Justice Christen and Judge Gleason are products of the Alaska court system and won their positions through a merit selection process. That merit selection process was created by the Alaska Constitution. It was intended really to keep politics out of the judicial selection process. And we are very proud of that system. Before an individual may serve on an Alaska court, he or she is broadly vetted by the Alaska Judicial Council, which is a nonpartisan and independent body consisting of citizen and attorney members. Every candidate is formally evaluated on issues like integrity, professional competence, fairness, judicial temperament, and suitability of experience. I think if you were to ask any Alaskan attorney about the rigor of this process, I think you would get pretty much the same answer. The grading is tough, and for those who are not up to the challenge, they are told no in no uncertain terms. But both Justice Christen and Judge Gleason have survived this selection process, and I think survived it most admirably. I should point out that Justice Christen has survived this process now twice. Once before, she was appointed to the superior court by Democratic Governor Tony Knowles and again before, she was appointed to the Alaska Supreme Court by Republican Governor Sarah Palin. Now, if that does not speak itself to Justice Christen's exceptional integrity and competence for a judicial role, I would also point out to you that Justice Christen received the highest score of all candidates for the Supreme Court seat within that vetting process. Under Alaska's system, State judges must stand for periodic retention elections. Prior to those elections, they are vetted once again by the Judicial Council through polls of peace and probation officers, jurors, social workers, fellow judges, and practicing attorneys. This information then provides the Judicial Council with an evidentiary basis to make a recommendation to the public on whether or not the judge should be retained. I would note that Justice Christen and Judge Gleason have both participated in this very rigorous retention process, and each has been returned to the bench by the voters with an affirmative recommendation of the Judicial Council. I have known Justice Christen for almost 25 years now. We graduated from law school just about the same time. We both clerked for the Alaska State court system at just about the same time. We have kept in touch over the years, and I have come to know her husband, Jim, and her family. I have appreciated that Justice Christen has been mindful of the separation of powers throughout her judicial career and mindful of the fact that her personal views have no bearing when it is time to determine what the rule of law is. And I know that we can expect her to continue in that vein when she moves to the Federal bench. Judge Gleason was appointed to the Anchorage Superior Court by Governor Knowles back in 2001. She was last evaluated for retention by the Alaska Judicial Council in 2010. Her rating by each of the stakeholder groups polled as part of the Alaska Judicial Council's retention process was, again, among the highest of all the superior court judges in the State. In 2009, when Morgan Christen was elevated to the Alaska Supreme Court, Judge Gleason was appointed to become the presiding judge of the Third Judicial District. That position is responsible for overseeing nearly 70 percent of the caseload of the entire State trial courts and includes 40 judges and 20 magistrates. Like Justice Christen, Judge Gleason is exceptionally well qualified to serve, and I strongly support her nomination. I appreciate the opportunity again to speak to the Committee on behalf of two exceptional--exceptional--judges from the State of Alaska and would encourage confirmation through the process. Thank you. Senator Coons. Thank you very much, Senator Murkowski. Senator Begich. PRESENTATION OF MORGAN CHRISTEN, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, AND SHARON L. GLEASON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ALASKA, BY HON. MARK BEGICH, A U.S. SENATOR FROM THE STATE OF ALASKA Senator Begich. Thank you very much, Chairman Coons, Committee members. Thank you for the opportunity to join Senator Murkowski in introducing two of Alaska's finest judges who have been nominated for Federal appointments. I know both of these candidates quite well, have worked with them for years, and recommended both to President Obama for the positions he has nominated them for. Let me start with Judge Christen. Morgan and I have known each other for more than a decade. I worked with her in her capacity as a judge and as a member of nonprofit boards. When I was elected mayor of Anchorage in 2003, she was the presiding judge for Alaska's Third Judicial District. It is there we worked especially closely together on a task force that I created to address gangs in south-central Alaska, our State's largest population center. We also worked together to better coordinate the technology used by the municipality of Anchorage, the Anchorage Police Department, and the State of Alaska court system. From that work I can say without reservation that Judge Christen is a person of great integrity, ability, and compassion. She has built an excellent reputation in Alaska's legal circles for fairness, thoroughness, and sound professional judgment. Alaska's judicial system is set up to be nonpartisan, and Morgan certainly is. Her fellow lawyers have given her the highest marks over the years, and she has the support of the Alaska public through her retention elections. To her credit, she is deeply committed to public service. As a lifelong Alaskan, I also appreciate that Judge Christen has traveled extensively in our State and knows its diversity. I am confident that Morgan will be an excellent judge on the Ninth Circuit Court of Appeals. The Alaskan nominated for our State's U.S. district court, who will be on your second panel, is Judge Sharon Gleason. Like with Morgan, I know Sharon well. She was appointed to the Anchorage Superior Court by Governor Tony Knowles, who was my boss when he served as mayor of Anchorage. On the court Judge Gleason has presided over a large variety of cases, including complex civil litigation, divorce and custody proceedings, child-in-need-of-aid proceedings, and criminal cases. After Judge Christen was nominated to the Alaska Supreme Court, Judge Gleason was appointed to become the presiding judge of the Third Judicial District. That position is responsible for overseeing nearly 70 percent of the caseload of the entire State trial courts. It includes 40 judges and 20 magistrates. Her record as a judge has been excellent. She is widely praised for her temperament, her fairness on the bench, and especially her pioneering work on behalf of families and children. For that work she was awarded the prestigious Light of Hope Award. Sharon is active in her community and served on numerous legal committees. I think the way she relaxes is with her clarinet, and she has been playing in the Anchorage Symphony Orchestra for more than 25 years. Mr. Chairman and Committee members, my only regret--and I know Senator Murkowski's regret, too--with recommending these two outstanding Alaskans is that Alaska's State courts will lose two of their finest when these two outstanding judges move to the Federal bench. But our Federal judiciary and our country will be much better off. Thank you again for this opportunity to introduce two fine Alaskan judges. Senator Coons. Thank you very much, Senators Murkowski and Begich. From your description it sounds as if Alaska has a remarkably thorough, nonpartisan, and effective means of selecting qualified and talented judges. As someone who had the honor of clerking for Judge Jane Roth on the Third Circuit, who also just happened to be the first woman on the Federal bench in Delaware and an incredible, outstanding judicial contributor to Delaware's legal culture for a generation, I am grateful to hear your introductions of the two outstanding nominees from Alaska. Thank you very much for joining us today. I will now move, if I can, to a brief opening statement to be followed by Senator Hatch, and then we will proceed to our first panel, if we might. STATEMENT OF HON. CHRISTOPHER A. COONS, A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Coons. I am pleased to be here once again. I am pleased to be joined by Senator Hatch at our nominations hearing. I am especially pleased our Committee has Richard Andrews before us today, nominated to sit on the Federal trial court in my home State of Delaware, and I thank both Chairman Leahy and Senator Grassley for their cooperation in allowing this Committee to hear Rich Andrews' nomination today. Nomination hearings are important. The positions to which all of our nominees today are seeking confirmation carry with them lifetime tenure. It is in my view important the Senate takes seriously its role to examine the qualifications, work ethic, and intelligence of our nominees. We serve as the final gatekeeper, and it is our role to ensure the Federal judiciary is staffed with capable, honest, and hard-working judges. Another qualification we must examine in nominees is their temperament, for not every great attorney is appropriate to be a great judge. Great judging requires modesty and respect for the role that judges play in our system as arbiters of facts and the law rather than makers of policy. Judging also requires a certain degree of selflessness. Each of these candidates could no doubt make a much better living in another line of work, yet they choose to forgo a larger paycheck for their families in order to serve the broader public interest. Finally, in my view being a great judge requires some balance of empathy and evenhandedness--empathy to understand the situations and motivations of litigants who come before them, and evenhandedness to apply the law fairly and independently, regardless of any personal concerns of the outcome. Just as serious as our obligations to scrutinize the nominations closely, however, is our obligation to consider the President's nominees expeditiously. It goes without saying judges are essential to our judiciary. Just as they seek a non- political office, we in this body ought not in my view play politics, to the extent possible, with nominations. There are 15 judicial nominees sitting on the executive calendar who were reported out of this Committee without dissent. Some have been awaiting action for 3 months, an unfortunate and difficult period of time. Candidates should be scrutinized and, when the conscience of a member demands it, even opposed. But where candidates have been scrutinized and no objection raised, I believe we owe it to them and the American people to act swiftly. Because of the failure to reach some consensus on their consideration, litigants throughout this country, from Maine to New York, Missouri to Colorado, are receiving today slower and less justice in my view than they deserve. So the nominees before us today, it is my hope you will find this process fair and substantive. I can promise personally that I will consider your nominations on their merits and hope you will receive similarly fair and open treatment from all of my colleagues. Senator Hatch. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Well, thank you, Mr. Chairman. I am pleased to support the Ranking Member, Senator Grassley, to participate with you in today's hearing. I note that the current total of 90 judicial vacancies across the country is 10 percent below what it was at this time last year. Now, this is the tenth judicial confirmation hearing so far this year, and these hearings have included a total of 42 judicial nominees--the busiest schedule during the comparable period under the last several Presidents, by the way. The 24 district court nominees confirmed so far this year is the highest total during the comparable period under any President in American history. I mention these facts only to say that while there are some real substantive differences about a handful of controversial nominees, I think we are making solid confirmation progress. I know that the Ranking Member and all Senators on our side are committed to making progress. Mr. Chairman, we have before us today several nominees to the Federal district and appellate courts. I see they include a nominee to the U.S. district court in your State of Delaware with nearly a quarter century of experience as a Federal prosecutor. I just want to welcome all of you nominees as well as your families and friends to the Judiciary Committee. I look forward to hearing from you, and we will proceed from that. Thanks, Mr. Chairman. Senator Coons. Thank you, Senator Hatch, and I agree with you that we are blessed to have a working partnership that is allowing us to continue to move forward with nominees. I just hope we will continue to sustain the current pace. Now I would like to ask Justice Christen to step forward and remain standing. Please, if you would, raise your right hand and repeat after me. Do you solemnly swear that the testimony you are about to give to this Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Justice Christen. I do. Senator Coons. Please be seated. Thank you. Let the record show the nominee has taken the oath. Now, Justice Christen, I would welcome you to acknowledge any family members or friends you may have with you here today and give an opening statement to the Committee. Thank you. STATEMENT OF MORGAN CHRISTEN, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT Justice Christen. Thank you, Senator. I am going to take you up on your offer to introduce my family, but that requires a list so that I do not forget any of them, or I would be in big trouble. My husband, Jim Torgerson, is here, and my daughter, Erin Torgerson, and June Smith; and that is my Alaskan family. My sister, Betty Thompson, and niece, Christen, and nephew, Max, are here from North Carolina. Pat Christen, my sister, and Rene Durazzo, my brother-in- law, are here from the San Francisco Bay Area, with two more nieces--Morgan and Madison. And our two brothers are not here, Michael and Bob, but they will be watching. Our parents will be watching from Washington State, and I have in-laws and a lot of extended family watching from northern Minnesota. Thank you, Senator. I do not have an opening statement, Senator. I know you all are very busy. I just want to thank you very much for this hearing, and, of course, I would like to thank the President for nominating me. 