[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
----------
JANUARY 22, JANUARY 28, FEBRUARY 5, FEBRUARY 11, FEBRUARY 25, AND MARCH
10, 2004
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Serial No. J-108-1
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PART 6
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
U.S. GOVERNMENT PRINTING OFFICE
95-617 WASHINGTON : DC
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S. Hrg. 108-135, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JANUARY 22, JANUARY 28, FEBRUARY 5, FEBRUARY 11, FEBRUARY 25, AND MARCH
10, 2004
__________
Serial No. J-108-1
__________
PART 6
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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THURSDAY, JANUARY 22, 2004
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 219
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 221
PRESENTERS
Bond, Hon. Christopher, a U.S. Senator from the State of Missouri
presenting Raymond W. Gruender, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 6
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona
presenting Neil Vincent Wake, Mominee to be District Judge for
the District of Arizona........................................ 5
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Ricardo S. Martinez, Nominee to be District Judge
for the Western District of Washington......................... 4
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Gene E.K. Pratter, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 2
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Gene E.K. Pratter, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 3
Talent, Hon. James, a U.S. Senator from the State of Missouri
presenting Raymond W. Gruender, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 58
STATEMENTS OF THE NOMINEES
Gruender, Raymond W., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 8
Questionnaire................................................ 9
Martinez, Ricardo S., Nominee to be District Judge for the
Western District of Washington................................. 29
Questionnaire................................................ 30
Pratter, Gene E.K., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 59
Questionnaire................................................ 60
Wake, Neil Vincent, Nominee to be District Judge for the District
of Arizona..................................................... 110
Questionnaire................................................ 111
QUESTIONS AND ANSWERS
Responses of Raymond W. Gruender to questions submitted by
Senators Leahy and Durbin...................................... 180
Responses of Ricardo S. Martinez to questions submitted by
Senator Durbin................................................. 200
Responses of Gene E.K. Pratter to questions submitted by Senator
Durbin......................................................... 203
Responses of Gene E.K. Pratter to questions submitted by Senator
Leahy.......................................................... 206
Responses of Neil Vincent Wake to questions submitted by Senator
Durbin......................................................... 211
Responses of Neil Vincent Wake to questions submitted by Senator
Leahy.......................................................... 215
SUBMISSION FOR THE RECORD
Cantwell, Hon. Maria, a U.S. Senator from the State of
Washington, statement in support of Richardo S. Martinez,
Nominee to be District Judge for the Western District of
Washington..................................................... 218
----------
WEDNESDAY, JANUARY 28, 2004
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 265
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 266
PRESENTERS
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Franklin S. Van Antwerpen, Nominee to
be Circuit Judge for the Third Circuit......................... 228
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Franklin S. Van Antwerpen, Nominee to
be Circuit Judge for the Third Circuit......................... 227
STATEMENT OF THE NOMINEE
Van Antwerpen, Franklin S., Nominee to be Circuit Judge for the
Third Circuit.................................................. 229
Questionnaire................................................ 230
QUESTIONS AND ANSWERS
Responses of Franklin S. Van Antwerpen to questions submitted by
Senator Durbin................................................. 262
----------
THURSDAY, FEBRUARY 5, 2004
STATEMENTS OF COMMITTEE MEMBERS
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 269
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 532
Leahy, Patrick J., a U.S. Senator from the State of Vermont...... 275
prepared statement and attachment............................ 548
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting William S. Duffey, Jr., Nominee to be District Judge
for the Northern District of Georgia........................... 272
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho
presenting William Gerry Myers III, Nominee to be Circuit Judge
for the Ninth Circuit.......................................... 278
Crapo, Hon. Michael, a U.S. Senator from the State of Idaho
presenting William Gerry Myers III, Nominee to be Circuit Judge
for the Ninth Circuit.......................................... 274
Miller, Hon. Zell, a U.S. Senator from the State of Georgia
presenting William S. Duffey, Jr., Nominee to be District Judge
for the Northern District of Georgia........................... 273
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Lawrence F. Stengel, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 271
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Lawrence F. Stengel, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 270
STATEMENTS OF THE NOMINEES
Duffey, William S., Jr., Nominee to be District Judge for the
Northern District of Georgia................................... 364
Questionnaire................................................ 365
Myers, William Gerry, III, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 280
Questionnaire................................................ 281
Stengel, Hon. Lawrence F., Nominee to be District Judge for the
Eastern District of Pennsylvania............................... 405
Questionnaire................................................ 406
QUESTIONS AND ANSWERS
Responses of William S. Duffey, Jr. to questions submitted by
Senator Durbin................................................. 443
Responses of Lawrence F. Stengel to questions submitted by
Senator Durbin................................................. 447
Responses of William S. Duffey, Jr. to questions submitted by
Senators Leahy and Kennedy..................................... 451
Responses of William Gerry Myers III to questions submitted by
Senator Feinstein.............................................. 460
Responses of William Gerry Myers III to questions submitted by
Senators Leahy, Kennedy, Feingold and Durbin................... 468
Responses of William Gerry Myers III to questions submitted by
Senator Kennedy................................................ 502
SUBMISSIONS FOR THE RECORD
Advocates for the West, American Rivers, Americans for Democratic
Action, Alliance for Justice, Clean Water Action, Committee for
Judicial Independence, Community Rights Counsel, Defenders of
Wildlife, Earthjustice, Endgagered Species Coalition, Friends
of the Earth, Leadership Conference on Civil Rights, Mineral
Policy Center, Naral Pro-Choice American, National Abortion
Federation, National Environmental Trust, National Organization
for Women, Natural Resources Defense Council, The Ocean
Conservancy, Public Employees for Environmental Responsibility,
People for the American Way, Sierra Club, The Wilderness
Society, joint letter.......................................... 506
Alliance for Justice, American Association of University Women,
Catholics for a Free Choice, Feminist Majority, Human Rights
Campaign, Naral Pro-Choice American, National Abortion
Federation, National Council of Jewish Women, National Family
Planning and Reproductive Health Association, Now Legal Defense
and Education Fund, National Partnership for Women and
Families, National Women's Law Center, Planned Parenthood
Federation of America, Religious Coalition for Reproductive
Choice, Sexuality Information and Education Council of the
United States, joint letter.................................... 511
Bear River Band of Rohnerville Rancheria Tribe, Janice McGinnis,
Vice-Chairperson, Loleta, California, letter................... 514
Cabazon Band of Mission Indians, John A. James, Tribal Chairman,
Indio, California, letter...................................... 516
Cachil DeHe Band of Wintun Indians, Wayne R. Mitchum, Colusa,
California, letter............................................. 518
California Nations Indian Gaming Association, Sacramento,
California, letter............................................. 520
Civil rights, disability rights, senior citizens, women's rights,
human rights, Native American, planning and environmental
organizations, joint letter.................................... 523
Elko Band Council, Hugh Stevens, Vice Chairman, Elko, Nevada,
letter......................................................... 530
Hopland Band of Pomo Indians, Sandra C. Sigala, Tribal
Chairperson, Hopland, California, letter....................... 535
Inter Tribal Council of Arizona, Nora McDowell, President,
Phoenix, Arizona, letter....................................... 537
Justice for All Project, Susan Learner, Los Angeles, California,
letter......................................................... 539
Kalispel Tribe of Indians, Glen Nenema, Chairman, Usk,
Washington, letter............................................. 544
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director and Nancy Zirkin, Deputy Director, Washington, D.C.,
letter......................................................... 546
Mooretown Rancheria, Melvin Jackson, Vice Chairman, Oroville,
California, letter............................................. 554
National Congress of American Indians, Tex G. Hall, President,
Washington, D.C., letter and attachments....................... 556
Paskenta Band of Nomlaki Indians, Everett Freeman, Tribal
Chairperson, Orland, California, letter........................ 561
Public Employees for Environmental Responsibility, Jeffrey Ruch,
Executive Director, Washington, D.C., letter................... 563
Pueblo of Laguna, Roland E. Johnson, Governor, Laguna, New
Mexico, letter................................................. 565
Quechan Indian Tribe, Mike Jackson Sr., President, Yuma, Arizona,
letter......................................................... 567
Redding Rancheria, Tracy Edwards, Tribal Chair, Redding,
California, letter............................................. 569
San Pasqual Band of Mission Indians, Allen E. Lawson, Tribal
Chairman, Valley Center, California, letter.................... 571
Santa Ysabel Band of Diegueno Indians, Johnny M. Hernandez,
Spokesman, Santa Ysabel, California, letter.................... 573
Seminole Nation of Oklahoma, Ken Chambers, Principal Chief,
Wewoka, Oklahoma, letter....................................... 575
Winnebago Tribe of Nebraska, John Blackhawk, Chairman, Winnebago,
Nebraska, letter............................................... 577
Van Hyning & Associates, Inc., Dyrek Van Hying, Great Falls,
Montana, letter................................................ 578
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WEDNESDAY, FEBRUARY 11, 2004
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 723
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 579
prepared statement........................................... 727
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 729
PRESENTERS
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington
presenting James L. Robart, Nominee to be District Judge for
the Western District of Washington............................. 586
Feingold, Hon. Russell, a U.S. Senator from the State of
Wisconsin presenting Diane S. Sykes, Nominee to be Circuit
Judge for the Seventh Circuit.................................. 582
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin
presenting Diane S. Sykes, Nominee to be Circuit Judge for the
Seventh Circuit................................................ 581
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting James L. Robart, Nominee to be District Judge for
the Western District of Washington............................. 585
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Juan R. Sanchez, Nominee to be District
Judge for the Eastern District of Pennsylvania................. 580
Sensenbrenner, Hon. F. James, a Representative in Congress from
the State of Wisconsin presenting Diane S. Sykes, Nominee to be
Circuit Judge for the Seventh Circuit.......................... 584
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Juan R. Sanchez, Nominee to be District
Judge for the Eastern District of Pennsylvania................. 580
STATEMENTS OF THE NOMINEES
Robart, James L., Nominee to be District Judge for the Western
District of Washington......................................... 617
Questionnaire................................................ 618
Sanchez, Juan R., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 657
Questionnaire................................................ 658
Sykes, Diane S., Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 587
Questionnaire................................................ 589
QUESTIONS AND ANSWERS
Responses of Diane S. Sykes to questions submitted by Senator
Durbin......................................................... 694
Responses of James L. Robart to questions submitted by Senator
Durbin......................................................... 717
Responses of Juan R. Sanchez to questions submitted by Senator
Durbin......................................................... 720
SUBMISSIONS FOR THE RECORD
Fiedler, Patrick J., Judge, Dane County Circuit Court, Branch 8,
Madison, Wisconsin, letter..................................... 725
Lundsten, Paul, Judge, Wisconsin Court of Appeals, Madison,
Wisconsin, letter.............................................. 731
Santorum, Hon. Rick , a U.S. Senator from the State of
Pennsylvania, letter in support of Juan R. Sanchez, Nominee to
be District Judge for the Eastern District of Pennsylvania..... 732
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WEDNESDAY, FEBRUARY 25, 2004
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 735
prepared statement........................................... 796
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 817
PRESENTER
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Roger T. Benitez, Nominee to be District
Judge for the Southern District of California.................. 733
WITNESSES
Hayward, Thomas Z., Jr., Chair, American Bar Association Standing
Committee on Federal Judiciary, and Richard M. Macias, Circuit
Investigator, Washington, D.C.................................. 765
Huff, Marilyn L., Chief Judge, U.S. District Court for the
Southern District of California................................ 773
STATEMENT OF THE NOMINEE
Benitez, Roger T., Nominee to be District Judge for the Southern
District of California......................................... 738
Questionnaire................................................ 739
QUESTIONS AND ANSWERS
Responses of Roger T. Benitez to questions submitted by Senator
Durbin......................................................... 777
Responses of Richard Macias to questions submitted by Senator
Durbin......................................................... 783
SUBMISSIONS FOR THE RECORD
Carter, Harold D., Sheriff-Coroner-Marshal, El Centro,
California, statement.......................................... 787
Contreras, Matias R., Judge of the Superior Court, California,
statement...................................................... 788
Cortez, Ezekiel E., Federal Criminal Defense Attorney, San Diego,
California, statement.......................................... 789
Cota, Raymond Ayala, Presiding Judge of the Superior Court,
Imperial, California, statement................................ 791
Donnelly, Donal B., Judge of the Superior Court, Imperial,
California, statement.......................................... 793
Flores, Poli, Jr., Attorney at Law, El Centro, California,
statement...................................................... 794
Fox, Oren R., Reitred Sheriff-Coroner-Marshal, Brawley,
California, statement.......................................... 795
Hayward, Thomas A., Jr., and Richard M. Macias, on behalf of the
Standing Committee on Federal Judiciary, American Bar
Association, Washington, D.C., prepared statement.............. 799
Houston, John A., District Judge, Southern District of
California, statement.......................................... 810
Huff, Marilyn L., Chief Judge, U.S. District Court for the
Southern District of California................................ 811
Jones, Jeffrey B., Judge of the Superior Court of the State of
California, El Centro, California, statement................... 816
Keesal, Samuel A., Jr., Keesal, Young & Logan, Long Beach,
California, letter............................................. 820
McDonough, Gregg L., Chief Public Defender, County of Imperial,
El Centro, California, letter.................................. 821
Porter, Louisa S., Magistrate Judge, Southern District,
California, statement.......................................... 823
Rivera, Eduardo A., Attorney at Law, California, statement....... 826
Rutten, Randy J., President, Imperial County Bar Association, El
Centro, California, letter and attachment...................... 828
Terrazas, Jack, Mayor, City of El Centro, California, letter..... 830
Walker, Steven M., Attorney at Law, El Centro, California, letter 832
Wyatt, Gary, Chairman, Board of Supervisors, El Centro,
California, statement and resolution........................... 833
Yeager, Christopher W., Judge, Superior Court of California, El
Centro, California, letter..................................... 837
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THURSDAY, MARCH 10, 2004
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 839
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 1044
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1050
PRESENTERS
Allen Hon. George, a U.S. Senator from the State of Virginia
presenting Walter D. Kelley, Jr., Nominee to be District Judge
for the Eastern District of Virginia........................... 841
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Jane J. Boyle, Nominee to be District Judge for the
Northern District of Texas..................................... 847
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Jane J. Boyle, Nominee to be District Judge
for the Northern District of Texas............................. 846
Jeffords, Hon. Jim, a U.S. Senator from the State of Vermont
presenting Peter W. Hall, Nominee to be Circuit Judge for the
Second Circuit................................................. 843
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
presenting Peter W. Hall, Nominee to be Circuit Judge for the
Second Circuit................................................. 844
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Marcia G. Cooke, Nominee to be District Judge for
the Southern District of Florida............................... 846
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Walter D. Kelley, Jr., Nominee to be District Judge
for the Eastern District of Virginia........................... 840
STATEMENTS OF THE NOMINEES
Boyle, Jane J., of Texas, Nominee to be District Judge for the
Northern District of Texas..................................... 985
Questionnaire................................................ 986
Cooke, Marcia G., of Florida, Nominee to be District Judge for
the Southern District of Florida............................... 935
Questionnaire................................................ 936
Hall, Peter W., of Vermont, Nominee to be Circuit Judge for the
Second Circuit................................................. 848
Questionnaire................................................ 850
Kelley, Walter D., Jr., of Virginia, Nominee to be District Judge
for the Eastern District of Virginia........................... 887
Questionnaire................................................ 888
QUESTIONS AND ANSWERS
Responses of Jane J. Boyle to questions submitted by Senator
Leahy.......................................................... 1036
Responses of Walter D. Kelley to questions submitted by Senator
Leahy.......................................................... 1039
SUBMISSIONS FOR THE RECORD
Burlington Free Press, March 10, 2004, article................... 1042
Douglas, James H., Governor, State of Vermont, Montpelier,
Vermont, letter................................................ 1043
Hays, Susan, Chair, Dallas County Democratic Party, Appellate
Lawyer, Waters & Kraus, LLP, and Marc Stanley, Dallas, Texas,
letter......................................................... 1047
Jeffords, Hon. Jim, a U.S. Senator from the State of Vermont,
prepared statement............................................. 1049
Molberg, Kenneth H., Wilson, Williams & Molberg, P.C., Dallas,
Texas, letter.................................................. 1052
National Employment Lawyers Association, Terisa E. Chaw,
Executive Director, San Francisco, California, letter.......... 1054
Nelson, Hon. Bill, a U.S. Senator from the State of Florida,
statement in support of Marcia Cooke, Nominee to be District
Judge for the Southern District of Florida..................... 1055
Texas Employment Lawyers Association, Katherine L. Butler, Chair
of the Judicial Oversight Committee, Dallas, Texas, letter..... 1057
Tillou, Kenneth B., Parr Waddoups Brown, Gee & Loveless, Salt
Lake City, Utah, letter........................................ 1058
United States Senate, August 1, 2003, news release and
attachments.................................................... 1059
Walton, Kenneth E., II, President, Wilkie D. Ferguson, Jr., Bar
Association, Miami, Florida, letter............................ 1071
----------
ALPHABETICAL LIST OF NOMINEES
Benitez, Roger T., Nominee to be District Judge for the Southern
District of California......................................... 738
Boyle, Jane J., of Texas, Nominee to be District Judge for the
Northern District of Texas..................................... 985
Cooke, Marcia G., of Florida, Nominee to be District Judge for
the Southern District of Florida............................... 935
Duffey, William S., Jr., Nominee to be District Judge for the
Northern District of Georgia................................... 364
Gruender, Raymond W., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 8
Hall, Peter W., of Vermont, Nominee to be Circuit Judge for the
Second Circuit................................................. 848
Kelley, Walter D., Jr., of Virginia, Nominee to be District Judge
for the Eastern District of Virginia........................... 887
Martinez, Ricardo S., Nominee to be District Judge for the
Western District of Washington................................. 29
Myers, William Gerry, III, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 280
Pratter, Gene E.K., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 59
Robart, James L., Nominee to be District Judge for the Western
District of Washington......................................... 617
Sanchez, Juan R., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 657
Stengel, Hon. Lawrence F., Nominee to be District Judge for the
Eastern District of Pennsylvania............................... 405
Sykes, Diane S., Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 587
Van Antwerpen, Franklin S., Nominee to be Circuit Judge for the
Third Circuit.................................................. 229
Wake, Neil Vincent, Nominee to be District Judge for the District
of Arizona..................................................... 110
NOMINATIONS OF RAYMOND W. GRUENDER, OF MISSOURI, NOMINEE TO BE CIRCUIT
JUDGE FOR THE EIGHTH CIRCUIT; RICARDO S. MARTINEZ, OF WASHINGTON,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON;
GENE E.K. PRATTER, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA; AND NEIL VINCENT WAKE, OF
ARIZONA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA
----------
THURSDAY, JANUARY 22, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl,
presiding.
Present: Senators Kyl, Specter, Craig, and Durbin.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Senator Kyl. Let me call this meeting of the Senate
Judiciary Committee to order just one or two minutes early, and
if there are members of the dais here who come at 10 o'clock,
then I will afford each of them an opportunity to speak. But
let me just tell you generally that I am very pleased to have
all of you here. We are going to consider the nominations of
three candidates nominated by the President for Federal
district court and one for the Circuit Court of Appeals.
We will begin with introductory statements from Senators or
Representatives who wish to introduce candidates from their
State. Following all of those introductions, we will then call
the panelists en banc, if there is no objection, to the table
for their opening statements and then questioning from members.
We will also, I want to make clear, afford everyone an
opportunity to introduce friends and family who may be here
today. This is an important event, and I think that every one
of the nominees here should be very, very proud to be here, and
the family and friends who are here I am sure are equally proud
to be here today in support of their family or friend who has
the important distinction of being nominated by the President
of the United States to serve on the Federal judiciary. And
that is why I think it is especially appropriate and it is the
custom of the Committee to recognize those who are here in the
audience to share in the hearing today.
I want to make one preliminary comment, too. The hearing
for nominees almost always is not the kind of formal affairs
that you sometimes see on television or you perhaps have seen
in a case of a very controversial nominee. And that is because
most of the nominees are not very controversial. The reason for
that is that there is an extensive vetting process, and those
of you who have been nominated know exactly of what I speak.
You have got to fill out so many forms. You have got to have so
many interviews. You have got to be considered by the White
House Office of Legal Counsel, the Attorney General, the
American Bar Association.
This Committee and its staff have already engaged in an
extensive investigation, and basically when the Committee staff
and Committee members conclude that the nominee is well
qualified and does not need to undergo a great deal of public
scrutiny in this hearing, then the hearing can go very well.
But I do not want you in the audience to assume that
because this hearing is likely to fall into that category that
members do not care, or that the fact that there are not other
Senators here is a sign that they do not care. What you should
be appreciative of is the fact that there has been a great deal
of preliminary work that has gone into the vetting of these
nominees, all of whom have been found very qualified. And that
is the reason why you are not likely to see a lot of fireworks
here today and it may seem to be a little bit more pro forma.
But you should not take from that a lack of interest but,
rather, be very proud of the people who have been nominated
because they have been found to be very qualified and without
significant controversy. At least I hope that is the way the
hearing here will go today.
Now, let me begin by calling on those Senators or
Representatives who are here to make introductions, and our
colleague, a member of the Senate leadership, Senator Rick
Santorum of Pennsylvania, is the first to arrive. Therefore,
Senator Santorum, the floor is yours.
PRESENTATION OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Senator Kyl, and I want to
echo your remarks about the fine work that this Committee does
in reviewing candidates and making recommendations, and I am
confident that the person I am going to introduce will be one
such non-controversial nominee.
Gene Pratter is a lawyer's lawyer. She is someone who has
come with the highest recommendations from all of the bar
associations in southeastern Pennsylvania and from lawyers from
the left to the right. She is someone who has really invested
her career in the law and has contributed greatly to it and to
the bar in Philadelphia.
She has also done, as you would expect of someone who is
very proficient, she has lent her abilities to numerous non-
profit organizations and has contributed greatly to the
community, greatly to her law school, which is the University
of Pennsylvania, one of the finest law schools in the country,
which we are very proud of.
This is the first chance, I just want you to know, to be
able to introduce a nominee from Pennsylvania first, and I want
to thank you for starting early because this is truly an honor
for me, because Senator Specter, as my senior Senator, always
goes first, as he should. But it is a pleasure for me to be the
first to comment on Gene Pratter, and she is an exceptional
individual. She will be an exceptional judge and someone who I
have gotten to know over the years from the outstanding work
that she has done, not just legally but for the community. And
I am honored to be here today to recommend her to the
Committee.
With that, I will defer to my colleague to give all the
particulars, which he is very good at doing, and to make
whatever comments that he would like to make.
Senator Kyl. Thank you, Senator Santorum, and let me call
on Senator Specter, a member of this Committee, in just one
moment. I was remiss in not doing one thing, and then I would
also like to do another.
The scorecard, since we do not pass it out, I will give to
you now, and that is that, again, without objection, we will
consider all of the nominees on one panel. First on the panel
will be Raymond W. Gruender, to be United States Circuit Judge
for the Eighth Circuit. And then the other three nominees for
Federal district courts are: Ricardo S. Martinez, to be United
States District Judge for the Western District of Washington;
Gene E.K. Pratter, to be United States District Judge for the
Eastern District of Pennsylvania--just introduced by Senator
Santorum; and Neil Vincent Wake, to be United States District
Judge for the District of Arizona. And I will have some
comments about Neil Wake in just a moment.
Secondly, I would like to, without objection, submit a
statement by the Ranking Member of the Committee, Senator
Leahy, for the record. Without objection, it is submitted.
Senator Specter, the floor is yours.
PRESENTATION OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. I am
delighted to be here with my distinguished colleague, Senator
Santorum, to formally introduce Ms. Gene Pratter to this
Committee. I regret being a trifle late. I compliment you, Mr.
Chairman, on opening on time--practically a violation of the
rule of the Committee on the Judiciary to open on time. But I
am chairing a hearing of the Subcommittee on Labor, Health,
Human Services, and Education, so I will be brief.
Gene Pratter brings very extraordinary credentials to this
position. She is a graduate of Stanford University with honors,
1971; a J.D., University of Pennsylvania, 1975. She practices
as a general partner with the distinguished law firm of Duane,
Morris and Heckscher in Philadelphia, where she has taken on
the role of being a lawyer's lawyer in handling matters of
unique complexity.
She is a member of all the appropriate bar associations.
She has very extensive contributions to the community and
brings really extraordinary qualifications to the United States
District Court for the Eastern District of Pennsylvania.
Senator Santorum and I have continued the tradition which
Senator Heinz had begun many years ago of a bipartisan
nominating panel so that the people who come forward have
credentials over and above what may customarily be involved in
the selection of a Federal judge.
I see Senator Murray waiting, so I will be brief so that I
can return to my other commitments. But I think it is a bright
day for the Federal bench to have someone of Ms. Pratter's
qualifications ascend to this position.
Thank you, Mr. Chairman.
Senator Kyl. Thank you very much, Senator Specter. And it
should be obvious that we are on multiple assignments this
morning, and I appreciate, Senator Specter, your ability to be
here to make that introduction.
Since Senator Murray is here, Senator Murray, let me call
upon you next for the purpose of an introduction.
PRESENTATION OF RICARDO S. MARTINEZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY
MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Well, thank you very much, Mr. Chairman. I
really appreciate your willingness to do that and your
accommodation this morning, and also to the other members of
the Committee.
Mr. Chairman, 48 years ago, a young boy was picking
strawberries on a Washington State farm for 75 cents an hour.
Today, that man stands before the United States Senate after
more than 20 years of distinguished legal service, ready to be
confirmed as the next U.S. District Court Judge for the Western
District of Washington State. His name is Ricardo Martinez, and
I am here today to offer my full support for his speedy
confirmation. He will be the first Latino to serve as a
district court judge in Washington State's history.
Senator Cantwell and I worked with President Bush to select
Judge Martinez from a list of very qualified candidates, and
today I am proud to be here to introduce him before the Senate
Judiciary Committee. I want to especially welcome his family to
the Senate today: his wife, Margaret, and their three
daughters, Lela, Jessica, and Gabriela. I know they are very
proud of their dad today. And I know that back in Washington
State there are many people who have worked with him over the
years who share their pride.
Mr. Chairman, I have met with Judge Martinez, and I have
been very impressed by his professionalism, his decency, and
his experience. It is no wonder that he has the strong support
of a wide group of attorneys and community leaders throughout
Washington State.
There are many things I could say today about Judge
Martinez. I could tell you about his education, that he was
first in his family to go to high school, and that he earned
undergraduate and law degrees from the University of
Washington. I could tell you about his distinguished legal
career, his 10 years as a prosecutor for King County or more
than 8 years as King County superior court judge. And I could
tell you about his current work as magistrate judge for the
Western District of Washington, a position he has held for 5
years.
Or I could tell you about his innovative and thoughtful
work helping people break their addiction to drugs and crime.
Judge Martinez, in fact, helped create the first drug diversion
court in the State of Washington and served as one of its first
judges. This innovative court gives drug-addicted defendants an
alternative to incarceration and has helped graduates kick
their habits and lead productive lives. For years, Judge
Martinez worked tirelessly to ensure the success of this
treatment option.
Or I could tell you about his generous sense of community
service, from his work on the Washington State Sentencing
Guidelines Commission, the Minority and Justice Commission, to
coaching soccer and basketball for the Redmond-Kirkland Boys
and Girls Club.
I could tell you all of those things, but instead I would
like to share with you and this Committee something that Judge
Martinez himself said to the Seattle Times in August. He told
the newspaper, ``I've always considered myself extremely lucky.
I was driving through Snohomish County the other day, and I saw
some migrant farm workers along the road. And I said to myself,
`You know, I'm not far removed from them.'''
Judge Martinez has been lucky, but he has also made his own
luck by working hard and giving back to our State. He has
earned everything that has come his way, and I believe he has
earned a seat as our next district court judge. His fairness,
thoughtfulness, and compassion set a great example for so many
people in our State, and I am proud to support his confirmation
before the Senate Judiciary Committee.
Mr. Chairman, Senator Cantwell could not be with us this
morning. She asked that I submit her statement for the record
as well.
Thank you very much.
Senator Kyl. Thank you, Senator Murray. It will be
submitted, and thank you for that excellent opening statement.
Senator Larry Craig has joined us. If you do not have an
opening statement, I will--
Senator Craig. I do not.
PRESENTATION OF NEIL VINCENT WAKE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA, BY HON. JON KYL, A U.S. SENATOR
FROM THE STATE OF ARIZONA
Senator Kyl. Okay. Senator Bond from Missouri is allegedly
on his way, and I think he has an introduction. So in the
meantime, to keep the hearing moving, let me give you an
introduction, which is of one of the nominees from the State of
Arizona, which I represent. And Senator McCain joins me in
expressing appreciation to President Bush for nominating Neil
Wake for the Federal District Court in Arizona.
Neil is an Arizona native. He practiced law for 29 years in
Phoenix as a partner in several law firms and recently a sole
proprietor of his firm. He received a bachelor's degree with
honors from Arizona State University and a law degree cum laude
from Harvard University, where he was a member of the Harvard
Civil Rights and Civil Liberties Law Review.
His practice has focused primarily on civil matters and
appellate work. He practiced exclusively in Federal and State
courts, including the United States Supreme Court, and has been
involved in a variety of continuing legal education programs
and publications, including articles in the fields of
administrative law and appellate procedure.
He has received a great deal of recognition from his peers.
Since 1989, he has been listed in the Best Lawyers of America
for Business and Appellate Litigation. That is from
recommendation of other lawyers, and about 1 percent of the
lawyers are recognized in that fashion. Since 1993, he has been
a fellow of the American Academy of Appellate Lawyers, a
society of fewer than 300 members nationwide who are admitted
by invitation only and after careful investigation.
Senator Bond, please take the dais, and I will call on your
in just a moment. I was just completing the introduction of a
candidate from Arizona.
Neil Vincent Wake was honored by the American Bar
Association's Standing Committee on the Federal Judiciary by
unanimously giving him the highest evaluation of well qualified
for the appointment as judge of the United States District
Court. He has a variety of civic activities and bar
associations achievements, including being a founding member
and current Chairman of the State Bar's Indian Law Section and
Appellate Practice Section, served five times as judge pro tem
of the Arizona Court of Appeals. He and his wife, Shari, and
other parents founded the ICU Care Parents, a support group for
parents of critically ill newborns. And knowing Neil and Shari
very well, I can attest to a variety of other important
community contributions that they have made.
They are the parents of three sons, and I know that Neil
Wake will be proud to introduce his family in a moment as well.
As I said, Senator McCain joins me in expressing
appreciation to the President for his nomination of Neil
Vincent Wake.
Now we are joined by Senator Chris Bond of the State of
Missouri. Senator Bond, the floor is yours.
PRESENTATION OF RAYMOND W. GRUENDER, NOMINEE TO BE CIRCUIT
JUDGE FOR THE EIGHTH CIRCUIT, BY HON. CHRISTOPHER BOND, A U.S.
SENATOR FROM THE STATE OF MISSOURI
Senator Bond. Thank you very much, Mr. Chairman, Senator
Craig, members of the Committee. It is a real pleasure for me
to be here today to introduce to you and present to you a good
friend, fellow Missourian, Ray Gruender, who has been nominated
to serve on the Eighth United States Circuit Court of Appeals.
I have known Ray both personally and professionally for
many years. He is an excellent lawyer. I am just delighted that
the President nominated him for this position. I am confident
that the Committee, after you review his credentials and listen
to his responses, will conclude that Ray is not only well
qualified for the bench but he will be a tremendous addition to
the Federal judiciary.
I do not need to tell you the United States Courts of
Appeals are extremely important, and the decisions that come
before these courts have impacts on every aspect of society.
And I think that we should have only the finest, most qualified
jurists serving on these bodies. And certainly Ray fits that
qualification.
Ray enjoys the respect of the Missouri legal community.
Many have told me, in recommending his nomination, that Ray's
demeanor, his willingness to listen, and his very clear
intellect are great qualifications.
He has an abundance of many other qualities that elevate
him as one who is not only qualified through experience, but
his work ethic and humility. I believe, as I think most
Missouri lawyers do, that Ray will be a judge who is
thoughtful, careful, approachable, and one who will respect the
role of a judge and the restraint imposed upon the judiciary by
the Constitution.
Ray currently serves as the United States Attorney for the
Eastern District. He has been there since May of 2001. He
supervises 60 attorneys in a jurisdiction that is both urban,
suburban, and rural, with all the challenges that come with
such a demographic makeup.
As U.S. Attorney, he has embarked on a campaign of
aggressive prosecution of Federal gun violations. The largest
city in his jurisdiction, St. Louis, has an unfortunate legacy
of violent crime. But I believe in no small part due to the
aggressive efforts of the U.S. Attorney's Office under Ray
Gruender's jurisdiction, there has been a tremendous reduction
in the number of murders, the number of homicides in St. Louis.
Ray is taking the gun-toting felons off of the street, and it
is a very clear remedy, and he has applied it very well.
But Ray has also practiced law for 17 years. He has great
experience as a private attorney. He worked as a partner in a
well-respected Missouri firm, spent many hours in Federal court
and State court representing clients on criminal and civil
matters, including admiralty, antitrust, contracts, employment,
securities fraud, banking, and a number of tort claims.
But just to give you a snapshot of his personal qualities,
as a graduate of Washington University in St. Louis, Ray earned
his degree and an MBA and a law degree in only 6 years,
finishing strongly in all, while working and putting his way
through school. He rose from humble beginnings to become U.S.
Attorney, and I think that he would make a great addition to
the United States Court of Appeals for the Eighth Circuit.
I thank you, Mr. Chairman, members of the Committee, for
scheduling this hearing. I hope that you will be able to move
this nomination quickly and that we can get him confirmed yet
this year.
Senator Kyl. Thank you very much, Senator Bond. I think it
is important that we have had people introduce these candidates
who know them personally, and that is a very important
contribution to the hearing record. So thank you very, very
much, Senator Bond.
Now, unless there are any other introductory statements--
and I know all of the Senators who have made introductory
statements will have to go to other duties here, so we will
allow Senator Bond to exit, and then I will call each of the
nominees forward. And, again, without objection, we will
consider all of the nominees as one panel.
Hearing none, then let me ask the following people to come
to the dais, and would the staff please get the proper name
tags here for us? Raymond Gruender, Ricardo Martinez, Gene E.K.
Pratter, and Neil Vincent Wake.
Actually, before you sit, would you all stand and let me
swear you in, if I could. Do you all swear to tell the truth,
the whole truth, and nothing but the truth, so help you God?
Mr. Gruender. Yes.
Judge Martinez. Yes.
Ms. Pratter. Yes.
Mr. Wake. Yes.
Senator Kyl. Thank you. Now, that includes with regard to
your family members here.
[Laughter.]
Senator Kyl. I am going to ask each of you to take an
opportunity to make an opening statement, if you would like,
and certainly to introduce friends and family who are here.
And, Raymond Gruender, let me begin with you and welcome you to
this hearing. I would ask you to make any statement you would
like to make, and make those introductions at this time, if you
would like.
STATEMENT OF RAYMOND W. GRUENDER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT
Mr. Gruender. Thank you, Mr. Chairman.
Very briefly, I'd like to thank the Committee for arranging
this hearing today. I'd also like to thank President Bush, both
for allowing me to serve and nominating me to serve as the
United States Attorney for the Eastern District of Missouri, as
well as this nomination pending today.
I'd also like to thank Senator Bond for his kind remarks on
my behalf, and, finally, I'd like to introduce my family
members that have come.
Senator Kyl. Please.
Mr. Gruender. My wonderful wife, Judy, is behind me to my
left.
Senator Kyl. Please stand as he introduces you. That is
good, and remain standing so we can give you a round of
applause here at the end.
Mr. Gruender. And her mother, Jeannette Calhoun; and to my
right is my mother, Sharon Gruender; and my good friend, Sharon
Lentin, who recently got married. Thank you.
Senator Kyl. Well, thank you all very much, and I would
like to give these people who are obviously good supporters of
Mr. Gruender a round of applause for your being here today.
Thank you.
[Applause.]
Senator Kyl. The role of those in support of the nominees
is appreciated by us all, I can assure you.
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Senator Kyl. Judge Martinez, we are delighted to have you
here. It was a wonderful introduction that you received, and
now is your opportunity to make any opening statement you would
like and introduce members of your family or friends who are
here today.
STATEMENT OF RICARDO S. MARTINEZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON
Judge Martinez. Mr. Chairman, thank you so very much. I
have no opening statement. However, I would love to introduce
my family.
Senator Murray already told you about my wife and children,
but let me have you meet them. First of all, my wife, Margaret;
my oldest daughter, Lela, who is a student at Howard University
right here in D.C.; my daughter, Jessica, graduating from high
school this year and getting ready to play Division I soccer
next year for Washington State University.
Senator Kyl. Getting a plug in there for you, I can see.
[Laughter.]
Judge Martinez. And my youngest daughter, Gabriela.
Also present today, my brother and sister-in-law, Walter
and Cynthia Morris; their son, Walter Morris III; my other
sister-in-law who flew in this morning from San Francisco,
Alice Morris; and a friend and classmate of my daughter here at
Howard University, Mr. Omar Raheem.
And, finally, in the back, the woman who makes my presence
here possible because she is a friend, a colleague, and one of
my mentors from out of my court. When she took the job as
Director of the Federal Judicial Center, that is when this
vacancy opened up. Judge Barbara Jacobs Rothstein.
Senator Kyl. Great. Well, thank you all very much for being
here in support of Judge Martinez.
[Applause.]
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Senator Kyl. I am going to interrupt just briefly, if we
could, because Senator Jim Talent from Missouri is here, and I
think he will want to follow the kind introduction that Senator
Bond made for Mr. Gruender. And then I am going to turn the
gavel over to Larry Craig for just a moment here while I have
to take a call. So if we could just interrupt the process here
and, Senator Talent, the floor is yours.
PRESENTATION OF RAYMOND W. GRUENDER, NOMINEE TO BE CIRCUIT
JUDGE FOR THE EIGHTH CIRCUIT, BY HON. JAMES TALENT, A U.S.
SENATOR FROM THE STATE OF MISSOURI
Senator Talent. Well, I thank you, Mr. Chairman, and I am
grateful to the witnesses for allowing me to--well, let's just
say it--interrupt here for a minute or two and to have an
opportunity to say a few words about a good friend and a good
man whom the President has nominated to the court of appeals.
I know Senator Bond wanted to--he and I kind of fought over
who would get to say the most about Ray, and he went on, I
know, at some length in going through Mr. Gruender's
qualifications and his background, his beginnings, the way he
worked his way through Washington University, through the law
school there, his outstanding performance as a private
attorney, his work as the United States Attorney, his faithful
adherence to the law, and his faithful enforcement of the law
for a number of years. I do not know a person who is more
honest and who has more integrity in his private dealings as
well as his public dealings. He is a man of great compassion.
One of the reasons I got to know Ray was his involvement in
an issue that I have also been involved with over the years, at
least marginally, in private life but also in public life, his
work as the board president of ALIVE, which is a group that
promotes alternatives to living in violent environments for
people who have been the victims of domestic abuse. He is a
well-rounded person, a great lawyer, a person who I am
convinced, Mr. Chairman, and I hope the Committee and the
Senate come to believe will render unbiased and unprejudiced
judgments in the cases that come before him, according to his
lights, who will be consistent in application of his
jurisprudence without regard to outcome, and who will be
faithful in interpreting the Constitution and the laws.
I just think he is a great nomination, and I hope that the
Committee will proceed expeditiously to approve him.
Senator Kyl. Thank you very much, Senator Talent.
Incidentally, Judge Martinez, you had indicated you had a
statement, and you introduced your family first. If you want to
make any other remarks, you are certainly welcome to do so at
this time.
Judge Martinez. No, thank you, Mr. Chairman. What I said
was I had no opening statement.
Senator Kyl. Oh, I am sorry.
Judge Martinez. And it is a tremendous honor and privilege
to be here today.
Senator Kyl. Okay. Thank you.
Gene Pratter, welcome, and likewise you can make an opening
statement and introduce friends and family, if you would like.
STATEMENT OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Ms. Pratter. Thank you, Mr. Chairman. While I do not have
an opening statement, I would like to take the opportunity to
thank you for having the hearing. I am thrilled to be here, and
I am even more thrilled to introduce to you my family and two
of my colleagues.
First, my husband, Bob Pratter, Robert Pratter; our
daughter, Paige Pratter, who works here in Washington, D.C.,
clerking for a district court judge on the Federal court here;
and our son, Matthew Pratter, a freshman at Duquesne
University. He is particularly happy to be here in his brand-
new shoes. My partner, Sheila Hollis, who practices at Duane
Morris' Washington, D.C., office. Sheila, will you stand? There
she is. And my long-time legal assistant, Rose Barber, who took
the train early this morning to be here, and I can't tell you
how important Rose has been to me and to my family over the
last decade.
Senator Kyl. We thank you all for being here.
[Applause.]
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Senator Kyl. As I said, that is a testament. We understand
that none of us are here without the support of a lot of other
folks, and it is nice to be able to recognize them.
Neil Vincent Wake, opening statement and/or introduce
members of your contingent here.
STATEMENT OF NEIL VINCENT WAKE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Mr. Wake. Thank you, Mr. Chairman. I have no opening
statement, but I, too, want to thank President Bush for
submitting my name, and I want to thank this Committee and the
Senate for their consideration of my nomination.
I also want to express my thanks to Senator McCain and to
you, Mr. Chairman, for your support as well.
I'd like to introduce my family. I've got a pretty good
contingency here because I have eight brothers and sisters, and
a fair number of them are here.
First let me start with my wife, Shari Capra. And my
brother, Dan Wake. Dan is the other lawyer in the family, from
Denver. And my sister, Joy Wake. And another brother, Ward
Wake. And also Ward's family, his wife, Syllvette Wake, and--
she may have stepped out. She stepped out. Oh, well. The reason
she probably stepped out is because of the children that she
brought: Chantall, who is perhaps not here either, and Aiden,
who is only 1 year old. So that probably--
Senator Kyl. She is excused.
[Laughter.]
Mr. Wake. And I also have some very dear friends that I'd
like to introduce: Dr. Karen Rigamonti and her daughter, Eva
Rigamonti. They are very dear friends of ours from Phoenix, who
have lived in Baltimore for quite a while, and they have come
down. I want to express my thanks to all of them for being
here.
Senator Kyl. Thank you all very much for your attendance
here today.
[Applause.]
[The biographical information follows:]
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Senator Kyl. Now, before we begin questioning, I note the
presence of Senator Durbin of Illinois. And, Senator Durbin, if
you have any statement to make, you are certainly welcome to do
so.
Senator Durbin. No, Mr. Chairman. I will waive an opening
statement.
Senator Kyl. Thank you very much.
Well, then, the floor is open for questions, and I will
begin by calling on Senator Craig.
Senator Craig. Thank you very much, Mr. Chairman. Let me
ask this question of all of you, and you can, obviously, we
will start over here with you and move across.
If the Supreme Court reached a decision that you believe
was fundamentally erroneous, would you follow that precedent or
apply your own judgment to the issues of the law placed before
you?
Mr. Gruender. Senator, thank you for the question.
The answer to that is crystal clear. Despite any beliefs
that I might have, I would be required, as an inferior court
judge, to apply the precedent of the Supreme Court, and I would
in fact do so.
Judge Martinez. Thank you, Senator.
As a judge now for the last 14.5 years or so, I have always
done exactly that. My own personal beliefs play no part in how
I apply the law that has been decided by the superior courts.
Ms. Pratter. Senator, if I am fortunate enough to be
confirmed, it would be my obligation, and an obligation I would
follow, to follow the Supreme Court precedent.
Mr. Wake. Senator, thank you for the question.
It is essential to the system that lower court judges
following the controlling authority from higher courts. So, of
course, if I were confirmed as a judge, I would follow the
letter and the spirit of the precedents that are laid down,
regardless of my own views.
Senator Craig. Well, thank you all. There are some on this
Committee who struggle with the idea that you must give the
exact, correct answer to their philosophy or attitude on a
given issue to be, by their decision, a judge. I do not
approach reviewing nominees that way and never have. I have
always felt what is important is the intellect, the experience
and the temperament.
So let me ask one more question of all of you. What do you
think is the most important attribute of a judge?
Mr. Gruender. Senator, I believe there are several
attributes that are very important. I think a level of academic
ability and integrity are very important, a broad exposure to
the law and an understanding of the law and, probably even more
importantly, a willingness to do the hard work that is required
to understand the facts underlying a case and then to get a
clear understanding of the applicable law and apply it, and
then, in addition, demeanor, the willingness to come into it
with an open mind, to listen to both sides, and to fairly and
honestly assess and apply the law.
Senator Craig. Thank you.
Judge Martinez?
Judge Martinez. Thank you, Senator.
It is very difficult for me to add anything to the list of
attributes that he has just indicated. I would say that, in my
experience, both as a litigator and as a judge, I have always
believed, sir, that it is absolutely critical that anyone who
puts on a black robe understand how important their demeanor
is. Courteousness is critical. You must listen. You must be
patient, never embarrass anyone; that is, is the lawyers, the
litigants, witnesses, jurors, court staff, anybody else in
there. I have always tried to live my life exactly in that
fashion. I can promise you I would do the very same thing in
the future if I was lucky enough to be confirmed.
Ms. Pratter. Thank you, Senator, for the opportunity to add
to that fine list of attributes we have listened to so far, to
which I would only add the importance, I believe, of the role
of having a good sense of humility that a judge, I believe,
should have.
Senator Craig. Thank you.
Mr. Wake. Thank you, Senator.
I must accept and agree with everything that has been said
by the others, and it is a little difficult to add to what has
been said so well. Let me say only two things:
Obviously, there are a group of essential qualities, and
the failure of any one of those qualities can diminish the
quality of justice. If I were to point to one in particular, it
would be patience and open-mindedness in one's work and private
and in one's dealings with litigants and lawyers before the
Court, and that patience and open-mindedness is what can leave
people with the sense that whether they won or lost, they were
treated fairly and that the system works, and that is very much
within the control of the judge, more than anyone else.
Thank you.
Senator Craig. Well, I thank you all very much.
One last comment, and it is to you, Judge Martinez. To have
a daughter at Washington State University is a bit of a
frustration to me. I am a Vandal from the University of Idaho,
eight miles away.
[Laughter.]
Senator Craig. Mr. Chairman, there is a tradition between
those two schools that has frustrated me for some time, and as
a result of that I just do not care for cougars.
[Laughter.]
Senator Craig. And that is that when those two universities
played, the losing university student body president had to
walk the eight miles and wash the feet of the victor. I have
walked that eight miles.
[Laughter.]
Senator Craig. Good luck on your soccer program at
Washington State.
Thank you, Mr. Chairman.
Senator Kyl. Thank you, Senator Craig.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman, and
thanks to all who have gathered here today.
Senator Craig has asked a number of questions which I think
are very important, having been a lowly attorney practicing
before Federal judges in my life, I like to, at least I hope
that the plea for humility is one that is felt on that side of
the table, as well as on this side of the table. I think it is
very important in public service.
Mr. Gruender, I would like to ask you a few questions, if I
can, about an incident which occurred after you were designated
as the United States Attorney, involving a resolution passed by
the University City, Missouri, City Council concerning the
PATRIOT Act. You responded, if I am not mistaken, in an open
letter critical of this City Council action. It is my
understanding that about 200 communities in 34 different States
have expressed their concern and take an exception to the
PATRIOT Act. I have had conversations with my U.S. Attorney in
Chicago, Pat Fitzgerald, about this act, and he has testified
before this Committee.
But I am concerned about some of the rhetoric which was
contained in your letter, and I would like you to explain it.
You were quoted as saying in that letter that ``resolutions
that are grounded in misinformation, such as the one adopted by
the University City Council, accomplish little to protect civil
liberties and can jeopardize public safety.'' You went on to
say, ``The Council's action, which appears to have been made
without the benefit of facts,'' has potentially grave
consequences. And you wrote that the resolution put ``lives in
jeopardy, puts all citizens at risk and might cause a
`catastrophic' loss of life.'' These were your words.
We have really jealously guarded the right of dissent and
disagreement in America. And even when popular Presidents have
said and done things, we have said that it is the right of
American citizens to disagree publicly with that policy.
Not that long ago Attorney General Ashcroft came and
testified before this Committee relative to his critics, and
basically said, and I quote from the Judiciary Committee
testimony as follows. This is Attorney General Ashcroft. ``To
those who scare peace-loving people with phantoms of lost
liberty, my message is this: Your tactics only aid terrorists,
for they erode our National unity and diminish our resolve.
They give ammunition to America's enemies and pause to
America's friends. They encourage people of good will to remain
silent in the face of evil.''
The tenor of your letter, seems to me, to be very close to
the message of General Ashcroft, which is that the critics of
this Government, and the critics of the PATRIOT Act, are, in
fact, aiding and abetting terrorism. Do you believe that?
Mr. Gruender. Senator, with respect to the University City
resolution, I felt the need to respond to that, based on the
fact that the University City Council never sought any input
from any other sources, apparently--no one on behalf of the
Government. My office, the U.S. Attorney's Office, was never
contacted to provide information about the PATRIOT Act. The
resolution, on its face, was based upon what I believe to be
wrong statements about the PATRIOT Act that, as you know, was
overwhelmingly passed.
I do not mean to suggest, by any means, that people are not
allowed to criticize the Government or the PATRIOT Act or
anything else. But as an example, the sort of statements that
were made during that debate were that the Government now had
the right to obtain a search warrant without judicial approval,
which is simply untrue; that we had the right to or the ability
to obtain wiretaps without court approval, again, simply not
true.
It was based on those sort of statements that I thought
needed to be corrected. And then the University City Council
went the additional step of telling its Police Department not
to cooperate with Federal authorities, and they did qualify
that by saying, if they thought that there were constitutional
violations happening as a result. That troubled me because,
clearly, the preamble, the sections above that were inaccurate
about the PATRIOT Act would lead a police chief or a line
officer, perhaps, to believe that we were violating
constitutional rights, which simply was not true or that the
PATRIOT Act, on its face, did that.
So I felt the need to correct that, and had the additional
concern, as, Senator, I am sure you remember the hearings with
respect to September 11th and the issues of connecting the
dots, after September 11th the U.S. Attorneys, amongst others,
were given the tremendous responsibility of preventing and
disrupting terrorism. And I thought it was very important that
we have a coordinated effort at all levels of law enforcement--
State, local and Federal--work together to share information.
You may also know that a part of the letter that I wrote
acknowledged the importance of civil rights and civil liberties
and, indeed, I think I pointed out in that letter that, as
Federal law enforcement officers, we were sworn to uphold and
protect civil rights and civil liberties and, in fact, took
that very seriously.
Senator Durbin. Mr. Gruender, I could understand if your
public comment was that the University City, City Council was
wrong and did not understand the PATRIOT Act and misinterpreted
it, but your language went a step beyond that and said that
their action put lives in jeopardy. That, to me, suggests that
you have gone beyond disagreeing with them.
Do you really believe that that City Council ordinance was
in any way aiding or abetting terrorism, putting lives in
jeopardy in Missouri or any other place?
Mr. Gruender. Senator, by no means do I mean to suggest
that it purposefully was done with that purpose, absolutely
not. However, I do think that if a police officer in University
City obtained information about a potential cell that was
operating in its jurisdiction, and for some reason hesitated to
share that information with the FBI, with the Joint Terrorism
Task Force, I think there are some potential dangers there, and
I do believe that it could result in catastrophic, I mean,
hopefully not along the lines of what we saw on September 11th,
but I certainly do not want to be the U.S. Attorney in Eastern
Missouri and have something like that happen in St. Louis, for
instance.
Senator Durbin. Would you feel that, if your nomination is
approved to the Circuit Bench, that it would be appropriate for
you to recuse yourself in cases involving interpretation of the
PATRIOT Act?
Senator Durbin. Senator, I do not think that I have reached
any opinions or conclusions about the constitutionality of any
particular provision of the PATRIOT Act. Of course, what I
would do is look at the statute applicable. I believe it is 28
U.S.C. 455. I would also look at the Code of Judicial Ethics
and see if there are any grounds upon which I should recuse
myself, but as I sit here today, I do not think that there
would be.
Senator Durbin. Mr. Chairman, I do not want to go--I have a
few other questions relative to the PATRIOT Act, but I want to
certainly give other members or yourself a chance to question,
and I can do it in a second round, if it would be appropriate.
Senator Kyl. I appreciate that. We have tried to proceed
here a little bit in variance with our traditional procedures,
simply to give everybody a chance to introduce folks and move
forward. I have just some general questions, and therefore I
would be pleased if you want to just continue and not be
concerned about the time constraints, at least at this point.
Senator Durbin. Thank you. I do not want to abuse the
Committee, and I thank you for your kindness in allowing me.
Mr. Gruender, let me go a little bit further then in these
questions involving the PATRIOT Act. In a commentary submitted
to the St. Louis Post Dispatch on February 14th last year, you
asserted that the U.S. PATRIOT Act did not permit new,
warrantless searches, seizures and wiretaps, and I think you
have said as much this morning.
Further, you stated that ``judicially issued independent
determinations of probable cause remain the necessary legal
standard.''
Under Section 505 of the USA PATRIOT Act, national security
letters, which are issued by FBI officials without a court
order, can now be used to compel production of business records
if the Court certifies they are ``sought for a terrorism or
national security investigation. Records demanded can include
any record pertaining to the customer's relationship with the
institution.''
Now, before the PATRIOT Act, the FBI had to have reason to
believe that the records being sought pertained to a suspected
spy or terrorist. Further, under the fiscal year 2004
intelligence authorization bill, signed by the President, the
list of entities to whom NSLs can be issued now include nearly
all types of businesses.
In addition, under Section 215 of the PATRIOT Act, if the
Federal Government seeks an order to obtain any tangible thing
from any business, including book-borrowing records from a
library, there is no evidentiary showing required. The judge
shall, under the words of the PATRIOT Act, shall issue the
order if the Government simply states that the records are
sought for an authorized investigation
Further, the Government need not show that the person
targeted by the order is himself or herself engaged in anything
illegal.
Now, how do you reconcile this clear statement of the law,
of the PATRIOT Act, with the statement that you made to the St.
Louis Post Dispatch, in which you said, ``Judicially issued
independent determinations of probable cause remain the
necessary legal standard''?
Mr. Gruender. Well, Senator, I believe I was referring to--
and I do not have a copy of what I wrote back in February in
front of me--but I believe what I was referring to were
wiretaps, and it did not refer--oh, and search warrants--it did
not refer to the issuance of national security letters.
However, from what you have just read, both require, I
believe, judicial approval. And also, if I may, it has always
been the case that in a criminal investigation, which generally
are not opened unless the FBI or the U.S. Attorney's Office has
reason to believe that a crime has been committed, that those
sort of records were obtainable, initially, without judicial
review through the use of grand jury subpoenas.
Senator Durbin. I put you at a disadvantage because you do
not have your letter in front of you. And I want to be fair,
and I am going to send you written questions so you can give me
a full explanation. But I would suggest to you that our reading
of the PATRIOT Act is the opposite of what you just said, that
there is no Court approval necessary for national security
letters. In fact, it is mandatory. It says, ``The judge shall
issue the order.'' And, frankly, I think that what you have
just said is inconsistent with the language of the act, which
has caused many, on both sides of the aisle here in the Senate
and the House, to raise questions about whether we went too far
with the PATRIOT Act.
I am not going to dwell on this, Mr. Chairman, because I do
not want to put the witness at a disadvantage, having raised
this line of questioning when he did not have a chance to
review his letter beforehand. But if you would not mind, I
would like to send you some specific questions.
I would like to ask all of the witnesses here about the
concern expressed to me by Federal judges who have been in
contact with me since action by Congress last year, and it
relates to mandatory minimum sentences. There are many judges
who believe that we have gone too far; that we have taken away
the discretionary authority of judges to mete out sentences
which they think are fair to individual criminal defendants,
that we have created a formula for judges to impose sentences
which is inconsistent with common sense and inconsistent with
the goal of justice, in many instances.
One anecdotal case which I can relate to you is, in Pekin,
Illinois, where we have a Federal correctional institution for
women who have been convicted of felonies, I have visited this
institution to find many middle-aged and elderly women who are
knitting afghans in prison for 10 to 20 years because a drug-
dealing boyfriend ratted them out in an effort to win favor
with the prosecutor. And the judge, with no recourse, other
than the mandatory minimum sentence, had to send many of these
now older ladies to prison for lengthy periods of time.
I would like to have your response, and this will be my
last question, Mr. Chairman, of each of the panel members about
this concept of mandatory minimum sentences and the concern
expressed by many Federal judges that Congress should re-
examine whether we have gone too far.
Mr. Wake, would you like to start?
Mr. Wake. Certainly, Senator. Thank you very much for the
question.
Senator that certainly is a very important question and
issue. In my practice, which I have been favored to have a
wide-ranging civil litigation practice over the years, I have
not had occasion to practice at all in the field of criminal
law. Therefore, I lack the hands-on experience on how things
really work to make refined judgments about that subject.
Now, I look forward, if I am confirmed, and if I am given
the opportunity to serve as a judge, to learning that field of
law, just as I have, over the years, learned other fields of
law. And when that time comes, and if I should come to
judgments that are considered and worth sharing with the
Congress, I think it would be appropriate for judges to do
that. But at this moment, I am at a disadvantage from that lack
of hands-on experience, and I would just give my commitment
that, as in all things, I would study everything carefully and
take advantage of my opportunity to share with the Congress my
observations on the improvement of the justice system.
Senator Durbin. Ms. Pratter?
Ms. Pratter. Thank you, Senator.
Obviously, I am aware of the professional and popular
subject, that this is a subject of some discussion and concern.
Because my practice has been primarily in the civil area, I
have not had the opportunity or need to work with the minimum
sentencing legislation directly. It is something that I will
have to learn about. I think that what you have described, in
terms of your visit to the prison, is part of the legislative
process that is so important, in terms of evaluating what is
appropriate for our country, and that is where, at the
legislative level, where I think, in the first instance, the
citizens have to look.
In terms of the role of the judiciary in meting out and
using the minimum sentencing legislation, it is very important
for judges to commit to following the legislative
pronouncements that they are presented with, and that is what I
would do, if confirmed.
But beyond that, having no personal or professional
information to add to your wealth of knowledge, there is
nothing more I could really say at this time.
Senator Durbin. Judge Martinez?
Judge Martinez. Thank you, Senator.
Senator unlike my fellow nominees over here for the
District Court, I have had years of experience with sentencing
guidelines. I worked on the Sentencing Guideline Commission for
the State of Washington as a judge.
I can tell you, from personal knowledge, that, in my
opinion, sentencing is one of the most difficult things for any
judge to engage in, no matter what the case, no matter who the
individual is. It has always been, for me, one of the hardest
aspects of my job.
I have lived under sentencing guidelines for most of my
career. Washington State passed the Sentencing Reform Act in
1984, I believe, the same time the Federal guidelines went into
effect. As a magistrate judge, one of the few cases that we are
not allowed to handle are, of course, felony sentences. We
cannot do that aspect of it, so I have not had very much
experience with the Federal Sentencing Guidelines.
I think the concern you mentioned of Federal judges--and
not just Federal judges, but also State judges--when it comes
to the issue of mandatory minimums has merit. Many judges have
raised that particular concern. And I believe, Senator, that it
is always important to continue to review what is occurring,
and I know there are many commissions, the United States
Sentencing Commission, for example, and many committees that
will not only gather information, but continually look and see
if there is a better mechanism that we can use, if there are
other things that we can do.
I can tell you this; that I think the vast majority of
sentences fall within the range, within the guidelines, and it
is those rare ones that stand out, but sometimes those are the
ones that are the most troubling.
Senator Durbin. Mr. Gruender?
Mr. Gruender. Like Judge Martinez, I have had some
experience, as the U.S. Attorney, and want to note that I am
here as a candidate for the Eighth Circuit Court of Appeals and
not really as a representative of the Department of Justice.
It is certainly a matter of significant debate amongst many
judges, and it is something that I believe is, without passing
on the constitutionality of guidelines, which I think has been
dealt with in the Mistretta case, or of mandatory minimums, I
think that the definition of a crime, as well as the
appropriate sentencing, has always been a function of Congress,
not really of the judiciary.
That having been said, there are, in mandatory minimums,
there are certainly provisions that do allow, in appropriate
cases, for those to be gone around, the so-called relief values
and cooperation-type matters. But, primarily, I would be
reluctant to advise you, from this particular role. I think it
is a matter that Congress should take up, not a judicial
matter.
Senator Durbin. Mr. Chairman, I would just add I think Mr.
Gruender is correct. I think it is our responsibility, but I
believe, in all honesty, that the passage of the Feeney
amendment has restricted a lot of judges who, when they deviate
from certain minimum mandatory sentences, have to make reports
to the Department of Justice, so it creates more pressure for
them not to make exceptions, where even they legally can. So
that is our responsibility, and I thank the panel for their
replies.
Senator Kyl. Thank you, Senator Durbin.
I would just note one opportunity, though, that those
reports afford is for the judge to explain why it is necessary
to do this and perhaps better inform us to even possibly get us
to change some of the laws. So it can have that salutary
effect, too, I would just offer.
I have a different question to ask each of you, and one is
somewhat along the lines that Senator Durbin asked Mr.
Gruender.
You have been United States Attorney, and obviously you had
a role to play there. You had to act as the Government's lawyer
and to prosecute people when that was called for, and so on.
And one of the questions I think is, obviously, that is very
good experience for being a judge, but the other question is
will that experience, in any way, detract from your ability to
perform your functions properly? And I would just like to get
your comment, generally, on how you view your experience as the
Government's lawyer prior to now going on the bench, if you are
confirmed.
Mr. Gruender. Thank you, Mr. Chairman. That is a very good
question.
On the positive side, being the United States Attorney gave
me a broad exposure to many issues. Every significant issue
within the office usually bubbles up to the United States
Attorney. So every day my day is filled with a series of legal
issues and problems to respond to and to try to answer as best
I can. Therefore, it gives me the ability to look at the law
practice almost from a management standpoint. It also gives me
a broad range--all sorts of criminal exposure of every type,
from violent crime to white collar crime, to major corporate
crime, to civil rights prosecutions--but also exposure to the
civil practice. We have about a dozen lawyers who represent the
Government in civil practice.
That having been said, I can see where someone might say,
``Well, is that the only viewpoint that he has?'' No, to the
contrary. I have also spent almost an equal amount of time as a
defense lawyer. I have represented criminal defendants, I have
represented targets who were never charged, I have represented
witnesses in criminal cases and victims, and also, in private
practice, I have had a broad exposure to civil matters, both
representing plaintiffs, claimants and defendants.
Senator Kyl. Well, thank you. I think that is helpful.
The general question I want to ask each of the District
Court nominees has to do with the qualifications that some of
you alluded to that give confidence to our citizenry that the
judges understand life and understand their problems and will
mete out justice not just in strict accordance with the law--
obviously, you will do it in strict accordance with the law--
but informed also by your life experiences.
And in that regard, I was impressed by several of the
things in your resumes about things you have done. Gene
Pratter, I just happened to turn to the note that I made about
your Nurturing Network program, which I understand assists
pregnant women.
And I just wonder if each of you would discuss, briefly,
something that you have done either in association with law
activities or perhaps even totally outside the law that you
think will help make you a better judge because it is a life
experience that you have had.
And if any of you would like to mention one of my primary
interests--victims' rights--I would like you to do that.
Because one thing we have found, and one reason that many of us
here are proponents of a constitutional amendment to guarantee
victims' rights, is that notwithstanding the fact that we have
State law, statutory and even constitutional provisions
allegedly guaranteeing rights of crime victims, that, as a
Justice Department report noted, they are more honored in the
breach than the observance, that, for one reason or another,
prosecutors, other lawyers, judges sometimes are lax in
enforcing these crime victims' rights.
We are not only dealing with the interests of the State and
the Government and the defendant who may be on trial or the
parties in civil litigation, but also, of course, we are
interested in ensuring that victims do not suffer a second time
when they have to go through the judicial process.
So I certainly do not limit my question to that, but
anything that might bear on making them more comfortable, that
if you are a trial judge you will consider their views as well,
I think is an important one.
Let me start with you, Ms. Pratter, and then go to Judge
Martinez and then finish with Neil Wake.
Ms. Pratter. Thank you, Mr. Chairman, and I'm sure the
folks at Nurturing network would thank you for your reference
to them. It is a national program that assists pregnant women,
unmarried pregnant women who need to perhaps relocate to other
parts of the country, and the network assists them in finding
jobs and places to live and health care. And the folks in my
firm have played a small role in providing employment
opportunities for women who avail themselves of that. And it's
been a pleasure to participate in that and many other programs
such as assisting in the gathering of business clothing for
women re-entering the workforce. And goodness knows those of us
in law firms have been very fortunate in terms of both the work
opportunities we've had and the compensation, and we've
gathered a number of clothes and shared them with others who
want to meet the challenges of their present lives by going
back to work, and they may need some help in that respect. So I
thank you for the reference to those kinds of programs.