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Thank you, Justice. Then my inclination is to begin with 5-minute rounds and for us to proceed with questioning. Justice Christen, could you begin by describing your judicial philosophy for us? Justice Christen. Sure. Senator, I really believe that my job is all about public service, and the way my branch serves the public is to decide cases according to the rule of law, not according to how we would like the law to be or according to our personal views. I believe that we have an absolute obligation to provide a fair, impartial forum for litigants, to always be mindful of the separation of powers and the importance of judicial restraint. And I would say also that I think it is always incumbent upon judicial officers to make sure that they set the tone so that all litigants are always treated with courtesy and respect. Senator Coons. You mentioned judicial restraint. Can you give us an example or two of cases where you were called upon to exercise judicial restraint and talk to us about how challenging or uplifting that might have and what the outcome was? Justice Christen. Sure. When I talk about judicial restraint, I am speaking of the need to decide just the case or controversy before the court and nothing more. We are human beings, of course, but we are called upon to review the facts and review the law and rule just on the controversy that is before us. One example of that might be Brown v. LDG, which is a case that I decided when I was a superior court judge. The case involved a woman who was killed, and she left a couple of young sons behind. There had been a lot of controversy in Alaska over the tort reform statute in our State. I think that is true in many States. We were no exception. But the question before me in that case was not about the pros and cons of tort reform. The question was really whether the legislature's cap on non- economic damages was constitutional. That was the issue. And in my judgment it was, and I upheld that statute. That might be an example that would speak to your question. Senator Coons. In your view, Justice, how would your job as a judge of an intermediate appellate court differ from your previous experience as a trial court and differ from being a Supreme Court Justice? And how would the skills that you have developed in your various roles--excuse me, on different State benches, translate to your responsibilities as a Ninth Circuit judge? Justice Christen. Well, I certainly think there are some different substantive areas, Senator. There is no question that there are different substantive areas. The work that I did on the trial court I think will be invaluable to me because, as an appellate court judge, I know what it takes to create that record and I know how to find things in the record. And that has been incredibly valuable to me as I made the transition from the trial court to the State Supreme Court. I now have a full-time docket, of course, of appellate court work, and that in and of itself is a big transition because, of course, there are different standards of review and it is an entirely different analysis in that sense. We do not re-try the facts, certainly. And I have also made the transition from being a single-judge court to being one of five on a multi-judge court, which is another very significant difference. I think one of the challenges will be that the Ninth Circuit is enormous and there is a lot of travel time involved and I think will have to work very hard to know my colleagues because I think it is terribly important to have collegial relationships with all colleagues, not just because that is nice--but it is--but because I believe that courts function better and the work product is better if we know each other well. There is more tugging, pushing and pulling on those decisions, and we give each other more leeway to do that and generate a better work product if we know each other. And I think that is something we would have to work at given that there are so few judges over such a vast distance. I hope that is not a sign. [Laughter.] Senator Coons. I think there was a thunderstorm outside. Justice Christen. OK. All right. Senator Coons. Maybe it was a resolution of the debt ceiling, Who knows? [Laughter.] Senator Coons. As a circuit court judge--last question from me--how would you see your role in ensuring fair access to the courts and to justice? It is a quite different role than a State judge, but I think all of us who have any connection with the justice system still need to have some concerns about access. How would you see your role as a Ninth Circuit judge? Justice Christen. Well, I am always a little suspicious of people who have not served on a court giving advice to that court about how it ought to be done. So the first thing I would like to say--I am going to answer your question, of course, but the first thing I would like to say is I would first want to hear from the professional staff and the judges on the Ninth Circuit because I know they have worked at this very hard already. My experience in the trial court might go to your question because Alaska, of course, is huge and there are only 700,000 people sprinkled throughout that State. And so we work very hard on access to justice, everything from our computer systems so that folks who cannot get to the courthouse because there literally is not a road--maybe it is only accessible by snow machine or boat or airplane--so that those people can participate by getting the court forms and getting them filed that way. And we have done a lot of work on television cameras in the courtroom on the Alaska Supreme Court. Almost all of our hearings are televised so that folks can participate or certainly have access to our hearings that way. Senator Coons. Thank you, Justice. Senator Hatch. Senator Hatch. Thank you, Mr. Chairman. Justice Christen, welcome to the Judiciary Committee. Justice Christen. Thank you. Senator Hatch. Now, my main focus in evaluating judicial nominees--I will try and get a little closer here--is whether they are qualified by legal experience as well as their judicial philosophy. Those are the two big areas that I currently feel are the most important. Now, you currently serve on a State appellate court which follows common law, but you have been nominated to a Federal appellate court which uses written law. Now, we have seen many needs take that path, but in my opinion, they do not always make the transition to what I believe is a more defined, limited judicial role in the Federal court system. What do you see is the difference? Do Federal judges have as much discretion, as much power, when interpreting statutes or the Constitution as State judges have in developing and applying common law? Justice Christen. Well, thank you, Senator. For the first 7 years when I was on the bench, of course, I was a superior court judge, and I was bound by precedent as well, bound by the Alaska State court precedent, and certainly bound by the statutes the legislature had given to us. Whether I have been called upon to apply statutes or regulations or have been required to very closely read our case law and follow that precedent, I think I have been very faithful about ruling according to the rule of law. Senator Hatch. OK. In one of your opinions on the Alaskan Supreme Court, Allstate Insurance Company v. Dooley, you created a new cause of action for what you called ``fraudulent concealment of evidence.'' Now, versus Federal statutes, various Federal statutes create duties, but not all create private causes of action. Now, Federal judges are sometimes invited to create what Congress does not by simply saying that a cause of action is implied. What approach are you going to use--or let us put it this way: What approach should a Federal judge take when asked to interpret a statute so as to create an implied private cause of action? Justice Christen. A Federal judge, like a State court judge, should always interpret the law faithfully according to the law that we are given by the legislative branch. When a statute is unambiguous, Senator, my job is to apply it currently in the job that I have now, and it certainly would be if I am fortunate enough to be confirmed. Senator Hatch. Well, according to the Constitution as well as written statute. Now, President Obama has said that judges should base their rulings on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.'' Do you agree with that? Justice Christen. I believe that judges have an obligation to rule based on the rule of law, and that is what I have done for 9\1/2\ years. I think I have that track record, Senator. I do not think that empathy plays any role in determining what the rule of law is or in how we apply the rule of law. We are not allowed to tilt the scales depending on how we feel about a case. But I believe that there are life lessons that we have all learned that are very important that judges retain and take with them to the bench. By that I mean that I think it is very important that we are always mindful that there are real people on the receiving end of our orders, and very often there are people's lives on hold or their businesses are on hold waiting for our decisions. That is why it matters very much that our work is timely, for example. Senator Hatch. Federal judges interpret and apply written law to decide cases. Now, interpreting the Constitution or statutes requires determining what their words mean. Justice Christen. Yes. Senator Hatch. A more restrained or limited approach says that the only legitimate meaning is already provided by those who made the Constitution law--in other words, its original meaning. A more activist or flexible approach says that judges may give new meaning to the Constitution that they find from various sources. Some judges focus on the text. Others focus on purposes and consequences that they really want to achieve. Now, could you tell us your view? I do not mean to pigeonhole or label you, but I do want to understand more about your approach to judging. Which approach is more consistent with what you believe is the power and proper role of Federal judges? Justice Christen. Thank you. What I have learned is that people, even judges, mean a really different thing by those phrases and terms, Senator, and so I try to avoid using them. For example, I do not use the phrase ``living, breathing.'' I think that is subject to a lot of misinterpretation. I think a lot of members of the public, for example, hear that and they think we mean that we can--that any judge can change the words that are in the Constitution. And we clearly cannot do that. It is not permitted. There are other phrases, ``calling balls and strikes'' and so forth, and I try to avoid them. What I do, what I have done for the last 9\1/2\ years, when I am, for example, called upon to look at a constitutional question, is always start with the language of the Constitution. I believe absolutely that those words are enduring. They have guided us for over 200 years. It is not the job or within the range of my duties or my power to change those words. We always start--I always start with the language of the Constitution, and then I look at binding authority. I have faithfully applied binding authority, Senator, and if I am fortunate enough to be confirmed, I will continue to do so. Senator Hatch. Well, thank you. Justice Christen. Certainly. Senator Hatch. My time is up, Mr. Chairman. I appreciate it. Senator Coons. Thank you, Senator Hatch. Senator Franken. Senator Franken. Thank you, Mr. Chairman. Justice Christen, I noticed you said you had some family viewing from northern Minnesota. Justice Christen. A few dozen. [Laughter.] Senator Franken. OK. And where in northern Minnesota would that be? Would they be all over northern Minnesota or located in one specific area? Justice Christen. The closest place that has a dot on the map that you might be familiar with is probably Bemidji. Senator Franken. Oh, OK. Well, you know Senator Begich has family on the Iron Range. Well, I guess you did not know that. [Laughter.] Senator Franken. I guess he did not prepare you. Justice Christen. Are you going to tell him? [Laughter.] Senator Franken. Yes. I have just told you. Justice Christen. OK. Thank you. Senator Franken. Well, anyway, hello to all your family. They should be very proud. Justice Christen. Thank you. Senator Franken. I noticed that while you were in private practice, you represented the State of Alaska in litigation that followed the Exxon Valdez oil spill. Can you tell us about that litigation and what you learned from it? Justice Christen. What I learned from that litigation was what it is like to work on a very large litigation team with many different moving parts. That is for sure. My particular part was small. There were just a few of us working on the liability portion of the case for the State of Alaska. That is where I fit in. And to be very specific, my job in the early years of that case--because it did extend for many years, but for the first couple of years, my job was focused on compiling the most accurate record I could of the timeline of events, 24 hours before the grounding of the tanker and 24 hours after the grounding of the tanker. I also worked on the--because I was part of the litigation team, I worked on the summary judgment motion, which established liability. Senator Franken. OK. And leading up to that, there was some drinking involved, was there? Justice Christen. Not by the litigation team. [Laughter.] Senator Franken. I will do the jokes. [Laughter.] Senator Hatch. I kind of like yours better. Senator Franken. I am afraid you lost a vote. [Laughter.] Senator Hatch. Well, let me retract that. Justice Christen. Thank you, Senator Hatch. Senator Franken. I have empathy so I will vote for you. Speaking of which, I noticed that--because this is interesting, because on this empathy question, which we hear over and over and over again, and I agree that you have to decide on the law and that--certainly the way you feel, but I noticed that you said that you have to apply certain life lessons, and so you answered--to me, you answered with a little nuance, which actually I find a little refreshing because I think empathy sometimes is confused with sympathy. Justice Christen. Yes. Senator Franken. And empathy simply means understanding human beings. And I think that the experience of a judge is whether--no matter how the judge factors, tries to factor that out, the experience of a judge has something to do with how they are a judge. Do you agree or not? Justice Christen. The experience of a judge has something to do with how they---- Senator Franken. The life experience cannot help but have-- I mean, otherwise, we just have judges that were like in a bubble. That would be the ideal way to raise a judge, although then they would have to recuse themselves on cases that involve people who lived in bubbles. [Laughter.] Justice Christen. And your question is? Senator Franken. Could you comment on that? [Laughter.] Justice Christen. I can try. I agree with you that people sometimes confuse empathy with sympathy, and there is an important distinction to be made there, Senator. I meant what I said when I talked about interpreting the rule of law, and we do not get to tilt that scale based upon how we feel. But we are not robots, and in our system in our country, we do not leave judging to an Excel spread sheet or to robots, certainly. I also meant what I said about believing very firmly that it is so important--and I trained judges in the trial court-- that those life lessons mean a lot. Absolutely we need to always remember who is on the receiving end of those orders. It matters very much for some of the reasons that I mentioned earlier. Senator Franken. Well, thank you. You seem eminently qualified, and everyone in your family should be very proud of you. Justice Christen. Thank you. Senator Franken. And thank you very much. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator Franken. Are there any further questions by members of today's panel? Senator Hatch. No, sir. I intend to support you, so I will follow up on that. Justice Christen. Thank you. Senator Coons. If there are no further questions, I will hold the record open for a week for members of the Committee who may not have been able to join us due to their schedules but may wish to submit questions. And, again, Justice, I want to particularly thank you and your whole family for joining us here today. I congratulate you on your nomination and wish you all the best. I am confident that you will serve admirably and thoughtfully as a member of the Ninth Circuit, and, Justice Christen, as you and your friends and family are departing, I would like to invite the next panel to come forward and join us. Justice Christen. Thank you, Senator. Senator Coons. Thank you very much, Justice Christen. I would like to ask each of our four nominees on the second panel to please rise, raise your right hand, and repeat after me. Do you solemnly swear that the testimony you are about to give to this Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Gleason. I do. Judge Gonzalez Rogers. I do. Mr. Andrews. I do. Judge Skavdahl. I do. Senator Coons. Thank you. Let the record show the nominees have taken the oath. Now the nominees will have an opportunity to recognize their family and friends and give an opening statement in order. Judge Gleason, starting with you, I welcome you to recognize any family members or friends you have with you today and then offer an opening statement. STATEMENT OF SHARON L. GLEASON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ALASKA Judge Gleason. Thank you, Senator Coons. First I would like to thank the Senators for having me here today to attend this hearing. I will also press my microphone button and repeat that. I would like to thank you both for having me here today to attend this hearing, and I would like to thank Senator Murkowski and Senator Begich for their very kind words that they had on behalf of me. And I certainly thank the President for the honor of this nomination. My parents, Peter and Vera Gleason, are, I know, watching the webcast. They are in upstate New York and were unable to travel here today, but I certainly thank them for all of the support that they have given me. And my sister, Pat, is with them, and my other sister and brothers are watching throughout the country. My daughter, Chloe, traveled with me here. She is a college senior, came from Alaska with me earlier this week. She is a government major so this has been quite a great experience for her. My son, David, signed up months ago to be a camp counselor in San Diego at a tennis camp this month so he is not here, but one of his jobs is planning the evening activities, and he said the webcast will feature prominently on the camp program tonight. My niece, Kristen Larson, is here in the courtroom, and a family friend, Molly Quinn, is here as well. I know I have friends and colleagues in Alaska that are watching, and I certainly appreciate their support and, in particular, the support of my two office teammates: my administrative assistant, Anne, and my law clerk, Lindsay. So I do not have an opening statement, but I certainly look forward to answering any questions that you might have. [The biographical information of Judge Gleason follows.] [GRAPHIC] [TIFF OMITTED] T6350.661 [GRAPHIC] [TIFF OMITTED] T6350.662 [GRAPHIC] [TIFF OMITTED] T6350.663 [GRAPHIC] [TIFF OMITTED] T6350.664 [GRAPHIC] [TIFF OMITTED] T6350.665 [GRAPHIC] [TIFF OMITTED] T6350.666 [GRAPHIC] [TIFF OMITTED] T6350.667 [GRAPHIC] [TIFF OMITTED] T6350.668 [GRAPHIC] [TIFF OMITTED] T6350.669 [GRAPHIC] [TIFF OMITTED] T6350.670 [GRAPHIC] [TIFF OMITTED] T6350.671 [GRAPHIC] [TIFF OMITTED] T6350.672 [GRAPHIC] [TIFF OMITTED] T6350.673 [GRAPHIC] [TIFF OMITTED] T6350.674 [GRAPHIC] [TIFF OMITTED] T6350.675 [GRAPHIC] [TIFF OMITTED] T6350.676 [GRAPHIC] [TIFF OMITTED] T6350.677 [GRAPHIC] [TIFF OMITTED] T6350.678 [GRAPHIC] [TIFF OMITTED] T6350.679 [GRAPHIC] [TIFF OMITTED] T6350.680 [GRAPHIC] [TIFF OMITTED] T6350.681 [GRAPHIC] [TIFF OMITTED] T6350.682 [GRAPHIC] [TIFF OMITTED] T6350.683 [GRAPHIC] [TIFF OMITTED] T6350.684 [GRAPHIC] [TIFF OMITTED] T6350.685 [GRAPHIC] [TIFF OMITTED] T6350.686 [GRAPHIC] [TIFF OMITTED] T6350.687 [GRAPHIC] [TIFF OMITTED] T6350.688 [GRAPHIC] [TIFF OMITTED] T6350.689 [GRAPHIC] [TIFF OMITTED] T6350.690 [GRAPHIC] [TIFF OMITTED] T6350.691 [GRAPHIC] [TIFF OMITTED] T6350.692 [GRAPHIC] [TIFF OMITTED] T6350.693 [GRAPHIC] [TIFF OMITTED] T6350.694 [GRAPHIC] [TIFF OMITTED] T6350.695 [GRAPHIC] [TIFF OMITTED] T6350.696 [GRAPHIC] [TIFF OMITTED] T6350.697 [GRAPHIC] [TIFF OMITTED] T6350.698 [GRAPHIC] [TIFF OMITTED] T6350.699 [GRAPHIC] [TIFF OMITTED] T6350.700 [GRAPHIC] [TIFF OMITTED] T6350.701 [GRAPHIC] [TIFF OMITTED] T6350.702 [GRAPHIC] [TIFF OMITTED] T6350.703 [GRAPHIC] [TIFF OMITTED] T6350.704 [GRAPHIC] [TIFF OMITTED] T6350.705 [GRAPHIC] [TIFF OMITTED] T6350.706 [GRAPHIC] [TIFF OMITTED] T6350.707 [GRAPHIC] [TIFF OMITTED] T6350.708 [GRAPHIC] [TIFF OMITTED] T6350.709 Senator Coons. Thank you very much, Judge Gleason. Judge Rogers. STATEMENT OF YVONNE GONZALEZ ROGERS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA Judge Gonzalez Rogers. Thank you, Chairman. I would like to first thank Senator Hatch, Ranking Member Grassley, and Chairman Leahy for their leadership in holding these hearings. My warm thanks to Senator Feinstein. Her enthusiastic support of my nomination has been incredible and really is deeply appreciated. I also thank Senator Boxer for her support and the President for the confidence that he has shown in me by this nomination. I am here with a number of family members. I will art with my husband of 23 years, Matt Rogers. As Senator Feinstein mentioned, we are here with our three children: Christopher, who is 16 and aspires to be an engineer; Maria, who is 12, she loves math and volleyball; and Joshua, who is 10. He wants to be a professional soccer player, was very happy with the women's win today, and a chef. I am also here joined by my mother, Bertha Mayorga, who traveled from Texas, and my three sisters, who also traveled from Texas: Liza Reyes, Lora DeBord, and Cynthia Rhett, who is also here with her husband, Eric. Unfortunately, my brother, Rene Gonzalez, could not be with us, nor could my late father, G.B. Gonzalez. I know he would have been proud to witness these hearings, and he certainly was an inspiration to me. I do not have a formal statement. I do want to recognize and acknowledge the constitutional importance of these proceedings, and I look forward to answering any questions that you may have. Thank you. 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Thank you, Judge Rogers. Mr. Andrews. STATEMENT OF RICHARD G. ANDREWS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE Mr. Andrews. Thank you, Senator, and Mr. Chairman. First, I do want to thank you and Senator Hatch and Senator Franken for being here for these hearings and for holding them. I very much want to thank Senator Carper and, again, Mr. Chairman, you for your kind remarks. I am very honored that the President nominated me for this position, and I want to thank him. As has been mentioned by Senator Carper, my wife, Cathy Lanctot, is here, to whom I have been married 23 years--it seems like a lucky number here--and my children, Peter Andrews and Amy Andrews. I want to acknowledge my father, Peter Andrews, who is watching by webcast in Wilmington, Delaware; and Cathy's mother, who is very special to me, Claire Lanctot, who is watching by webcast in Woonsocket, Rhode Island. I want to mention my sister, Patricia Andrews, and her husband, Michael Gray, who is from Minneapolis, and I wish Senator Franken was still here because, believe it or not, they are actually on an airplane to Bemidji, Minnesota, and I want to thank them. I also want to acknowledge two friends of mine, Adam Safwat and Rudy Contreras, who are present, and I thank them for their support. I look forward to answering whatever questions the Committee has. 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Thank you, Mr. Andrews. And last, but certainly not least, Judge Skavdahl. STATEMENT OF SCOTT W. SKAVDAHL, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF WYOMING Judge Skavdahl. Thank you, Senator Coons and Senator Hatch, and the Committee for holding this hearing today. I am humbled and deeply honored by President Obama's nomination given the significance of this position and the quality of the individuals that were recommended for it. I am also appreciative to Governor Freudenthal who deemed me worthy of consideration, and to Senators Enzi and Barrasso for their kind words and introduction and support in this process. I want to recognize my best decision I ever made, my wife, Cidne Skavdahl, seated behind me, of 20 years come August 17th; my daughter, Caitlyn Skavdahl, the greatest blessing I have had. My father, John Skavdahl, is here today. My mother is back in Nebraska watching the dogs. And my sister, Sean Nick, and her husband, Brad, and my nieces and nephews in Fremont, Nebraska. My friend and colleague, Judge Forgey, from Wyoming, was able to join us today. I appreciate him being here. Mr. Ben Hebner, a family friend, as well as Mr. and Mrs. Neff, family friends. I am also wanting to say hello to the staff and colleagues and friends and mentors back in Wyoming who might be watching by web cam and who, without their support, I would not be here. Thank you. 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Thank you, Judge, and thank you to everybody for introducing your families to us and for your time and attention here. I would first like to invite each of you in order, if I might, beginning with Mr. Andrews and just proceeding down the panel, to just describe your judicial philosophy, what you see as the appropriate role of the Federal district court judge and how in particular you approach the use of precedent in your judicial duties, should you be confirmed. Mr. Andrews. Yes, Senator. In terms of judicial philosophy, it seems to me the two most important things for a Federal district judge and things that if I were confirmed I would attempt to do is to actively manage the caseload so that it comes to some resolution and, in terms of the things that I would decide, to show restraint, not to decide things that do not need to be decided. In terms of precedent, the United States Supreme Court and the Third Circuit are binding precedent on a district judge in the District of Delaware, and I would follow their precedents. Senator Coons. Thank you, Mr. Andrews. Judge Rogers. Judge Gonzalez Rogers. Thank you, Senator Coons. Quite simply, I think it is my utmost responsibility to fairly adjudicate any and all matters that come before me for all litigants, no matter their station, and to do so in a manner that is impartial and that is done without sympathy, bias, or prejudice. It is my responsibility to follow the law, to follow the statutes, the plain meaning of the statutes, and I am bound by all of the decisions of the Supreme Court and the circuit in which I sit. Senator Coons. Thank you, Judge. Judge Gleason. Judge Gleason. Thank you. My philosophy is similar. I see three parts to the role of a judge. First, I see the role of the judge to determine the facts and issues that are at dispute in the case and do so in a manner that is respectful of the views of each of the parties that are participating in the case. Second, I see the role of the judge to determine what is the applicable law, and there, precedent of the higher courts is the guiding factor in determining that rule of law and applying it to the case before me. And, third, I see the role of the judge in explaining the decision that has been reached and explaining it to the parties in a way that they understand what the rule of law is and hopefully leaves them with a sense that their position has been heard and understood in the course of reaching the decision. Senator Coons. Thank you. I think that is the first time I have heard someone articulate that last particular point, which I think is helpful. Judge Skavdahl. Judge Skavdahl. Thank you, Senator. My philosophy has always been with litigants before me and people to treat them as I would want to be treated if I were standing in the well of the court. I believe it is important to listen carefully, to be extremely patient with the process, and exercise humility and understanding in the issues that are presented and make those decisions carefully and wisely. Senator Coons. Thank you, Judge. I would be interested if you would next take up the question of sort of in particular what is the role of the court in interpreting those laws that are written and adopted by elected bodies, whether State legislatures or the Federal Congress. Mr. Andrews. Mr. Andrews. Yes, Senator. In terms of statutes or statute- like law, the role of the court is first to look to the statute and, when the meaning is plain, to enforce that. When there is ambiguity, then the judge has to look at secondary--other sources, which may be precedent which, while not directly on point, shows reasoning that is analogous and should be followed, legislative intent to the extent that it can be determined, and any other relevant information that might be brought to the court's attention. Senator Coons. Judge Rogers, anything you would like to add to that view? Judge Gonzalez Rogers. I think he did a terrific job, but I would add, after I agreed with everything that my colleague to the left here said, I would add that at times if we--or if I have found that there is no controlling precedent in my district, I will look to other similar situations perhaps in the Federal courts or other State courts where there were similar situations and use those also a means of trying to bring about a reasoned analysis to whatever the specific dispute is before me, and then to, as narrowly as possible, adjudicate on that basis. Senator Coons. Judge Gleason. Judge Gleason. I am not sure I have a whole lot more to add. I agree with the statements of both of my colleagues to my left here and certainly agree that the starting point and statutory interpretation is the express language of the statute. Senator Coons. Judge Skavdahl. Judge Skavdahl. I do not think I could add anything further. I would adopt those opinions expressed by my colleagues. Senator Coons. Thank you. I see my time has expired. We are doing 5-minute rounds. I would like to welcome Senator Grassley. I am grateful for his joining us. Senator Hatch. Senator Hatch. Well, I will defer to Senator Grassley. Senator Grassley. Thank you very much. I have questions right now for Judge Gleason. In 1985, while working in private practice, you wrote a report for the Alaska Women's Commission entitled, A Review of Alaska's Statutes for Sex Discrimination. The goal of the report was to identify all potential sexual discrimination in Alaska's statutes, regardless of how a court would decide the constitutionality of a given provision. Your recommendations and findings were far-ranging and, I think, controversial. I want to ask you about some items. You stated, ``[T]he constitutional guarantee of equal rights and protections and the right to privacy present strong arguments in support of decriminalization of prostitution.'' I want to give you a chance to explain the statement but, more important to me, do you support the decriminalization or legalization of prostitution today? Judge Gleason. Thank you for the question, Senator Grassley. I was the coordinator of that report back in 1985, which was my first year as a practicing attorney, and I again read that report just a couple of months ago when I was putting together my response to the Senate Judiciary questionnaire. My role in the project--it was, as you have indicated, of course, a project put together by the Women's Commission. I was the legal coordinator, and that is indicated in the report, meaning I put together a compilation of opinions by a number of volunteer attorneys and State employees with regard to the various issues presented. Frankly, sitting here today, I do not recall what portions of the report I personally authored and what were the work of volunteer attorneys. So it was more of a synthesis role that I played at that point in time. My views today with regard to the question that you have posed, I really have not given any reflection on that. I do feel that there are issues in our society with regard to--it is essentially a legislative prerogative, as I would see it, and if there were law one way or the other, it would be my obligation to enforce that law. Senator Grassley. OK. You have stated that veterans' benefits have ``gone too far.'' Specifically, you said that veterans' benefits have been extended beyond their original purpose of readjusting retired service members to civilian life and, therefore, should be curtailed. You also stated, ``[t]o offer lifetime rewards solely to those individuals who have served their country in the armed forces works to the detriment of women as a class.'' The United States is currently involved in numerous conflicts around the world, putting hundreds of thousands of Americans, both men and women, in danger every day. No. 1, do you still hold the views that veterans' benefits should be curtailed or that such benefits work to the detriment of women as a class? Judge Gleason. No, I do not. But I have to stress again, Senator Grassley, that my role in that report was as a coordinator. It was to synthesize the work of a number of people, and so I know the report, because I have read it very recently, as I indicated for the first time, presented a number of different ways in which the legislature could address what was at that point in time gender discrimination in Alaska statutes. And as I recall, there were alternative recommendations, but my work was to synthesize other individuals' writings, and that is why I was the legal coordinator of that project. Senator Grassley. OK. Second question, along the same line: Do you believe that men and women who serve in the armed forces today should be denied access to veterans' benefits merely because there are fewer women than men who serve in the armed services? Judge Gleason. No. Senator Grassley. OK. In your 1985 report, you stated that Alaska's restrictions on abortion were unconstitutional. In your view, may a State impose any restrictions on abortions? And if so, what restrictions might be permissible? Judge Gleason. Well, the report did discuss, as I recall, the status of the United States Supreme Court precedent at that point in time and whether--and made a recommendation that the current Alaska statute in place at that point in time did not conform with the directives of the United States Supreme