With respect to the experiences I've had for 28, almost 29
years as an active lawyer, certainly in civil work sometimes
lawyers are given to think of clients as being a faceless
corporation, when, in fact, our clients are real people.
They're worried about many things. They may, in fact, be most
worried about the court procedures. It's sad to hear a client
say when the worst thing that could happen to them is to have
to go to court. Being sensitive to that and the sensitivity to
the delays that can often occur in the litigation process I
believe will be with me always. I believe that it's part of--an
important part of a judge's job to move matters expeditiously
and as economically as possible for all of the people involved
in the process.
With respect to the criminal side, I think that a judge's
role and job is to treat with great respect and sensitivity the
role of the jurors, for example. The victims, absolutely, their
fears and concerns and their families need to be given the
opportunity to be heard, to be respected, to show that the
system is concerned for them. And, without question, the
defendants, of course, their rights and concerns need to be
protected, and we need to be mindful of that.
And, frankly, the advocates for the government and for the
defendant, the lawyers need to be respected. I have
unbelievable respect for the hard work that lawyers put in day
in and day out and carrying the mantle of their clients with
them.
All of those people, all of those folks in the role of the
legal system need to be respected.
Senator Kyl. Judge Martinez?
Judge Martinez. Thank you, Mr. Chairman, and thank you for
giving me the opportunity to address this issue regarding
victims' rights. I spent 10 years as a prosecutor. One of the
things that drove me to do the absolute best job that I could
in every single case was knowing that in a majority of cases
that I was handling, there was usually a victim, a family
member, someone that was completely devastated by what had
occurred to them or their family. In every sentencing hearing
where I stood, I made sure that they were there and that the
court allowed them the opportunity to speak and to be heard.
When I became a superior court judge in 1990, having that
sensitivity made me very aware of how critical that is to allow
that to occur. As you know full well, victims feel re-
victimized again by the system. They feel that they have no
constitutional rights at all, that everything goes towards the
defendant's side. And I think our understanding as a judge of
that, that pain, that grief, that frustration, can go a long
ways towards making the process, if not better--because I don't
think it ever goes away for them--at least more understandable
and they feel they've had a part to play in that entire
process.
There was a second part to your question, and that had to
do about our involvement with the community. I've always
believed--and I think you can tell by looking at my
background--that a judge can't cloister himself or herself away
from the rest of society. You have to stay involved. That's
really the only way people understand that you do understand
what is going on in everybody else's lives. And that's why it
is important to be involved with feeding the homeless or, in my
case, one of the things that I'm very dedicated to is coaching
young children at many different levels.
And since I'm here before this Committee and under oath, I
have to confess to you that I think I've received more fun and
joy out of coaching than all the kids that I ever coached put
together.
Thank you.
Senator Kyl. Thank you very much. As I said, I think it is
important for people to have confidence in our system, and one
way they can have confidence in our system is to know that the
judges up there are real people and not just automatons. And
that is why I kind of ask this question, so that if anybody is
paying attention, they will know that we have people who are
not only highly qualified in the law, greatly experienced, but
also real people who have actually helped in their local bar
associations or community in some capacity.
Neil Wake?
Mr. Wake. Thank you, Mr. Chairman. That's a big question
for which we could give long answers, but let me focus on a few
things that strike me personally.
The process of judging requires many skills, technical
skills, education, academic skills, administrative skills, but
one of the qualities that I think is most important here is a
wisdom about life and people--the wisdom that can only come
from experiencing the hardships or the difficulties that people
have in life and in the litigation system.
You had asked about some activities that we might have been
through, and let me point out two for me and my wife. Long ago,
my wife became involved--more than me, but I was also
involved--in an organization in Phoenix called the Sojourner
Center, which is a shelter for battered women and children.
Shari was one of the first directors, founding directors, and I
did legal work for them, including defending them in a lawsuit
over a construction matter without compensation, which, if we
had lost the case, it would have been put out of business.
Sojourner Center now is a great success. It is one of the
largest private shelters for battered women and children in the
country. But we had an enriching experience dealing with other
volunteers setting that up, getting it going, working with the
people who benefited from that.
We also had another experience some 20 years ago where
Shari and other parents founded a group, ICU Care Parents,
which is a parents' support group for parents of critically ill
newborns. And we made arrangements with the three tertiary-
care-level hospitals in the Phoenix area that dealt with
critically ill newborns for referrals, and we organized a
network of parents who could be called upon to talk and provide
other support for parents experiencing that.
That group was a self-sustaining group that people
participated and other people came in for about 10 years, and
then it merged with another group in Phoenix, the group called
Pilot Parents, which is a broader organization for handicapped
children and the parents of handicapped children.
Through those activities, we have been able to share many
things with many people in our community that I hope would give
me, if I am given the opportunity to serve as a judge, to bring
that wisdom to bear.
Like Ms. Pratter, I have a particular sensitivity to the
effect on litigants of the cost of litigation. As an attorney
representing everyone from individuals to business entities,
I've seen too many cases where my clients simply elected not to
pursue a just claim or not to defend against what I thought was
an unjust claim because of the ability of opposing parties to
make the costs of that increase.
Judges cannot prevent that entirely, but they can play a
major role in administration of cases and getting them to a
quick and economical resolution. So that is a second area of
particular concern to me.
And, lastly, I would note a concern about the fear that
regular folks have about being involved in the court system.
This can often be witnesses and often litigants, and a judge
has a particular ability to be sensitive to that, to make that
easier and less stressful for people. So I think all of those
respond in one way or another to the very important values that
you are pointing to.
Senator Kyl. Well, I thank all of you for your answers. It
shows a breadth of experience and approach and a common thread
of concern for litigants in our system of justice, but bring
obviously different enriching experiences to the position. And
I think as I said, it is important for us to stress those
things when we explain to our constituents that we are
confirming people who are not only well schooled in the law but
also in life's experiences.
This is, I think, an extraordinary panel, and I am very
pleased to have presided over this hearing to hear from each of
you and give each of you an opportunity to share your views and
also, of course, to introduce those who mean a great deal to
you and who have supported you in your careers.
The next stage in the process will be that the full
Judiciary Committee will review this testimony and,
incidentally, have an opportunity to submit written questions
to you, to which, obviously, you should respond as quickly as
you can. There will be time afforded for additional statements
to be put into the record of this hearing by the members of the
Committee. And then after that, the full Committee will hold
what we call a markup, which is really a business session, at
which the nominees will be considered by the Committee and
either voted up or voted down--voted up, sent to the full
Senate for its consideration. And we hope that we can do this
in a fairly quick fashion.
Obviously, if you have any questions about the process, you
can be in touch with the Committee staff here, and they can
help work through that.
If there is nothing else from any member of the Committee
or any member of the panel, hearing nothing then I am going to
declare this meeting adjourned. But I again thank all of you
for being here today and I thank our participants on the panel.
This meeting is now adjourned.
[Whereupon, at 11:13 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF FRANKLIN S. VAN ANTWERPEN, OF PENNSYLVANIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE THIRD CIRCUIT
----------
WEDNESDAY, JANUARY 28, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter
presiding.
Present: Senator Specter.
Senator Specter. Good morning, ladies and gentlemen. The
Committee on the Judiciary will now proceed with the
President's nomination of Hon. Franklin S. Van Antwerpen to be
United States Circuit Judge for the Third Circuit.
My distinguished colleague, Senator Santorum, is present
and I will call on him first before making any comments as
Chairman to minimize his time and make a presentation.
Senator Santorum. I appreciate that. I usually yield to my
senior colleague, so I will, in turn, reverse back to you,
Senator, and certainly always enjoy listening to any comments
that you have on matters dealing with Pennsylvania, in
particular.
PRESENTATION OF FRANKLIN S. VAN ANTWERPEN, NOMINEE TO BE
CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. ARLEN SPECTER, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Well, we have a very talented jurist who
has been nominated for promotion from the United States
District Court to the Court of Appeals for the Third Circuit.
Judge Van Antwerpen has is bachelor's degree from the
University of Maine, his law degree from Temple. He was a
corporate lawyer for a time. He worked with the Northampton
County Legal Aid Society. He was a partner in a law firm. He
was on the Common Pleas Court from 1979 to 1987, and from 1987
to the present time he has been on the United States District
Court for the Eastern District of Pennsylvania.
I have come to know Judge Van Antwerpen very well. He is a
highly respected jurist. He has been very active in his
community and he brings the combination of education, academic
skills, practical experience. Very important, his work on the
Legal Aid Society, and he has done an outstanding job on the
Federal district court.
It is a relative rarity to be promoted to the Court of
Appeals for the Third Circuit, but when the vacancy arose
Senator Santorum and I conferred. We have made a practice of
having a bipartisan nominating panel. We have worked very hard
on the selection of Federal judges because of the importance of
the position.
Since Marbury v. Madison, the Federal courts control the
ultimate questions in our society, and the Supreme Court of the
United States makes the decisions on all of the cutting-edge
issues. And the Supreme Court, of course, can only reach so
many cases, which means that the courts of appeals are the
final arbiters of many, many very vital issues for our country.
The proposed constitutional amendment which I have had in
mind has not gone very far when I have suggested that Federal
judges run every 6 years and Senators serve for life. So we
have the situation where the lifetime appointments are of such
great importance. So Senator Santorum and I were really
delighted when the President followed our recommendation and
submitted Judge Van Antwerpen's name to the Judiciary
Committee.
Senator Santorum.
PRESENTATION OF FRANKLIN S. VAN ANTWERPEN, NOMINEE TO BE
CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. RICK SANTORUM, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman, and I too want
to thank the President for following our recommendation and
selecting Judge Van Antwerpen for this position. He has been
rated unanimously well-qualified by the ABA, which is not
necessarily my gold standard, but I think reflects at least
some body of thought that he has done an outstanding job in his
role as a judge in the Eastern District of Pennsylvania. As you
mentioned, he was unanimously confirmed by the United States
Senate for that position and has served with great distinction.
I know the judge is sitting back there saying, where is
everybody? And I would just suggest that the fewer, the better,
and that the relationship of the number of people sitting with
Senator Specter to the likelihood of confirmation is an inverse
relationship.
And so the fact that you don't see anybody out there lining
up to question all but guarantees your confirmation as far as I
am concerned. But it is so because of your outstanding work on
the bench.
This is a nominee that I know Senator Specter and I are
very, very excited about, comfortable with, and I think would
be a great addition to the Third Circuit. Senator Specter went
through his qualifications, so I don't need to do so. I just
want to thank him for his willingness to serve in the
judiciary, and particularly for his name being placed in
nomination.
This has been a rough road for many, but I am hopeful that
because of your outstanding service and your distinguished
record that you will have much success here, not only in
Committee but when it gets to the floor.
I want to commend my colleague, in particular, who if
Republicans stay in control is scheduled to be the next
Chairman of this Committee, for the work that he has done in
working, as he mentioned, in a bipartisan fashion.
We have had 15 nominees since President Bush took office
and we are 15-for-15 in getting our nominees confirmed. I think
that shows that we have worked together in a good spirit and
put very qualified people here before the Committee.
That is to your credit, Senator Specter, and your
leadership on that particular issue.
Thank you, Mr. Chairman.
Senator Specter. Well, thank you very much, Senator
Santorum. I think the comment you made about 15-for-15 is a
very important comment. The Constitution provides, beyond
consent, confirmation by the Senate, advise and consent. The
President has listened to our recommendations and we have put
forward nominees who have met with universal approval. So that
is what we intend to keep doing.
Thank you very much, Senator Santorum.
Judge Van Antwerpen, if you would step forward and raise
your right hand?
Do you swear that the testimony that you are about to give
before this Committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Judge Van Antwerpen. Yes, Senator, I do.
Senator Specter. As a United States District Judge for the
Eastern District of Pennsylvania, you have had extensive
experience as a Federal judge. How has that experience shaped
your views on the proper role of a Federal judge within our
legal, judicial, political system?
STATEMENT OF FRANKLIN S. VAN ANTWERPEN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT
Judge Van Antwerpen. Senator, I believe that the proper
role of a judge is to interpret the law and to apply the law.
The role of the other branches, the Congress, in particular, of
course, is to formulate policy in the law. Sometimes, the
executive branch promulgates administrative rules and
regulations.
We in the judiciary take that law and take those
regulations and apply them to given fact situations. I also
believe that the role of a judge is to take very seriously his
oath in doing equal justice to everyone, rich and poor, and to
try to have judicial temperament and preside fairly in all
matters.
[The biographical information of Judge Van Antwerpen
follows:]
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Senator Specter. What has been your most challenging case
while serving on the Federal district court?
Judge Van Antwerpen. I think I would have to say that the
most challenging case took place shortly after I went on the
bench, Senator. I was the judge that tried the entire
Philadelphia Mafia, all 18 of them at once, in a four- or five-
month trial. It was an extended proceeding. It was ultimately
affirmed on appeal. That took a great toll in terms of the
effort, the time involved, the judicial rulings that had to be
made, the research that went into it.
Senator Specter. Do you think it is tougher to be a
prosecutor who investigates and prosecutes organized crime than
to be a judge who sits on the bench and tries the defendants?
Judge Van Antwerpen. I think they are all tough jobs,
Senator. I couldn't really speak for one or the other, but--
Senator Specter. You haven't been a prosecutor.
Judge Van Antwerpen. Not really. I prosecuted--when I was
in private practice, I prosecuted on behalf of the
municipalities I represented, but those were only summary
offenses.
Senator Specter. You never prosecuted organized crime?
Judge Van Antwerpen. No, sir, but I--
Senator Specter. Well, I have never judged organized crime,
so we are even, Judge Van Antwerpen.
Judge Van Antwerpen. Thank you, sir. You certainly have a
distinguished record in prosecuting, sir.
Senator Specter. Your ability to constructively interact
with your fellow judges on the Third Circuit will be an
important element of your work. How will that be different from
your work as a district judge, where you made the decision
yourself? What role do you think collegiality plays in the
Federal bench, contrasting the circuit to the district court?
Judge Van Antwerpen. Collegiality, I believe, does play a
very important role. Quite obviously, a district judge can act
on his or her own. A circuit judge cannot really do anything
without getting at least one other circuit judge to go along
with you.
Senator Specter. Do you think that is harder or easier than
getting 50 other Senators to do along?
Judge Van Antwerpen. Senator, again, I wouldn't presume to
comment on the difficulties of your job, but you work very
hard, I am certain.
Senator Specter. You served as chief counsel for what is
now known as North Penn Legal Services. In our society, Judge,
how important do you think it is that legal services be
available for those who cannot afford it?
Judge Van Antwerpen. I think it is extremely important,
Senator. That is why I left a higher-paying job in New York
City to go to Northampton County and become the chief counsel
of the Legal Aid Society. That is why, even after I went into
private practice, I continued to do volunteer work for them.
Senator Specter. Without objection, the full statement of
Senator Leahy will appear in the record, and I think the last
paragraph is worth reading. Senator Leahy says, ``I look
forward to the testimony of Judge Franklin Van Antwerpen, who
has been nominated for the Third Circuit. I know of Senator
Specter's strong support for this nomination. In contrast to
many of President Bush's nominees, Judge Van Antwerpen comes to
us with a distinguished career on the bench both on the State
and Federal levels. I welcome him to the Committee,'' close
quote.
That is a good statement to have from the ranking Democrat,
Judge Van Antwerpen.
Judge Van Antwerpen. Yes, sir.
Senator Specter. I am going to ask you all the standard
questions that the Committee asks because it isn't really
unusual for someone presiding at a confirmation hearing, as I
am today, to be the sponsor of the nominee.
At first blush, it might appear that there would be a
conflict of interest or pre-judgment, but that is the way our
system works. But to touch all the bases, I am asking all the
questions which the staff has prepared. All the questions I
have asked are staff-prepared and I am going to ask you the
balance of them, as is the regular practice of the Committee.
Under what circumstances do you believe it appropriate for
a Federal court to declare a statute enacted by Congress
unconstitutional?
Judge Van Antwerpen. Well, we know that a statute enacted
by Congress has a presumption of validity. Obviously, if it is
shown to be unconstitutional and improper, then it would be
appropriate to do so, but the burden is on the person asserting
its unconstitutionality. It is not something that happens very
often, quite frankly.
Senator Specter. Have you ever declared an act of Congress
unconstitutional?
Judge Van Antwerpen. I have not, sir.
Senator Specter. The Supreme Court precedents are obviously
binding on all the Federal courts. Are you committed to
following the precedents of higher courts faithfully and giving
them full force and effect even if you personally disagree with
such precedents?
Judge Van Antwerpen. That is my obligation, Senator.
Senator Specter. What would you do if you believed the
Supreme Court had seriously erred in rendering a decision?
Would you nevertheless apply that decision or your own best
judgment on the merits?
Judge Van Antwerpen. Mr. Chairman, I would follow that
precedent. That is my obligation.
Senator Specter. These questions aren't too hard to answer,
are they, Judge Van Antwerpen?
If there was no controlling precedent dispositively
concluding an issue with which you were presented in your
circuit, what sources would you turn to to make your decision?
Judge Van Antwerpen. Well, of course, you still look at
precedent. You may not have something exactly on point, but you
look at the closest thing that you can find and you look at
what other courts have said with regard to that issue. If you
are dealing with an enactment by the Congress, there are many
things that you could look at in interpreting that
Congressional enactment. You could look at the records of the
floor debate. You would look at all the usual sources.
Senator Specter. Under what circumstances, if any, do you
believe an appellate court judge should overturn precedent
within his or her own circuit?
Judge Van Antwerpen. Well, in the Third Circuit there is an
internal working procedure whereby one panel does not overturn
the legal holding of another panel. Now, there can be
circumstances under which a different result would be reached.
For instance, if the precedent or legislation which had
prompted the first panel to rule changes--if there is a change
in the law, that can happen. In addition, you are often faced
with a similar but nevertheless different factual situation.
But other than that, the panels in the Third Circuit generally
follow this internal procedure.
Senator Specter. The Supreme Court of the United States--
this is my question--has cut back considerably on Congressional
authority. Since Lopez was overturned under the Commerce
Clause, the Supreme Court has adopted a doctrine of declaring
acts of Congress unconstitutional if they haven't been, quote,
``thought through,'' unquote.
I will not press you for an answer, but if you care to
offer an opinion as to the propriety of the Supreme Court
saying Congress hasn't thought it through. Who is the Supreme
Court to think it through, saying the Congress hasn't thought
it through?
Judge Van Antwerpen. That is a difficult question to
answer, Senator. As a district court judge, I don't really feel
it proper for me to comment on the actions of the Supreme
Court.
Senator Specter. You wouldn't want to criticize the Supreme
Court?
Judge Van Antwerpen. I am a district judge, sir.
Senator Specter. And you probably wouldn't want to
criticize Congress.
Judge Van Antwerpen. No, sir.
Senator Specter. So don't answer the question.
[Laughter.]
Judge Van Antwerpen. Yes, sir.
Senator Specter. If, as and when I become Chairman of this
Committee, I am going to go into that issue in some
considerable depth because I challenge the Court on that
determination of unconstitutionality.
If the Court says that a given clause of the Constitution
is violated by the Congress, as a district court in California
did yesterday on the PATRIOT Act, that is a judicial function--
vagueness, unconstitutionality. But on this ``thought through''
doctrine, I have grave reservations.
Back to the books, Judge Van Antwerpen.
Judge Van Antwerpen. Yes, sir.
Senator Specter. You have stated that you will be bound by
Supreme Court and, where applicable, the rulings of the Federal
court. There may be times when you will be faced with cases of
first impression. Well, I think you have already answered that.
With respect to case management, if confirmed, how do you
intend to manage your caseload?
Judge Van Antwerpen. Well, it is a somewhat different
system on the circuit court. As you know, a district judge has
to engage in case management as a big part of his or her job--
scheduling, moving cases, keeping track of them, making sure
they don't fall through the cracks.
On the circuit court, a lot more of that is done for you by
the clerk of the court, as you well know, Senator. And I think
that, nevertheless, you have to maintain internal controls in
your office to see to it that you get your opinions done and
out on a timely basis. I think my experience as a district
judge has taught me how to do that.
Senator Specter. With respect to judicial temperament, when
I was on this Committee for a very short time, there were two
Pennsylvania judges up for Federal appointment. This was 1982
and Senator Thurmond was presiding, sitting in this chair.
He said to the two judges, two judicial nominees, if you
confirmed, do you promise to be courteous, which, translated
from South Carolina, is, if confirmed, do you promise to be
courteous. And when I heard him ask that question, I thought it
wasn't exactly a penetrating question; what was the nominee
going to say but yes? And both said yes.
Then Senator Thurmond said, the more power a person has,
the more courteous the person should be; translated, the more
power a person has, the more courteous the person should be.
And I have come to regard that as a very profound statement,
perhaps the most profound statement which has been uttered from
a Senator during my tenure here, not that there is very heavy
competition for being profound.
I always ask that question, knowing what the answer will
be, as I haven't been surprised by any of your other answers,
Judge Van Antwerpen. Judges have commented to me with some
frequency over the years that they remember that question.
I have a lot of confidence in your judicial temperament. I
have seen you in action. But there is a quality--when a person
puts on that black robe, all the power that that person has,
and life tenure, there is a tendency to become impatient with
lawyers or litigants, witnesses. Very frequently, there is good
cause to be impatient and to be disgruntled. It is a very high
calling to maintain that level of courtesy.
So how would you answer Senator Thurmond's question?
Judge Van Antwerpen. Senator, I agree with you completely,
Mr. Chairman. It is a very important attribute, judicial
temperament. Judicial temperament is difficult to define, but
you know it when you see it, and one of the key factors in that
is being courteous and polite and respectful, listening to
lawyers, listening to witnesses, hearing them out.
There are times that as a district judge things can be
harried, as you noted, but I have always done my very best to
be polite to people and to be respectful.
Senator Specter. Well, I have great confidence in you on
that score, as all the other attributes, Judge Van Antwerpen.
I have made inquiries and I believe that your appointment
to the Court of Appeals for the Third Circuit will be the first
from the Lehigh Valley. Senator Santorum and I try to have
geographical distribution. You take the seat of a very, very
distinguished Federal judge, Edward R. Becker, who got the
Devitt Award last year as the outstanding Federal judge, a man
I have known for many years.
We rode the elevated PTC, Philadelphia Transportation
System, together to Penn many years ago. I will not cite the
year because I would not want to disclose Judge Becker's age.
Before that, Judge Max Rosen held the seat. We came back to a
different area when Judge Hutchinson was on the Third Circuit.
We rotate the district court judgeships and have a
bipartisan panel which makes recommendations, and then we turn
to the counties to give us their recommendations. We do not
make the selection in most cases, but turn to the counties to
tell us whom they would like to have, as we did in Lancaster
County for Judge Stengel, and to other counties, and recently
to Somerset County.
But I believe you will be the first circuit judge from the
Lehigh Valley. You have had very distinguished Federal judges--
Judge Kahn, who was chief judge.
Judge Van Antwerpen. Yes.
Senator Specter. Judge Gainey. Did you know Judge Gainey?
Judge Van Antwerpen. I came to the bar just as we he was
closing out his career. He died around 1969 or 1970.
Senator Specter. Judge Gainey was from Easton and was a
very impressive judge, handed down some very major decisions on
the antitrust electrical cases going back into the 1950's. As I
recollect it, he sent a lot of big-wheel executives to jail for
antitrust violations, something we ought to do with the people
who violate the antitrust laws on OPEC--another subject which I
hope to get into in some detail if, as and when I become
Chairman of this Committee.
Well, Judge Van Antwerpen, the paucity of Senators in
attendance here is a tribute to their confidence in you. Had
they had doubts, they would have been here to express them. We
have expedited your hearing, and I thank Senator Hatch for that
because it is going to be harder to confirm Federal judges as
we get closer to November, in an election year, and especially
harder to confirm circuit judges.
But we got Judge Fisher through in record time, and we got
Judge Brooks through, who was the only contested circuit judge
in 2002. And I am optimistic that we will be in your home
district on an induction ceremony in the fairly near future.
Judge would you introduce those who are with you?
Judge Van Antwerpen. Senator, thank you. I have brought
with me, first of all, my deputy clerk--they have all taken the
day off from work and they will put in for this time
appropriately so the Government won't be paying.
Anthony Tumminello is my deputy clerk. Next to him is
Amanda Kastello, one of my law clerks. Next to her is Tara
LaMorte, one of my law clerks. And the third law clerk is Renee
Sewchand, who is seated there.
Senator Specter. Does a man of your background and
erudition need three law clerks?
Judge Van Antwerpen. Well, Senator, it certainly helps with
the workload.
Senator Specter. Congratulations.
That concludes the hearing.
[Whereupon, at 10:32 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF WILLIAM GERRY MYERS III, OF VIRGINIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT; WILLIAM S. DUFFEY, JR., OF
GEORGIA, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
GEORGIA; AND LAWRENCE F. STENGEL, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
----------
THURSDAY, FEBRUARY 5, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. Larry E. Craig
presiding.
Present: Senators Craig, Hatch, Chambliss, Specter, Leahy,
Kennedy, Durbin, Feingold, Schumer, and Feinstein.
OPENING STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE
STATE OF IDAHO
Senator Craig. We would ask everyone to please take their
seats.
Well, let me thank you all for finding your way to the
House Judiciary Committee room this morning and a very special
thanks to the House Judiciary staff and Chairman Sensenbrenner
for allowing us to hold these judicial nomination hearings here
in the House chamber. I understand we are making a bit of
history this morning. To the staff's knowledge, this is the
first time that judicial nominees that are the responsibility
of the United States Senate have been heard in the House
chambers. So we are always pleased to make a little history,
and we might be doing that this morning.
This morning, we will hear testimony from three nominees;
one for the Ninth Circuit Court, William Myers III. He will be
the first panel.
The second panel will be made up of two District judges:
William Duffey for the Northern District of Georgia and William
Stengel for the Eastern District of Pennsylvania.
Because so many of our colleagues have joined us this
morning, let us get opening statements on behalf of these
nominees from all of our colleagues, and then we will ask the
nominees to come forward, I will administer to them their oath,
and we will proceed in that manner.
With that, let me turn, first, to the Ranking Member of the
Committee, Senator Pat Leahy of Vermont.
Senator.
Senator Leahy. Thank you, Mr. Chairman. Thank you for your
usual courtesy of holding up while I tried to find my way
around here. Those of our colleagues who have served in the
other body know their way around here better. I did not have
that privilege of serving in the House, and I still get lost.
But I noticed we have several members here who have an
interest, of course, the two Senators from Pennsylvania, the
two Senators from Georgia, and I understand we are going to be
joined by the other Senator from Idaho. I will withhold my
opening statement, Mr. Chairman, so as not to hold them up.
Senator Craig. Well, then, with that, let me turn to
certainly a distinguished member of this Committee, the senior
Senator from the State of Pennsylvania, Arlen Specter.
Senator.
PRESENTATION OF LAWRENCE F. STENGEL, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chair, and good
morning, ladies and gentlemen.
It is unique to have the Judiciary Committee of the Senate
on the House side, and I, for one, feel honored to be able to
sit on this dais. I have been in this room on a number of
occasions, but always as a witness. So it is nice to be a
member over here on the House side.
I have the honor and pleasure of presenting to this
Committee Hon. Lawrence F. Stengel, of Lancaster, for
confirmation for the United States District Court for the
Eastern District of Pennsylvania. Judge Stengel now serves as a
Common Pleas judge in Lancaster and has served with great
distinction for more than 13 years. He is a graduate of St.
Joseph's University, Philadelphia, the University of Pittsburgh
Law School. So he represents all factions, all geographical
areas of Pennsylvania.
Those were not the qualities which Senator Santorum and I
looked for when we made our recommendation to the President
that he be appointed to the bench. What we were looking for was
an outstanding academic record and professional record. He
practiced law in Pittsburgh for 5 years and came back to his
native Lancaster for 5 years until he was appointed to the
Common Pleas bench.
Senator Santorum and I have established a bipartisan--
really, a nonpartisan--Judicial Selection Panel to screen
candidates, and we rotate among the counties to give
representation, and once qualifications are established, and
they are outstanding with Judge Stengel, it is up to the county
to make the selection. We look to the county to tell us whom
they want for judge, and no litmus test, no ideology, just the
outstanding candidate and then a local selection.
We have established a station in Lancaster, which is not
had a judge recently, but I am pleased to confirm that Judge
Stengel has committed to sit in Lancaster. Senator Santorum and
I are interested in giving the litigants and the lawyers the
opportunity not to have to travel long distances to
Philadelphia or Pittsburgh or Wilkes-Barre or Scranton, so that
it is an added plus that Judge Stengel will be there to
facilitate the business of the court.
So I am delighted to be here this morning, Mr. Chairman,
and might I yield, at this point, to my distinguished
colleague, Senator Santorum?
Senator Craig. Thank you very much.
Let me turn to Senator Rick Santorum of the State of
Pennsylvania, please.
PRESENTATION OF LAWRENCE F. STENGEL, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman.
I was just whispering to Senator Crapo that one of the
great advantages of coming from Pennsylvania is having the
senior member of the Judiciary, which means you always go
first, and so I appreciate Senator Specter for many things, but
one is the ability to go first at these panels, where you
usually have very long lines here. I appreciate your seniority.
Let me also say I appreciate the fact that Senator Specter
has carried on now, for the many years he has been in the
United States Senate this concept of a nonpartisan Judicial
Selection Committee. And when we went through this process for
openings in the Eastern District, Senator Specter and I made it
known that one of the areas that we wanted to get nominees from
was from Lancaster County because Lancaster County, which is a
large county in the Eastern District, has a place for a Federal
judge to sit, but has not had a Federal judge recently. And
several names came forward from the panel but, without
question, the legal community in Lancaster came forward to us
and clearly stated their preference, on a bipartisan basis, for
a sitting Common Pleas judge in Lancaster, and that was Judge
Stengel.
We have rarely seen situations where the community has come
forward in such strong terms to recommend someone among their
ranks, and I think that just goes to show that the quality of
this man not just on the bench, but his community service, his
outstanding work as a husband and father, and this is someone
who I am very pleased to be here to introduce to this body.
Senator Specter has reviewed his record. I will not repeat
it, but it is the qualities that have made this man a good to
date that I assure the members of the Judiciary he will be an
excellent judge on the Eastern District.
Senator Craig. Thank you both very much.
I see we have been joined by Senator Kennedy and Senator
Durbin.
Senator Durbin, we are proceeding with open statements by
the Senators who are here to endorse their candidates. Do you
wish to make any statement prior?
Senator Durbin. I will waive an opening statement.
Thank you very much.
Senator Craig. Now, let me turn to those who are here to
speak on behalf of William Duffey for the Northern District of
Georgia, Saxby Chambliss, a member of this Committee.
Saxby? Senator Chambliss?
PRESENTATION OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. SAXBY
CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you very much, Mr. Chairman.
Senator Leahy, you mentioned those of us who served in the
House have an easier way maybe of finding our way over here. I
am reminded again this morning by some of my House colleagues
or former House colleagues that I have to come over here to get
a dose of reality every now and then. So they never forget to
remind me of that.
I am very pleased to be with my colleague, Senator Zell
Miller, here this morning to recommend to this panel the
confirmation of Bill Duffey, who is currently the U.S. attorney
for the Northern District of Georgia, for a judgeship position
on the bench of the Northern District of Georgia.
Bill Duffey has been a long-time good friend of mine but,
more importantly, I have known Bill Duffey as just one of the
more outstanding lawyers in our great State, and I am very
pleased to say that we are blessed with a number of great
lawyers, and Bill ranks up at the top. That is why he is in the
position that he is in today as U.S. attorney for the Northern
District.
Bill has long and distinguished legal career, beginning
when he joined the Air Force back in 1978. He was a member of
the JAG corps then and served his country in a very valiant
way. Bill continued in private practice for many years in South
Carolina and then moved to Atlanta, practiced with the very
prestigious law firm of King & Spalding in Atlanta, which is
now one of his partners, former U.S. Attorney General Griffin
Bell, among many other distinguished individuals.
Bill is certainly recognized by his peers as being an
outstanding lawyer. He was given the ABA rating, unanimous
rating, of well-qualified. So the gold standard certainly has
been met in Bill's case.
Bill has the support of his family who I would like to take
just a minute to introduce--his wife Betsy, his sons Charles
and Scott, who are with him today. And Bill will be quick to
tell you that his success is due, in large part, to the great
support that he has had from his family.