Court. In my role as a judge, I could be called upon to address issues in the future, but primarily my role would be to enforce the existing law of the law as enunciated by the United States Supreme Court. Senator Grassley. OK. When discussing the pervasiveness of sexual discrimination in your State, you also alluded to the fact that you would be in favor of State-run, State-sponsored health insurance plans. Given that a number of States have alleged the unconstitutionality of the Federal Patient Protection and Affordable Care Act's mandate for individuals to purchase State-sponsored health insurance, should the Committee assume that you would be in favor of such a plan if the case ever reached the district court? Judge Gleason. I would hope the Committee would make no assumption about how I would rule on any issue that might come before me. Senator Grassley. And your record both in private practice and as an Alaska State court judge suggests that you have not so much experience with Federal law. As you know, Federal district court judges must preside over a wide range of civil and criminal law cases. Would you please describe your experience with Federal civil litigation? Judge Gleason. Thank you, Senator Grassley, for the question. I will readily acknowledge that the bulk of the work I have done involves State law, and yet in the course of being a State court judge for 10 years, I have certainly encountered Federal legal issues in the context of--I know I have had cases involving transportation law; I know I have had cases involving the Federal Energy Regulatory Commission, issues to some extent revolving around Federal constitutional law, although oftentimes they are more focused on State constitutional law, but issues with regard to Federal constitutional law have arisen as well. And I have had some rather obscure Federal regulation cases from time to time, I have to say, that just seemed to work their way into State court. Senator Grassley. And I am down to two final questions, and I do not think they are difficult. What is your plan to become proficient in Federal criminal law and procedure? Judge Gleason. Thank you for the question, Senator. I do realize that the area where I would have a steeper learning curve is in criminal law. I will point out, however, that I have had criminal law experience as a trial court judge. I have done a first-degree murder trial where I was affirmed on appeal, and I have done several other criminal trials and post- conviction relief proceedings. But I do recognize Federal law has different proceedings and different procedures that I would need to learn. I would plan to do the same that I do now when I am confronted with a new area of law, and that is to read the applicable law, observe other court proceedings, talk to my colleagues, go to the Administrative Office, get the materials, the bench books that are available, and review carefully the applicable law and facts of each case so that when I walked into the courtroom for a litigant each side would know that I was fully prepared and fully understood the law and ready to make a decision in their case. Senator Grassley. And my last question is if you could give us, of all the decisions you have had to make, what you would consider the most difficult decision you had to make sitting as a State court judge. Judge Gleason. That is an interesting question, and thank you for it. And I have thought about that question to some extent because I have heard it posed to other nominees. I find the job of being a trial court judge to be incredibly rewarding and immensely challenging, and I do not see that the work of making decisions to be a particularly -it is not the--the difficulty is what I strive for, and the same in cases where it is hard to learn the facts. But where I did feel there was as particularly difficult case that I had was a case that involved many, many allegations of child abuse by foster parents of foster children, and the difficulty of the case was in the selection of the jury because the hardship for the jurors in being questioned about the case and their ability to serve brought up for so many of them the difficulties that they had had in their own lives, and I thought that was a very difficult case to preside over because of the impact it had on individuals that were simply there to do their civic duty. Senator Grassley. I thank you very much, and I thank my colleagues for letting me go first and having a little extra time. Thank you. Senator Coons. Thank you, Senator Grassley. Senator Hatch. Senator Hatch. Well, thank you, Mr. Chairman. Judge Gleason, you did admit in your answers to questions-- here is what you said. In 1985, you wrote a report for the Alaska Women's Commission which is entitled ``A Review of Alaska's Statutes for Sex Discrimination.'' So I think the record should show that. Judge Gleason. I am sorry? Certainly I was the legal coordinator of the report, I believe. Senator Hatch. Well, you say here, ``I wrote a report.'' Did you just coordinate and write what others had given you? Judge Gleason. And here, again, I am---- Senator Hatch. I am not meaning to hold you---- Judge Gleason. No, no. I had trouble recalling what I did 25 years ago, my first year of practice. I will be---- Senator Hatch. Well, what kind of a person are you that you cannot recall 25 years ago? [Laughter.] Judge Gleason. Thank you, Senator. It gets more challenging. Senator Hatch. I cannot recall last week sometimes. Judge Gleason. But I will say I recall receiving large amounts of materials from attorneys, and I did have my office type it up. The extent to which I actually wrote things versus I wrote what other people contributed, sitting here today I simply cannot point to what I can say I wrote. The one thing I do recall having written most of in that was in the area of insurance law because I remember reading the insurance code for the very first time as a new lawyer and thinking, ``This has some very obscure provisions.'' Senator Hatch. That is OK. As far as I am concerned, that is fine. You found to be discriminatory insurance company policies that correlate sex and risk. You wrote that--and let me give you the quote. Judge Gleason. Certainly. Go ahead. Senator Hatch. A State-administered group insurance plan for individuals who are otherwise without access to group health insurance plans should be explored. Is that still your opinion? Judge Gleason. I see that as a prerogative of the legislature, and the purpose of the report was to give suggested alternative recommendations to the legislature. Senator Hatch. OK. Judge Skavdahl, I want to know what position you played on the football team? Judge Skavdahl. Senator, I primarily occupied the bench, but---- [Laughter.] Judge Skavdahl. I played under the third down 3 or 30 rule as a wide receiver, and I would go in on third down and 3 or if we were 30 points ahead or behind, which sometimes that was with BYU and the University of Utah, I would get to go in. Senator Hatch. Now, you better be careful talking about BYU and the University of Utah, is all I can say. You were a State court judge until your recent appointment as a Federal magistrate. That is great experience. Let me ask you just one question I explored with Justice Christen. What difference do you see in the power or discretion of State and Federal judges, especially when it comes to interpreting the Constitution or statutes? Judge Skavdahl. Well, thank you for the question, Senator. I see general--there are some States that--in Wyoming there is implied common law, and there are some rules of law with respect to whether or not statutes have been enacted that adopt or that eviscerate the common law. I do not think that applies in the Federal situation, and, candidly, I would have to bone up on that issue. But certainly the cornerstone is precedent, and I would be bound by that, and giving plain meaning to the words of the Congress and narrowly interpreting. And there is a presumption of constitutionality that attaches to a statute. Senator Hatch. Sure. Now, your very own doctors say that you have had various orthopedic problems. Is that going to impair your ability to be a judge? Judge Skavdahl. No, Senator. Thankfully, I do not believe it would. If I was fortunate enough to be confirmed, I am able to walk, and my knee is a little stiff on occasion, but modern medicine has assisted that, so I can still play basketball. Senator Hatch. I want to know if Barrasso was really that good of a doctor. That is what I am wondering. [Laughter.] Judge Skavdahl. I am able to get in here without a wheelchair. Senator Hatch. Well, then, that is something to be said. Mr. Andrews, you have called for lessening criminal penalties for drug possession and argued that suspending the driver's license for that crime is counterproductive. Now, do you agree that judges, unlike prosecutors or certainly legislators, should not participate in such policy debates but should simply enforce the laws enacted by the legislature? Mr. Andrews. Yes, Senator. Senator Hatch. OK. Now, you have also criticized mandatory sentences. Now, if confirmed, what deference will you give to the Federal Sentencing Guidelines? Mr. Andrews. Senator, I am not sure when you say I criticized mandatory sentences. I think that there may be particular statutes where the Committee that I was on thought that the mandatory sentence in that particular case was not the right thing. But I have not criticized them as a general proposition. In regards to the Sentencing Guidelines for Federal sentencing, they are certainly the starting point for any sentence, and they are entitled to some deference. Senator Hatch. Join the crowd. I think a lot of us have concerns, and I was one of those who helped put those mandatory guidelines into effect, so I still have concerns about them, to be honest with you. Now, Judge Rogers, congratulations. You certainly had--all of you have had tremendous accolades from your Senators from your States. I think that is a great tribute to each one of you. Judge Rogers, in a 1992 article published in the La Raza Law Journal, you wrote that, Power is not going to be given to us. It has got to be taken. Now, that can certainly mean different things, including a call to be involved in the political process. Do you believe that judges should be engaged in helping or empowering certain groups? Or must judges decide cases objectively based on the law? Judge Gonzalez Rogers. Judges must, Senator, decide cases objectively on the law. That article really was about political participation in our representative democracy, which I believe is important for all citizens. It was written 20 years ago, as you indicated. But a role of a judge and a role of politicians or those in the political branch are very different. Senator Hatch. Are you saying that when you are younger you do make some statements that you might have to eat later on in life? Judge Gonzalez Rogers. I think when all of us are younger we make certain statements that we may think about differently at different times in our lives. Senator Hatch. That is great. Now, you have been on the State court bench just a few years. If I remember correctly from your questionnaire, 95 percent--am I right about this, 95 percent of your private practice was in State court and 99 percent of it was civil rather than criminal? Judge Gonzalez Rogers. Correct. Most of my experience prior to becoming a judge was civil. Senator Hatch. Now, I for one do not think that disqualifies you at all. What I am concerned about more than anything else with judges is integrity, capacity, the ability to read the law and understand, the ability to interpret the laws, and to live within certain judicial constraints. I think all four of you have done an excellent job here today, and I just want to tell you that I intend to support each and every one of you and hope that you will make terrific judges on the bench. As somebody who did practice extensively both in civil litigation but also in Federal litigation, I have nothing but respect for Federal judges. And we want to have the best people we can possibly get, and I certainly think the four of you will make excellent judges on the bench. Just be fair, be honest, be straightforward, and be tough. Sometimes it is important to be tough with attorneys and let them know who is in charge. But I just am very appreciative that you are willing to do this. We know that many of you can make a lot more money in private practice than you do as a Federal judge, but there are very few things that are as satisfying or as important in this country and in our constitutional way of law than being a Federal judge. And I commend each of you for being willing to do this, and I commend the President for sending your names up. Thank you, Mr. Chairman. And if you will forgive me, I am going to have to leave. Senator Coons. Thank you, Senator Hatch. There being no further questions from this panel today, I will thank the nominees and their families, thank the nominees, as Senator Hatch and other members of this panel mentioned, for their willingness to serve the public. We will hold the record open for a week for any members of the Committee who wish to submit additional questions. I want to congratulate all four of your on your nominations. We are truly grateful that you have answered the call to Federal service and believe all four of you to be highly qualified to serve on the Federal bench, and I am hopeful that the full body of the Senate will take up the consideration of your nominations promptly. We stand in recess. [Whereupon, at 4:03 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T6350.859 [GRAPHIC] [TIFF OMITTED] T6350.860 [GRAPHIC] [TIFF OMITTED] T6350.861 [GRAPHIC] [TIFF OMITTED] T6350.862 [GRAPHIC] [TIFF OMITTED] T6350.863 [GRAPHIC] [TIFF OMITTED] T6350.864 [GRAPHIC] [TIFF OMITTED] T6350.865 [GRAPHIC] [TIFF OMITTED] T6350.866 [GRAPHIC] [TIFF OMITTED] T6350.867 [GRAPHIC] [TIFF OMITTED] T6350.868 [GRAPHIC] [TIFF OMITTED] T6350.869 [GRAPHIC] [TIFF OMITTED] T6350.870 [GRAPHIC] [TIFF OMITTED] T6350.871 [GRAPHIC] [TIFF OMITTED] T6350.872 [GRAPHIC] [TIFF OMITTED] T6350.873 [GRAPHIC] [TIFF OMITTED] T6350.874 [GRAPHIC] [TIFF OMITTED] T6350.875 [GRAPHIC] [TIFF OMITTED] T6350.876 [GRAPHIC] [TIFF OMITTED] T6350.877 [GRAPHIC] [TIFF OMITTED] T6350.878 [GRAPHIC] [TIFF OMITTED] T6350.879 [GRAPHIC] [TIFF OMITTED] T6350.880 [GRAPHIC] [TIFF OMITTED] T6350.881 [GRAPHIC] [TIFF OMITTED] T6350.882 [GRAPHIC] [TIFF OMITTED] T6350.883 [GRAPHIC] [TIFF OMITTED] T6350.884 [GRAPHIC] [TIFF OMITTED] T6350.885 [GRAPHIC] [TIFF OMITTED] T6350.886 [GRAPHIC] [TIFF OMITTED] T6350.887 [GRAPHIC] [TIFF OMITTED] T6350.888 [GRAPHIC] [TIFF OMITTED] T6350.889 [GRAPHIC] [TIFF OMITTED] T6350.890 [GRAPHIC] [TIFF OMITTED] T6350.891 [GRAPHIC] [TIFF OMITTED] T6350.892 [GRAPHIC] [TIFF OMITTED] T6350.893 [GRAPHIC] [TIFF OMITTED] T6350.894 [GRAPHIC] [TIFF OMITTED] T6350.895 [GRAPHIC] [TIFF OMITTED] T6350.896 [GRAPHIC] [TIFF OMITTED] T6350.897 [GRAPHIC] [TIFF OMITTED] T6350.898 [GRAPHIC] [TIFF OMITTED] T6350.899 [GRAPHIC] [TIFF OMITTED] T6350.900 [GRAPHIC] [TIFF OMITTED] T6350.901 [GRAPHIC] [TIFF OMITTED] T6350.902 [GRAPHIC] [TIFF OMITTED] T6350.903 [GRAPHIC] [TIFF OMITTED] T6350.904 [GRAPHIC] [TIFF OMITTED] T6350.905 [GRAPHIC] [TIFF OMITTED] T6350.906 [GRAPHIC] [TIFF OMITTED] T6350.907 NOMINATIONS OF EDGARDO RAMOS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; ANDREW L. CARTER, JR., NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; JESSE M. FURMAN, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; JAMES RODNEY GILSTRAP, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS; AND, JENNIFER GUERIN ZIPPS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA ---------- WEDNESDAY, JULY 27, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:30 p.m., Room SD-226, Dirksen Senate Office Building, Hon. Charles E. Schumer presiding. Present: Senators Franken, Kyl, and Lee. OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. I welcome all the nominees who are here today, as well as the family and friends who have come to support them. And I want to thank Senator Kyl for serving as Ranking Member for this hearing. I am pleased to open the hearing by recognizing the distinguished Senators from Texas, Senators Hutchison and Cornyn, who are here to introduce James Rodney Gilstrap, the nominee for the eastern district of Texas. Then Senator Kyl will introduce Jennifer Guerin Zipps, the