I could not be more proud of an individual being nominated
by my nonpartisan Committee that selects nominees. Senator
Miller has a representative on that committee, and it was the
unanimous recommendation of that Committee that Bill Duffey be
recommended for this position.
So I am very pleased to be here this morning to support my
good friend, an outstanding lawyer and an outstanding American,
Bill Duffey, for this confirmation.
Thank you.
Senator Craig. Senator, thank you very much. Now, let me
turn to Senator Zell Miller of the State of Georgia.
PRESENTATION OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. ZELL
MILLER, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Miller. Thank you, Mr. Chairman. I too am honored
to be here with my good friend and colleague, Senator
Chambliss, to present to you William S. Duffey, who has been
nominated by President Bush to be the United States District
Judge for Georgia's Northern District, where I live. And we
present him today as a fellow Georgian who has impeccable
credentials and who has strong support from all corners of the
State of Georgia.
Mr. Duffey is no stranger to this esteemed Committee. On
September the 4th, 2001, President Bush made an outstanding
choice by nominating Mr. Duffey to serve as United States
attorney for the Northern District of Georgia, and the Senate
confirmed his nomination unanimously. President Bush has done
well again by now nominating Mr Duffey to serve as United
States District Judge for Georgia's Northern District.
When I look at William Duffey and look at his career, I am
reminded of what Booker T. Washington once said, that ``nothing
ever comes to one that is worth having, except as a result of
hard work.'' William Duffey is a man who has worked very, very
hard indeed and who has served our State and our Nation well. I
know that he will do the same outstanding job for our country
as District Judge.
Senator Chambliss has already mentioned to you some of his
background, a member of the very prestigious King & Spalding
law firm in Atlanta, and he also talked about his experience
before that. But while at King & Spalding, Mr. Duffey was
involved in two very high-profile internal investigations, one
for EF Hutton, after the investment firm pleaded guilty to
fraud charges, and the other for Exxon, after the Valdez
disaster.
And then from 1994 to 1995, he served as deputy independent
counsel in charge of the Arkansas fees of the Whitewater
investigation. I mention this because you can see Mr. Duffey is
no stranger when it comes to handling and being involved in
tough issues and tough cases.
I would also like to note that Mr. Duffey has served as
chair of the Paul Coverdell Leadership Institute. The institute
was started by predecessor, the great Senator Paul Coverdell,
in 1996, as a way to find good leaders for elective office.
Mr. Duffey comes before you today not only highly
recommended by me and by Senator Chambliss, but also by many,
many others. I have heard some of his peers describe him as
very fair. I have heard him described as a straight shooter. I
have heard him described as a man of extraordinary ethics.
I know Mr. Duffey well, and I know that he has the skill
and the ability to serve ably in this judicial position. I hope
that this Committee and the full United States Senate will give
their vote of approval to William Duffey today, just as they
did, so wisely, back in 2001.
Thank you, Mr. Chairman.
Senator Craig. Zell, thank you very much for that opening
statement.
Now, let me turn to my colleague and partner from Idaho,
Senator Mike Crapo, to speak on behalf of William Myers for the
Ninth Circuit.
PRESENTATION OF WILLIAM GERRY MYERS III, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. MICHAEL CRAPO, A U.S.
SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you very much, Mr. Chairman, Senator
Craig.
I appreciate the opportunity to be with you here today to
recommend the confirmation of William G. Myers, III, to the
Ninth Circuit Court of Appeals. I have visited with many of the
members of the Committee personally and appreciate this
opportunity to meet with the Committee in its open session.
On May 15th, President Bush nominated Bill Myers to serve
as a judge on the Ninth Circuit Court of Appeals, the same
court where I clerked following my law school experience. Bill
would serve the vacancy created on the Circuit Court last year
when Judge Thomas Nelson, one of the two Idaho-based judges on
the Ninth Circuit, became a senior judge on the court.
The entire Idaho delegation supports this nomination, and
we appreciate your leadership, Senator Craig, in moving this
nomination through the Judiciary Committee.
Bill has the experience and the temperament which will
allow him to serve with distinction on the Ninth Circuit. As
legislative counsel to our former colleague, Senator Alan
Simpson, of Wyoming, Bill gained firsthand experience with the
very nominations process he is now going through.
Bill's experience as assistant to the Attorney General
during the first Bush administration will serve him well also.
I understand that his boss at that time, former Attorney
General Dick Thornberg, has endorsed Bill's nomination.
From there, Bill continued in the Executive Branch, serving
as deputy general counsel for programs at the Department of
Energy. Bill returned to the private sector in 1993, serving as
an advocate for Federal lands issues and also as a member of a
Boise law firm, where he handled litigation, legislative
advocacy and transactional work.
As an attorney, he has handled cases from the State Court
level to the U.S. District Court level, as well as at the
United States Supreme Court. Most recently, Bill served as
solicitor for the U.S. Department of Interior, a position for
which Senate confirmation was required and achieved.
Bill is also a past vice Chairman of the Public Lands and
Land Use Committee of the American Bar Association Section on
Environment, Energy and Resources. As those of us from the
Western States that make up the Ninth Circuit know, this
knowledge and firsthand experience with energy, agriculture and
public lands issues is certainly an asset, if not a
requirement, for a judge sitting on the Ninth Circuit Court of
Appeals. The public lands expertise is particularly key for a
State like Idaho, where 64 percent of the almost 34 million
acres is now owned by the Federal Government.
I am pleased to recognize the broad bipartisan support we
are seeing for this nomination from people who have worked with
Bill and know him well. This includes support from President
Bush, many members of Congress, former Senator Alan Simpson,
former U.S. Attorneys General Thornberg and Barr, President
Jimmy Carter's Interior Secretary and four-term Idaho Governor,
Democrat Cecil Andrus, and President Clinton's ambassador to
Ireland and two-term Wyoming Governor, Democrat Mike Sullivan.
I am also aware that there are certain special interest
groups that are expressing some criticism over this nomination.
It is important to note that this criticism is largely over the
policies advocated by the administrations or the clients that
Bill served as a requirement of his job. Such criticism has no
bearing on the experience, temperament or overall qualification
of Bill Myers himself to capably serve on the Ninth Circuit.
The size and caseload of the Ninth Circuit makes it even
more critical that vacancies are filled immediately. The Ninth
Circuit serves a population well over a third larger than the
next-largest circuit. The Ninth Circuit has the largest
caseload of any circuit. The median time for completing a case
decision in the Ninth Circuit is 14.4 months. The same appeal
would take 9.9 months in the Fifth Circuit or 8.5 months in the
Second Circuit. I have the fullest confidence that Bill Myers
possesses the qualities necessary to capably serve the citizens
of the Ninth Circuit, and I join my colleague, Senator Craig,
in urging this Committee to vote favorably on this nomination.
Thank you very much, Mr. Chairman.
Senator Craig. Mike, thank you very much for that
testimony.
We have been joined by our colleague, Senator Feingold. Do
you wish to make any opening comment prior?
Senator Feingold. Mr. Chairman, I will defer and ask
questions.
Senator Craig. Thank you, Mike.
We will proceed then with our first panel. Let me then,
prior to calling any of our nominees forward, turn to the
senior Ranking Member on this Committee, Senator Pat Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. As I said, I know
the other Senators have to come and go. You and I have to stay,
so I waived my opening statement earlier.
This is interesting what is happening. I recall, after the
attacks of September 11th, and the anthrax letters in October
2001, we continued to work. I held hearings, even though I had
received one of those letters, we held hearings in the Capitol.
One of the nominees actually had to drive here because the
flights were cancelled, and we are now under major
inconvenience in the Senate with office buildings closed. One
will open in a few hours, the others not until later this week
or next week.
So I commend all of the Senators on both sides of the aisle
who have worked hard to make sure we can go forward with this,
and I commend you, Mr. Chairman, for doing it.
I look forward to the testimony of William Myers to the
Ninth Circuit Court of Appeals, and I think that it is
extremely important that this Committee in the Senate realize
what is involved with our advise and consent. It is important
to recognize the Senate has already confirmed 171 of President
Bush's judicial nominees. In the 17 months, when the Democrats
were in the majority, I was Chairman, we confirmed 100 of
President Bush's nominees. In the other 20 months that the
Republicans have been in charge, another 71 were confirmed. So
we have confirmed them in record number. That is in sharp
contrast to the way President Clinton's nominees were held up,
usually, if one or two people objected.
Every one of the judges, no matter what level they are,
they have lifetime appointments. They are going to have a major
impact on our Nation. William Myers has been nominated to the
Circuit Court with an expansive reach. The Ninth Circuit, as
the Chairman knows better than anybody else sitting here right
now, encompasses Arizona, California, Hawaii, Idaho, Montana,
Nevada, Oregon and Washington.
In addition to the tens of millions of people within those
States, there are hundreds of millions of acres of public land.
It plays an enormous role--the court does--in interpreting and
applying a broad range of environmental rules and protections.
Now, those rules are important not just to us today, but to
millions of Americans yet to be born and have come under
increasing attack, I believe, during this administration. We
want to know if Mr. Myers' nomination fits into the pattern of
actions by the President to roll back our environmental laws.
What are at stake are environmental protections which can
be struck down. Taxpayers do not pay polluters, according to
the extreme expanse of the Takings Clause that some judges have
begun to adopt. we would want to know what Mr. Myers'
understanding of the Takings Clause is and whether he intends
to force taxpayers to pay whenever a regulation affects land
use in some ways and what standards will he use in deciding
these matters.
We want to know whether he endorses an interpretation of
the Constitution that prevents citizens from suing their States
if there are environmental violations. What is at stake, of
course, is whether citizens can sue for environmental
protection.
In the era of ballooning Government deficits and cuts in
environmental enforcement budgets, there is much at stake if
courts eliminate or minimize the critical role of private
attorneys general, who are needed to ensure that polluters are
complying with Federal mandates.
A judge has a duty to enforce protections imposed by
environmental laws. The Senate has a duty to make sure that we
do not put judges on the bench whose activism and personal
ideology will prevent fair and impartial adjudication.
The President has sent the Senate an unusually large
number, and I have been here for 30 years, both Republican and
Democratic Presidents, and I have never seen such a large
number of judicial nominees who seem to be ends oriented in
their approach to the law. Some appear to be too extreme, and
they have not gone through.
Now, we are seeing nominees who many feel are being awarded
lifetime appointments to the Federal Courts as part of a spoil
system for those who are well-connected, and I am sad to report
that many of my concerns about the President's nominees have
already been borne out in the short time they have been on the
bench. They have shown them selves to be judicial activists and
ends oriented, issuing troubling opinions on civil rights,
constitutional liberties and environmental protections. It was
a Bush-appointed judge who dissented from the Circuit Court's
decision to enjoin logging while a lawsuit by environmental
groups challenged the implementation of a U.S. Forest Service
restoration project involving timber sales in the Sierra Nevada
Mountains.
So I look at his record. I want to explore his time at the
Department of Interior. I notice that his hometown newspaper,
his hometown newspaper, where they know him best, opined that
the solicitor at the Department of Interior, ``Myers sounds
less like an attorney and more like an apologist for his old
friends in the cattle industry.'' These are matters that we
have to explore.
Now, there are those who have supported him. There are also
letters of opposition from more than 90 groups or advocates for
civil rights, disability rights, senior citizens, women's
rights, human rights, Native Americans and the environment,
actually, the unprecedented step of the National Congress of
American Indians, representing more than 250 Tribal Governments
has come out in opposition to the nominee.
I know that Mr. Myers has never tried a jury case, never
served as counsel in any criminal litigation, as far as I know,
and that is probably why the American Bar Association gave him
its lowest passing grade. We have to think about that.
So, to go back to something that the Chairman said, we are
operating under unusual circumstances, and I do not think we
have held a hearing in this hearing room before. The Senate
has. I think Chairman Sensenbrenner, and Mr. Conyers, and the
members of the House Judiciary deserve a lot of thanks for
their hospitality and also the staff, both the Republican and
Democratic staff, of the House who suddenly have these
interlopers, I appreciate what they have done.
So thank you, Mr. Chairman.
Senator Craig. Thank you, Senator, for that opening
statement.
Senator Kennedy has now joined us. Do you wish to make an
opening statement?
Senator Kennedy. No. Thank you very much.
Senator Craig. Well, then let me ask our nominee for the
Ninth Circuit, William Myers, to please come forward.
Mr. Myers, while you are standing, let me administer the
oath. Would you please raise your right hand.
Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Mr. Myers. I do.
PRESENTATION OF WILLIAM GERRY MYERS III, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. LARRY CRAIG, A U.S.
SENATOR FROM THE STATE OF IDAHO
Senator Craig. Please be seated.
Before I ask you to make any opening comments you would
wish to make and to introduce your family, I will make my
opening comment in your behalf.
To my colleagues, and to those of you assembled, I have the
honor and the pleasure this morning of chairing a Committee
while it considers the nomination of my good friend, William G.
Myers, III, to be a Circuit Judge on the Ninth Circuit.
Bill, welcome to the Committee. I trust you will find it
friendly, but probably very probative. I look forward to
hearing your testimony. I would also like to welcome another
good friend who has already given his testimony, Mike Crapo,
who has joined us this morning, and he expressed on behalf of
all of the Idaho Congressional delegation its unanimity of
support on behalf of Bill Myers.
Bill Myers was nominated by the President on May 15th,
2003, for this extraordinary opportunity to serve the United
States as a Circuit Judge. As you know, our State of Idaho, as
Senator Leahy mentioned, resides within the Ninth Circuit.
Bill's chambers will be in Boise, Idaho. Once confirmed, Bill
will fill the vacancy created by Judge Thomas Nelson. Senator
Crapo has already spoken to the senior judge and his taking
senior status. Judge Nelson has served our country and the
Ninth Circuit very honorably.
I feel Bill's experience in the three branches of
Government will serve him well as a judge.
First, he served this body--by that I mean the Senate--when
he was lured to Washington, D.C., by Senator Alan Simpson. One
of Bill's key responsibilities was to staff Senator Simpson as
a member of this Committee, including nominations to the very
court to which Bill now aspires. Bill staffed the nomination of
Judge Stephen Trott of the Ninth Circuit, whose chambers are
also in Idaho. And Al Simpson endorses the nomination of Bill,
and I ask that his letter become a part of the record.
Second, after working in the Senate, Bill began his first
tour of duty in the Executive Branch, first, as an assistant to
Attorney General of the United States Dick Thornberg. Senator
Crapo has already mentioned that, and later, as deputy general
counsel for Programs at the Department of Energy. Former
Attorneys General Dick Thornberg and William Barr endorse
Bill's nomination, and I will make their letters a part of the
record.
Recently, Bill completed another appointment to the
Executive Branch as solicitor at the Department of Interior,
where he was the third-ranking official in the Department and
in charge of over 300 attorneys. President Carter's Secretary
of Interior and of course Governor of Idaho, Cecil Andrus,
endorses Bill's nomination, and his letter will become a part
of the record.
Let me also add to that record letters from Quapaw Tribe of
Oklahoma, the Chickasaw Nation, bipartisan letters from 15
attorneys general, the Governor of our State, Governor Dirk
Kempthorne, and Michael Dennis, director of Conservation, Real
Estate and Private Lands for the Nature Conservancy. I believe
those letters demonstrate a phenomenally broad base of support
that William Myers received.
Third, as a private practitioner, Bill has represented
clients before the justice of the peace and the Justices of the
Supreme Court in a wide variety of litigation and transactional
matters. This diversity of practice is important. It has imbued
Bill with one of the fundamental precepts of our constitutional
system of Government, separation of powers. Perhaps nowhere is
the importance of this bedrock principle more important than in
the judiciary. Because judges are not elected and serve for
life, they have the greatest opportunity to usurp the authority
of the other branches. I am convinced that Bill understands and
respects, from years of firsthand experience, the
constitutional role given to each branch.
As Thomas Jefferson said, I had rather ask an enlargement
of power from the Nation, where it is found necessary, than to
assume it by judicial construction which would make our powers
boundless.
Now, let me tell you a little bit about Bill Myers, as I
know him personally. I came to know Bill well when he
represented the cattlemen and women in the early 1990's. He was
a reasonable and effective voice for his clients who comprise
the single-largest sector of America's agricultural economy,
but the call of the West became too strong to ignore, and Bill
and his family moved to Idaho.
Returning to private practice in one of the country's
preeminent law firms, Bill continued to dutifully represent his
clients, as all lawyers must. When the Bush-Cheney
administration took office, Bill told me he was willing to
again serve the public, and I prevailed upon him to seek and
become the solicitor at the Department of Interior. The
President nominated Bill for that post, with the advice and the
consent of the Senate. He took office on July of 2001.
A few critics of this administration's natural resource
policies would have you believe that Bill should not be
confirmed. They bandy about perceived wrongs, in my opinion,
but all they have demonstrated, with certainty, is two truths;
that, first, the solicitor is the chief legal officer in a
department that is controversial in every administration by the
very nature of its mission and, second, these critics desire to
capture the judiciary by opposing nominees who do not display
activist tendencies that might work to their advantage.
The second point I wish to remind these critics of the sage
advice of a Founding Father by the name of Alexander Hamilton,
when he wrote that ``Considered men of every description ought
to prize whatever will tend to beget or fortify integrity and
moderation in the courts, as no man can be sure that he may not
be tomorrow the victim of a spirit of justice by which he may
be a gainer today.''
Critics of the nomination purposely confuse the appropriate
role of the lawyer and the judge by suggesting that Bill Myers
has been a strong advocate of his clients. He will continue to
advocate from the bench, they would suggest. Of course, they
offer nothing but supposition in support of this logic.
If their theory were correct, no practitioner would be
qualified to serve the judiciary, and their fears are allayed
by a fair review of Bill's public service. His record as
solicitor shows balance and mainstream decisionmaking; for
example, opposition to trespass to innholders in the National
Parks of Alaska, empowerment of trespass livestock on the
Federal lands of Nevada, expansion of a national monument in
New York, support for reinternment of Native American remains,
recognition of tribal boundary rights in New Mexico, record
penalties for failure of companies to pay gas royalties,
support of settlements of trial water rights claims, enhanced
payments of royalties on the outer continental shelf.
Bill brought to the Office of the Solicitor the skills he
honed in the private practice and in public service. He
displayed the integrity, intelligence and temperament essential
in good governing and absolutely critical in good judging.
The President recognized these qualities again by
nominating Bill Myers to this judgeship. Leaders in the field
of law have written to the Committee supporting Bill's
qualifications to be a circuit judge. I ask that their letters
become a part of the record. They include Congressman Henry
Hyde, Wyoming Supreme Justice Marilyn Kite, attorney general of
the State of Idaho, Lawrence Wasden, Chairman Carol Dinkins,
for the ABA Committee of the Federal Judiciary.
I thank you. I am proud to bear witness on behalf of Bill
Myers to be the next Ninth Circuit judge in Idaho. Presidents,
Attorneys General, Cabinet Secretaries, Senators and enumerable
clients have all reposed special trust and confidence in Bill's
integrity, his intelligence and his temperament. These
qualities are the standards the Senate has used to measure the
worth of judicial nominees since the founding of this great
Republic. I wholeheartedly recommend that we consent to this
nomination, and I offer this testimony to all of my colleagues
and to the entire Senate.
With that, Mr. Myers, let us turn to you for any opening
comments you would like to make, and I would trust that you
might want to introduce that marvelous family of yours.
STATEMENT OF WILLIAM GERRY MYERS III, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Mr. Myers. Thank you, Senator. I appreciate that
opportunity, and I want to thank the Committee for holding this
hearing. It is an inconvenience for you to come to the House
side, given current events. I know it is extraordinary, and I
appreciate that.
I would take advantage of the chance to introduce my
family, if I might. Behind me, I have my mother and father,
Ruby and Gerry Myers, and seated next them are my wife, Sue
Myers, my daughters Kate and Molly, and then next to Kate is my
mother-in-law Pat Benzer, and behind her, my sister-in-law,
Linda Benzer.
Senator Craig. Thank you. We welcome you to the Committee.
Please proceed.
Mr. Myers. I have no opening statement, Senator. I stand
for questions.
[The biographical information of Mr. Myers follows:]
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Senator Craig. Well, thank you very much for consenting to
be nominated, first, Bill, to the Ninth Circuit. It is a
controversial court. In fact, some judges on the Supreme Court
would suggest that it has become the most dysfunctional Circuit
Court in the Nation. I guess they measure that on the number of
cases brought from the Circuit to the Supreme Court that they
have overturned.
You have heard, by opening statements of my colleague,
Senator Leahy, that there are questions of your record brought
by a variety of groups from across the country. So, in my first
10 minutes of questioning, let me touch on a couple of areas
that I would like you to respond to.
Too often we hear various interest groups, opposed to
particular judicial nominees, issue sound-bite attacks that are
backed up by nothing more than probably the shrillness of their
rhetoric. Such is the case, I think, with you, Mr. Myers, as
being viewed by some as anti-environmental. So let me proceed
with questions in that area in my first round.
For example, Mr. Myers, have you not worked as a volunteer
in seven different national parks, probably logging more hours
of total volunteerism than any nominee we have ever had before
this Committee?
Mr. Myers. Well, I certainly don't know about the other
nominees, but, yes, you are correct, Senator. I have spent a
fair amount of time volunteering for both the National Park
Service and occasionally for the national forest in the U.S.
Forest Service System. I think, as I looked back in preparation
for this hearing, at the time, I was surprised myself as to the
amount of time I have put in. Over the last 15 years, I have
averaged about 12 days a year in volunteer work on such things
as campground cleanups, trail maintenance, visitor services and
information, back country patrols and the like. It has been a
wonderful opportunity to get outside and enjoy the grandeur of
our National park system and do a little bit for the Park
Service.
Senator Craig. I hope you took your daughters with you.
Mr. Myers. Most of that was before children, when I had the
time to go.
[Laughter.]
Senator Craig. All right. As Interior Department solicitor,
you successfully settled numerous cases brought by
environmental groups against the Federal Government.
Can you tell us about a few of the high-profile disputes
that you settled in favor of environmental groups, such as the
Penobscot--I can usually handle Western Indian names, but not
always--Penobscot River matter in Maine, that $49-million
settlement with Shell Oil based on its activities in the Gulf
and the expansion of Governor's Island National Monument in New
York Harbor. Touch on those different cases, if you would,
please, for the record.
Mr. Myers. The first one that you mentioned, Senator,
involved the Lower Penobscot River, which is home to the
Penobscot Indian Nation. It also happens to be the location of
eight power projects, hydropower projects, and three dams. It
also would have been, historically, the run for Atlantic salmon
and some fish that are perhaps not as charismatic, such as the
Atlantic eel and the Atlantic shad. Because of the dams, those
passages were blocked to the migrating salmon.
A deal was worked out, while I was at the Department of
Interior as solicitor, with the involvement within the
Department of the Park Service, the Bureau of Indian Affairs,
the Fish and Wildlife Service, and the Indian Nation, the hydro
interests that were present on the river and the State of
Maine. We were able to reach an accord and establish a system
of going forward whereby those three dams will either be
removed or significantly altered to allow for fish passage.
We also provided for compensation and mitigation to the
Indian Nations for any impact that might have on them, and I
think it was a good example of a project which, by virtue of
collaboration and a lot of time around the table, hammered out
quite an extraordinary deal to bring about an expansion of that
fish passage.
The other one I believe you mentioned was the Shell Oil
matter in the Gulf of Mexico. It came to light that the company
had been flaring gas from one of its off-shore platforms
without permission of the Federal Government and without
keeping adequate records of that flaring. Once that was
discovered, we obviously were quite concerned at the Department
of Interior, worked with the Department of Justice, and as a
result of that, we were able to reach a settlement which
involved a record payment in the history of the Minerals
Management Service by a company for these types of violations.
It was $49 million in payment for the illegal activity, for the
loss of the natural gas, for the failure to maintain adequate
records. In addition, the company agreed going forward to get
its recordkeeping in order and to no longer flare that gas
illegally. The coffers of the Treasury were enhanced by $49
million.
The final example that you raised was Governor's Island
National Monument, which is in New York Harbor. It is a
wonderful island that most people only see perhaps as tourists
when they travel between the mainland or Manhattan Island and
Ellis Island and the Statue of Liberty. It was originally a
fortress built for the protection of the harbor and the river,
and includes Castle Williams and Fort Jay that date back to the
early 1800's.
It has been in Federal hands for some 200 years, but the
decision was made by President Clinton to place a portion of
the island in National Monument status. When this
administration came in, we supported that designation, but we
discovered that because of a statute that was on the books, the
statute required, in spite of the monument designation, that
the island be sold with a right of first refusal to either the
City or State of New York. We were able to work with the City
and State of New York, arrange for the transfer in order to
meet the legalities of the statute, in essentially a
simultaneous transfer back that not only maintained the
original monument, but actually increased the acreage to obtain
some additional property that was crucial for the monument's
protection.
Senator Craig. Well, thank you very much.
Let me point out that in the Colvin v. Snow, and several
other similar cases, you specifically authorized the regional
solicitor in Nevada to seek enforcement actions against
ranchers who refused to pay applicable grazing fees for their
use of public lands, and you did not support the Government's
pursuit of a preliminary injunction against a farmer that had
destroyed Marble Creek, one of the last natural streams flowing
out of the National Forest System lands in California's White
Mountains, by entering onto public lands with a bulldozer and
replacing the sediments in the creek with a pipeline.
Would you speak to those examples of actions you took as
solicitor.
Mr. Myers. Certainly, Senator. I appreciate that question.
Both of them deal with ranching on BLM lands.
The first one was a standard trespass action, if you will.
Occasionally--rarely, thankfully--ranchers who utilize Federal
lands will allow their livestock to trespass off of the area
that is designated for them by the Bureau of Land Management or
the U.S. Forest Service. When that happens, it is a trespass
because those livestock are grazing where they should not be.
In the Colvin matter, that came to our attention. It was
brought to my attention, and I said, certainly, let's prosecute
this. It is important I think to establish that so that other
ranchers who might consider similar trespass actions know that
that is not permitted.
The second example is a little more dramatic, frankly. That
was entitled, a case, of Harris v. United States in which a
rancher, while administrative litigation and settlement
discussions were pending, decided to exercise self-help and
took a bulldozer to a creek, approximately a quarter-mile
stretch of the creek, wiping out obviously the riparian
habitat, destroying the creek, and he then went on to install a
pipeline to divert the water for his livestock use. In order to
access the creek, he took out about--oh, I don't remember the
exact reach--but a 15-year-old fence that was between his
bulldozer and the creek.
When BLM personnel discovered this, they immediately came
to us. We went to the Department of Justice, requested that a
motion for a preliminary injunction be filed in the Federal
Court to enjoin Rancher Harris from further such activity to
prohibit him from approaching that creek with anything more
than a shovel, in order to maintain a ditch right that he had,
to give the BLM a day's notice before he would go to his
allotment and to be prepared to pay the damages. The Court has
entered that injunction.
Senator Craig. Well, my time is almost up, so I am going to
move on to our other colleagues. We are using 10 minutes so
that we can move through those of you who have assembled. So
let me first turn to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Mr. Myers, I think, as you know, of course, you are being
considered for this position as a Federal judge, one whose job
it is to interpret our Federal statutes and apply Federal laws,
and you made some pretty significant statements about the role
of the Federal Government with regard to protecting the
environment, and they do trouble me.
You wrote, for example, that the Government's ``endless
promulgation of statutes and regulations harm the very
environment it purports to protect.''
You have also compared the Federal management of public
lands to King George's tyrannical reign over the 13 Colonies,
asserting that public land safeguards the fueling of a modern-
day revolution in the American West.
Which statutes and regulations were you referring to?
Mr. Myers. Senator, those comments, that was approximately
1995, I believe.
Senator Leahy. It was 1995.
Mr. Myers. And at that time, I was representing Federal
Lands' livestock interest and writing on their behalf. I was
not referring to a specific statute or regulation. It was more
of a tenor that a certain element of the industry believed was
the case and that they were concerned on the assumption--and I
think correct assumption that the vast majority are law-abiding
citizens--that they were concerned that regulations intended to
properly punish wrongdoers were having an adverse impact on
their ability to lawfully ranch on Federal lands and, as a
result, was making it more difficult for them to--
Senator Leahy. Mr. Myers, that is not really answering the
question.
I look at this statement, and having been born in part of
the area that was originally part of one of the 13 Colonies,
and we still think of history as being recent where I come
from, I still want to know, I mean, there must be something in
here if you are going to compare our Government, and its
regulations, and its statutes to King George's reign over the
13 Colonies. I mean, you just cannot say, well, generally. You
know, you would not accept that if you were in a court. You
would not accept that from a lawyer.
This is a pretty explosive statement. Can you give me even
one, even one statute or regulation you were referring to that
equates the U.S. Government to King George's tyrannical reign
over the 13 Colonies?
Mr. Myers. Putting that article in the context of the time,
that was the year that the regulations came out from the
Department of Interior significantly changing the way that
ranchers would operate on Federal lands, and it was in the
context of that setting that ranchers were concerned about the
impact of those particular regulations.
When I said or made the statement that there was concern
about the tyranny of the regulations, it was not in reference
to Government employees or--
Senator Leahy. I am not suggesting that. I mean, we are
talking about our Government.
Mr. Myers. Right. It was--
Senator Leahy. I love our Government. I respect our
country, and to have our Government referred to as being like
King George's time, it sort of strikes this Vermonter, well,
with some apprehension. I am not suggesting you are nailing the
loyal, hardworking employees and all. All I want to know is, I
mean, tell us which statutes and regulations you believe are so
harmful and unneeded that they make us like King George. I
mean, words have meaning, Mr. Myers, and you are a very
intelligent man, and when somebody goes and makes a statement
that goes that far, I mean, you must have something that you
are basing it on.
Mr. Myers. Other phrases which were not of my authorship,
but had been used in that time, were ``Sage Brush Rebellion,''
``War on the West,'' and it was all--
Senator Leahy. Mr. Myers, these are not the people who were
up here for--I really wish you would answer my question. I do
not care what other people said. What statutes and regulations
were so harmful or unneeded?
Mr. Myers. It was in the context of the regulations of
Secretary Babbitt regarding rangeland reform. It was called
``Rangeland Reform 1994,'' and this was 1995.
Senator Leahy. So that was unneeded?
Mr. Myers. No, Senator, my point was that the overall
approach of the regulations was having an adverse impact on the
vast majority of the people that I was representing, at least
in their perception. That is what they told me, and that was
the message that they asked me to carry forward.
Senator Leahy. So this was not your thought. I mean, which
is it?
Mr. Myers. I was writing--
Senator Leahy. So you are not prepared to identify any
statutes or regulations that you felt were totally unneeded and
may still be on the books.
Mr. Myers. It was in the context of the rangeland reform
regulations that I wrote that.
Senator Leahy. So you felt those were unneeded, harmful. I
am not trying to put words in your mouth. I am trying to figure
out what you were meaning.
Mr. Myers. I was advocating on behalf of my clients who
believed that they were harmful to their business.
Senator Leahy. Well, let's go to another point. How are we
on time, Mr. Chairman?
Senator Craig. You have got about four left.
Senator Leahy. Mr. Myers, you made a statement in a
Hastings Law Review article about special interest groups
working on environmental issues. Let me quote what you said.
You said, ``Like water searching for the path of least
resistance, interest groups will seek the path of least
governmental resistance. If the organizations are unable to
fulfill their agenda through legislation and the executive
branch, then they will focus their efforts on litigation that
may provide a favorable judgment. The conventional wisdom of
lobbyists holds that chances of obtaining a favorable judgment
increase when judicial nominees are confirmed who are
sympathetic, either through judicial philosophy or political
philosophy, to the causes of that group.''
Now, you spent most of your career as a lobbyist or
activist in anti-environmental efforts. I mean, it seems to me
you are writing about yourself in there.
Now, having said that, why should we feel that you are
going to stand and be objective and not be the person you are
advocating for who would be in sympathy with interest groups
you have represented for so long?
Mr. Myers. I believe it is the great strength of our
judicial system that, while the conventional wisdom is that you
look for a friendly judge, quite often that effort is
disappointed because judges who are on the bench do an
excellent job of disregarding public appeal or personal opinion
and apply the law to the facts.
So while I do think that that conventional wisdom holds
within advocacy groups, it is my belief that it is often
disappointed. And I can assure you that if I am so fortunate as
to be confirmed, it will not play a role in my decisionmaking.
Senator Leahy. Well, I will have other questions that I
will submit for the record, but I have the same test, and I
have used this for 29 years here with judicial nominees. And I
have voted for and against nominees of both Republican and
Democratic Presidents. I do not give an automatic pass even if
it is a President of my own party.
I ask for a judge, if a litigant walks into that courtroom
that--it doesn't make any difference whether that litigant
looks at the judge and thinks, well, gee, I am the wrong
political party, I have the wrong political philosophy, I am
the plaintiff or I am the defendant, or I am rich or I am poor,
black, white, whatever. I think they look at the judge and say
I want to get a fair hearing. Win, lose, or draw, it is going
to be a fair hearing. And to get my vote, you are going to have
to convince me that everybody, both those who advocated for and
those you advocated against--it is basically very clear who you
advocated for. But a lot of people come to the courts from the
side you advocated against, that they are going to get a fair
hearing from you.
Thank you, Mr. Chairman.
Senator Craig. Thank you, Senator.
Now let me turn to Senator Ted Kennedy. Ted?
Senator Kennedy. Thank you, Mr. Chairman.
Welcome, Mr. Myers. We are going to try and get over the
fact that you work for Al Simpson.
Mr. Myers. Thank you, Senator.
Senator Kennedy. That is a big, big burden.
Actually, as you know, he has been a good friend and
someone all of us have a good deal of admiration and respect
for.
Senator Craig. Then we are trusting that all of you will
take Al's advice in this matter?
Senator Kennedy. We are always glad to listen.
[Laughter.]
Senator Leahy. If he had nominated Al, it may be a
different thing.
Senator Kennedy. Thank you.
In 2001, as the Solicitor General of the Interior
Department, you issued a formal opinion that undercut the
Interior Department's ability to limit mining that harmed
public lands, and that opinion paved the way for a foreign
company to erect a 1,650-acre open-pit gold mine in the heart
of a California desert conservation area in America's most
culturally and ecologically sensitive areas. The previous
administration had decided not to permit the mine, known as the
Glamis Imperial Gold Mine, because as described by the Advisory
Council on Historic Preservation, allowing the mine to be built
would mean that the Quechan Tribe's ability to practice their
sacred traditions as a living part of their community life and
development would be lost.
As a result, under the previous administration, the
Interior Department concluded that the mine would violate the
Federal Land Policy Management Act, which prohibits mining that
causes unnecessary or undue degradation of Federal lands. And
under the FLPMA, the Interior Department has a duty to protect
the public lands from mining that cause either unnecessary or
undue degradation. However, your opinion as the Solicitor
General concluded that the words ``unnecessary or undue''
actually meant their exact opposite, ``unnecessary and undue.''
And in the case of the Glamis Gold Mine, your
interpretation meant that although the open-pit mine would have
caused undue degradation of America's public lands, it was
legal because it was necessary to the foreign mining interests.
A Federal court recently concluded that your opinion
misconstrued the clear mandate of the FLPMA, which by its plain
terms vests the Secretary of the Interior with the authority,
indeed the obligation to disapprove of an otherwise permissible
mining operation because the operation, though necessary for
mining, would unduly harm or degrade the public land. The court
also held that you ignored well-established canons of statutory
construction.
Those are the two observations, including the basic rules
that Congressional language should be given its ordinary
meaning and every word should be given effect whenever
possible. The court concluded that in enacting the FLPMA,
Congress' intent was clear. Interior is to prevent not only
unnecessary degradation but also degradation that, while
necessary to mining, is undue or excessive.
I am troubled by the implication of your view that under
the FLPMA the Interior Department could prevent only mining
that is both unnecessary and undue. Under your reading of the
law, the Act wouldn't not prevent even the most environmentally
devastating mining efforts unless those efforts were completely
unnecessary to the mining operation.
Since we can expect that mining companies will act in their
own self-interest and will not engage in unnecessary efforts,
it is hard to see how your view of the law would prohibit any
mining efforts at all.
So doesn't your interpretation of the FLPMA pull the rug
out from under the requirements that the Interior Department
protect the Federal lands?
Mr. Myers. Thank you, Senator, for the question. Let me
address that.
The decision that you refer to, a recent decision by Judge
Kennedy in the district court, looked at a facial challenge to
the regulations that were promulgated by the Department of the
Interior in 2001 dealing with this kind of mining activity. The
judge ruled in favor of the Department, finding that the
regulations were valid because they would not allow undue or
unnecessary impairment of the public lands. And the
Department's regulations were promulgated in some part because
of my opinion that preceded them. So the Department, my client,
felt vindicated by the judge's decision.
With regard to the specifics of the issue, in my opinion, I
did find some ambiguity in that key phrase. The first
administration to define that phrase was the Carter
administration in 1980 when it promulgated the regulations
after the passage of FLPMA, or the Federal Lands Policy
Management Act, in 1976. That regulatory definition for
unnecessary or undue impairment withstood the test of time for
some two decades and never received a Federal court challenge.
In the year 2000, that Carter administration definition was
changed with the addition of a standard known as the
substantial irreparable harm standard. And in my opinion, that
was the focus. Was the addition of the substantial irreparable
harm standard in faithful compliance with the underlying
statute? In my opinion it was not, and the Department of the
Interior removed that standard and the court approved that
decision.
Senator Kennedy. Well, the court said, with regard to your
opinion, ``misconstrued the clear mandate, which by its plain
terms''--that is about as tough a comment about a position, in
terms of the court. And then, to continue, the court also held
that you ignored the well-establish canons of statutory
construction.
You might have had your own kind of thinking that there has
been some change. Those are two observations that are about as
tough a criticism as one could have.
Let me continue. I am troubled by the implications of your
view the Interior could prevent only the mining that is both
unnecessary and undue. Under your reading of the law, the FLPMA
wouldn't prevent even the most environmentally devastating
mining efforts unless those efforts were completely unnecessary
to mining operations. Since we can expect that mining companies
will act in their own self-interest, will not engage in
unnecessary efforts, it is hard to see how your views of the
law would prohibit any mining efforts.
I would like to ask you about another aspect of the
involvement of the Glamis Mine matter. As you know, the Quechan
Tribe was directly affected by the Interior's decision to
permit the mining interests from outside this country to create
an open-pit mine near cities that were crucial to the tribe's
religious and cultural life. Your opinion in the Glamis matter
is disturbing not only because it misinterpreted the Federal
law, but also because you and the Secretary made a decision in
this matter without any government-to-government consultation
with the members of the Native American tribe, whose religious
liberty and cultural heritage was at stake. Yet the Department
of Interior met with the representatives of the foreign mining
company, seeking to build a gold mine in the California desert
conservation area.
Because of your position in the Glamis Mine matter and
other matters affecting Native Americans, the National Congress
of American Indians, which to my knowledge has not taken a
position on any other of President Bush's judicial nominees,
has written to this Committee opposing your nomination. And
could that letter be a part of the record, Mr. Chairman?
Senator Craig. Without objection.
Senator Kennedy. So why did the Interior decide not to
consult with the tribe before making a decision that so clearly
affected the tribe's religious freedom and culture?
Mr. Myers. The Department of the Interior, through the
Bureau of Land Management, which was the agency with the
primary authority over this mine site, consulted with the tribe
about their concerns.
Senator Kennedy. But did you ever talk with them at all?
Mr. Myers. No, I did not, Senator. I proceeded to look at
this issue when I first arrived at the Department. When I got
there, the regulation that was underlying this decisionmaking
had been suspended by the Department. In addition, there were
four Federal pieces of litigation pending. So when I got into
the Department, I was handed a notebook with a number of hot
issues, and one of those was this particular mine site because
of the litigation and the suspension of the regulations.
So I turned to it immediately to determine on a fairly
narrow point of law whether there was a problem with the
underlying legal decisionmaking.
Senator Kennedy. Well, the Department met with the mining
company, but you did not feel that it was necessary to meet
with the tribe.
Mr. Myers. It wasn't, Senator, that I felt it was
unnecessary--
Senator Kennedy. Well, did you ever make a recommendation
that you should meet with the tribe?
Mr. Myers. That I should meet with them?
Senator Kennedy. Yes, or you or someone else, did you ever
make that recommendation?
Mr. Myers. Well, I was informed that the Bureau of Land
Management was consulting with them, and I thought that was
appropriate.
Senator Kennedy. Did you know whether they had talked to,
met with them on this case?
Mr. Myers. Yes, I was told--
Senator Kennedy. But you did not feel as the person that
was involved--did you ever meet with the other side?
Mr. Myers. I did, but not upon invitation. My door was
open, and they called for a meeting.
Senator Kennedy. Well, your door is open. I am asking, it
is open to one side and not open to the other? Did you ever
feel--
Mr. Myers. No.
Senator Kennedy. --that when one side came in, the other
side ought to be invited in?
Mr. Myers. It was, Senator, open to both sides and--
Senator Kennedy. But one--just so I have it straight. It
was open.
Mr. Myers. Yes, sir.
Senator Kennedy. But one side came in, and then when you
saw the one side, did it ever occur to you that you probably
ought to see the other side, too? Or are you going to leave it
up to the Indians?
Mr. Myers. It didn't really, Senator, because I had already
started my opinion, and--
Senator Kennedy. You started your opinion?
Mr. Myers. I had started it prior--
Senator Kennedy. When? After you talked to the gold mine?
Mr. Myers. No, sir. Before.
Senator Kennedy. Before. Before you even gave consideration
to seeing--well, you know, even if your job is to interpret the
law, the legal standard has to be assessed in light of the
facts. And I think it would have been helpful to learn the
facts, the view, the tribe's view of the facts.
Is my time up?
Senator Craig. Your time is up.
Senator Kennedy. I have other questions, if I could.
Senator Craig. Surely.
Senator Kennedy. Thank you, Mr. Chairman.
Senator Craig. We will do another round.
I am going to take my colleagues in order of their arrival.
Let me turn to Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Myers, thank you for joining us. You may be aware from
press accounts that we are in the midst of an investigation of
this Committee and computer theft of documents from Democratic
Senators and their staff. And the question I am about to ask
you does not relate to you in any personal way, but it is going
to be a standard question which I will ask of all the
candidates who come before this Committee.
In preparation for your testimony today before the
Judiciary Committee of the Senate, did you meet with any
staffers on the Senate Judiciary Committee staff?
Mr. Myers. Yes, sir.
Senator Durbin. And did you also meet with any
representatives of the Department of Justice?
Mr. Myers. Yes, I did.
Senator Durbin. And any other Federal agencies, the White
House or any other agencies in preparation for today's
testimony?
Mr. Myers. Yes.
Senator Durbin. And could you tell me if during the course
of preparing for this testimony you were given any documents or
information which would lead you to believe that they were from
Democratic Senate staff members or Democratic Senators?
Mr. Myers. Not at all.
Senator Durbin. I thank you for that very much. We do not
know the nature and extent of this theft and burglary of the
computer documents. I know my office was one of the offices
that was targeted for the theft of these documents. And once we
have established that, I will just say for the record, Mr.
Chairman, I am going to ask this Committee to ask of all of the
nominees who have come before us during that period of time
basically the same questions I have asked of you. But I am very
happy that you have responded as you have today.
Let me ask you just a few questions relative to your
background and the position which you are seeking. Do you feel
that you are in the mainstream of thinking when it comes to
environmental protection?
Mr. Myers. Yes, Senator. The only reason I pause is because
my statements and my writings have been on behalf of clients,
whether that's in public service or in the private sector. And
I would submit to you that those individuals are in the
mainstream, by and large. Some may not be.
Senator Durbin. I know that the role of an attorney is an
advocate. I want to ask you: Is there anything that you have
written on behalf of your clients that you do not personally
believe?
Mr. Myers. I have advocated in some cases where I told the
clients I frankly did not think it was a winnable case, that I
thought my reading of the law and the precedents suggested that
it was going to be difficult. Certainly there was a colorable
argument and a fair argument to be made on their behalf, but I
gave them advice that it would likely be difficult to win going
in, and yet I carried their argument forward.
Senator Durbin. But you have taken that to a different
level. What you have said to me is you have said to a client
someone else, some court, may not agree with what I am about to
write here.
Mr. Myers. Right.
Senator Durbin. I want to ask you personally, the things
that you have written, the legal statements that you have made
on behalf of your clients, did you believe them?
Mr. Myers. To the extent that as an attorney I believed it
was important to believe in my clients, and my standard,
Senator, essentially, in a nutshell, if you will, is that the
client deserves the representation as long as they are not
asking me to do something that's unethical, immoral, or
illegal. And if they pass that bar, then I am willing to absorb
their cause as my own because I believe it makes me a better
advocate.
Senator Durbin. Well, let me then get into some specific
things that you have written, and you can tell us now whether
you agree with them or believe them today or whether they were
merely what you considered to be a lawyer's responsibility when
you did these things.
You have said some things relative to the Commerce Clause,
and, of course, that is an important issue for us because for
70 years that has been settled law, that the Commerce Clause
was basically the hook by which the Federal Government had
authority to extend the rights, liberties, and even restrict
some activity by entities, businesses, and individuals. And yet
what I find I your writings, for instance, in a case in my own
home State, Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, you argued that Federal regulation of
land use is beyond Congress' Commerce Clause power because that
area is traditionally regulated by State and local governments.
Since the Commerce Clause, Mr. Myers, is the authority upon
which many of our most essential health, safety, environmental,
and anti-discrimination laws are based, I would like to ask
you: Are you arguing with that school of--or are you supporting
that school of thought which rejects the use of the Commerce
Clause to give the Federal Government its power over issues
involving health, safety, environment, and discrimination?
Mr. Myers. Clearly, the Commerce Clause has an important
role to play, and the Congress' interpretation of that clause
in exercise of its duties to pass legislation is key. There are
many examples on our statutory code books of the proper
exercise of that for environmental, for health, safety, and
welfare type of standards.
In the argument that I was making in the SWANCC case, there
was a question that the clients had about the applicability of
the Commerce Clause to this particular municipal land waste
site in this abandoned strip mine and whether that was a
correct extension. So I made that argument on their behalf,
along with the Clean Water Act arguments.
Senator Durbin. Did you believe it? Is that your point of
view? Is that the view you will take to the bench if you are,
in fact, confirmed?
Mr. Myers. Well, the Supreme Court didn't reach that issue
in its decision. It stuck with the Clean Water Act--
Senator Durbin. No, no. I want to know what is in your
mind. I want to know what you believe. Is that what you believe
and is that the philosophy you will take to this lifetime
appointment?
Mr. Myers. I think the best answer to that, Senator, is
that I would like to follow the Supreme Court's decisions on
that. If I, frankly, were to sit here and opine on a personal
belief on this or that, then litigants who might come before
the Ninth Circuit on which I would sit, if I am so fortunate to
be confirmed, would be combing through this transcript to
discern my personal views. And I, frankly, would not want
litigants to think they needed to even go there, that they
should believe that I would follow the precedents of the Ninth
Circuit and of the Supreme Court.
Senator Durbin. Mr. Myers, that is what all nominees say.
All we can go on is what you have done and what you have
written and what we apparently can conclude that you believe.
Let me go to a second issue, the issue of property rights,
which has been central to your life as a lobbyist and your life
as a member of the Bush administration and the Department of
Interior.
The case is Sweet Home Chapter of Communities for a Great
Oregon v. Babbitt, and you argued that the constitutional right
of a rancher to put his property to beneficial use is as
fundamental as his right to freedom of speech or freedom from
unreasonable search and seizure. That statement, Mr. Myers,
runs in direct conflict with Supreme Court precedent, which
says that there are certain rights, certain fundamental rights
which are really elevated when it comes to our Government. And
they have identified the right of free speech and the right of
freedom from unreasonable search and seizure.
Are you arguing and do you believe that the right to
private property is at the same level, as you say here, ``is as
fundamental as the right to free speech''? Do you believe that
when it comes to assessing the Government's activity relative
to property rights, that it should be subject to the strict
scrutiny test which is reserved for the most precious and
guarded rights in our Constitution?
Mr. Myers. I think probably the best answer to your
question, Senator, is to refer to the brief from which you are
citing, and in that passage to which you refer--I did not write
the brief, but it was a reference to the Supreme Court's
decision in 1994 in the property case of Dolan v. City of
Tigard. And in that decision of the Supreme Court, the Supreme
Court said that the Fifth Amendment, which contains, as you
know, the Takings Clause, is as much a part of the Bill of
Rights as any other amendments in the Bill of Rights and that
it should not be, to use the Court's words, ``relegated to the
status of a poor relation.'' And using that precedent from the
Supreme Court, that was the point that we were trying to make
in that--
Senator Durbin. So you don't back off? This is what you
believe? When it comes to strict scrutiny and the most guarded
rights under the Constitution, the right to property is equal
to freedom of speech, freedom of religion, freedom from
unreasonable search and seizure? That is your belief?
Mr. Myers. My use of the analysis of strict scrutiny would
be, I think, primarily in the context of equal protection and
due process. But I would stand on the Supreme Court's decision
in Dolan v. City of Tigard as a statement of the Supreme Court,
which is binding upon the Ninth Circuit.
Senator Durbin. All right. Let me move to another area. In
the Sweet Home case, you also--excuse me, I have that--yes, I
believe it was in that same case. You praised what you called
the Supreme Court's ``retreat from the protection of privacy.''
Do you believe that though it is not enunciated in the
Constitution that we have a fundamental right to privacy as
citizens in this country?
Mr. Myers. Well, the Supreme Court has been crystal clear
on that, and the answer is yes.
Senator Durbin. Why would you then celebrate what you
called the Supreme Court's ``retreat from the protection of
privacy''?
Mr. Myers. Frankly, Senator, I'm not sure of the context of
that quote, but it may have been a reference to the decision of
the Supreme Court that was recent to the time of that writing
in the case of Bowers v. Hardwick, which was universally seen
as a retreat from some of the Supreme Court's previous
precedents on privacy. My statement was merely a reflection of
general knowledge to that extent. It was not a unique thought
to me.
Senator Durbin. May I ask you, when it comes to your legal
experience, you have indicated that you have had no criminal
litigation experience. How many civil cases have you taken to
verdict, either with or without a jury?
Mr. Myers. I would guess a dozen.
Senator Durbin. A dozen cases to verdict?
Mr. Myers. Yes.
Senator Durbin. All right.
Senator Craig. Senator, your time has expired.
Senator Durbin. Thank you very much.
Senator Craig. Let me turn to my colleague, Senator
Feingold. Russ?
Senator Feingold. Thank you very much, Mr. Chairman.
Congratulations, Mr. Myers. Welcome to your family.
Mr. Myers. Thank you.
Senator Feingold. Environmental issues are of greater
concern to me and the people of the State of Wisconsin and, of
course, many important environmental issues come up before the
Ninth Circuit. So I would like to focus my questions on those
types of issues.
I would like to first follow on a matter that Senator
Durbin just brought up. You authored a Supreme Court amicus
brief on behalf of the National Cattlemen's Beef Association
and others in the so-called SWANCC case. That case involved a
challenge to the Federal Government's authority to prevent
waste disposal facilities from harming waters and wetlands that
serve as vital habitats for migratory birds, and as was
indicated, you argued in your brief that the Commerce Clause
does not grant the Federal Government authority to prevent the
destruction and pollution of isolated interstate waters and
wetlands.
For 30 years, the Clean Water Act has protected our
Nation's waterways, including lakes, ponds, and streams, and so
I also am interested in your views on the Commerce Clause and
the Clean Water Act in general.
Let me follow up on what Senator Durbin asked you in a
little different way. Is it your view that the Commerce Clause
is the only possible constitutional authority for passing the
Clean Water Act? Might one also find Congressional authority
over protection of wetlands in not just the Commerce Clause but
the Property Clause, the Treaty Clause, or the Necessary and
Proper Clause?
Mr. Myers. Well, I would hesitate at this moment to
speculate on other bases for the Clean Water Act. Clearly, it
is constitutional. Whether a particular clause is the basis for
that or not, I refrain from speculating on simply because that
may be the basis of an argument that might come before me.
It might be helpful, Senator, for me to put in context for
you the brief that I did file.
I was representing, as you said, landowners, large
landowners in the form of cattle ranchers, who were concerned
that the Corps of Engineers' interpretation of the Clean Water
Act might impinge upon a Congressional exemption that those
farmers and ranchers enjoyed. Under the Clean Water Act Section
404(f), there is an exemption for ordinary farming and ranching
activities. And the concern was that if the Corps of Engineers
were to require a permit for an alteration of a stock pond,
that that would have a fairly dramatic impact on that statutory
exemption. And that's why I filed that brief on their behalf.
Senator Feingold. So you would not exclude the possibility
of those other provisions in the Constitution being a basis for
the constitutionality of the Clean Water Act?
Mr. Myers. Well, I can fairly say I wouldn't exclude them,
yes.
Senator Feingold. Is it your view that Congress exceeded
its constitutional authority in passing the Clean Water Act?
Mr. Myers. No.
Senator Feingold. The Department of Justice on behalf of
the Army Corps and EPA has filed approximately two dozen briefs
in Federal court since this SWANCC decision. In these briefs,
the DOJ has consistently argued that the Clean Water Act does
not limit coverage of the Clean Water Act to navigable in fact
waters. For example, in one brief, DOJ argued, ``SWANCC does
not limit the coverage of the CWA to navigable in fact waters
and wetlands adjacent thereto.'' The brief continues: ``To
exclude non-navigable tributaries and their adjacent wetlands
from the coverage of the Act would disserve the recognized
policies underlying the Act since pollution of non-navigable
tributaries and their adjacent wetlands can have deleterious
effects on traditionally navigable waters.'' That is the end of
the quote.
Do you agree with the administration's consistent
interpretation of the SWANCC case?
Mr. Myers. Well, let me speak to my interpretation because
I don't know which cases those are that you might be referring
to, and I don't want to speculate when I don't have that level
of familiarity.
Senator Feingold. One would be the brief in United States
v. Rapanos in the United States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Myers. Okay. The Supreme Court ruled in favor of the
solid waste agencies, and I suppose you could say by reference
to my amicus party, since we were on the side of the
petitioners, and determined that the Clean Water Act did not
extend to isolated, intrastate, non-navigable wetlands.
Senator Feingold. You disagree with the administration's
approach?
Mr. Myers. If their approach is consistent with my
understanding as just announced, I would not disagree with it.
That's my understanding of the ruling in SWANCC.
Senator Feingold. Senator Durbin asked you--let me just ask
you directly again. How do you read the Supreme Court's SWANCC
decision? What waters, if any, do you believe should not
receive Federal Clean Water Act protection post-SWANCC?
Mr. Myers. Well, I don't want to sound flippant, but
obviously the particular abandoned mine site that was the
subject of the litigation we could safely state is exempt. Then
the question is what other types of water bodies might be like
that abandoned mine sit that would be used for landfill. And
the core principles that I understood from the decision--and,
frankly, I haven't reread it in many years, but it was that if
you have an isolated, intrastate, non-navigable wetland, that
is not subject to Clean Water Act jurisdiction.
Senator Feingold. Now, let me ask you about another--
Mr. Myers. For purposes, Senator, of a 404 permit.
Senator Feingold. In the Headwaters Inc. case, the Ninth
Circuit has ruled that the SWANCC decision should be read
narrowly and that wetlands, streams, and other small waters
remain protected by the statute, and implicitly that the rules
protecting those waters are constitutional.
Would you follow the circuit's precedent if confirmed, or
would you try to change it?
Mr. Myers. I would follow it, Senator.
Senator Feingold. Let me ask you about a different matter
then. This year marks the 40th anniversary of the Wilderness
Act, and I had the pleasure of being involved in creating a
Senate Wilderness Caucus, and wilderness issues are very
important to me and my constituents in Wisconsin.
During your time at the Interior Department were you
involved in discussions regarding possible changes of the
interpretation of FLPMA, wilderness inventory power and the
ability to designate wilderness study areas to the planning
process prior to 2003?
Mr. Myers. The matter that I think you're referring to,
Senator, was the settlement of a piece of Federal litigation in
the District Court in Utah brought by the State of Utah and
others against the Federal Government, and the settlement that
was reached was essentially to suggest that the authority of
FLPMA, the Federal Lands Policy Management Act, was very clear
on the ability to establish wilderness areas under Section 603
of that Act.
Senator Feingold. Right. But were you involved in
discussions regarding possible changes to the interpretation?
Mr. Myers. Yes, I was.
Senator Feingold. And what were the nature of those
discussions and what was your role?
Mr. Myers. Well, the discussions were should we settle this
case, and if so, what would be the parameters of that
settlement? So I was a participant in that to discuss whether
under the Wilderness Act and under FLPMA the settlement was
appropriate. It was filed and the District Court accepted it.
Senator Feingold. As Solicitor General for the Interior
Department, as you indicated, you approved the filing of a
settlement with the State of Utah last April that will remove
the possibility of administrative protection for millions of
acres of potential wilderness on BLM lands outside of Alaska.
This approval came despite the fact that every Interior
Secretary in the previous 26 years, including James Watt,
affirmed and used BLM's authority to administratively protect
lands as wilderness study areas. Would you please explain how
you reached the decision to undertake this dramatic policy
reversal in litigation?
Mr. Myers. I think I need to clarify, Senator, that the
settlement that was reached in the negotiations between the
State and the Department of Justice continued to protect
designated wilderness and designated wilderness study areas
under FLPMA Section 603.
Senator Feingold. Did you conclude that you would not have
prevailed on the question of the ability of BLM to carry out
wilderness inventories in the State of Utah v. Norton?
Mr. Myers. We decided that under the authority that
Congress had clearly set out under Section 603, that the
inventorying for wilderness and the designation of wilderness
was, under the Act, subject to a 15-year expiration date, which
seemed fairly clear from the reading of the Act, and that was
the context from within which the settlement was reached.
Senator Feingold. Did you arrive at the conclusion, when
the Tenth Circuit had already held that the State of Utah--
excuse me one second. How did you arrive at the conclusion,
when the Tenth Circuit had already held that the State of Utah
did not have standing to challenge BLM's wilderness inventory
authority and therefore Utah could not have possibly much less
prevailed on that issue?
Mr. Myers. There were two separate authorities in the
context of the litigation for wilderness study area
designation. Clearly under Section 603 under the mandate of
FLPMA, the administration was given 15 years in which to
designate proposed wilderness and to forward that by the
Secretary of the Interior, Former Secretary Andrews, to the
President, and from the President to Congress for designation.
And that included wilderness study areas as well as proposals
for specific wilderness.
Those proposals went forward and those wilderness areas and
wilderness study areas exist today. The disconnect was whether
there were other provisions outside of Section 603 that
provided that authority, and I didn't think there was.
Senator Feingold. Well, I want to pursue this some more,
and this will be important to me as we go forward. I am
concerned that this has the appearance of a case of utilizing
closed door negotiation of a settlement to make a controversial
policy reversal without public input and with no accountability
to Congress. As I understand it, this has a binding effect on
the future. But in fairness to you, I will follow up on the
arguments you have made with regard to the ability to do
something with regard to wilderness for 26 years. I think this
has very serious implication. But I do thank you and I will
pursue this with you further.
Thank you, Mr. Chairman.
Mr. Myers. Thank you, Senator.
Senator Craig. Your timing is excellent. Thank you.
Let me at least opine for the record that my colleagues who
have asked questions today are from states where limited if
hardly any Federal land exists. For those of us from the West
who work with our Federal public policy on occasion, if not all
the time, sometimes we find it in conflict, sometimes we find
it balanced, but I would guess that most westerners are
oftentimes frustrated by the authority the Federal Government
holds over them both in individual and collective acts. I say
that not to you, Mr. Myers, but for the record, as a westerner
who grew up in a public lands State, often frustrated by the
Federal Government, and probably one of the driving motives
that made me a U.S. Senator.
But as a Senator, both myself and my colleagues make public
statements, and every 6 years we are held accountable for
those. You have obviously made public utterances or at least
made statements for a public record. I understand in 1988 you
were writing about the nominee, Judge Bork, at the time, and
you opined that whether some of the opinions herein may 1 day
come back to haunt you. I suspect you have not been ``Borked''
and neither have any of us, but I think oftentimes, as we move
ahead with our careers and our lives, that those of us who make
public statements find a need to adjust, modify, or openly
stand by that which we make.
Let me go back to a couple of items that have been brought
up by our colleagues as it relates to mining and grazing, very
important issues for public land management, very important
issues for States and private interests, depending on your
point of view and the law itself.
You have been criticized for your involvement in permitting
the process for a proposed gold mine in Southern California. My
colleague from Massachusetts mentioned it, the Klamath Gold
Mine. But in fact, you were not involved, I understand, in the
permitting process at all, but rather you simply issues a
solicitor opinion regarding the proper scope of the Interior
Department's authority under the Federal Land Policy Management
Act, that we call FLPMA, which allowed Klamath Gold, the owner
of several claims in the area, to proceed with a pre-existing
mining proposal. Is that not correct?
Mr. Myers. That's correct, Senator.
Senator Craig. So on what basis if any could someone assert
that you handled this Klamath Gold Mine claim?
Mr. Myers. Well, I certainly had no involvement in
consideration of the proposed plan of operation. That is the
authority and expertise of the Bureau of Land Management. As
you suggested, my role in that matter was looking at a fairly
narrow point and determining whether the Department had the
Congressional authority that it needed to make certain
interpretations.
Senator Craig. I am going to pursue this line of
questioning, but my colleague from California has just arrived,
and of course this particular decision and action took place in
her State.
Senator Feinstein, we are talking about the Klamath Gold
Mine Claim and that decision. Let me proceed.
Had not the Babbitt Interior Department approved this same
proposal supported by two draft environmental impact statements
in 1996 and 1997, and two separate Native American Tribal
Cultural Resource studies in 1991 and 1995? Up until the last
week of the Clinton administration, was that not the position?
Mr. Myers. Yes, Senator, that is correct.
Senator Craig. Then I understand that Former Secretary
Babbitt's denial of Klamath's mining claim was based on a 1999
solicitor opinion which in turn was based upon a novel
interpretation of Federal law. Your opinion rescinded that
interpretation. Did you draft your opinion based on Klamath
lobbyists, had exclusive insider access to the Department of
the Interior? How did you arrive at your opinion in that case?
Mr. Myers. Well, as I mentioned earlier, when I arrived at
the Department this issue was alive and well. The department
had already put on hold the regulations that were the basis for
the decision, and they were in suspension mode basically, and I
had four, by some counts, five pieces of Federal litigation
pending. So it was an issue that I needed to turn to, and I
relied on my colleagues in the Solicitor's Office to give me
the history of the mine site, the history of Solicitor Leshy's
opinion, and we coordinated obviously to discuss whether or not
that was a fair reading of FLPMA.
Senator Craig. In fact, as I followed that case and saw
your decision, I felt you had little choice but to rescind the
prior opinion because it simply could not be defended in the
courts. Is that correct?
Mr. Myers. My concern specifically was with the key phrase
that was the basis for the previous decision, and it's known as
``undue impairment'' and that is within the Federal Land Policy
and Management Act. That portion of the Act deals with the
California Desert Conservation Area and is rather specific. The
Act, as passed in 1976, gave Congress--excuse me--gave
authority to the Secretary to promulgate regulations if he or
she so chose, and that if those regulations were promulgated,
they should consider undue impairment of the area. No
Secretary, since the passage of the Act in 1976, had taken the
opportunity that Congress had provided to promulgate the
regulations. It was simply my thinking that before the
Department should try to apply the standard, that it should
take the initial step of promulgating regulations under the
Administrative Procedures Act with notice and comment to the
public, so that that process would be followed according to the
statutory mandate.
Senator Craig. Thank you.
For the balance of my time let me turn to the issue of
grazing, one of the legal and appropriate utilizations of
public land resource in the opinion of many westerners and I
would hope most Americans. It was referenced earlier by one of
my colleagues that to compare the Federal Government's
management of public lands to King George's tyrannical rule
over American colonies and claim that public land safeguards
are fueling a modern-day revolution in the American West.
Since I have served on this Committee, Mr. Myers, I have
become familiar with but not more tolerant of the practice of
hard left groups deliberately taking nominees' quotations out
of context and/or misrepresenting what the nominees said or
wrote, then trying to smear the nominees' basis on their
misrepresentation. It is even less proper for Senators I think
to give credence to those who play that game. Here is one
against Mr. Myers that does not stand up to even 5 minutes
worth of research. So what I am going to do now is read the
quote. ``So wrote our Founding Fathers in the Declaration of
Independence''--I believe this is these words--``describing the
tyrannical actions of King George in levying taxes and turning
even the simplest enterprise into exercises in bureaucratic and
regulatory entanglement. A modern-day revolution has been
brewing in America's West, and it is founded on a similar set
of grievances. In the late 1970's and early 1980's it was
called the Sagebrush Rebellion. For the past several years it
has been known as the War on the West. This has become a
rallying cry amongst many westerners who object to the
Government over-regulation and efforts to limit their access to
Federal range lands, revoke their property rights and generally
eliminate their ability to make a living on the land.''