nominee to replace Judge Roll, who was so tragically killed earlier this year--and I know he was a good friend of yours, Jon--in the district of Arizona. And then I will introduce Andrew Carter, Jesse Furman, and Edgardo Ramos, all nominees for the southern district of New York. So without further introduction, since they have been so patient and were actually pretty close to being on time, which does not happen that much, Senator Cornyn is surprised, I will call on Senator Hutchison, the senior Senator from Texas, first, to be followed by Senator Cornyn. PRESENTATION OF JAMES RODNEY GILSTRAP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Hutchison. Well, first of all, Mr. Chairman, thank you very much for holding this hearing. And it is a pretty quick turnaround for this nominee and we appreciate it, because we are in complete and full support of Rodney Gilstrap. He has been nominated for the Federal district bench for the eastern district of Texas in Marshall. Although he was born in Pensacola, Florida, he came to Texas as soon as he could. [Laughter.] Senator Hutchison. Showing how smart he is. In fact, he is very smart. He attended Baylor University, where he graduated magna cum laude, with a bachelor of arts degree in religion. Following his graduation, he continued his studies at Baylor Law School, where he was associated editor of the Baylor Law Review and received his jurist doctorate in 1981. The start of his professional career took him to Marshall, Texas, where he resides today. He started as an associate attorney at the Abney, Baldwin & Searcy law firm in 1981 and then went out on his own to form the law firm Smith & Gilstrap in 1984. In August of 1989, he was appointed county judge of Harrison County and was elected three times to serve starting in 1989 and then served until 2002. He retired as county judge and returned to the private practice, Smith & Gilstrap, again. He also has been dedicated to his community. In addition to serving as county judge, he was on the board for the Harrison County Historical Society, the United Way for Harrison County, and the Trinity Episcopal Day School, and, also, served as the Caddo district's Chairman for the Boy Scouts of America. He certainly is a renowned member of his community, and I will say that Senator Cornyn and I have tried as best we could to appoint people to Federal benches from the area in which they serve, because we think that is important. He has his family. His wife, Sherry, is here and we are pleased to have her, and two children, Lauren, age 26, and son, Stephen, age 23. Senator Schumer. If you would please stand so we can just greet you and say hello. Welcome. Senator Hutchison. We recommend him highly, and he was recommended from all sectors of the community and the State Bar of Texas, and we look for his early confirmation. Thank you very much, Mr. Chairman. Senator Schumer. Thank you, Senator Hutchison. Senator Cornyn. PRESENTATION OF JAMES RODNEY GILSTRAP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you, Mr. Chairman. I am pleased to join Senator Hutchison in recommending Rodney Gilstrap to serve as United States District Judge for the Eastern District of Texas in Marshall. Senator Hutchison and I have been honored to appoint a bipartisan judicial evaluation Committee that we believe works very well to help us recommend the best and the brightest people to serve in these important jobs, and, certainly, Mr. Gilstrap is no exception. Based on his broad experience and his commitment to public service, he has earned the support of people of all political stripes in east Texas and around our great state, and I am convinced he will be an outstanding addition to the bench. Just because I think it is important, because as you know, in addition to being a recovering lawyer, I am also a recovering judge, I just want to say something about Mr. Gilstrap's practice in the legal profession. He has been an active lawyer in the general civil practice since 1981 and represented a wide variety of clients. I think that is really important, because judges, people who sit in judgment should be people who understand what it takes to be an effective advocate in our adversary system in a court of law. Also, because I know it is a little different in every state, Mr. Gilstrap's service for 13 years as a county judge is something I just want to mention. This is, in many ways, sort of an administrative position, but in many counties, particularly rural counties, includes some judicial responsibilities, hence, the name county judge. So he has had broad experience both in the practice of law, as well as in public service, as I say. And I understand we have had his family introduced, his wife, Sherry; his daughter, Lauren; and, I do not recall whether Senator Hutchison mentioned that or not, but I understand Stephen is unable to be here today because he is actually taking the bar exam. Is that right? Our sympathies go out to him. [Laughter.] Senator Schumer. We wish him a bipartisan good luck. Senator Cornyn. Thank you very much, Mr. Chairman. We heartily recommend Mr. Gilstrap. Senator Schumer. Thank you both, Senators Hutchison and Cornyn. And I know you have busy schedules. So if you have to be on your way, we understand that. Now, Senator Kyl has graciously agreed, even though he is the Ranking Member of this hearing, to allow Senator McCain to make the first introduction of Jennifer Guerin Zipps. PRESENTATION OF JENNIFER GUERIN ZIPPS NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA BY HON. JOHN MCCAIN, A U.S. SENATOR FROM THE STATE OF ARIZONA Senator McCain. Well, thank you, Mr. Chairman. I am, obviously, pleased and proud to join my friend, Senator Jon Kyl, in introducing to the Committee a fine Arizonan, Judge Jennifer Guerin Zipps. Judge Zipps was nominated by the President and, obviously, supported by Senator Kyl and me to fill the seat left vacant by the untimely death of Chief Judge John Roll. I do not have to remind the Chairman of the tragedy in Tucson and the sad passing of Judge John Roll in that terrible event. I know that Judge Zipps shares my admiration for Judge Roll and appreciates the legacy of the seat she is to fill. The district of Arizona has currently been declared a judicial emergency. That is a rare declaration by Federal court officials. Nowhere is this felt more than in the Federal courthouse in Tucson, which hears more immigration cases than any other courthouse in America. That is why we would be very appreciative of an expeditious and rapid confirmation of Judge Zipps, because of the judicial emergency that exists. And no one understands that better or appreciates it better than Judge Zipps, because she currently sits as a magistrate in Tucson and routinely hears initial appearances as part of Operation Streamline for up to 70 defendants at a time--70 defendants at a time--who are charged with illegal entry. Due to her ability to handle such a heavy caseload, her fidelity to the law and her intellectual curiosity, I know Judge Zipps will be an asset to the bench and I hope the Committee, as I mentioned, will swiftly vote to confirm her nomination. She is originally from Ashland, Ohio, but like a lot of people, came to Arizona to attend the University of Arizona, and then took a short departure from Tucson to attend Georgetown Law Center. She then returned to work as a litigator for 4 years before beginning her public service in 1999 as a Federal prosecutor, until her appointment to the bench in 2005. She is imminently qualified. I am proud to support her, and welcome her father, James Pifer, her husband, David, and three children, Renee, James and Michael here before the Committee today. They are very proud of her. Senator Schumer. I would ask you to stand so (off microphone.] Welcome, and congratulations. Senator McCain. We are extremely proud of her and the great work that she has done under very difficult conditions. I wish that every member of this Committee could attend her court every workday where there is a minimum of 70 defendants all addressed at one time. It is a very unusual kind of judicial situation. She handles it with skill and efficiency and fairness. I thank you very much, Mr. Chairman, for allowing me these moments to introduce her. Senator Schumer. Thank you, Senator McCain. And now we will hear from the Ranking Member of the Judiciary Committee panel today, Senator Kyl. PRESENTATION OF JENNIFER GUERIN ZIPPS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA BY HON. JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA Senator Kyl. Thank you, Mr. Chairman. I thank my colleague, Senator McCain. He and I have had the good fortune to be able to nominate or help in the nomination of a lot of people to Arizona courts, since we have had vacancies and we also, as he mentioned, have a very large caseload there. So we have had the opportunity to add some judges, and I do not remember any of them that had any greater acceptance within the bar and bench community than the nomination of Judge Zipps. I will not repeat all of the things that Senator McCain has said about her background. I will confess a little conflict of interest. Her daughter, Renee, and my granddaughter, Francis, went to high school together, Mr. Chairman. I attended a graduation ceremony where her daughter, Renee, made a very fine presentation. So I am a little bit biased for Jennifer and her family. And I would also note that it is not always that our nominees receive unanimous well qualified, the highest commendation from the Bar Association. Judge Zipps received that highest, well qualified unanimous rating, and I think it demonstrates how her colleagues in the bench and bar in Arizona feel about her. Just a couple of things in her experience that Senator McCain did not mention. She clerked on the ninth circuit court of appeals for Judge Canby, a respected Arizonan on the ninth circuit. As he mentioned, she was an assistant U.S. attorney in the office there in Arizona, and she rose to be the chief of the civil division, for the last 3 years, was the chief assistant in the office. I would like, Mr. Chairman, to put into the record a list of many of her memberships, activities and awards. So that I will not mention them here, but would ask that they be placed in the record with my comments. Senator Schumer. Without objection. [The information referred to appears as a submission for the record.] Senator Kyl. Mr. Chairman, I think that Senator McCain made all of the other points that I would want to make here. It is important, as he said, that we move these confirmations as quickly as possible because of the very, very large hole that the death of John Roll left in our court system in Tucson and the very large caseload that we have there. We are both very proud to support Judge Zipps in her nomination here today. PRESENTATION OF ANDREW L. CARTER, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; JESS M. FURMAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; AND EDGARDO RAMOS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK BY HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Thank you very much, Senator Kyl. And you have--we were all taken by the tragedy, the horrible tragedy in Arizona and, of course, the murder of Judge Roll, and I do want to let the people of Arizona know, Senator Kyl let us all of us know what a fine person he was in the weeks after and I will remember your comments about him. Well, now it is my honor. We have a majority of the five nominee that are nominated to the New York bench. I am very proud of that. I take a lot of time and effort into choosing nominees to the bench, and I have three criteria, actually, when I try to choose judges and they have stuck with me since I became a Senator in 1999--recommend judges, is the better word, to the President for nomination. They are excellence, moderation and diversity; excellence meaning legal excellence. We try to find people who have great legal minds, not people who have great political connections. Second, moderation. I do not like to choose judges too far right. That comes as no surprise. I also do not like to choose judges too far left, because I think judges who are at the extremes tend to want to make law rather than interpret law. And, third, moderation. Once the first two criteria are met, I always look to try to make the bench as diverse as possible. I believe that is a hallmark of America. And I am proud to say that the panel, as a whole, meets all three criteria today. So let me be brief in my introductions, because we do want to get four, and since we have three, I will ask the entire statement I will submit to the record for each and just be a little briefer. But the one thing I want to point out here before I introduce Judge Carter is one of the great things we have had in New York is people from all over the country are flocking to New York. Our population went up between 1990 and 2010 by 1.5 million people, approximately, and many of them were some of the best and brightest and hardest working people from around the country who flocked to New York, and many of those in the legal profession. And one of those is Mr. Carter. He is from Albany--Albany, Georgia, unfortunately. But after graduating from the University of Texas at Austin and receiving his J.D. from Harvard Law School, he came to New York. And after law school, he worked for 2 years at the Ford Foundation and then became a public defender in the New York courts, both State and Federal. He spent 9 years at the New York Office of Legal Aid Society, and then 4 years at the Federal Defenders of New York. Since 2009, he has served as a magistrate judge, just like one of our other nominees, Magistrate Zipps from Arizona, and that is great training. It is great training to be a judge when you are an outstanding magistrate. He was selected by the vote of the sitting district judges to be it, and, as I said, I believe he exemplifies all three of the qualities I mentioned and will be a terrific addition to the southern district bench. Next, we have Jesse Furman. He was born in New York City. He graduated summa cum laude from Harvard College and received his law degree from Yale Law School. He then served as a law clerk to then Judge Michael Mukasey in the southern district of New York, to Judge Jose Cabranes of the second circuit, and, finally, to Justice David Souter on the U.S. Supreme Court. He spent several years as an associate at the law firm of Wiggin & Dana, and took some significant time off to care for his first two children when they were infants. Since 2004, he has been a Federal prosecutor in the southern district and deputy chief appellate attorney since 2009. The southern district is another great training place for a judge and it is just the quality of people are impressive and when you talk to people in the southern district and ask for the two or three top names in that district, the name of Jesse Furman almost always pops up. He has a stellar record of academic and professional excellence. He has experience in both the public and private sectors. Many of the nominees we have specialize in civil or criminal. He has had great experience in both. So he is an extremely impressive nominee. I was proud to recommend him and look forward to his continued service to our country from the Federal bench. Finally, I am also very pleased to introduce to the Committee Edgardo Ramos, another nominee for the bench in the southern district of New York. Now, Mr. Ramos is the quintessential example of the American dream. He was born in Puerto Rico, one of seven children raised by a single mom in Newark, New Jersey, which is almost part of New York. So we are not saying you came from far away. He excelled in school. He struggled. He worked hard. And he earned his bachelor's degree from Yale, his law degree from Harvard. After graduating, he was an associate at the very prestigious firm of Simpson, Thatcher & Bartlett. He then served for 10 years as an assistant U.S. attorney in the eastern district of New York, another one of these districts where the prosecutors are just top, top notch. And just as Senator McCain mentioned the Arizona, the Tucson district focuses on immigration, the eastern district I think probably does more drug prosecutions than just about any other, and because of the airports that are both in its jurisdiction and lots of, unfortunately, gangs and things like that. Anyway, he was deputy chief of the narcotics