I believe that is the fullness of the context. And I think
that what I sense you are reacting to--and you can certainly
put it in your own words--but what I have reacted to when using
phrases like ``the War on the West'' or the ``Sagebrush
Rebellion''--and when I was elected to Congress in the early
1980's it was brewing might loudly--was an attitude or a
frustration that there is reasonable regulation and appropriate
regulation, and then there is excessive regulation that denies
or limits so dramatically the ability of certain legal and
historic uses of our public lands. I will stop there. I will
not put words in your mouth. I will turn to you for any
response to those comments.
Mr. Myers. Well, let me pick up where you left off,
Senator. Certainly there are appropriate regulations for use of
Federal lands, and specific to grazing. In fact, the Taylor
Grazing Act of 1934 was passed in large measure because
ranching interests wanted to regulate the use of the western
lands against cattle barons who were coming out from the
railheads and unloading livestock by the cattle car and running
rampant over all of the lands that these ranchers had already
established. So I think there is a clear history of the
importance of environmental regulations on ranching.
I would like to point out as well, within the context of
the article that you just mentioned, that my statement at the
beginning about the War on the West and the Sagebrush Rebellion
was to put in historical context where we found ourselves. The
theme or thesis of the article was that it would be much better
if the Federal Government would work with environmental
stewards to enhance the environment, and in fact, other quotes
from that article are specific, where I say that environmental
stewardship is both good business and good citizenship.
Senator Craig. Most westerners would agree with that
statement.
A little time left, but we have had new colleagues--I
should not say new colleagues--but colleagues join us, and let
me turn to them in the order in which they have come for their
first round if they choose.
I believe, Senator Schumer, you arrived ahead of Senator
Feinstein, so we will start with you.
Senator Schumer. Thank you, Mr. Chairman. First let me say
I am glad to be back in this room. I want to thank my House
colleagues for their courtesy. As many know, I served for 16
years on this Committee. I was in this seat for several years
till seniority moved up. I think I may have been--no, I think I
was a little further over.
Senator Craig. Chuck, before you arrived this morning, I am
told by our staffs that we are making history here, that
nomination hearings have never been held here by the Senate. So
you are possibly making double history today.
Senator Schumer. Well, I did make history when I sat here
because I was the only person to serve on the impeachment
proceedings in both the House and the Senate. From my point of
view, it had a happier outcome in the Senate than in the House,
but I am still glad to be here.
I might note that having served under a bunch of these
Chairs, Henry Hyde and Peter Rodino and Jack Brooks, and not
Manny Seller, but he held the seat I held in the House and was
Chairman of Judiciary for decades. So I am glad to be here.
Second, I just wanted to note, as others have, we are at a
little bit of a disadvantage today because of the ricin attack.
Our staff's access to all of our computers, which I presume are
now secure--
Senator Craig. Made secure by the Chairman of the full
Committee, Senator Hatch, correct.
Senator Schumer. We thank him for that, very much so, but
we are at a little bit of a disadvantage. Whether we need--we
may, Mr. Chairman, I would just like the record to show, may
need another hearing to flesh out the record here if we find--
and I hope the Chairman--he has always been good this way--
would understand that.
Senator Craig. The record will remain open and you can
certainly submit questions and the nominees will respond
appropriately.
Senator Schumer. Maybe they can have the record remain open
for a little extra period of time, because we are not getting
back to our office in the Hart Building until tomorrow, and the
Dirksen Building, where my Judiciary staffers are, is not going
to open I think till Monday.
Mr. Myers, first I want to welcome you and thank you for
being here.
Mr. Myers. Thank you, Senator.
Senator Schumer. You and I disagree on a whole lot of
things, and I am going to ask some pretty sharp questions, but
that does not mean that I do not hold you personally in high
regard, and I do not want particularly your children--I have
two daughters. Are those your two daughters?
Mr. Myers. They are.
Senator Schumer. So I have two daughters a little older
than yours, and I know if they were sitting here they would be
a little puzzled why people are asking such tough questions of
their nice Dad.
Senator Craig. So, Dad, behave yourself, okay?
Senator Schumer. Yes, exactly. So I just wanted to tell
them, your dad is a good man, and he is seeking public service
and we admire that.
Now, as you probably know, Mr. Myers, I have three
standards when I choose and vote on judges. They are
excellence, they should be legally excellent, not somebody's
brother-in-law or some political hack. A Federal Judge,
particularly a Court of Appeals Judge has enormous power. The
second standard is moderation. I do not like Judges too far
right or too far left. Judges who are idealogues tend to want
to make law, not interpret the law. And the third is diversity.
I do not think the bench should just be white males. That third
category has to be taken as you look at a whole school of
nominees, so it is not really relevant.
And I do not have much doubt on your excellence provision
part of you, but I do have doubts on the moderation part, and
that is where I will ask my questions.
You have had a long and distinguished record of passionate
advocacy for private mining and ranchers' interests, and I
respect that, respect the work you have done in the private
sector, and respect the fact that when it comes to
environmental policies you clearly have had deeply-held beliefs
which you have worked hard to make the law of the land, and
those deeply-held beliefs are represented in part by some of
the comments you have made regarding environmental protection
laws and those who support them.
Now, I know my good friend from Idaho has said, ``Well,
these quotes should not matter.'' I think they matter very
much. We do not know of Mr. Myers' record as a judge or as a
law professor because I guess you have never served as either
of those. So it is not only the cases he litigates, because we
have had lots of people come before us and say, ``I didn't
agree with the case I litigated, but I was being a good
lawyer.'' So the comments that people make are all we have and
I think they are extremely relevant and I think I would be not
doing my obligation to the 19 million people of New York, or
for that matter the 280 million people of America if I did not
ask about them, because they do come off as hardly moderate.
Here are some of them.
In one article--this was not rhetoric in the courtroom, it
was an article--you said, ``Environmentalists are mountain
biking to the courthouse as never before, bent on stopping
human activity wherever it may promote health, safety and
welfare.'' I do not think most people in this country would
think environmentalists are trying to stop health and safety.
You may think they go too far in promoting health and safety,
but to say they are stopping it, wow. The cases you were
discussing include suits to halt the racially discriminatory
placement of waste treatment facilities, to protect irrigation
canals from toxic chemicals, and to halt logging in protected
national forests.
Some of my democratic colleagues will tell you that much to
their chagrin, I agree that there are abuses in our litigation
system, and that frequently Americans resort to courts all too
quickly when no one is at fault, there is no appropriate remedy
or the matter could better be handled legislatively or
extrajudicially. That said, the cases you were discussing
hardly seem to be the examples of wild-eyed litigation run
amuck, and your comment is hardly reflective of the moderation
and temperament we look for from judicial nominees. It is not
just one quote we are plucking out of here. There is a whole
long series. Let me read you a few others.
You compared the Government's management of public lands to
King George's tyrannical rule over the American colonies. I
have heard that before I came in Senator Leahy asked you a
little about that one. But here are some others that I am going
to ask you to respond to. You wrote that the Federal
Government's ``endless promulgation of statutes and regulations
harms the very environment it purports to protect.''
And specifically regarding the Endangered Species Act and
the Clean Water Act, you said that they have ``the unintended
consequences of actually harming the environment.'' I do not
think most people think that of the Endangered Species Act and
particularly the Clean Water Act.
You claimed that it's ``fallacious to believe that
centralized government can promote environmentalism.'' Well,
that seems to be a view that was more appropriate 100 years
ago, and discounts all the advances and changes and progress
that we have made in this country. There is a broad consensus
in America, Democrats, Republicans, liberals, conservatives,
economists, that there are externalities, that if I run a power
plant, it may be in my business's interest to send noxious
fumes and smog into the air, and it may not even hurt my State.
We have this problem in the Northeast. Because the winds blow
the stuff over, away from my State and into the Adirondack
Mountains. The only resort is the central government, and you
seem to just dismiss it.
So I want to ask you about those quotes. I will get back to
them.
You argued that the Federal public land safeguards are
fueling, ``a modern-day revolution in the American West,'' that
our environmental regulations are ``designed to turn the West
into little more than a theme park.''
Well, you may not agree, but there are tens of thousands,
millions of citizens who want to enjoy the environment as is.
And to say that our forests or our lakes or our rivers or our
deserts are a theme park?
You called the Migratory Bird Rule, ``an unwarranted and
despotic intrusion by the Federal Government over every brook,
creek, cattle tank, mud puddle, slough damp spot in every
owner's backyard.'' How do you say that? Slew. I am from
Brooklyn. I do not know too many sloughs.
You called the California Desert Protection Act, one of
Senator Feinstein's most--we all respected her for the job she
did getting it passed. I am not going to ask you about it. I
imagine she will, but you called it an example of legislative
hubris. And the list goes on and on, not one quote, not two,
but it seems these are your deeply-held beliefs. I respect
those beliefs. I even respect the right to go to court and
litigate those beliefs, or for you to defend those who are
litigated against.
The question is, when you become a judge on the Ninth
Circuit, when you have had such deeply-held beliefs, how can we
be assured that you will simply impose the law? That when a
company is violating the Clean Air or Clean Water Act, that you
will not think that these are harsh despotic regulations and
try to undo them, because they are the law of the land
supported by Democrats and Republicans alike?
My fear, to be honest with you, sir, is that when it comes
to environmental protection we will be putting the fox in
charge of the hen house, that you will do your mightiest from
the bench not to interpret the law, but to write it in a way
that you like because you feel so passionately that the law has
gone amuck. So you do not strike me as a moderate. You strike
me, at least on environmental issues, as someone quite extreme,
that if you had to put all Americans and rate them from 100 who
are the most liberal to 1 being the most conservative, you
would not even be a 10, you would be a 1 or a 2. The question
is whether 1's or 2's or for that matter, 99's or 100's--
because I feel I like moderate judges--should be on the bench.
And--
Senator Craig. Senator, you have now taken 11 minutes of
the 10-minute time.
Senator Schumer. I have more to say here, and I apologize.
Senator Craig. We will get back to you on the next round.
Senator Schumer. I would ask that my entire statement be
read in the record, but let me just add--
Senator Craig. Without objection.
Senator Schumer. Let me just ask Mr. Myers to please put in
whatever context he chooses, the quotes that I outlined, the
three, that endless promulgation of statutes and regulations
the very environment it purports to protect, that the Clean Air
Act--Clean Water Act and the Endangered Species Act--but I am
particularly interested in Clean Water--have the unintended
consequences of harming the environment, and, ``that it is
fallacious to believe that centralized government can promote
environmentalism.''
Thank you, Mr. Chairman.
Senator Craig. Mr. Myers?
Mr. Myers. Thank you, Senator. I will do my best to respond
to my comments. I think my starting point is perhaps your
starting point, and that is the question of moderation, which
you defined as essentially a desire to confirm non-activist
judges. I agree with that completely. I think one of the
strengths that I bring to this table today is the fact that I
have had an opportunity to work in the three branches of
Government, not as a judge of course, but as a litigator, as a
member of the Senate staff, and in three cabinet-level agencies
at various times and in various positions.
In that context I've had an opportunity to see firsthand
the importance of separation of powers. The reason I raise this
is because it's important in the context of moderation. Every
court, every judge, should respect the appropriate role of the
Executive Branch, and the Legislative Branch and not try to do
those jobs.
But as soon as I say that, I want to follow along with the
statement that if the case or controversy before that judge
raises constitutional issues or statutory errors, then the
judge has to follow the law, and if it takes the judge into the
Executive Branch to say, ``You, Department, violated the law,''
then that is appropriate. If it takes the judge to the Congress
because Congress passed a statute which that court believed to
be unconstitutional, that's appropriate.
But within that context is the separation of powers that is
important, and that a judge should not don robes, and then at
the bench attempt to legislate. That is the role of Congress,
and I respect that.
In the context of the quotes that you raised, there is a
theme there because when I made those statements, I was an
advocate for the Federal lands livestock industry. That was who
I was talking for. That industry is spread over some 270
million acres of primarily western land, a very diverse
geographic range, obviously.
It is an industry which I think has a strong record of
environmental protection and stewardship, for the simple, self-
serving reason that the rancher who destroys his Federal
grazing land is going to have no place to go next year with his
livestock because he has just destroyed the very environment
that he relies upon for his business.
So when the regulations came out in the mid-'90's to
regulate that industry, in a fair attempt, I think, to get at a
few bad actors, I believe that the unintended consequence was
that while trying to get at the few bad actors, it was having a
consequence on the 90 percent-plus good actors who were taking
care of the land, and that if the result was to run those
ranchers out of business, then it was having the effect of
taking good stewards off the land and that that was not a good
consequence.
That is basically the answer to all of the quotes you
mentioned.
Senator Schumer. Let me ask about a few specifics with--oh,
okay, I have been told that Senator Feinstein has another
appointment. I am just going to ask, then, one.
Do you really believe it is fallacious to believe that
centralized government can promote environmentalism?
Mr. Myers. No, Senator. A centralized government--i.e.
Congress--has an important role to play in environmental
protection. And the Clean Water Act, the Clean Air Act--there
are probably 70 environmental statutes that give evidence to
that truth.
Senator Schumer. So what did you mean when you said that?
Mr. Myers. I was talking about the regulations that were
being applied to the ranchers, who I believed at the time were
environmental stewards, and my concern about the impact of
those regulations on good ranching operations.
Senator Schumer. Thank you, Mr. Chairman.
Senator Craig. Thank you, Chuck.
Now, let me turn to Senator Dianne Feinstein. She, like I,
resides within the Ninth Circuit. She is a distinguished member
of this Committee.
I turn the next ten minutes over to you, Senator.
Senator Feinstein. Thank you very much, Senator.
Mr. Myers, my dilemma with you after reading some of your
writings, which are to some extent bombastic and engage in
substantial hyperbole, is to try to determine whether these are
your true feelings and whether they will infiltrate your
performance as an appellate judge and the decisions you will
make.
A former official has written me a letter and I would like
to just read part of it, if I might. It is a former Interior
Department official. ``Myers has advocated a very narrow
reading of the Commerce Clause that would take Congress out of
the picture when it comes to protecting the environment. He
doesn't think that the Federal Government has much of a role in
addressing environmental issues at all. This is a radical
agenda that is clearly at odds with prevailing law.
Nonetheless, if Myers is confirmed on the Ninth Circuit, he
would likely seek to undercut Congressional action on
environmental and public lands management issues.''
Would you respond to that, beyond what you just said to
Senator Schumer about obviously the Congress having the right
to legislate?
Mr. Myers. Yes, Senator. Let me also respond, if I might,
to your first comment about occasionally being bombastic. That
is true. There are times when I have written things which,
looking back on them in time, were probably a poor choice of
words, but at the time seemed like the advocacy that I was
being asked to advance.
Having said that, the concern that you are expressing as
related to you by a former Interior official of some sort, I
think, is, shall I say, not completely informed because he or
she has not recognized in that writing that you have just
quoted the efforts that I have made while in public service to
take a balanced approach.
Prior to your arrival here today, I talked, for instance,
about a case in California where the BLM had to take action
against a rancher to prohibit that rancher from taking a
bulldozer to a stream, installing a pipeline, destroying the
riparian habitat and the fence that stood between him and the
stream.
That case came to me as Solicitor. I quickly said, yes, we
have got to get on top of this. The Department of the Interior,
through the Department of Justice, filed a motion for
preliminary injunction. The court thankfully granted that
injunction and we stopped that rancher. That is, in my opinion,
the kind of example that you need to consider as you are
deliberating whether I would disregard statutory mandates or
Congressional authority, and I am here to tell you that I would
not.
Senator Feinstein. See, that is my dilemma to figure that
out because I could not vote for you to be judge based on the
views you have expressed in your writings. I, in some, have
found that people who have been advocates can put that aside
and can be a fair judge, and in others I have drawn the
conclusion that I don't believe they can.
You have a very mild manner. I expected to see a 300-pound,
huge, muscled man after I read your writings.
Senator Craig. Now, Senator, you know me better than that.
Senator Feinstein. No, you are not 300 pounds, and I won't
comment on the muscles.
Senator Craig. No, no. I am talking about those whom I
might be an advocate of in relation to the Ninth Circuit.
Senator Feinstein. One thing that I have been very proud
about--and Senator Schumer alluded to it--was the Desert
Protection Act. It protected 7.7 million acres of pristine
California wilderness, 5.5 million as a national park preserve;
provided habitat for over 760 wildlife species. It created the
Joshua Tree National Park, the Death Valley National Park, the
Mojave Preserve; provided recreation for 2.2 million people and
more than $237 million in sales, $21 million in tax revenue,
and thousands of new jobs. Yet, you call it an act of
legislative hubris.
Could you explain what you mean by that?
Mr. Myers. That was bombastic.
Senator Feinstein. Correct.
Mr. Myers. And I frankly am thinking of that phrase when I
said that I used words that were probably a poor choice. So
accept that apology, please.
With regard to the specific issue, at the time that I wrote
that article the concern that was being expressed to me from
ranchers in the California desert area was that after, as you
well know, 100 years of stewardship of the land, that by taking
their grazing permits and placing them under the authority of
the Park Service, which does not have extensive authority
regulating ranching, that they would find that they would be no
longer to economically ranch in that area.
Senator Feinstein. Let me stop you here. Were you aware at
the time that I had specifically crafted that bill so that
grazing could continue at the present level?
Mr. Myers. Senator, yes. I, to your credit, I believe, know
that you worked, I believe, quite long and hard with ranchers
to try to protect their interests in that area, and that was
told to me by those ranchers.
The specific point that I was making on their behalf was
that if they were, in fact, unable to continue ranching for
economic purposes that they would take with them their water
development for the livestock, and that that water development
and those water sites they had developed for livestock were
redounding to the benefit of a lot of desert animals that
needed the water as well as the livestock did.
So the point that I was making in the context of that
writing was that it would perhaps have resulted in some
unintended consequences once that water dried up, once the
ranchers left, and that, in fact, would have had an
environmental impact on the animals that used them, the non-
domestic animals.
Senator Feinstein. I don't understand that.
Mr. Myers. Okay. It was explained--and I have never ranched
in the California desert, but obviously--
Senator Feinstein. You should go sometime. It is quite
beautiful.
Mr. Myers. Ranchers develop water sites for their livestock
throughout that desert region because it is obviously a desert.
Other animals, such as big-horn, sheep, deer, and the like,
birds, would use those watering sites for their nourishment.
If the ranchers were no longer able to economically ranch,
they would leave the area. They would let the water sites
either fall into disrepair or they would remove them outright,
thus removing not only water for the livestock, but water for
the big-horn sheep, the deer, the birds, et cetera.
Senator Feinstein. Which is not quite true, not to debate
this because it is not relevant. But they call them guzzlers
and there are a whole series that volunteers place throughout
the desert for big-horn sheep and burros and other animals. The
bill provided for a willing seller, willing buyer. In fact,
some of the ranchers have decided to sell out to the Park
Service.
I think the bill was put together in a very sensitive way
and I was rather dismayed that you called it legislative
hubris, but that is fine because you have used a lot of
hyperbole. My concern is that you will take these views into
the chamber as a judge, and that, in fact, what they do is show
a very restrictive view of the Commerce Clause. And that is a
very important clause in terms of giving the Congress the
ability to determine law.
So therefore, in the Ninth Circuit, I would be concerned
that that restricted view would prevail and that you would be
willing under that view to strike down many good things that
this Congress does.
Mr. Myers. If I may respond, Senator, I would ask you also
to look at the comment where I used the unfortunate phrase
``legislative hubris.'' I did use a few other phrases that I
think were good, one being that environmental stewardship is
good business, that environmental stewardship is good
citizenship.
And I quoted the famous early 20th century conservationist
Aldo Leopold for his statement that conservation means harmony
between people and the land. I believe he said something to the
effect that when land does well for the land and the people do
well by the land--when, by reason of that partnership, both are
better off, that is conservation. And that was theme I was
trying to run throughout that article.
Senator Feinstein. I would like to ask you a question about
property rights. You were counsel of record in the case of
Babbitt v. Sweet Home Chapter Communities for a Greater Oregon,
and your brief argued that private property deserves the same
level of constitutional protection as speech. Specifically, you
wrote that, quote, ``Every bit as much as a regulation that
restricts speech, the regulation of private property must be
held up under the strong light of constitutional scrutiny.''
Is it your view of the Takings Clause that environmental
regulations deserve the same level of scrutiny as the
regulation of speech?
Mr. Myers. Senator, within that brief--and perhaps a little
context will be helpful. That brief was filed on behalf of
farmers and ranchers who were concerned that the Corps of
Engineers' interpretation of the Clean Water Act would impact
an exemption that Congress gave farmers and ranchers to proceed
with normal farming and ranching activities, and thus not
require a 404 permit.
Now, within that context, the quote that you are referring
to was a reference to a Supreme Court decision in 1994, Dolan
v. City of Tigard. In that decision, the Supreme Court said
that the Fifth Amendment, and referring specifically to the
Takings Clause, was as much a part of the Bill of Rights as the
First Amendment and the Fourth Amendment. And the Court went on
to say that the Fifth Amendment should not be, to use its
words, relegated to the status of a poor relation.
Senator Craig. Senator, your time is up.
Senator Feinstein. Thank you, Mr. Chairman.
Mr. Myers. Thank you.
Senator Craig. Let me turn to our colleague from Georgia.
Senator Chambliss, do you have any questions of the
nominee?
Senator Chambliss. Thank you, Mr. Chairman.
Before we leave this particular Sweet Home case, Mr. Myers,
I want to go back and let's make sure we get on the record a
real clarification of what you just said because it appears
that you stand accused of expressing the radical opinion in an
advocacy brief that you filed in 1995 that the Takings Clause
in the Fifth Amendment means what it says, namely that private
property shall not be taken for public use without just
compensation.
Now, the brief I am talking about which you submitted in
the Supreme Court is an amicus on behalf of the National
Cattlemen's Association. It did not argue that the Endangered
Species Act itself was unconstitutional.
Is that correct?
Mr. Myers. That is correct.
Senator Chambliss. Hadn't the U.S. Supreme Court--and I
believe you just stated this, but let me again clarify it--
hadn't the Supreme Court at the time of this amicus brief
recently decided the Dolan case which stated, and I quote, ``We
see no reason why the Takings Clause of the Fifth Amendment, as
much a part of the Bill of Rights as the First Amendment or the
Fourth Amendment, should be relegated to the status of a poor
relation in these comparable circumstances?''
Mr. Myers. That is the quote to which I referred in the
brief.
Senator Chambliss. Right. Let me also note that the Supreme
Court stated in the 1972 case Lynch v. Household Finance that,
``The dichotomy between personal liberties and property rights
is a fake one. In fact, a fundamental interdependence exists
between the personal right to liberty and the personal right in
property. Neither could have meaning without the other. That
rights and property are basic civil rights has long been
recognized,'' end of quote.
The point is that the fundamentality of property rights in
our constitutional system is neither new nor radical. If there
is a legitimate effort underway to amend the Constitution to
remove the Takings Clause, I am not aware of it. But it is not
up to judges to remove it. Until it is legitimately removed, it
ought to be respected.
Would you care to comment further on that, please, sir?
Mr. Myers. Well, Senator, I would not try to draw any
hierarchy among the amendments, or for that matter any
particular clause of the Constitution. The Constitution speaks
for itself and has the status in our Nation and in our
democracy that it deserves.
In that brief, I was referring to a statement by the
Supreme Court, I think, a year or two prior to the filing of
the brief that was specific to a takings issue which did have,
I thought, some fair argument to be expressed in the Sweet Home
litigation which the Court was considering.
Senator Chambliss. The problem your clients had with the
Endangered Species Act was that the Babbitt Interior Department
regulations defined the term ``harm'' in the statute in a way
that essentially precluded any private landowner's use of
property on which an endangered species might find habitat,
and, importantly, that the Government had no intention of
compensating affected landowners.
Is that correct?
Mr. Myers. Well, Senator, thank you for that.
And, Senator Feinstein, I need to correct a statement I
made to you in response to the same question. I think I
referred to an exemption under 404(f) of the Clean Water Act.
The Sweet Home case was an ESA case dealing with habitat
modification and I was confusing that with the SWANCC. I
apologize.
Back to your question, yes, the issue there was whether
habitat modification, as suggested in the regulations that were
under review in the case, would have an impact on normal
farming and ranching activities such that if a rancher went out
and modified the habitat, which, of course, is what ranchers
and farmers do, whether that would expose them to fairly
significant criminal liability. That is why they were
interested in filing an opinion in that case.
Senator Chambliss. Those provisions of the statute are, of
course, in addition to the Takings Clause of the Fifth
Amendment. And I understand that the Supreme Court ruled
against your client's position in this case, but it seems to me
that the argument is well-grounded in the plain language of the
Constitution and the statute at issue that acknowledged the
basic validity of the statute cannot be credibly tarred with
the empty moniker of ``extreme,'' just as a comment.
Lastly, I notice in your biographical information that you
are an outdoorsman, that you enjoy visiting our National parks,
and I am sure State parks in the western part of the country.
And above and beyond taking vacations in State parks, you give
a lot of time, a lot of volunteer time to making sure that our
State parks are environmentally safe and clean.
Is that correct, and would you have any comment about your
love for the outdoors as it might apply to the way you might
form your basis of opinions?
Mr. Myers. Yes, Senator. I appreciate the question. My love
for the out-of-doors was instilled early in me by my father and
mother, who are sitting behind me. My father was an assistant
scout master, and I soon found myself in Cub Scouts and then
Boy Scouts, and progressed to the rank of Eagle Scout.
We as a family would often go camping for our family
vacations in State parks, occasionally in national parks.
Hunting and fishing are a part of my life today, although not
as much as I would like. And I have been fortunate as an adult
to continue that. My family and I still camp in national parks
and in State parks. I still get out and, in fact, almost on a
weekly basis we venture up into the foothills behind Boise,
Idaho, into the national forest to recreate.
And as I calculated it, looking at this hearing and what I
had done in environmental matters, for the last 15 years I have
averaged about 12 days a year volunteering in national parks--
Yosemite, Yellowstone, the Smoky Mountains, Rock Creek,
Manassas Battlefield Park--doing such things as back-country
patrols; visitor interaction; minor first aid; minor law
enforcement, like put your dog on a leash; campsite clean-up;
trail-clearing and the like.
Senator Chambliss. Well, I commend you for your public
service that is over and above what most of us do.
Thank you very much, Mr. Chairman.
Senator Craig. Senator Chambliss, thank you very much.
We have been joined by the Chairman of the full Senate
Committee and I now turn to Hon. Orrin Hatch.
Orrin?
Chairman Hatch. Well, I welcome all three of you to the
Committee, and we are very grateful to the House of
Representatives, and specifically the chairman, Jim
Sensenbrenner, and the ranking member, Mr. Conyers, for making
this room available to us. It is very nice of them under the
circumstances, although it looks like later today we should be
able to get back to somewhat normal in the United States
Senate.
I welcome you all here. Mr. Stengel, I am happy to note
that you are a fellow University of Pittsburgh law graduate and
worked for Dickie, McCamey, Chilcote, and Robinson. They
offered me a job right out of the University of Pittsburgh Law
School, and one of the great defense firms in the country. I
won't be able to stay for yours and Mr. Duffey's hearing, but I
just want to welcome both of you here.
Let me take a few minutes with Mr. Myers.
Mr. Myers, you stated in response to an unfavorable
newspaper editorial in November of 2002, quote, ``I serve at
the pleasure of the President. I will continue to provide the
President and Secretary Norton with legal advice in support of
their policy goals, just as any lawyer should advocate his or
her client's goals within the bounds of professional
responsibility and ethical conduct,'' unquote.
I think I quoted that accurately, and correct me if I am
wrong here. The Solicitor's job is not really policymaking, but
rather to defend the laws and the policies of the Department
which either already exist or are established above your then
pay grade. Is that right?
Mr. Myers. Yes, Mr. Chairman, that is correct. There are
different ways to approach the office of the Solicitor. Some, I
think, have approached it more as a policy office, and that, I
assume, was with the consent of the Secretary for whom he or
she served. That was not my approach coming in, and as I was
interviewed for the position by the Secretary, I told her that
that would not be my desire to come in and make policy, that
there were other assistant secretaries in the building who
would have that obligation and duty; that my job would be to
give her and the constituent organizations within the
Department legal advice. She seemed quite satisfied with that
and I was hired.
Chairman Hatch. Well, it never ceases to amaze me how some
in the media and others whom we could mention seem to think
that an advocate should only advocate what they believe rather
than what the law says or what the advocate believes the law
says, or what the advocate's client believes the law says.
My gosh, we put through 377 Clinton administration judges,
and if we took the position that whenever they disagreed with
us they shouldn't sit on the bench, my gosh, none of them would
have sat on the bench. So it is amazing to me.
Now, you probably wouldn't have accepted the Solicitor's
job unless you generally agreed with the policies that you
thought President Bush and Secretary Norton would support. I
presume that is correct.
Mr. Myers. Well, probably more accurately, I would have
never been offered the job.
Chairman Hatch. Well, probably so.
Now, you spoke to this in the same November 2002 letter to
the editor, quote, ``I hope it does not come as a surprise that
the Bush administration has a different policy from the Clinton
administration on innumerable issues, including livestock
grazing on Federal lands and the importance of working
landscapes and rural communities,'' unquote.
Now, the question is whether doing your job as Solicitor to
defend policies that diverge from the Clinton-Babbitt regime
makes you an extremist and an ideologue, unfit for service on
the Federal bench. Of course, the answer has to be an emphatic
no.
For example, I wonder if the Committee is aware or whether
your opponents care that according to the National Journal,
quote, ``President Clinton filled some of his top environmental
jobs with environmental activists,'' unquote, including Bruce
Babbitt himself, the former president of the League of
Conservation Voters.
Now, given your record of trying to cooperate with
environmentalists, in your words--let me see if I can find
those words--quote, ``working with all sides to reach a
locally-supported consensus and rejecting the scheming of those
engaged in the environmental conflict industry,'' unquote, do
you think that former officials from the Babbitt years at
Interior ought to be disqualified from Federal judgeships
because of their association with Clinton administration
policies?
Mr. Myers. No, I don't. In fact, a friend in the
environmental advocacy arena said of me that, had he been
President, he may not have nominated me, but that didn't mean I
wouldn't make a good Federal judge. I think that was a fair
comment and I would hope--
Chairman Hatch. Well, I think it is a fair comment and it
is an accurate comment. I mean, my goodness, if we all have to
agree on one politically-correct way of thinking, my gosh, we
are going to have very few judges that are worth a doggone in
this country.
Even some environmentalists agree that their political
disagreements with a nominee don't disqualify him or her from
the Federal bench. For instance, the Casper Star Tribune, a
newspaper normally inclined to criticize the Bush
administration, reported in May 2003 that the director of the
Northern Rockies office of the National Wildlife Federation
said the following about Mr. Myers--basically, what you said--
quote, ``He has different opinions on policies than I do, but I
don't think that makes him unfit to serve on the Federal
bench,'' unquote.
Are you aware of that quote?
Mr. Myers. I am.
Chairman Hatch. Okay. I agree with that and I would hope
that the Committee agrees, especially given all the rhetoric I
have heard about how the judiciary ought not to be politicized.
Let me ask one more question along these lines. Among your
critics is the National Parks Conservation Association, whose
senior director commented as follows on your nomination, quote,
``His history has been in defending commodity uses, not public
uses of Federal lands. His confirmation would be another nail
in the administration's attempt to hand over public lands to
private industry,'' unquote.
Now, this incoherent conclusory statement assumes several
things, first that the clients you have represented in your
career are as rigidly ideological as the speaker, who clearly
believes that public lands have only one valid use, and that is
as scenery; second, that President Bush nominated you to
advance a particular policy agenda as a Federal judge.
Would you care to respond to these types of, I think,
incompetent attacks?
Mr. Myers. I wasn't aware of the comments by the National
Parks Conservation Association, but I guess with respect to
that particular organization, I would stand on my personal
record that I cited a moment ago that I have spent my free time
in serving national parks, such as picking cigarette butts out
of fire pits. I have a great love for the national parks. That
is where we recreate and that is where we go for sustenance,
for spiritual refreshment, and that is a personally-held view.
The larger view, though, and the one that is really
important for this Committee is whether I would carry into a
judicial position, if I were so lucky as to be confirmed, an
ideology that would result in a bias against or for any
litigant.
And I think it should be noted that every nominee, I
suspect, that comes before you has both proponents and
opponents, and some of those people may hope that once that
person becomes a judge that they can either count on them to do
the right thing or cower in fear that they will do the wrong
thing.
I hope that both of those groups, the proponents and the
opponents, are disappointed; that when a person takes on those
robes, takes the oath of office, swears to uphold the
Constitution, that that means that they will follow the law and
the facts, wherever the law and the facts take them, without
regard to personal opinion, public opinion, friends, or foes.
Chairman Hatch. My time is just about up, but you do
understand the difference between the role of being an advocate
and being a judge?
Mr. Myers. Oh, absolutely. I have been the advocate at the
bar pleading my case to the judge. Sometimes I win, sometimes I
lose.
Chairman Hatch. And sometimes you are considered right,
sometimes you are considered wrong, but you are doing the best
you can to advocate for your particular client.
Mr. Myers. Right.
Chairman Hatch. Now, you understand that your personal
beliefs are irrelevant when it comes to deciding what the law
really means?
Mr. Myers. Well, as I mentioned earlier, Senator, Mr.
Chairman, if my client wishes me to pursue a colorable argument
and does not ask me to act unethically, immorally, or
illegally, and that argument has a foundation in the law and is
not sanctionable, frankly, under Rule 11, then that person
deserves to be heard before the court, and I will take the best
argument that I can muster within those confines.
Chairman Hatch. But as a judge?
Mr. Myers. As a judge, the judge has a duty to hear both
sides, and obviously that is why we have the advocacy system so
that there is a balance of views presented to the judge. And
then the judge, looking at precedent and with respect for the
judicial process and the decisions of the court that has gone
before, must determine what the law and the facts say.
Chairman Hatch. Well, I know your reputation. It is an
excellent reputation.
Mr. Myers. Thank you.
Chairman Hatch. I know of your intellectual capacities, and
your intellectual capacities are excellent. I know of your
honesty; that is excellent. I look at your family behind you
and they don't seem to be too odd to me.
Mr. Myers. Well, I didn't put that in the record.
Chairman Hatch. They look downright good to me, is all I
can say. And I suspect that anybody who is fair will judge you
on the basis of your reputation, which is a good one, a great
one; your family, the honesty that you exhibit, and the
abilities that you have. And if they do that, you will be
unanimously approved by the U.S. Senate, and that is what I
intend to see happen and I hope that it does.
Mr. Myers. Thank you, Mr. Chairman.
Chairman Hatch. Thank you so much. We are glad to have you
here, and the other nominees as well.
Senator Craig. Thank you very much, Mr. Chairman.
Let me again turn to my colleague from Illinois, Senator
Durbin.
Senator Durbin. Thank you very much, Mr. Chairman. I have
two or three questions that I would like to follow up on.
Mr. Myers, all of us in public life, whether appointed or
elected, are naked to our enemies and are the object of
accusations, valid and invalid. And I preface my remarks by
acknowledging that fact, but asking you if you would for the
record, speak to the two investigations by the Inspector
General of the Department of the Interior into your conduct at
that department.
If you would tell us what the status of each of those
investigations is, whether they have been completed, I would
appreciate it. You don't have to go into long detail on these.
We have them before us, but if you would tell us your side of
the story for the record, I would appreciate it.
Mr. Myers. Well, certainly, I would be happy to. You
mentioned two investigations into my conduct. Actually, there
was only one into my conduct. The other was with regard to
conduct of attorneys in my office and I was interviewed as part
of that process. That dealt with an issue as to whether a
settlement reached in some administrative litigation was legal
or not.
Senator Durbin. The Frank Robbins--
Mr. Myers. That is correct, yes, sir. I was not involved in
the negotiations or discussions of that settlement, other than
to tell a subordinate attorney that he had authority to try to
settle that case.
Senator Durbin. Did you approve the settlement?
Mr. Myers. No, I did not.
Senator Durbin. Were you aware of the terms of the
settlement?
Mr. Myers. No.
Senator Durbin. So it went from your subordinate's decision
to what level before it was policy of the Department?
Mr. Myers. Well, the subordinate attorney worked with the
Bureau of Land Management, which was the party on behalf of the
Department of the Interior to the settlement. Some 6 months
after the settlement was signed, press reports came out with
statements that it was perhaps illegal. Obviously, I saw those
press reports. I asked for a copy of the agreement.
I then dispatched different attorneys in my office to look
into the allegations, together with employees from the
assistant secretary's office who has authority over BLM. So I
initiated in my own right an inquiry into the statements to
determine whether or not they were correct.
Senator Durbin. Excuse me, but in the initial settlement
negotiations you played no role?
Mr. Myers. That is correct.
Senator Durbin. And did not review them once they were
agreed to?
Mr. Myers. Right.
Senator Durbin. And you are saying that is standard
procedure?
Mr. Myers. Well, it was in that case for me, Senator,
because I only knew it as an administrative piece of
litigation, which is to say it was wholly contained within the
Department of the Interior as a dispute between the BLM and the
rancher. That is how it was presented to me, so it did not seem
particularly remarkable and if this attorney wanted to try to
settle that, then fine.
Senator Durbin. On the first instance, the Inspector
General's investigation of your relationship with your previous
and now current law firm--
Mr. Myers. Yes, right.
Senator Durbin. --would you speak to that?
Mr. Myers. I will. August of last year, I actually received
a call from a reporter from the Washington Post asking me to
respond to some statements. Rather than respond with complete
lack of understanding, I instead went about finding what this
was and determined that a couple of groups had looked at my
entries on my planning calendar, and based on those entries in
the planning calendar they raised concerns that I was violating
my ethical obligations under relevant statutory and regulatory
provisions, as well as an agreement that I entered into prior
to entering the Department.
When I saw the seriousness of the allegations, I went to
the Secretary of the Interior, I told her, and I asked her in
writing to initiate an investigation, which she did by
contacting the Inspector General. Simultaneously, those
allegations had been forwarded to the Office of Government
Ethics. They also asked the IG to look into it.
The IG undertook a, I think, three-month review, looking
not only at the meetings that were on the planning calendar,
but essentially at everything I had done over the last two-and-
a-half years. The IG produced his report and gave it to the
Office of Government Ethics, who had requested it officially.
The Office of Government Ethics wrote back to the two
groups and stated, in summary, basically that Mr. Myers showed
a strong intention to comply with the statutes, regulations,
and obligations that he had ethically, and that, in fact, he
did so.
Senator Durbin. I would ask you to clarify two things. In
the Inspector General's report, they indicate that they
initiated their inquiry not on the basis of your request, but
rather a complaint received on August 5 from Public Employees
for Environmental Responsibility and Friends of the Earth.
And the second part--and I don't know the answer to this;
perhaps you have just given me the answer--they say the Office
of Governmental Ethics therefore requested that an
investigation ascertain the specifics of the discussions that
took place during each of the 27 meetings in order to determine
if Myers had actually violated the terms of his ethics
agreement or the criminal conflict of interest law.
I took it from that that even though this was issued
November 24 of last year that it is still ongoing; there are
still aspects of this investigation ongoing. Is that true?
Mr. Myers. No, sir. It is closed.
Senator Durbin. It is closed.
Mr. Myers. The Office of Government Ethics issued its
written opinion on the 5th of December. And with regard to how
this matter came to the IG's attention, I guess I frankly don't
know whether the two groups forwarded their concerns on August
5 directly to the IG. I know they did forward them directly to
the Office of Government Ethics by a letter, and when I heard
about it I just--before the OGE asked for an inquiry, I went to
the Secretary and said please get to the bottom of this.
Senator Durbin. Now, when you went to work for the
Department of the Interior, you, I think--tell me if this is
true--represented that you would not get involved with your
former law firm or clients for a period of time in the
Department of the Interior. Is that correct?
Mr. Myers. That is basically correct. There are a series of
regulations that apply to that.
Senator Durbin. Now, do you feel then that it would be
appropriate if you are successful in this nomination to recuse
yourself from cases involving your former law firm or former
clients?
Mr. Myers. Well, what I would do--and what this episode was
useful for was providing me with an excellent reminder of the
importance of the rules of conduct that are applicable to any
Federal official, including judges. So if I am fortunate enough
to be confirmed, the first order of business will be to crack
the Code of Judicial Conduct and put it on my desk, understand
it thoroughly, and find out how a judge goes about dealing with
recusal issues. Frankly, sitting here, I don't know the answers
to those questions.
Senator Durbin. Well, I want to give you some time to look
at that code and then respond to the question I just asked. I
will send that to you in writing with a few other questions, if
you don't mind, Mr. Chairman.
Let me ask you about this property rights debate that we
have been involved in here and your reference to the Dolan
decision. I want to make sure I can put this in the context of
other issues that might present themselves or have presented
themselves to the courts.
If you believe, if it is your point of view that Dolan says
that property rights are equal to rights of free speech and
other rights guaranteed under the Bill of Rights, I would like
to ask you how then you think we should have resolved issues
like civil rights, where we said that the fact that you own the
restaurant and the fact that you own the hotel and it is your
property is not enough for you to discriminate against
Americans based on their race. Clearly, we decided--at least
the courts decided that property rights were trumped, overruled
by more important rights. How do you resolve that?
Mr. Myers. I think the answer is in the Supreme Court's
decisions, Senator. The Supreme Court, in interpreting the
Takings Clause and the Fifth Amendment, has never interpreted
it as an absolute. The Court, since the landmark case of
Pennsylvania Coal v. Maine in, I think, the 1920's basically
said that property rights are subject to reasonable regulation
by government entities.
And we, of course, have that everyday. Where I live, where
you live, we are all subject, and our property rights are
subject to city, county governments, as they should be. So it
becomes a matter of degree and a matter of context. If there is
a physical invasion by the government of one's property, you
are likely to have a better chance of making out a case for a
takings. If it is a, quote, ``invasion'' of your property
rights by economic regulation, you have a less chance of making
out a takings. And the court has over the years tried to
structure a format and a context in which to make that
analysis. It has done so through the Dolan case and others.
Senator Durbin. Let me ask you, following up on your
analogy here, was not the passage of the Americans With
Disabilities Act, in fact, a physical invasion of the property
rights of individuals, a requirement that certain entities--
businesses, localities and such--change the property that they
own to accommodate Americans with disabilities? And would you
view this as an improper takings?
Mr. Myers. On that one, I am going to hesitate because I
don't know whether that particular question has been litigated
or is in litigation or may come before me if I were to become a
judge. I think it is fairly obvious that accommodations for
persons with disabilities impacts one's property. Whether that
rises again to the level of a takings, I don't know.
Senator Durbin. Let me just close, if I might, Mr.
Chairman, by--you have written two stirring defenses of Robert
Bork's nomination to the Supreme Court and said in one of them,
the Denver Law Review, ``Judge Bork's judicial philosophy was
well within the parameters of acceptable constitutional theory,
worthy of representation on the Supreme Court.'' Judge Bork
stated and believed that Griswold v. Connecticut, which
established the right to privacy, was an unprincipled decision.
Do you share that view?
Mr. Myers. No, Senator. Griswold is probably the bedrock
decision in the right of privacy string of cases that the
Supreme Court has decided. It is regularly cited in subsequent
Supreme Court decisions such as Planned Parenthood of Southwest
Pennsylvania v. Casey and Roe v. Wade and other decisions. So I
think that is well-settled.
Senator Durbin. Do you think Bork's position, then, was in
the mainstream and should have been represented on the Supreme
Court?
Mr. Myers. My comment in that regard was, I think, back in
1988, maybe 1990, when I was fairly fresh out of this
Committee's chambers, having been Senator Simpson's staffer on
the Bork nomination. And the point that I was making was that
it was not particularly my personally-held view of his status
within the mainstream, but with reference to others whose
opinions were worthy of consideration.
Specifically, Justice Stevens said that he was very well
qualified and would be a welcomed addition to the Court. Former
Chief Justice Burger said that it would shock him to think that
Judge Bork was any more of an extremist than he himself was.
The ABA had given Judge Bork its highest rating. Based on that,
it seemed to this lowly staffer's opinion that that was
somewhere in the mainstream.
Senator Durbin. Thank you, Mr. Myers, for your patience and
cooperation.
Mr. Chairman, thank you, and I would like to ask on behalf
of Senator Leahy that this letter from professors in the Ninth
Circuit be entered into the record at this point.
Senator Craig. Without objection.
Senator Durbin. I would also like to express my apologies
to the other nominees and their families, who have waited with
varying degrees of success--Mr. Duffey and Mr. Stengel--for
their opportunity to come before the Committee. Thank you very
much.
Senator Craig. Thank you.
Let me turn to my colleague from Georgia for any further
questions he might have of nominee Myers.
Senator Chambliss. Mr. Chairman, just very quickly--Mr.
Myers, I want to go back to this Robbins settlement issue just
to make sure that we are very clear as to the status of that.
Do you recall the first time you actually reviewed the
settlement that was executed in December of 2002 and January of
2003 between the BLM office in Wyoming and Frank Robbins, who
was a Wyoming rancher?
Mr. Myers. It was approximately a half year after it was
entered into.
Senator Chambliss. And what evidence did the various
environmental activist groups cite in support of their
contention that you, quote, ``specifically authorized the
settlement,'' close quote?
Mr. Myers. I think there is some confusion there. What I
specifically authorized was a subordinate attorney's attempt to
try to reach a settlement between two parties.
Senator Chambliss. We understand the Department of the
Interior IG report that has already been referred to is
currently investigating one field solicitor and perhaps others
who were directly involved in negotiating this Robbins
settlement.
Didn't you have a role in appointing the investigative team
which was chosen specifically because they had no connection
with the Robbins matter?
Mr. Myers. That is correct. I asked the Associate Solicitor
for Lands and Minerals Management to work with an appointee
chosen by the assistant secretary with authority over that area
and for the two of them to see if they could get to the bottom
of it.
Senator Chambliss. Is there any conceivable reason why you
would be a target of the Robbins investigation?
Mr. Myers. Well, no, and as far as I understand, I am not.
Senator Chambliss. In fact, I would like to state for the
record that I have received information that the IG in charge
of the Robbins settlement, Mr. Chairman, will provide written
confirmation to the Committee that, in fact, Mr. Myers was not
a target of this investigation. Such a letter will simply
clarify the obvious that there is complete absence of evidence
that the Robbins settlement, assuming there is something
improper about it, reflects poorly on Mr. Myers' conduct while
he served as Solicitor.
Thank you, Mr. Chairman.
Senator Craig. I thank you, Senator, and when that is
available, we will make that a part of the record.
Let me close so that we can move to our other nominees, and
I appreciate everyone's patience. I think you can see that we
here on the Judiciary Committee take all nominations very
seriously, for the obvious reason that those of you who are
successful will wield a great deal of power in a lifetime
appointment over the citizens of our country. It is critically
important that we understand your judicial temperament, your
background, your capabilities, and try to ascertain from that
your sense of the law and your responsibilities in it.
In my opinion, the Ninth Circuit needs Bill Myers. Of the
circuit's 26 active judges, 17 were appointed by Democrat
Presidents. Only nine judges are Republican appointees. A
remarkable 14 of the 26 judges--that is 54 percent of the
court--were appointed by President Clinton. In 2000 alone, a
presidential election year, President Clinton appointed four
judges to the court.
Let me also note--and I wish my colleague, Senator Schumer,
were here, but I will dutifully note his absence, noting that I
am not speaking behind his back. I do want to note what Senator
Schumer said about Bush's nominee to the Ninth Circuit, Judge
Jay Bybee, before voting to confirm him to that court.
Here is what Chuck Schumer said: ``Jay Bybee, make no
mistake about it, is a very conservative nominee. It is fair to
put him in a similar category with many of the more
conservative nominees we have had. If Mr. Bybee were nominated
to another court that is hanging in the balance or where most
of the nominees were conservative, I would probably vote
against him. If he were nominated to the Supreme Court, for
example, there would be a difficult calculus. But Mr. Bybee is
nominated to the Ninth Circuit Court. The Ninth Circuit is by
far the most liberal court in the country.'' Most of the
nominees are Democrats, from Democrat Presidents, as I have
quoted the record. ``It is the court that gives us the pledge
of allegiance case, which is way out of the mainstream on the
left side. Therefore, I think Jay Bybee will provide some
balance.''
Similarly, confirming--and these are now my words--
similarly, I believe that confirming the nominee that is before
us today, Bill Myers, will take another step in restoring what
is important, a measurement of balance, to the Ninth Circuit.
I thank you very much for being before us, Bill. I think
you have represented your case and your presence admirably. And
we will look forward, I hope, to speedy completion and
confirmation of you. Thank you very much.
Mr. Myers. Thank you, Senator.
Senator Craig. Well, let me again state, as the Chairman
did, how much we appreciate everyone else's patience and
tolerance today. I have watched your faces go from those of
bright and alert to sometimes a rather dull glaze. So let's get
bright and alert again, if you will, because we will not detain
any of you very long. It is obvious by the exit from the room
at this moment that while many of you may have thought the
audience had gathered in your behalf, that is probably not the
case. So I would ask William Duffey and Lawrence Stengel to
please come forward.
While you are standing, will you please raise your right
hand and repeat after me? I do swear that the testimony that
you are about to give before the Committee will be the truth,
the whole truth and nothing but the truth, so help you God.
Mr. Duffey. I do.
Judge Stengel. I do.
Senator Craig. Please be seated. Some of you have had your
families introduced, but let me give both of you that
opportunity. I think we all recognize the privilege that you
have been--the nomination is a privilege, certainly, and I
think you all respect that highly.
Mr. Duffey, let me again turn to you for the purpose of
introduction of your family, if you would.
STATEMENT OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Mr. Duffey. Thank you, Mr. Chairman. It is indeed a
privilege to be afforded this opportunity to be considered by
the United States Senate for confirmation, as it has been a
privilege to be nominated by the President of the United States
to this post. But I would not be here without my family: Betsy,
who is my wife of almost 27 years, and my two sons, Charles and
Scott, who have been instrumental in supporting me throughout
this process.
[The biographical information of Mr. Duffey follows:]
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Senator Craig. Mr. Duffey, thank you, and thank your family
for being here. I must tell you that a friend of Paul
Coverdell's is, without question, a friend of mine.
Mr. Duffey. Thank you, Mr. Chairman.
Senator Craig. Now, let me turn to Lawrence Stengel.
Judge Stengel. Stengel.
Senator Craig. Stengel, okay. I wrote down ``Casey.''
Judge Stengel. Same pronunciation, no relation.
Senator Craig. All right, thank you very much. Would you
please introduce your family?
STATEMENT OF LAWRENCE F. STENGEL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Stengel. I would be glad to. Thank you, Senator. It
is a privilege for me and for my family to be here. My wife,
Theresa; my children, Tim, Emily, Peter, Julia, and the speaker
of our house, Joseph, who is on the floor.
[The biographical information of Judge Stengel follows:]
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Senator Craig. I have been watching Joseph. He has
demonstrated phenomenal tolerance. And I thank you for that,
Joseph, and welcome before the Committee.
Let me turn, if I can, to my colleague, Senator Chambliss,
for any questions you might have of either of these nominees.
Senator Chambliss. Just very quickly, Mr. Chairman, I have
already made comments relative to my knowledge of Mr. Duffey's
background. Obviously, I am extremely supportive of the
confirmation of both of these gentlemen.
Mr. Duffey, let me just ask you one or two things, though,
for the record relative to your particular practice before the
Federal bench, as well as the State bench. I understand you
have had extensive trial experience, both obviously post being
named United States Attorney, but as well as previous to that
time.
Would you just generally give us a history of your
background relative to your trial experience?
Mr. Duffey. Yes, Senator Chambliss. I have been a lawyer
since 1977, and in every assignment that I have had in those
now almost 26 years my responsibilities have been in the
courtroom.
I began my career as a Judge Advocate in the Judge Advocate
General's Corps, in the United States Air Force. I had the
unusual opportunity my second 2 years on active duty to be
assigned as what was known as the circuit trial counsel, which
gave me responsibility with one other lawyer for trying all the
Air Force's felony cases throughout the Southeast United
States. I was responsible for 44 cases, and 22 of those I tried
to verdict.
In private practice at King and Spalding, which I have had
two terms with, I was either in commercial litigation or the
special matters group of King and Spalding, and all of that
work was involved in litigation generally of complex civil and
criminal matters.
When I was with the independent counsel's office, I was
responsible for three parts of the Whitewater investigation,
made grand jury appearances, and was responsible for one case
that actually was prosecuted and concluded.
And since being the United States Attorney, I have been
actively involved in all of our litigated matters and have had
the privilege of representing the United States in two
arguments before the Eleventh Circuit Court of Appeals. And I
have tried two cases while United States Attorney, which is not
the norm for United States Attorneys.
Senator Chambliss. Let me ask both of you a question I ask
all of our nominees, and that is obviously as a lawyer you have
the obligation to represent your client as a strong advocate.
And we all as lawyers, I hope--I was in that same category with
the two of you of working very diligently for my clients over
the years that I practiced law.
When you become a judge, obviously, and you put on the
robe, you step into a different atmosphere, and that atmosphere
is one of paying close attention to precedents that have been
established and getting away from the personal feelings that
you have to make sure that we follow those precedents that are
established by all of our courts, from the Supreme Court on
down.
Do each of you know and understand the difference between
following precedents and legislating from the bench, and are
you prepared to accept the new responsibility that you would
have to make sure that you do not legislate from the bench?
Bill?
Mr. Duffey. Senator, I think that that is the principal
responsibility of a judge, is to follow precedent and to apply
the law as it has been announced by the Supreme Court or the
circuit which I am in, the Eleventh Circuit. It is a wholly
different discipline from being an advocate, in that it is my
responsibility, should I be confirmed, to make sure that I
follow the precedent, follow the law, as it has been announced
by the courts.
Senator Chambliss. Thank you.
Mr. Stengel?
Judge Stengel. Well, Senator, I have been sitting as a
State court trial judge since October of 1990 and have had the
obligation and the privilege over that time to consider many
criminal and civil cases. I have tried at this point probably
several hundred criminal and civil cases, and have attempted in
each case to diligently apply the law of our commonwealth and
of the Federal courts, where applicable, to the cases I have
been handling. So, yes, I think that is central to the role of
an effective judge.
Senator Chambliss. Thank you. Thank you, Mr. Chairman.
Senator Craig. Saxby, thank you very much for those
questions.
Senator Chambliss has asked the question of precedent that
I think is critical to ask judges as it relates, certainly, to
the district court in relation to the circuit court, in
relation to the Supreme Court. Let me ask, then, I think, a
follow-up question. It is something that the Committee attempts
to seek of those who are before them as nominees, and so I ask
this of both of you.
Given your background and prior experience, could you speak
for a moment about the role and significance of judicial
temperament and indicate what element of judicial temperament
you consider to be the most important?
Mr. Duffey?
Mr. Duffey. I think judicial temperament is one of the most
important qualities that this Committee or anybody evaluating
judges has to take into account. Everybody who is in a
courtroom--sometimes the only encounter that they have with the
judicial system is that particular trial or that particular
hearing. And they will leave that courtroom, whether they are a
litigant or they are an observer or they are a member of a
jury, with an impression of the court system based upon that
experience.
Therefore, I think it is incumbent upon the judge to allow
everybody to leave that hearing with the belief that they have
treated the parties fairly, that they have allowed the
litigation to proceed and for the advocates to perform their
jobs to the utmost of their ability, that they have treated all
people with dignity, and that ultimately through the conduct of
the trial, the hearing or the proceeding that it was done with
objectivity and fairness, and that people left feeling as if
justice has been done. And that can only be done, I believe,
Mr. Chairman, by somebody who sits on the bench that creates
that atmosphere.
Senator Craig. Thank you.
Mr. Stengel?
Judge Stengel. Senator, I think that temperament involves
elements of courtesy. I think it is essential that the judge
who is in charge of the courtroom exhibit an attitude of
courtesy to everyone who participates, from witnesses to
litigants, to uncooperative witnesses, to pro se defendants. I
think that to listen courteously and to consider the position
of that person in that case is critical.
Much of temperament from the bench has to do with
listening. We are not great speakers necessarily or people who
have a lot to say during a proceeding. Ours is, I think, to
listen carefully, listen critically, and make sure that the
situation in the courtroom leads to a fair hearing both in how
it appears and how it actually is.
In a State court trial practice, I have litigants--1 day,
you may have a world-famous forensic pathologist in a case. The
next day, you may have a seriously mentally ill pro se criminal
defendant. And I think that the message is the same and the
procedure is the same, and that each person who comes in there
deserves to be heard, deserves to be treated fairly. And I
think a lot of that comes from the attitude and the conduct and
the temperament of the person in charge.
Senator Craig. Mr. Stengel, you have served 14 years as a
judge.
Judge Stengel. Nearly 14, sir, yes.
Senator Craig. I think you have already spoken to this, but
maybe you could take another moment to tell us why that
experience prepares you obviously now for the Federal bench.
Judge Stengel. I view the roles in a very similar way. I
view the move to the Federal court as a way of continuing a
career which has been a very satisfying career to me in public
service at another level and in another framework.
I think certainly in a state court courtroom, there is a
great volume of cases. I would look to the Federal courts
perhaps as involving cases of greater complexity, but perhaps
less volume. But the volume that I have managed over nearly 14
years, I think, has given me skills and a sensitivity to the
importance of case management and in not only conducting full
and fair hearings, but doing so in an expeditious way so that
people who are waiting for a result, people who are waiting for
a hearing, get in the courtroom and get the decision. And I
think it is a question of administration most that I think
would have prepared me in my State court work for a position on
the Federal bench.
Senator Craig. Mr. Duffey, you have spent over 25 years
practicing law and have served both as a prosecutor and as a
defense counsel. What do you think is the biggest challenge you
will face in your new role if you are confirmed as a district
judge?
Mr. Duffey. Well, thank you, Mr. Chairman. I feel as if my
background has maybe uniquely prepared me for this opportunity.
As you mentioned, I have the blessing of having served in
almost any role that you could serve in a trial court, save for
presiding over the proceeding. Not only was I a prosecutor, but
I did, as you observed, defend a lot of criminal cases.
A significant portion of my practice in my old law firm was
in plaintiff's work, albeit on the commercial side. But I not
only saw the litigation process from the needs of somebody
instituting the action, but also then defended a number of
companies and individuals in litigation in the civil side.
I have thought a lot about this transition and I believe
that all of those things that have been in my background have
prepared me, and I look forward to moving toward a place where
I can apply those skills that I have developed and apply the
experience that I have had. In managing a courtroom and a
docket so that the people that are in the position that I am in
now and I have been in the past have the opportunity to
adequately represent their clients and move cases toward
resolution.
Senator Craig. Obviously, that experience is extremely
valuable, I would trust. I am not an attorney. I have never
stood before a judge in that regard.
Mr. Duffey. I believe it is invaluable.
Senator Craig. Yes. Well, gentlemen, to both of you thank
you very much for your time, your patience, and your responses.
I would trust this Committee will move you expeditiously from
the Committee to the floor for confirmation, and I would hope
that that would happen sooner rather than later. Obviously, you
are needed on the bench, as caseload in most States is sizable,
and I am sure you would be needed at work. So I thank you both
for your testimony and for your patience and the patience of
your families.
We will keep the record of this Committee open. We will
hold the record open for written questions until 5:00 p.m. on
Friday, February 13. Otherwise, we will get into a recess. The
staff has hopefully been able to access computers and draft
statements, and all that can happen in a timely fashion.
Based on your record, you two may be subject to written
questions asked of you, and so we would hope that you would
respond to those as quickly and timely as possible.
With that, I don't know of anything else to come before the
Committee and the Committee will stand in adjournment.
[Whereupon, at 1:03 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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NOMINATIONS OF DIANE S. SYKES, OF WISCONSIN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SEVENTH CIRCUIT; JAMES L. ROBART, OF WASHINGTON, NOMINEE
TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON; AND JUAN
R. SANCHEZ, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
----------
WEDNESDAY, FEBRUARY 11, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:15 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, Craig, Kohl, and
Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. I apologize for being a little bit late. I
just could not get away from where I was.
We are pleased to welcome to the Committee this afternoon
three outstanding nominees, one for the Federal appeals court
bench and two for the district court bench. And I will speak
about each of them in just a minute, and can we hold our
remarks until our colleagues are able to say theirs? Is that
okay with you?
Senator Specter. I am one of your colleagues.
Chairman Hatch. Well, I think that is a good idea.
Senator Specter. Both ways: on the Committee and
introducing one of the nominees.
Chairman Hatch. That is great. Well, then, we will start
with Hon. Arlen Specter. Then we will go to Hon. Rick Santorum,
then Hon. Herb Kohl, if he is here. Well, since it is
Wisconsin, I think we will honor the Chairman of the House
Judiciary Committee and go to him. and then if Senator Feingold
shows up, then we will do him.
Senator Specter. He is here.
[Laughter.]
Chairman Hatch. You can say, ``I am late.'' Okay. Senator
Feingold will be next, then Hon. Senator Patty Murray, and then
finally Hon. Maria Cantwell. So we go in that order. We will
put, Congressman Sensenbrenner, right after Senators Kohl and
Feingold, if that would be all right. So we can keep that all
together.
We will start with you, Senator Specter.
PRESENTATION OF JUAN R. SANCHEZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman, and
thank you for convening these hearings and the prompt listing
of the judicial nominees. With the many problems facing the
Federal courts, it is very important to keep the nominees
going, and you have done an outstanding job under difficult
circumstances.
Senator Santorum and I have the honor to introduce State
Common Pleas Court Judge Juan Sanchez for the United States
District Court for the Eastern District of Pennsylvania. Judge
Sanchez comes to this position with an excellent academic,
professional, and judicial background. He was born in Puerto
Rico, came to the United States, and attended the City College
of New York, graduating in 1978 cum laude; a law degree from
the University of Pennsylvania; and since that time, has had a
diversified practice in the civil practice with the Public
Defender's Office, with the Legal Aid Society, the sole
proprietor of a law firm, and more recently for 6 years being a
very distinguished judge of the State court, the Common Pleas
Court of Chester County.
Judge Sanchez has moved through the process on the
bipartisan nominating panel which Senator Santorum and I have
established. The President has submitted his name to the Senate
because of his outstanding qualifications and also in the
interest of diversity.
A very large group of proud Chester County officials have
come here today: William H. Lamb, a former Associate Justice of
the Supreme Court of Pennsylvania, his most prominent position
when he was a fellow district attorney with Arlen Specter in
the good old days in Philadelphia; James McErlane; Skip Brion,
the Chairman of the Chester County Republican Group; three of
the judges, fellow judges from the Court of Common Pleas--
President Judge Riley, Judge Ott, and Judge Mann. And I would
go on and list everybody here, but there are a lot of people
waiting to make their presentations. But it is a great pleasure
to introduce Judge Sanchez to this panel and to urge his speedy
confirmation.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Specter.
We will go to Senator Santorum, then Senator Kohl, and then
Senator Feingold.
PRESENTATION OF JUAN R. SANCHEZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. It is an honor
for me to be here to introduce to the Committee Judge Juan
Sanchez. And even though he is a native Puerto Rican and grew
up in New York, he was wise enough to begin to practice law in
Chester County, Pennsylvania, and has a distinguished record
that Senator Specter outlined. And I just want to add the
tremendous amount of work that he has done in community
service. Chester County has a large migrant worker population,
largely Hispanic population, and Judge Sanchez has done a lot
in the area of bilingual education at the YMCA and a lot of
other things to really help integrate that community and has
really been an outstanding role model for many members of that
community in Chester County. And he has a distinguished legal
record that Senator Specter--academic and legal record. He was
unanimously well qualified by the American Bar Association. He
has a distinguished time as a trial court judge in a large
suburban county, Chester County. And as Senator Specter said,
he has tremendous support--Republican, Democrat, across the
board. When we asked for a suggestion for judge in Chester
County--it was sort of their time as a large suburban county to
have one of these vacancies--there was unanimous support for
Judge Sanchez because of not just his great legal ability and
his excellent record but, candidly, because of the tremendous
community service that he has provided and the great model that
he is in that county.
And so it is a pleasure for me to be here to support his
nomination.
Chairman Hatch. Thank you, Senator Santorum. That is heady
praise for our nominee, and I appreciate both of you being here
and appreciate your busy schedules.
We will turn to Senator Kohl at this time.
PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT COURT
JUDGE FOR THE SEVENTH CIRCUIT, BY HON. HERB KOHL, A U.S.