section, which, again, is great training. And then he became a partner in the law firm of Day Pitney. He has also dedicated significant time to public service. He was appointed by Mayor Bloomberg to the New York City Commission to combat police corruption. He is vice president of the nonprofit organization ASPIRA, which provides Latino high school students with community leadership curriculum. He has deserved an outstanding reputation among his fellow lawyers, prosecutors, judges, as well as in the Hispanic community, and I know he will make an excellent judge. And I would just like to comment. I do not know the nominees from Texas and Arizona. Of course, I know the three from New York. But hearing about the five of you, at times like this when we worry about the future of America, when America can produce five people like you, the future is best--the best of America is yet to come. So welcome to all of you. Now, we will ask all the nominees to come forward. You can see how good they are. Each sat by their name. It is very, very good. Now, I am going to ask each of you to take the oath office. So would you please--sorry. We are going to swear you in. I heard Senators McCain and Kyl say we had to fill that vacancy quickly. So I am sort of jumping the gun. [Laughter.] Senator Schumer. Please stand to be sworn. Raise your right hands. [Nominees sworn.] Senator Schumer. Thank you. Please be seated. Now, I did not introduce, unfortunately, the families of the three New York judges. So I would ask each of the nominees from New York to do that, and we will ask, after the introduction, each of the family members to stand. So why don't we start with Mr. Ramos. STATEMENT OF EDGARDO RAMOS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Judge Ramos. Thank you, Senator, and thank you for the opportunity to introduce my family. I am joined here today by my wife, Natalia Martin. She is very well known to no less than a half-dozen young individuals in this room as a result of her days as the dean of students at the Yale Law School. I am also joined by my sons, Andres, 15 years old, and Alejandro, 14 years old. Also, Senator, I am one of eight children, not seven. Senator Schumer. Excuse me. Hard to keep track when there are that many, right? Mr. Ramos. Tell me about it. Unfortunately, only one could make it here today. She is Lourdes Paladino. With her is her daughter, my niece, Nicole Paladino, who is newly engaged. I do have a brother who lives in the District of Columbia. However, he is away on business, unfortunately. However, his partner, John Cichello, is here and I thank him for that. My sister-in-law, Linda Berbiya (ph); her daughter, my niece, Julia Martin; my good friend and partner, Mike Considine; and, I am told, although I haven't seen him, that my cousin, Francisco Ramirez, is here. Senator Schumer. Will the greater Ramos family who was introduced please stand so we can acknowledge you and welcome you? Thank you for being here. Mr. Carter. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6350.908 [GRAPHIC] [TIFF OMITTED] T6350.909 [GRAPHIC] [TIFF OMITTED] T6350.910 [GRAPHIC] [TIFF OMITTED] T6350.911 [GRAPHIC] [TIFF OMITTED] T6350.912 [GRAPHIC] [TIFF OMITTED] T6350.913 [GRAPHIC] [TIFF OMITTED] T6350.914 [GRAPHIC] [TIFF OMITTED] T6350.915 [GRAPHIC] [TIFF OMITTED] T6350.916 [GRAPHIC] [TIFF OMITTED] T6350.917 [GRAPHIC] [TIFF OMITTED] T6350.918 [GRAPHIC] [TIFF OMITTED] T6350.919 [GRAPHIC] [TIFF OMITTED] T6350.920 [GRAPHIC] [TIFF OMITTED] T6350.921 [GRAPHIC] [TIFF OMITTED] T6350.922 [GRAPHIC] [TIFF OMITTED] T6350.923 [GRAPHIC] [TIFF OMITTED] T6350.924 [GRAPHIC] [TIFF OMITTED] T6350.925 [GRAPHIC] [TIFF OMITTED] T6350.926 [GRAPHIC] [TIFF OMITTED] T6350.927 [GRAPHIC] [TIFF OMITTED] T6350.928 [GRAPHIC] [TIFF OMITTED] T6350.929 [GRAPHIC] [TIFF OMITTED] T6350.930 [GRAPHIC] [TIFF OMITTED] T6350.931 [GRAPHIC] [TIFF OMITTED] T6350.932 [GRAPHIC] [TIFF OMITTED] T6350.933 [GRAPHIC] [TIFF OMITTED] T6350.934 [GRAPHIC] [TIFF OMITTED] T6350.935 [GRAPHIC] [TIFF OMITTED] T6350.936 [GRAPHIC] [TIFF OMITTED] T6350.937 [GRAPHIC] [TIFF OMITTED] T6350.938 [GRAPHIC] [TIFF OMITTED] T6350.939 [GRAPHIC] [TIFF OMITTED] T6350.940 [GRAPHIC] [TIFF OMITTED] T6350.941 [GRAPHIC] [TIFF OMITTED] T6350.942 [GRAPHIC] [TIFF OMITTED] T6350.943 [GRAPHIC] [TIFF OMITTED] T6350.944 [GRAPHIC] [TIFF OMITTED] T6350.945 [GRAPHIC] [TIFF OMITTED] T6350.946 [GRAPHIC] [TIFF OMITTED] T6350.947 [GRAPHIC] [TIFF OMITTED] T6350.948 [GRAPHIC] [TIFF OMITTED] T6350.949 [GRAPHIC] [TIFF OMITTED] T6350.950 [GRAPHIC] [TIFF OMITTED] T6350.951 [GRAPHIC] [TIFF OMITTED] T6350.952 STATEMENT OF ANDREW L. CARTER, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Carter. Thank you, Senator. I am proud to introduce the love of my life, my wife of over 12 years, Lisa Stephenson. She is here with our two children, Ellis, age 8, and our daughter, Ava, age 5. We are also joined by my uncle, Jerome Sanders, who is here from Mobile, Alabama, and my father, Andrew Carter, Sr., is here from Houston, Texas. I would also like to acknowledge, watching at home on the Webcast, my mother, Kathleen Carter, from Houston, Texas, as well as my sister and her family from Los Angeles; my extended family from Mobile, Alabama and Albany, Georgia; and, my in- laws, friends and colleagues in New York City. Senator Schumer. Great. And so will the people who Mr. Carter introduced please stand? Welcome. Hi, Ellis. That is my middle name. So we are almost related. [Laughter.] Senator Schumer. Jon Kyl notes he is much better looking than me, and that is a low bar to reach, of course. [Laughter.] Senator Schumer. Finally, Mr. Furman, would you please introduce the people who are here for you? 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FURMAN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Furman. Yes. Thank you, Senator. Let me just start by thanking the Committee Chairman, the Ranking Member and the other members of the Committee for holding this hearing today. I would also like to thank you for your generous introduction and for the privilege of your recommendation to the President. And, finally, of course, thank the President for the distinct honor of his nomination. With me today, first and foremost, is my wife of 15 years, Ariela Dubler. Ariela is a professor of law at Columbia Law School. She is the love of my life and has been my partner in all matters since college. And is an understatement to say I would not be sitting here today without her constant love and support. We are joined by the three greatest joys of our life, our 10-year-old son--he actually turned 10 last week--Ilan; our 7- year-old daughter, Mira; and, our 3-year-old son, Lev. They are a daily reminder of what is the most important thing in the world. I am also joined here by my parents, Gail Furman and Jay Furman. They taught me from an early age the values of love for family, hard work, public service, and intellectual honesty, and I thank them for that and for their love and support through my life. There are other family members here, as well. I think my brother, Jason Furman, may be here, but I haven't seen him. I gather he is here. My sister-in-law, Eve Gerber; my in-laws, Walter and Nancy Dubler; my brother-in-law, Josh Dubler, and his wife, Lisa Sarami (ph), and some other family members, as well. I am very grateful for their support and their presence. I am also joined by many friends, most of whom have come here from New York, and I am both flattered and grateful for their presence. And then lastly, joined by a number of colleagues from the Department of Justice, both from my time in Attorney General Mukasey's office and from my career in the United States Attorney's office. It has been the singular privilege of my life to work with them on behalf of our country, and I am honored by their presence. Thank you, Senator. Senator Schumer. Thank you. And will the Furman family please stand up so we can greet you? And welcome. Very nice. Thank you. Now, we allowed Messrs. Ramos, Carter and Furman to introduce more than their immediate family. For those who came in a little later, Senators Cornyn and Hutchison and Senators Kyl and McCain introduced the immediate family of Mr. Gilstrap and Ms. Zipps. But are there other people you would like to introduce? It is always so nice to see all the people here and so happy. With all the trouble going on around here, this is a nice moment and we want to extend it as long as we can. [Laughter.] Senator Franken. I have a distant cousin in the anteroom. [Laughter.] Senator Schumer. He may stand or she may stand. So if there is anyone else you would like to introduce, so we could ask them to stand, feel free. Mr. Gilstrap. 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Thank you, Senator Schumer. In addition to my wife, Sherry, of 34 years and my daughter, Dr. Lauren Gilstrap, who had a hard time getting away from Mass General Hospital to come down from Boston today. My son, Stephen, you have been told, is taking the bar exam. I spoke with him last night and I can assure you he would much rather be here than where he is. But I also have my wife's parents, Bill and Carolyn Sullivan, with us today. I also have my father, Joe Gilstrap, and several friends and fellow Texans in the room, as well as a lot of friends back in east Texas who together are attending a special meeting of the Harrison County Bar Association to watch the Webcast of today's Committee hearing. I look forward to your questions, and thank you for convening the hearing today. Senator Schumer. Thank you. So will the greater Gilstrap family please stand? The others stood before. Thank you. And finally, Ms. Zipps, Magistrate Zipps. 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Thank you, Senator Schumer. In addition to my family members that were introduced earlier, I have my friends from law school here in the District, Mary McCord and Sheldon Snook, and my friend, Serra Tsethlikai, who is detailed here to the District from Arizona. I know my mother is watching by Webcast and wanted to be here, but couldn't make it, as well as my sisters, my friends and colleagues back in Arizona, and the Zipps and the Guerin families. Thank you. And thank you, Senator Kyl and Senator McCain for the kind introductions, and to this Committee for having this hearing; and, of course, to President Obama for his nomination. 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Thank you. And I think there is no one extra--there is one person. Do they want to stand? They do not have to. I think we should end right here, we are having such a good time. I will be brief. I have a few questions for the nominees in general and then a few for each nominee. And so let me ask the general questions. I am going to ask them all at once, all three, and ask you each to just speak a little about those. First, tell us about why you want to be a judge and how you believe your experiences up to this point will help you to do the job well. Second, what do you believe are the most important characteristics for a judge to have? And, third, I have always said that moderation and judicial modesty are two qualifies very important to me in a potential judge. What do these two concepts mean to you? So we will start with Mr. Ramos and work our way over. Mr. Ramos. Thank you, Senator, for that question. I want to be a judge, Senator, because I am a public servant at heart and I believe that service to the legal community as a judge is the very finest service that an attorney can provide. It has been a long-term aspiration, and I am very grateful to have the opportunity to be considered for the position. I believe that the most important characteristics that a judge should have are a deep and abiding respect for the rule of law and a willingness to try each matter before him or her in a fair and impartial manner, and that the judge also run his or her courtroom in a manner that provides or that accords respect to all of the individuals that may come before the bench, not only litigants, but, also, witnesses, jurors, and court personnel. With respect to your third question, I could not write so quickly. I did get the part about moderation. I agree that moderation is a wonderful quality for a judge to have. I think that we have to be humble before the position. I think that judges need to have an appreciation for our constitutional structure and, in particular, the role of judges within that structure, and, therefore, I believe that judges need to exercise restraint by trying, in all cases, only the issues that are before him or her and applying binding precedent, when appropriate. Senator Schumer. Thank you, Mr. Ramos. Mr. Carter. Mr. Carter. Thank you for the question, Senator. I truly enjoy being a Federal magistrate judge. It is the best job that I've ever had and I wish to continue to serve the Federal judiciary with a larger role. In terms of the characteristics that a judge should have, I believe that the characteristics are intelligence, dedication, and humility. And in terms of your last question, I do think moderation is extremely important, because you don't want-- judges, as my fellow nominee has indicated, should try only the issues before them and decide those issues as narrowly and practically as possible. And if you have a judge who is at an extreme on the political spectrum, there may be a lack of faith by the public that this person is actually going to decide those issues narrowly and practically. And I, like my fellow nominee, didn't write--didn't get the last part of that third question. What was the last part? It was moderation and? Senator Schumer. Just what do these--you answered it. What do these two concepts mean to you? Mr. Carter. OK. Thank you very much. Senator Schumer. Mr. Furman. Mr. Furman. Thank you, Senator. First, in answer--or in answer to your first question, why I would want to be a judge, I have two passions in life. One is the law, the other is public service, and becoming a judge would be an extraordinary way to combine those two things and continue to serve my country, and I would be honored and privileged to serve in that way. No. 2, I think important qualities in a judge are adherence to the rule of law, integrity, fairness, and moderation; also, the ability to keep an open mind. And with respect to your final question, I agree that moderation and modesty are essential qualities in a judge, as I just mentioned. To me, I would say they mean three things. One is an adherence to the rule of law, a recognition of the judge's limited role in our democratic system, that it is the job of the political branches to make policy, the job of a court to apply law, as well as an obligation, particularly of the lower court judge, to follow precedent. Two, as Judge Carter mentioned, an obligation to decide cases as narrowly as possible; and, three, I would say moderation and modesty are an essential quality in terms of management of a courtroom. One should give equal dignity and respect to all parties appearing before the court. Senator Schumer. Thank you, Mr. Furman. Mr. Gilstrap. Mr. Gilstrap. Thank you, Senator. I, too, am passionate about the law and about public service. I believe that the characteristics of a good judge start with a faithfulness to the law and the rule of law. It also involves a mindset of fundamental fairness in whatever comes before the court--whoever comes before the court. I've been privileged, in almost 30 years of practicing law in east Texas, to find that almost without exception, the best prepared person in the courtroom is usually the judge, and I think that a good judge leads by example, an example of diligence and preparedness. And if I'm fortunate enough to be confirmed, I, too, would hope to be the most prepared person in the courtroom. I agree with my colleagues that a modest approach involves focusing on what's before the court, limiting the rulings to the issues that are fairly raised and not going beyond that. And I believe that these characteristics are something I can add to. I've always believed that there is a difference between the office and the officeholder. We all come to an important office that will long be there after we're gone. But if we're fortunate enough to be confirmed, we have an opportunity to add to that and to be a part of the ongoing legacy of our judicial system. Senator Schumer. Thank you. Magistrate Judge Zipps. Ms. Zipps. Senator Schumer, I want to be a district court judge because I do enjoy the role of a judge. I think we have a great legal system in this country. It's one of the best in the world, if not the best and it's by people who have passion to serve in that role and, as lawyers, that will keep this legal system the great system that it is. I think important characteristics for a judge would be conscientiousness, honesty, and a respect for the law and the legal process. Modesty is necessary for management of a courtroom, for relation to the people who appear in that courtroom, and to have a humble disposition in understanding your role and that you're one of the people to sit in judgment of others is a very important role and it's one that requires humility. Senator Schumer. Thank you. Now, I have a question for each of the witnesses, and then we will get on to my colleagues. You know what? I do not want to keep you folks here. So let me call--since I am over my time, I am going to go for a second round and I will ask you each specific questions. But I will call on Senator Kyl and then Senator Franken, and then we will do a second round, if anyone has any. And Senator Lee. I apologize. Senator Kyl. Thank you, Mr. Chairman. Might I begin by asking unanimous consent to put a statement in the record of the Ranking Member, Senator Grassley from Iowa. Senator Schumer. Without objection. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Kyl. Thank you. And let me ask a couple of you specific questions, starting with Mr. Furman, if I could start with you. There are a couple of things I suspect you would like the opportunity to clear up and I am going to give you that opportunity. You wrote an article when you were in college, the title ``Bang, Bang, You're Dead, the NRA Supplied the Lead.'' I do not know whether you chose the title or the publication did, but in any event. You blamed the NRA for gun violence in the United States and voiced support for the Brady bill, which the Supreme Court later ruled partly unconstitutional in the Prince case, and stated your view that the right of an individual to own a firearm is not the right envisioned by the framers, but merely it is a right reserved for those who serve in a militia. That was before, of course, the Supreme Court's recent decisions in D.C. v. Heller and McDonald v. Chicago. Together, they hold that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and that the right is incorporated to the states by the due process clause of the Fourteenth Amendment. Two questions. One, do you recognize that that is the Supreme Court precedent now, and will you faithfully apply that precedent in any case that were to come before you raising the issue? Mr. Furman. Thank you, Senator, for the opportunity to address that. Now, the short and to-the-point answer to your questions is absolutely. More broadly, let me just say that I do not adhere to the views that I expressed in that article for two reasons. First, as you noted, I wrote that article when I was an 18- year-old freshman in college. I had little college education and I certainly had no legal education, training or experience. Candidly, I didn't have an appreciation of what it takes to answer a difficult legal question, the kinds of sources that you look at, the kind of deliberation that is required. Like many 18-year-olds and, I dare say, particularly, 18- year-olds at Harvard University. I thought I knew a lot more than I actually did. Senator Schumer. (Off microphone.] [Laughter.] Mr. Furman. No defamation intended. Number two is, as you noted, the Supreme Court held forcefully in Heller and resolved any ambiguity there had been whatsoever that the right to keep and bear arms in the Second Amendment is an individual right, and held in McDonald that that right is fundamental and applies against the states. If confirmed as a district judge, I would faithfully apply those precedents as I would any Supreme Court case. Senator Kyl. Thank you. You also wrote, as a college student, an article in which you criticized former President George H.W. Bush for a variety of misstatements or malapropisms or other statements which you said you thought were symptoms of a brain disorder called aphasia. Obviously, a district court judge has to demonstrate a balanced temperament, as well as a thoughtful application of legal precedence, as well as other scientific matters if they would come before the court. Can you talk to us about how your views may have matured in this matter, as well? Mr. Furman. Sure, Senator. I wrote that article when I was a sophomore in college. [Laughter.] Mr. Furman. And the word sophomoric comes to mind. Senator Schumer. Does this mean your 1 year of Harvard education did not do much good? [Laughter.] Mr. Furman. No, no. As I said, the word sophomoric comes to mind and not merely because I was a sophomore. That article was intended to be tongue-in-cheek. It was an attempt at political humor. I can't say I have or had the skills of Senator Franken in that regard. It was not meant--there was no disrespect intended to President Bush and I have the utmost respect for him. Senator Kyl. In retrospect, would you consider that it was probably not the best of things to have written? Mr. Furman. I would certainly agree with that, Senator. I am not sure it accurately characterizes who I was even at the age of 19, but I can assure you that, sitting here before you today, it does not characterize who I am. And I think if you were to ask the judges that I have appeared in front of, my opposing counsel, the witnesses I've dealt with, I think you would find that I am known for treating people with respect that I did not show President Bush in that article, and I apologize for that. Senator Kyl. I have talked to one of the judges with whom you worked very closely and he would agree with the statement that you just made and supports your nomination wholeheartedly. And it happens to be a Republican, I might add. Let me just ask you one more, slightly more recent, but, again, an opportunity for you to put to rest any issue. And I am just a little perplexed by this one. You write in a law review article in 1997 that criminals, and I am quoting now, ``should be told that society's norms contribute to their misfortune,'' and I am perplexed at what you meant by that. Mr. Furman. Senator, sitting here today, I'm not sure what I meant by that particular statement either. But that article that you quoted from is a work really more of philosophy than of law. It, obviously, addressed sort of quasi-legal issues and, in particular, the disenfranchisement of felons. I think I made very clear in the article that it was not intended to address the legality of that. That's something the Supreme Court addressed clearly in the case Richardson v. Ramirez and held was constitutional. I've spent the last 7 years of my life prosecuting criminals, trying to put people who violate our laws in prison. I think that record speaks to my views on the matter and I'd leave it at that. Senator Kyl. Thank you. I am over my time, as well, Mr. Chairman. Senator Schumer. Thank you. Senator Franken. Senator Franken. Thank you, Mr. Chairman. I thought it was very interesting that Judge Carter and Mr. Ramos did not hear the second part of your last question, and yet both of them talked about--your question was about moderation and judicial modesty, and each of them used the word--well, you used the word ``humble'' and you used the word ``humility.'' So either that was subliminal or, as president George W. Bush said, subliminable. [Laughter.] Senator Franken. And which I do not think was a sign of any kind of aphasia or anything like that. [Laughter.] Senator Franken. I just wanted to make that clear. OK. So that was interesting. I just thought it was an interesting thing I would point out. Senator Schumer. Thank you, Al. Senator Franken. You are very welcome, Mr. Chairman. Before I begin, I would like to enter a few letters in support of Mr. Furman's nomination. Here are the dates: July 1, 2011, a joint letter from 30 fellow Supreme Court of the United States clerks; July 6, 2011, joint letter from over 90 Yale Law School classmates; July 13, 2011, from the New York City Bar; and, July 27, 2011, from Attorney General Mukasey. And without objection, I would like to submit them all, Mr. Chairman, without objection. Senator Schumer. Without objection. [The letters appear as a submission for the record.] Senator Franken. And I would like to call special attention to the last letter, which, of course, as I said, is from the former attorney general under President George W. Bush. Mr. Furman served General Mukasey as a law clerk when he was a judge and as an attorney when General Mukasey was attorney general. And as far as your writings are concerned, I never wrote anything like that ever. [Laughter.] Senator Franken. And I am, frankly, scandalized. Scandalized. My first question will be for you. As a Federal prosecutor, you have worked on and advised a number of significant financial fraud, public corruption, and terrorism cases, including the Times Square bomber case, the prosecution of employees from Bernie Madoff's securities firm, and the prosecution of Bernie Kerik, the former New York City police commissioner. In addition, I understand you helped draft the 80-page indictment against Khalid Sheikh Mohammed, the criminal mastermind of the September 11 attacks. Can you tell me how these experiences have shaped your view of our criminal justice system and how that has prepared you to serve on the Federal bench? Mr. Furman. Thank you very much for the question, Senator. Thank you for putting those letters into the record. I've been privileged to serve as United States attorney in the southern district of New York in the last 2 years as the deputy chief appellate attorney in that office. In that capacity, I've been consulted on and advised on various cases in a variety of areas, which has been a very enjoyable experience and, also, I think, exposed me to really the range of cases on the criminal side at least that a judge sitting in the southern district of New York would likely hear. I think it has allowed me to develop the kinds of skills that one needs as a judge to research difficult questions of law, figure out what the law is, and then apply it to the facts, and I would hope to bring that to the bench, if confirmed. Senator Franken. Thank you. Mr. Ramos, you have also had a broad range of experience in criminal law, both as a Federal prosecutor and as an attorney in private practice. In one case that caught my eye, you successfully prosecuted a defense contractor who had manufactured faulty equipment for Apache attack helicopters. Can you tell us about the facts and legal arguments involved in that case? Mr. Ramos. Yes, Senator. That case was against a company that manufactured very technical optical equipment that was used to bore-sight the weapons systems of the Apache attack helicopter. It was able-- the equipment was meant to be able to bore-sight the weapons systems while on the ground, which was a significant improvement from the prior technology that was used. And each piece of equipment that the Army purchased cost approximately $250,000. We learned that contrary to the contracts with the government, the company was not using the appropriate testing protocols that were called out in the contracts, and the investigation was commenced after a whistleblower within the company approached the Federal Government. The company was investigated, ultimately pled guilty, because the chief engineer on the project pled guilty and, therefore, criminal liability was able to be put on the company, as well. Because the engineer pled guilty, the company did not go to trial and the issues that were involved, they were really one of the quantum of evidence that the government had. There were substantial negotiations over a number of months, because the defense believed that because our witnesses were mere technicians, that we would not have been able to prove beyond a reasonable doubt that the appropriate tests were not conducted. But with the plea of the engineer, that took care of those issues. Senator Franken. Thank you. And I am out of time. So I want to just congratulate all of you on the nominations, and go back to the Chair. Senator Schumer. Thank you, Senator Franken. Senator Lee. Senator Lee. Thank you. I have a couple of questions for Mr. Furman. But before I do that, I would just like to note that this would involve a lot of concentration of legal brain power in one family, between you and your law professor wife. I trust that your children are experts by now in the rule against perpetuities, the doctrine of worthier title, and the rule in Shelley's case. Mr. Furman. Absolutely, Senator. Senator Lee. Wonderful. I wanted to talk to you about a brief you submitted as amicus curiae in a case called Good News Club v. Milford School District. In that brief, which you filed on behalf of the Anti- Defamation League, you argued that the existence of a faith- based extracurricular club at an elementary school eroded values that are protected by the establishment clause. The brief argued that because the club was designated to, quote, ``label people as saved or unsaved and, thus, to promote Christian belief, in particular,'' the school could reasonably refuse to allow the club to use the school for its meetings. Can you describe the establishment clause values that you believed supported this proposition? Mr. Furman. Thank you for that question, Senator. As you know, I worked on that brief when I was working at the law firm of Wiggin & Dana. I, obviously, did so in my capacity as an attorney. I had a client and, in that regard, took a view that the client wanted to advance. The Supreme Court, as you know, held in that case that the exclusion of the Good News Club from the Milford Central School District was a violation of the free speech clause of the First Amendment. And, obviously, if confirmed as a district judge, I would faithfully apply that decision as I would any Supreme Court decision. Senator Lee. So in what instances might a religiously affiliated group be permitted to convene a club at a public school under the proper standard, as you understand it? Mr. Furman. Senator, it has been a while since I've engaged in that material. I'm not a scholar in that area. I've certainly spent the last number of years prosecuting cases and dealing with criminal law. My recollection is with respect to the establishment clause, for example, the Supreme Court has established various tests regarding sort of the avoidance of excessive entanglement between the state and religion. Sitting here today, I couldn't necessarily articulate what those tests are, but I would, obviously, apply them, if confirmed as a judge. Senator Lee. So to the extent your client's position in Milford was at odds with the Supreme Court's ruling in that case, you, as a Federal district judge, if confirmed to that position, would not have difficulty applying that precedent, and notwithstanding the fact that it would leads to a different outcome than the one you were advocating there. Mr. Furman. That's correct, Senator. Senator Lee. Thank you. I want to go back briefly to the 1991 Harvard article, not for the point--not for the major points that were discussed by Senator Kyl, but for a point that was raised in the penultimate paragraph of that article, in which you said, ``According to the NRA, the right to bear arms is as `crucial to the maintenance of democracy' as the other basic freedoms guaranteed by the Bill of Rights, namely, the freedom of speech and the press. But times have changed. The right to bear arms is no longer as crucial to the maintenance of democracy as it was 200 years ago. The rights to free speech and press are.'' Is this a statement that still reflects your views today? Mr. Furman. No, Your Honor. Excuse me. You're not a judge. But, no, Senator. I'm more used to appearing before judges than Senators. It is not. Again, I wrote those words as an 18-year-old with no legal experience or training and, frankly, spoken with more confidence than I--than was warranted. As you know, the Supreme Court held in the McDonald case that the right to keep and bear arms is a fundamental right and it actually explicitly rejected the proposition that there is a hierarchy of rights among the ones that are mentioned in the article, the right to free speech and the right to bear arms. And if confirmed as a district judge, I would apply that as I would any Supreme Court case. Senator Lee. And if confirmed as a district judge, I assume you would no longer harbor the position that if one right, as you perceive it, is no longer as important relative to democracy as it might have been in the perception and time of the Founding Fathers, that is not a reason not to accord it protection. Mr. Furman. That's absolutely correct, Senator. If something is a right, then it would be my obligation to apply that right consistent with law. Senator Lee. Great. Thank you very much. Senator Schumer. Thank you, Senator Lee. Senator Kyl wanted to make a brief statement before I get to my questions. Senator Kyl. And then I might have one other question or two of the witnesses. But I wanted to especially thank the Chairman of the full Committee, Senator Leahy, for adding to the witness list here Judge Zipps, who was not on the original panel. But I think because of the need to fill the vacancy of Judge Roll, he was in mind of the need to act as quickly as possible to fill this vacancy, and I wanted just to express my appreciation to him for doing that. Senator Schumer. Thank you. I will follow-up with my first question to Mr. Furman, since it is along the lines of Mr. Lee's question. Mr. Lee and I, our views on gun control would be quite different. I am the author of the Brady law. But I have always felt, and I want to get you to comment on this, Mr. Furman, that it is really not fair for liberals, if you will, who believe in an expansive First, Third, Fourth, Fifth, Sixth Amendment to then see the Second Amendment through sort of a pinhole, only applying to militias. I have always felt there is a right to bear arms, as the Heller case enumerated. But I say to my colleagues on the other side, just as the First Amendment is not absolute, you cannot scream ``fire'' in a crowded--falsely scream ``fire'' in a crowded theater. We have libel laws and anti-pornography laws and all kinds of other laws that limit the First Amendment, because even our amendments, a great resider of rights in the individual, even they have balancing tests. And just as we have limits on the First Amendment or some of these others, there are reasonable limits on the Second Amendment, of which Brady might be one. So I am interested in, given Mr. Lee's question, which was sort of similar and we talked a little bit about this when I interviewed you at first, do you agree with that basic sentiment that it is sort of--you cannot see one amendment through sort of the narrowest of interpretations and see all the others through very broad interpretation? That would not be fair, no matter what your political philosophy is. Mr. Furman. Thank you, Senator. Again, I would point to the majority opinion in McDonald, which I think made clear exactly that, that the Second Amendment right is not given any lesser weight than the other rights in the Bill of Rights. And if confirmed as a district judge, I would, obviously, faithfully apply that. With respect to the question of whether a balancing test is applicable, I think the Court made clear in Heller that the test is not one of balancing interests, per se. At the same time, the Court made clear that there are certain forms of restrictions on guns, for example, the possession of guns by convicted felons, and the like that would be permissible under the Court's view. And if confirmed as a district judge, I would, obviously, apply that. Senator Schumer. Thank you. I have questions for a few of the other witnesses. Mr. Gilstrap, I have been concerned about the reputation of the court in the eastern district of Texas--I do not know if you have followed this a little bit--in terms of bias toward plaintiffs in patent cases, particularly business method patents, where 56 percent of all the cases in the country are litigated there, and it seems the plaintiff almost always wins. Again, this is a view maybe where I am more in accord with this side than that side. But some of these are almost what is called patent trolls, you know. They try to have long suits and the eastern district of Texas seems to allow these suits to go on forever. And so the people who are sued for very logical things that, in my judgment, would never really be patented if they were given a real fair court test, and often on appeal, if they ever get to appeal, they are overturned in the eastern district. So what can you do, simply, to assure me that in these cases, you will see things down the middle, shall we say, without a bias toward plaintiffs in these cases, which, frankly, at least I believe exists in the eastern district of Texas? Mr. Gilstrap. Thank you for the question, Senator. I think the best way I can assure you in that regard is to mention that my record of service as a local official for almost 14 years was clearly one of moderation, one of taking a middle path. If you talk to the people in east Texas who know me, I think they will uniformly assure you that I am not someone who veers to one extreme or the other. That's my natural take on most issues. I can assure you that whatever--if I'm fortunate enough to be confirmed, whatever is filed and comes before me will get careful scrutiny. And it's my hope that in looking back, in the years to come, my legacy as a judge will not be that you favored one side or favored the other side, but that everybody got a fair hearing. I've heard it said that to be an effective district judge, you have to be willing to disappoint your friends and astound and please your detractors sometimes, and I think we approach the business of judging not from a standpoint of what the outcome should be, but what the law requires and a faithful application of that law to the facts as established. And I can promise you that, if confirmed, that will be the approach I will take. Senator Schumer. Thank you. Mr. Ramos, my question here is, the vast majority of your work has been on criminal matters. So tell us a little bit about your judicial philosophy and how you might approach the many civil cases that will come before you as a judge. And do you think the fact that your experience has been on one side will jeopardize you in any way in terms of the civil side of things? Mr. Ramos. Thank you, Senator. In the first instance, I would like to point out that despite the fact that the last 17 or so years of my career have been on the criminal side, I did start my career at the very prestigious law firm Simpson, Thatcher and Bartlett and during those 4.5 years, approximately, I worked exclusively on civil matters. These tended to be large money, bet-the-company type matters that were very important to the clients and, therefore, required a lot of work and diligence on the part of the attorneys. During the course of those 4 years, I worked on a wide variety of substantive legal matters, including financial frauds, court contract cases, lender liability, et cetera, mass torts, and I worked on every aspect of the litigation from the filing of a complaint to a jury verdict. In terms of my judicial philosophy, I believe that judges should have an abiding respect for the rule of law and should try all of the cases that come before them fairly and impartially. I believe that I would be able to transition to the role of a judge with the varied experience that I have. And to the extent that there is any sort of catch-up or getting back up to speed with respect to the civil procedures, particularly e- discovery and those types of issues that have become more important since the time that I last completely practiced civil law, I would be able to do that by virtue of the various resources that are available to judges, including the Federal Judicial Center, my very hope--hope to be colleagues on the southern district, their vast experience, et cetera, and other sources that are available. Senator Schumer. Thank you. And, finally, to Judge Carter. I understand you once had to recuse yourself from a case because you were spotted by a litigant in a Mets cap and a blue and orange tie. Now, as a Yankee fan, should I be concerned about your impartiality? [Laughter.] Mr. Carter. Thank you for the question. Senator Schumer. Just tell us a little bit about what that was all about. Mr. Carter. Thank you for the question, Senator. I don't think that most Yankee fans have any concern for Mets fans at all. [Laughter.] Mr. Carter. But that was a situation in which it was raining outside and I just grabbed a cap, because I didn't have an umbrella. I had on a Mets hat and I had a civil conference before me in which the Mets were being sued by a kosher hotdog company that was claiming--the hotdog company was claiming that the Mets were not allowing them to sell kosher hotdogs on Fridays and Saturdays, and the Mets were countering that the hotdogs are not kosher if they're sold on Fridays and Saturdays. [Laughter.] Mr. Carter. But to make a long story short, we had the status conference---- Senator Schumer. You would find a case like this in Albany, Georgia. [Laughter.] Mr. Carter. But to make a long story short, we had the conference. There was no problem. After the conference was over, one of the plaintiff's lawyers, I think, was trying to make an offhanded joke and simply stated, ``I saw you wearing a Mets hat earlier. Is there anything you need to be worried about? '' And I said, ``Well, no, there's nothing to be worried about.'' But then upon further reelection, I thought, well, it might appear that there would be some appearance of impropriety. So I decided, in an abundance of caution, to recuse myself. Senator Schumer. I just would remind you that one of the great Yankee fans in the U.S. Senate is immediately to my right. [Laughter.] Senator Schumer. Senator Kyl is a great Yankee fan, and I try to emulate him. [Laughter.] Senator Schumer. Any other questions from the rest of our panel? Senator Kyl. Senator Kyl. First, I'm a D-backs fan, understand. Senator Schumer. Yes, I know. Senator Kyl. But in the American League---- Senator Schumer. American League, he is a Yankee. Senator Kyl. In the American League, a Yankee fan. My dream was for the Yankees and the D-backs to play in the World Series and the game to be decided in the seventh game for the D-backs to win. Senator Schumer. It could happen. Senator Kyl. True. Mr. Gilstrap, just a couple of things. The comment about experience, your experience is primarily civil. Mr. Gilstrap. Yes. Senator Kyl. And one could ask the same thing about being able to apply your experience properly to the criminal side. And if you would like to comment on that, I do not have a huge concern about it, but to the extent anybody would, I would invite you to comment. But I would also like to invite you to comment further on what Senator Schumer was asking about. The eastern district of Texas does not have a good reputation with regard to these patent lawsuits. To some extent, you would be required to follow the precedents of your court if there are no other precedents, and I am a little concerned that those precedents, while they may be regularly overturned by higher courts, might still require you, in your view, to adhere to some views that are not widely held throughout the rest of the country. It is a difficult thing because you are not supposed to bend over backward, you are not supposed to ignore the precedents of the court, but you also have to apply the law as you think it should be. And I share the sentiments that Senator Schumer has expressed here. How would you approach those kind of cases were they to come to you? Mr. Gilstrap. Thank you, Senator, for the question. With regard to your first question, all of us come to the confirmation process from whatever backgrounds we have, and mine is predominantly civil. I can assure you and the Committee that if I am fortunate enough to be confirmed, that I will look forward to and anxiously sharpen my skills in the criminal area, and that I will, as I said earlier, strive to be the best prepared person in the courtroom, whether it be a civil trial or a criminal trial. With regard to your comments about the patent docket in the eastern district of Texas, I can tell you this. My commitment to this Committee and to all that know me is that I will faithfully apply the law and I believe there are very few cases that there is not Federal circuit precedent on and the only available precedent is from the district court level. However, I don't necessarily subscribe to the view that you approach this from what you think the law ought to be. I think the judge's view, especially at the trial level, is to find, through a fair and careful trial, what the facts are and then apply the existing law to those facts. And if the existing law is from the U.S. Supreme Court, then it controls. If there is none and in the patent area, it's from the Federal circuit, then it controls. If there is none from the Federal circuit and the only available authority is from your district, then I think you apply that law and leave it to the appellate courts to take whatever corrective action may be warranted. I do not view the trial court as a policymaking body in any shape, form or fashion, and am committed to faithfully applying the law, whether I like it or whether I don't like it. Senator Kyl. Well, that is the A-plus answer on the law school exam and I appreciate it. It is up to us, also, to change it and that is why Senator Leahy and Senator Schumer and I and others have legislation pending that has already passed the House of Representatives and we hope will pass the Senate soon to fix some of the problems that have existed. And I commend you for answering the question in a way that I think is correct. We could harass--let us see. Judge Zipps, you have not been harassed yet. But I do not--we do not need to do that. I just want to thank all of you for appearing here today and elucidating your views, introducing your families. I congratulate you all on your nomination by the President, and I hope that we can consider all of your nominations as soon as the Congress returns after the August recess, assuming there is one, if we can get this deficit deal resolved, there will be, but that we can return as quickly as possible after Labor Day and, in our Committee, pass you on to the full Senate so you can be considered by our colleagues, as well. Thank you, Mr. Chairman. Senator Schumer. Thank you, Senator Kyl. And the last round of questioning will go to Senator Franken. Senator Franken. Well, I actually just stuck around because Judge Zipps has not been asked a question and since you have come all the way here I suppose, you would like to be asked a question. So my question, Judge Zipps, is what do you think of Mr. Furman's article? [Laughter.] Senator Franken. No, that is not it. No. My question is you have served as a Federal magistrate judge for 6 years now. So you are no stranger to the Federal bench. But if you are confirmed as a district court judge, I anticipate you will preside over more cases in which you will have to draw your own interpretations of Federal law. So my question is if you are confirmed, how will you ensure that you will interpret our laws in line with Congressional intent in passing them. How will you go about determining Congressional intent? Ms. Zipps. Senator Franken, in applying the law, I would look first to the statute itself and the plain words of that statute. I would look to any binding precedent that had interpreted that statute and faithfully apply that precedent. If there were no binding precedent, I would look to consideration of what Congress' intent was, whether or not that was stated somewhere in the law itself or whether or not it could be fairly divined from the legislative history or what was available. And I would also look to persuasive authority for determination of the same issue to make sure that the law that I am applying is that that was intended by Congress when it enacted the law. Senator Franken. Thank you. And thank you all and congratulations to you all for your nominations. Thank you, Mr. Chairman. Senator Schumer. (Off microphone) not only in the future bench, but in our country to produce people like yourselves. The record will remain open for a week so that questions may be submitted in writing to all of you by those of us here and my colleagues on the Judiciary Committee who could not be here today. With that, thank you all for being here. Congratulations to your friends and family. The hearing is adjourned. 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