SENATOR FROM THE STATE OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman. Along with Senator
Feingold and Chairman Sensenbrenner, it is my pleasure to
introduce Wisconsin Supreme Court Justice Diane Sykes to the
Senate Judiciary Committee today. She has been nominated to
fill one of the Wisconsin seats on the Seventh Circuit Court of
Appeals to replace retiring Judge John Coffey.
Justice Sykes brings an impressive background to this
important position. She is a lifelong resident of Wisconsin.
She was born in Milwaukee, attended Marquette University Law
School, clerked for Federal Judge Terry Evans in Milwaukee, and
practiced law for a Wisconsin law firm at the very top rank.
Justice Sykes left private practice in 1992 to serve as a
Milwaukee County circuit judge, a position she held until 1999.
She was then appointed to the Wisconsin Supreme Court in 1999,
and she won re-election to a 10-year term in the year 2000. She
is to be commended for her devotion to public service and
praised for her qualifications for the Seventh Circuit Court of
Appeals.
We are not the only ones who recognize her abilities today.
The bipartisan Wisconsin Federal Nominating Commission, which
has been screening judicial candidates for Wisconsin Senators
of both parties for 25 years, selected Justice Sykes and three
others from a very impressive list of applicants for this
position. All four finalists were very well qualified, and all
deserved to have their names forwarded to the President for his
selection. Wisconsin's process should be a model, Mr. Chairman,
because it finds qualified applicants and takes much of the
politics out of judicial selection.
The American Bar Association agrees with our evaluation as
well. A substantial majority of the Committee rated her well
qualified. Mr. Chairman, we expect Justice Sykes to not only be
a credit to Wisconsin, but also to administer fair justice for
all who come before her. We look forward to Justice Sykes'
hearing today and ultimately her support by the full Senate.
I thank you and I ask unanimous consent that Senator
Leahy's statement be recorded.
Chairman Hatch. Thank you so much. We will put that in the
record and record it.
Senator Feingold, and then Congressman Sensenbrenner.
PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT COURT
JUDGE FOR THE SEVENTH CIRCUIT, BY HON. RUSSELL FEINGOLD, A U.S.
SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. It is also my
privilege to welcome Justice Diane Sykes to this hearing and to
introduce her to the Committee.
Justice Sykes is a true product of Wisconsin. She was born
in Milwaukee and attended Brown Deer High School. She left our
State to go to college at Northwestern University only, but
then she returned to work as a reporter for the Milwaukee
Journal and then to attend Marquette University Law School
where she was a member of the law review.
After law school, she clerked for Judge Terry Evans, then a
U.S. District Judge for the Eastern District of Wisconsin. So
if Justice Sykes is confirmed to the Seventh Circuit, Judge
Evans will be her colleague on that court.
After clerking, Justice Sykes practiced law for 7 years
with the Milwaukee firm of Whyte and Hirschboeck. In 1992, as
Senator Kohl indicated, she was elected to a circuit court
judgeship in Milwaukee County, and then in September 1999 then-
Governor Tommy Thompson named her to a vacancy on the Wisconsin
Supreme Court. She was re-elected in the year 2000 and she
continues to serve on the highest court in our State.
Mr. Chairman, I think it is important to note, as Senator
Kohl noted, that Justice Sykes' nomination is the result of a
collaborative, bipartisan process of judicial selection in our
State. The Wisconsin Federal Nominating Commission was first
formed nearly a quarter century ago by former Senators William
Proxmire and Gaylord Nelson. It has been used continuously
since that time by Democratic and Republican Senators under
both Democratic and Republican Presidents. The Wisconsin
Federal Nominating Commission is an independent panel selected
by Wisconsin elected officials and the State Bar of Wisconsin.
The commission charter provides that it will review
applications for Federal district court and court of appeals
vacancies in Wisconsin, as well as United States Attorney
vacancies.
Senator Kohl and I have worked very hard to maintain and
strengthen the commission throughout our time in the Senate.
The composition of the commission assures that selections for
these important positions will be made based on merit, not
politics. Over the past 25 years, the commission process has
yielded very high quality nominees and has served to
depoliticize the nomination process in our State. Despite some
initial resistance, the Bush administration ultimately agreed
to have candidates for the Seventh Circuit vacancy go through
the commission process.
Under the joint leadership of Dean Joseph Kearney of the
Marquette University Law School and Professor Frank Tuerkheimer
of the University of Wisconsin Law School, the commission
worked extremely hard under a very tight deadline. As Senator
Kohl indicated, they recommended four highly qualified
candidates, including Justice Sykes. Senator Kohl and I,
working with Representative Sensenbrenner, the senior
Republican officer holder in the State, decided to forward all
four names to the White House, and then President Bush selected
Justice Sykes from the four.
I have always maintained that with cooperation and
consultation between the President and home State Senators, the
judicial nomination process can be far less contentious and,
frankly, far less frustrating than it has been over the past
several years. Recognizing that ideological differences are
inevitable in the process, as control in the Senate and the
White House changes hands, it would serve those who choose and
confirm Federal judicial nominees well to follow this example
of the Wisconsin Federal Nominating Commission.
I met with Justice Sykes last summer as a part of the
commission process. I had a chance to question her closely
about her background, her qualifications, and her judicial
philosophy. Certainly there are a number of topics on which we
do not see eye to eye. But I found Justice Sykes to be candid
and forthcoming, and I believe she is well qualified to fill
this seat on the Seventh Circuit. I have great respect for
Justice Sykes' commitment to public service. Talented young
lawyers have many more options that they could pursue for far
more compensation. But Justice Sykes is one of this group who
have chosen public service. I also have great respect for the
commission process, and I fully support Justice Sykes'
nomination.
Mr. Chairman, it is my hope that the work of the Wisconsin
Federal Nominating Commission, the nomination of Justice Sykes,
and her smooth confirmation will send a signal to the White
House and to my colleagues on both sides of the aisle and to
the country that we can, in fact, work together in a bipartisan
way to fill these judicial vacancies. And I want to again
welcome Justice Sykes and her family to the Committee, and I
look forward to her taking the Federal bench in the Seventh
Circuit.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator. We appreciate
that.
I would note for the record that Justice Sykes received
more votes in Wisconsin than either Kerry or Dean did.
[Laughter.]
Chairman Hatch. I thought that was pretty good. But I
appreciate this bipartisan approach towards your nomination.
We are always honored to have any meeting with the
distinguished Chairman of the House Judiciary Committee, but to
come over all the way from the House to testify here today, we
are grateful to have you here, and we will recognize you at
this time.
PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT COURT
JUDGE FOR THE SEVENTH CIRCUIT BY HON. F. JAMES SENSENBRENNER,
JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN
Representative Sensenbrenner. Thank you very much, Mr.
Chairman. I will not repeat the biographical information that
Senators Kohl and Feingold have given relative to the
nomination of Justice Diane Sykes to the Seventh Circuit bench.
Let me say that I probably have known Diane and known of her
longer than either of my two Senate colleagues because her
father, Jerry Schwerm, was the village manager in a community
in my district as I was elected to the State legislature. Every
once in a while he brought his teenage daughter along to some
of the functions that we were at, and she has always struck me
as someone who has a great deal of intellect, a good
temperament, and unimpeachable integrity. And as she has
progressed through law school and into private practice and
then on to both the trial court bench and the State Supreme
Court bench, she has certainly been able to develop and hone
those skills and will be an outstanding representative as a
judge on the Seventh Judicial Circuit. What the two Senators
have not said is that the ABA has rated her well qualified for
the position that she has been nominated to.
I would like to say a few words about the commission
process as well. There is a tradition in Wisconsin that the
commission is used to try to take as much of the politics out
of judicial nominations as possible. And that will only work if
the commission members themselves rise above politics and
approve names for sending on to the White House that would be
acceptable to whatever President is in office at the time. And
I think that all 12 members of the commission--the two deans,
the two State bar representatives, the members that Senators
Kohl and Feingold have appointed to the Commission, as well as
the four members that I have appointed to the commission--all
took that charge very seriously. And the four names that were
approved by the commission and sent to the White House all
would have met the White House's political and ideological
tests for approval by the White House, this White House, to be
sent to the United States Senate.
I have talked with Justice Sykes as well, and I am
convinced that she will impartially administer justice to all
that come before the appeals court, as she has done on the
appeals court on Wisconsin and as a trial judge in Milwaukee
County. She obviously has got strong support by the voters.
When she ran in the statewide election for her full 10-year
term in April 2000, she won a contested election with 65.52
percent of the vote, and I think that is a tremendous
endorsement of the people of Wisconsin in her judicial
abilities.
So I would urge her speedy confirmation, and thank you for
the time.
Chairman Hatch. Thank you, Mr. Chairman. We are delighted
to have you here, and we know how busy you are, and we
certainly expect you to head back to the House. And that is
certainly good praise for the nominee, and we are very grateful
for that.
Now we will turn to Senator Murray. We are delighted to
have you and Senator Cantwell here, and we appreciate your
taking time out of your busy schedules to be here to testify.
Senator Murray?
PRESENTATION OF JAMES L. ROBART, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A
U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Thank you very much, Mr. Chairman and
members of the Committee. I am honored to be here today to
introduce Jim Robart to this Committee. For more than 30 years,
he has been a respected and important part of the Seattle legal
community. Senator Cantwell and I worked with President Bush to
select him from a list of very qualified candidates, and today
I am proud to offer my full support for his speedy
confirmation.
I especially want to welcome his wife and friends. His
wife, Mari Jalbing; his long-time friend, Doug Adkins; and Mr.
Adkins' daughter, Blakeley, are all Washington State residents,
and they are here with him today.
Jim and Mari have been foster parents to six children, and
while they could not all join us in person today, I know they
share the pride that so many in my State feel on Jim's
nomination.
Mr. Chairman, I met with Jim Robart, and I am impressed by
his professionalism, his decency, and his experience. After
more than 30 years of distinguished legal service, he is ready
to be confirmed as the next U.S. District Judge for the Western
District of Washington State. And I can tell you that he has
the strong support of a wide group of attorneys and community
leaders throughout Washington State.
There are many things to say about Jim Robart. He earned an
undergraduate degree at Whitman College, graduating magna cum
laude, and he got his law degree at Georgetown University. He
has 30-plus years of experience in private practice, and he is
currently the managing partner at Lane, Powell, Spears,
Lubersky, and is an expert in complex litigation. He was the
lead counsel in a constitutional challenge on a Washington
initiative that would have required all State residents to vote
on all tax increases. The Washington State Supreme Court found
the initiative unconstitutional. And he has also handled
several other important cases in my home State, including many
energy cases and disputes regarding intellectual property. He
has received a unanimous well qualified rating by the American
Bar Association.
Jim Robart also has a generous sense of community service
through his work with at-risk and special needs youth. He has
done extensive work with the Seattle Children's Home, which
offers mental health services and special education for
Seattle's most at-risk youth, and is associated with the
Children's Home Society of Washington, which is renowned for
providing parenting skills statewide to many troubled families.
And, of course, I should mention that Jim and Mari's dedication
is evident as foster parents to six children.
Those things are all important, but they only provide
glimpses into a man whose professionalism, fairness,
thoughtfulness, and compassion set a great example for many
people in my State. Mr. Chairman, I am proud to be here today
to introduce Jim Robart to this Committee, and I urge his
speedy confirmation.
Thank you.
Chairman Hatch. Thank you, Senator Murray. We appreciate
your taking the time to be here. It is great praise for this
nominee, and we are grateful to you. And we know how busy you
are. If you need to leave, we would be happy to excuse you.
Senator Cantwell, you are last but not least. I want you to
know that.
PRESENTATION OF JAMES L. ROBART, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. MARIA CANTWELL,
A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. I appreciate
that. As a former member of the Committee, it is good to be
back with my colleagues here.
Mr. Chairman, I join with my colleague Senator Murray in
introducing this incredibly talented nominee for the vacancy of
the District Court of the Western District of Washington, James
Robart. And Senator Murray has already introduced his family
who is here to support him as well.
In one sense, today's hearing is a homecoming for Mr.
Robart. Early in his career, he served as an aide to former
Senator Scoop Jackson and to Senator Mark Hatfield, so I am
sure that they would both be very proud of his accomplishments
during his long legal and productive career and that he is
before this Committee for this nomination today.
Following his public service as a staff member in both
Houses, Mr. Robart returned to Washington State--as Senator
Murray said, is a second-generation native graduate of Whitman
College and Georgetown Law School--where Mr. Robart has worked
as an attorney for the past three decades. And during this
time, as Senator Murray outlined, he has earned a reputation
for fairness and integrity that is well known. That is why his
evenhanded and thoroughness I think is very appropriate, the
fact that we selected him by our bipartisan Committee and
recommended him for this vacancy.
Members of the Washington State legal community and the
White House and my colleagues have all worked together to
review these nominees in a process that I think has worked
well. I would add that this approach I think has helped produce
a very high quality group of nominees, and I believe it should
be a model for many other States in our country.
Together, we all agree that James Robart is the right
person for this job and that the people of the Western District
of Washington will be well served by his presence on the bench.
I will not go over some of his legal accomplishments that
Senator Murray articulated, but I think that his many years in
the managing partner position and practice there at Lane Powell
have served him well, and you will be very impressed by this
nominee's answering of questions today before this Committee.
And I urge your support.
Thank you.
Chairman Hatch. Well, thank you, Senators. We appreciate
both of you. For you to take time out to come here means a lot
to us, but it also means a lot to the nominee, and we are
grateful to you.
If we can have the three nominees come to the table, I am
going to put all three of you up there even though sometimes we
split them. But we will put you all up here and save a little
bit of time here.
If you will all stand and just raise your right hands, do
you swear that the testimony you are about to give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Justice Sykes. I do.
Mr. Robart. I do.
Judge Sanchez. I do.
Chairman Hatch. Thank you. Well, we are delighted to have
all three of you here. We are trying to do our best job on this
Committee, and we are working hard to try and do a bipartisan
job on this Committee and get as many judges on the bench as we
can possibly get so that the people of this country are not
bereft of justice. So we are grateful to have you all three
here.
Now, what I would like to do is take a few moments and let
you speak and say whatever you would care to. I would like you
to introduce your families to us. We welcome all members of the
respective families, and we will go from there.
So, Justice Sykes, we will begin with you.
STATEMENT OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SEVENTH CIRCUIT
Justice Sykes. Thank you. And, Mr. Chairman, I thank you
and the members of the Committee for the honor of this hearing,
and I would like to thank the President for the honor of this
nomination. I am very grateful to Senator Kohl and Senator
Feingold for their generous support of my nomination and for
their very kind words of introduction. I am also grateful to
Congressman Sensenbrenner, Chairman Sensenbrenner, for his
presence here today in support of my nomination and for his
friendship.
I have no opening statement, but I would like to introduce
the members of my family who are here with me today. My older
son, Jay, is a freshman in high school, and he had two tests
and a biology presentation. And so he--
Chairman Hatch. Well, that is not an excuse.
[Laughter.]
Chairman Hatch. That is as good an excuse as I can think
of.
Justice Sykes. Well, I told him that if am fortunate enough
to be confirmed that he is not getting out of the investiture.
However, he did stay home to go to class. But my younger son,
Alex, is here.
Chairman Hatch. Please stand.
Justice Sykes. He is in sixth grade, and he very generously
agreed to skip school and come.
Chairman Hatch. He looks like he could pass just about
anything.
Justice Sykes. I am very glad that he is here to
participate in this important moment for our family.
Chairman Hatch. Good to have him here.
Justice Sykes. My father, Gerald Schwerm, and my
stepmother, Judy Schwerm, are here as well.
Chairman Hatch. We are so grateful to have you here. We
welcome you and you have to be very proud.
Justice Sykes. You have heard about his career in public
service as well.
My sister, Kathryn Lynden, and her husband, Jim Lynden, are
here. My stepbrother, David Stegeman, is here. I am very
grateful for their support here with me today. And also my
administrative assistant at the Wisconsin Supreme Court, Joyce
Dohse, and her husband, Bob, are here in support of me as well.
Chairman Hatch. We welcome all of you. We are grateful to
have you here. It does help to have friends here in the
Judiciary Committee from time to time.
[Laughter.]
Justice Sykes. Thank you. I welcome your questions.
[The biographical information follows:]
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Chairman Hatch. Thank you.
Mr. Robart, we will turn to you.
STATEMENT OF JAMES L. ROBART, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF WASHINGTON
Mr. Robart. Mr. Chairman, thank you very much. I greatly
appreciate the opportunity to have my hearing today. I am very
thankful for Senators Murray and Cantwell for taking time to
come. I know that's a special honor, and I very much appreciate
it.
Joining me today is my spouse, Mari Jalbing.
Chairman Hatch. So delighted to have you here. Thank you
for coming.
Mr. Robart. Our daughter, Blakeley Adkins.
Chairman Hatch. Good to have you with us.
Mr. Robart. And my long-time friend, Douglas Adkins.
Chairman Hatch. Douglas, happy to have you here.
Mr. Robart. Thank you very much, Senator.
[The biographical information follows:]
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Chairman Hatch. Well, thank you.
Judge Sanchez, we will turn to you.
STATEMENT OF JUAN R. SANCHEZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Judge Sanchez. Thank you, Chairman Hatch. I do not have any
prepared remarks, but I would like to take the opportunity to
thank you and thank Senator Leahy for the invitation to appear
before the Senate Judiciary Committee. And I would like to take
this opportunity to thank Senator Specter and Senator Santorum
for their kind words and the support they have given me
throughout this process, and also to the President for the
tremendous honor he has bestowed upon me, my family, my
friends, and my colleagues and the Chester County community.
I have some guests here that have traveled from Chester
County to support me this afternoon, and it is with tremendous
honor that I introduce some of my friends and some are the best
lawyers in Chester County: former Justice of the Supreme Court
of Pennsylvania, William H. Lamb, who is in the back.
Chairman Hatch. Happy to have you here, Mr. Justice.
Judge Sanchez. My mentor and good friend, Mr. James
McErlane, a senior partner with the law firm of Lamb and
McErlane, who is in the back.
Chairman Hatch. Grateful to have you here, Mr. McErlane.
Judge Sanchez. My staunch supporter and good friend, Skip
Brion, who is the Chairman of the Chester County Republican
Party.
I have with me the honor of introducing my friend and
colleague, Paula Francesco Ott, who was the first woman to be
elected as a trial judge in Chester County.
Chairman Hatch. We are honored to have you here.
Judge Sanchez. We have our President Judge Howard F. Riley.
I have the honor also of having with me a good friend, Hon.
William Mann.
Chairman Hatch. We are happy to have both you judges here.
Just great.
Judge Sanchez. Damaris Acevedo, my fiancee.
Chairman Hatch. Happy to have you here.
Judge Sanchez. And some special guests that have traveled
from Chester County: John Stanzione, Debbie and Steven Long,
and Peter Hart.
Chairman Hatch. Happy to have you all here.
Well, thank you so much. This is great.
Judge Sanchez. Thank you.
[The biographical information follows:]
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Chairman Hatch. We are grateful to have all of you here,
and we look forward to moving your confirmations as quickly as
possible. And from what I see, there should be no real
difficulty in moving those confirmations.
I think what I will do is turn to my colleagues and see
what questions you would care to ask, if any, of these
nominees.
Senator Kohl. Thank you very much. I will ask Justice Sykes
a couple of questions.
Justice Sykes, you are still in the early stages of a 10-
year term on the Wisconsin Supreme Court. Could you tell us why
you want to leave that position for the Seventh Circuit?
Justice Sykes. Yes, Senator. I absolutely love my job. It
is a great privilege and an honor to serve the people of the
State of Wisconsin as a member of the Wisconsin Supreme Court,
and it was a privilege to serve as a trial court judge in
Milwaukee County for 7 years prior to that.
I view this opportunity as an opportunity to do the work of
an appellate judge that I have been doing on the Supreme Court
for the last 4 and a half years for the people of three States:
my own home State of Wisconsin as well as the States of
Illinois and Indiana within the jurisdiction of the Seventh
Circuit Court of Appeals. And that is the reason that I pursued
this appointment. I absolutely enjoy the work that I'm doing
now. It is challenging and rewarding, and I have tried to make
a contribution to my current court for the last 4 and a half
years, and I see this as an opportunity to do the same sort of
work at a different level in our judicial system and serve the
people of three States.
Senator Kohl. For many years, conservatives have criticized
liberal judges for being activist, and now we hear much about
conservative activism as the current Supreme Court has struck
down parts of more statutes in the past few years than at
almost any time in our history. How would you define ``judicial
activism''? And do you agree that it is to be avoided?
Justice Sykes. I agree that it is to be avoided. The
judicial philosophy that I abide by in my work as a judge, both
as an appellate court judge in the State's highest court and as
a trial court judge, is a philosophy of judicial restraint. I
do not believe in legislating from the bench. I believe in
deference to the legislative branch of government and the
policy choices that the legislative branch of government makes
in enacting statutes.
And so my approach to judicial decisionmaking is one of
deference to the legislation branch and one of judicial
restraint.
Senator Kohl. Thank you. And, finally, the Governor of
Wisconsin has indicated that he is rather pleased that you are
being elevated to this position. Why does he have that
position? Do you know why he feels that way?
[Laughter.]
Justice Sykes. That is by virtue of the Wisconsin
Constitution. We have an elected judiciary, as you know, in the
State of Wisconsin, a non-partisan elected judiciary. In the
event of a midterm vacancy, the sitting Governor replaces
judges of the lower courts or justices of the State Supreme
Court for an interim period until the next election cycle when
that appointed justice runs for election on the statewide
ballot.
Senator Kohl. Thank you.
Chairman Hatch. We will turn to the Senator from Idaho.
Senator Craig. Well, Mr. Chairman, I have no questions of
any of the three. I congratulate all of you on your
nominations. I trust that your experience--and I have reviewed
some of your record--will serve us well in your future
endeavor, and I congratulate you all.
Judge Sanchez. Thank you, Senator.
Justice Sykes. Thank you, Senator.
Mr. Robart. Thank you, Senator.
Chairman Hatch. Senator Feingold?
Senator Feingold. Mr. Chairman, I have no questions. Thank
you.
Chairman Hatch. Well, thank you.
Let me just ask a few. Frankly, I know your backgrounds,
have studied them. I know quite a bit about each of you, and I
am very pleased with your nominations. I think you are good
people who will do a good job on the bench. And I agree with
Senator Kohl; there should not be judicial activism from the
left or from the right. And it particularly rankles me when it
comes from the right. But it rankles me both ways. I want you
to know that. At least one circuit court in this country is
considered the activist poster child for all activist judges,
and it has hurt that court tremendously. So we hope in your
case, Justice Sykes, that you will add a lot of dignity to
whatever court you are on, but in particular this court.
Now, your ability to constructively interact with your
fellow judges on the Seventh Circuit is going to be a very
important element of your work. Could you speak for a moment
about the role of collegiality? And please indicate how you
plan to contribute to it once you join the Federal bench.
Justice Sykes. Yes, thank you, Mr. Chairman. I believe that
collegiality is a very important component of operating as an
appellate court judge. And I have attempted to keep that in
mind in every decision on every case that I participate in with
my colleagues on the Wisconsin Supreme Court.
I think that involves a process of keeping focused on the
legal issues and the facts of the cases that are before the
court instead of personality differences or differences of
opinion that members of the court have had in the past.
I think it also involves setting aside slights and really
checking your ego at the door, if that's at all possible in a
conference room that has a lot of intellectual give and take.
It's very important to set aside those personal differences,
set aside any differences, any power struggles, anything that's
extraneous to the facts and the law in the case at hand, and
keep focused on the facts and the law in the case at hand in
order to reach a collegial decision with the other members of
the court. And when we disagree, we attempt to do it agreeably.
And when we are in dissent or in opposition to one another, we
attempt to do that respectfully.
Chairman Hatch. So we don't expect any biting dissents from
you?
[Laughter.]
Justice Sykes. Well, biting, no. But strong and forceful
perhaps.
Chairman Hatch. But we have biting dissents from time to
time. It is just good for the judiciary. No, I am just kidding.
I understand that you teach several times a year in the
Challenges and Possibilities Program at the Green Bay
Correctional Institution, a rehabilitative program for inmates
at the prison. Could you just tell the Committee a little bit
about your work there?
Justice Sykes. Yes. It's a rehabilitative program at the
Green Bay Correctional Institution, which is a maximum security
institution in the State of Wisconsin. It houses mostly younger
offenders, and the program attempts to get these prison inmates
ready for reintegration into society by working on concepts
such as acceptance of personal responsibility for their acts,
developing victim empathy, and also learning more about the
legal system and the process that their cases were adjudicated
by. Many of these inmates believe that the system is out to get
them and that they have been unjustly convicted, and so the
purpose of this program is to sort of break down some of those
barriers so that there is a greater chance at real internal
rehabilitation for these inmates. And my role in this program
has been to, three or four times a year, teach a session on
sentencing law in Wisconsin so that the inmates in the prison
understand why it is that the sentence that was imposed in
their case was, in fact, imposed according to the law of the
State of Wisconsin.
Chairman Hatch. Well, I appreciate your doing that. I think
you do a lot of good in doing that type of service. Personally,
I think you are a wonderful nominee, and we look forward to
having you confirmed. If we could get all the Senators to
agree, I would put her on--I would put all three of these on
tomorrow's markup if we could agree to it. Would you mention it
to your colleagues? I will mention it to mine and see if we can
do that. I think Senator Leahy would agree. Now, if he does
not, then we would have to wait until after the recess. But I
would try to move you as quickly as I possibly can.
Justice Sykes. Thank you.
Chairman Hatch. All three of you.
Mr. Robart, you come before us highly recommended. I notice
that you worked with the Evergreen Legal Services in the State
of Washington. How has that experience affected you as an
attorney? And, also, how will it affect you as a judge?
Mr. Robart. Thank you, Senator. The opportunity of working
in a large law firm is a special one, but one of the things
that it does is it tends to select out a particular group of
clients that come for the very specialized services that large
law firms tend to offer.
I think my time at Evergreen Legal Services had two very
important functions for me. One was I was introduced to people
who in many times felt that the legal system was stacked
against them or was unfair. And one of the things, I think,
that my time there helped accomplish was to show them that the
legal system was set up for their benefit and that it could be,
if properly used, an opportunity for them to seek redress if
they had been wronged.
And the second part of it is that working with people who
have an immediate need and an immediate problem that you are
able to help with is the most satisfying aspect of the practice
of law. I think in terms of--if I am fortunate enough to be
confirmed by the Senate, I will take that experience to the
courtroom with me, recognize that you need to treat everyone
with dignity and with respect, and to engage them so that when
they leave the courtroom they feel like they had a fair trial
and that they were treated as a participant in the system.
Chairman Hatch. Well, thank you. That is a great answer.
Let me go to you, Judge Sanchez. You know, in your
questionnaire you mentioned that you taught at Westchester
University, Immaculata University, and Villanova University
School of Law. Now, how, if at all, do you think that your
teaching experience made you in your job as a Federal district
court judge?
Judge Sanchez. I enjoy teaching because I firmly believe
that teaching people about the law teaches them to respect our
institutions and become better citizens. So I have a real
passion for teaching, especially youngsters at college, high
schools, and intermediate schools, and I make myself available
to do that as much as possible because it is important for
citizens to understand and respect the law and our public
institutions. And I think that that will make me a good
district judge because I have utmost respect for the law and
work to improve it. And I think those qualities and the
appreciation I have and love for people will allow me to serve
with honor and distinction on the Eastern District Court.
Chairman Hatch. Well, thank you. I think that an important
element of our judiciary is that all persons have equal access
to the law. Now, you have had extensive pro bono experience as
a public defender, and that ought to really help you to serve--
Judge Sanchez. It's a humbling experience.
Chairman Hatch. Yes, it is a humbling experience, but it
will really help you to serve well in the impartial
administration of justice. So I commend you for that, and I am
proud of what you have done there. And I think all three of you
are excellent nominees, and I will personally do everything I
can to see that you are put through the Judiciary Committee as
fast as we can. Maybe we can--I don't want to get your hopes
up. We may not be able to get you on tomorrow's markup, but if
we can, I would like to do so because I don't see any reason to
delay at all in any of these judges, but particularly in your
cases.
So we will see what we can do. If we can't, don't be
disappointed, because as soon as we get back from the recess,
you will be on that list, if you are not on tomorrow. But I
just want to compliment each of you for the excellent people
you are, the excellent reputations that you have, and the
excellent service that you have given. And I think your
families and friends and fiancee ought to be pretty impressed,
is all I can say.
Did you want to say something else?
Judge Sanchez. I just wanted to say thank you, Chairman
Hatch, for the opportunity.
Chairman Hatch. That is okay. You can add that. I wouldn't
try answering anything else.
[Laughter.]
Chairman Hatch. You never know.
Well, with that, I am proud of all of you. I have
extensively looked at your records. I find them to be exemplary
and the highest caliber in all three cases, and I think my
colleagues will as well. So we will move ahead on that basis
and wish you all well. And when you get there, just remember
one thing. The closest thing to godhood in this life is being a
Federal judge--at least a lot of Federal judges believe that.
[Laughter.]
Chairman Hatch. And one of the worst things about some of
them is they get on the Federal bench and they really do
believe they are gods. And all of a sudden they don't seem to
have the humility that they have otherwise. Now, I am not
saying all of them. Naturally I am proud of our Federal
judiciary. But occasionally, the ones occasionally who violate
these principles generally turn out to not do justice nearly as
well as those who don't violate them.
So just remember everybody who comes before you has
problems. Everyone that comes before you has different
abilities. Some of these young lawyers don't know the Rules of
Evidence as well as others know it. Some of them will need a
little help and assistance and maybe a little forbearance from
time to time. Some of the big shots are so good that sometimes
they become a little overbearing, and it isn't a bit bad to set
them down every once in a while and tell them they are getting
overbearing.
But I think it is good to let people try their own cases
and not have the judges trying the cases for them. On an
appellate basis, it is difficult for you not to try and try
their cases for them because you have got to ask very
intelligent questions so that you can get to the bottom of
whatever you think is important in that particular case that
appears before you.
But my experience is that the Federal judiciary consists of
a wide variety of people of the highest caliber, and we are so
fortunate in this country. In my viewpoint, it is the judiciary
that has saved the Constitution through all these years. It has
not been the Congress of the United States. We pass
unconstitutional legislation all the time--maybe not knowingly,
but sometimes even knowingly, I think. I don't want to name
names, but don't think I can't.
[Laughter.]
Chairman Hatch. And then, you know, the Presidents
sometimes put up legislation or put up suggestions or act in
executive ways that sometimes are unconstitutional. So it is
important to have an honest, decent judiciary to correct those
ills. And I am counting on all three of you to be humble, good,
honorable, intelligent judges who will help us to have the
best, continue to maintain the best judiciary in the history of
the world.
So, with that, we are grateful to have you all here and
your families, we welcome all of you, and we praise all of you
for the good people you are, and we will recess until further
notice.
[Whereupon, at 2:59 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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NOMINATION OF ROGER T. BENITEZ, OF CALIFORNIA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA
----------
WEDNESDAY, FEBRUARY 25, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch and Feinstein.
Chairman Hatch. I apologize for being a little bit late. I
got detained on a District of Columbia matter of great
importance, and so I apologize to you.
We are going to start this morning by turning to my
distinguished colleague from California, Senator Feinstein, for
any comments that she would care to make, and then we will
begin with our first panel, which would be Roger T. Benitez,
the nominee to the U.S. District Court for the Southern
District of California.
PRESENTATION OF ROGER T. BENITEZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF CALIFORNIA, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman. I would
like to thank you for holding this hearing on the nomination of
Roger Benitez for the district court.
Magistrate Benitez is being considered for the last of the
five new judgeships that you helped us with and which were
created by Congress in 2002 for the Southern District of
California. I would like to tell you a little bit about his
life story because it is impressive.
He was born in Cuba. When he was 10, his family fled to
America after losing everything when Castro came to power.
Pursuing the opportunities that education afforded him, Judge
Benitez obtained his undergraduate degree at San Diego State
University and his law degree at Western State University.
After law school, he practiced as a private attorney for 19
years in a general civil practice and then was appointed to the
State Superior Court by Pete Wilson in 1997. He served on the
Superior Court bench for 4 years before he joined the Federal
bench as a magistrate.
Judge Benitez's selection was historic because he is the
first ever magistrate judge in El Centro, California. As Judge
Marilyn Huff indicated in her written testimony--and I would
like to enter that testimony into the record, and I would like
to make a point that that testimony is concurred in by all of
the Federal judges in the Southern District.
Chairman Hatch. Without objection, it will be entered into
the record.
Senator Feinstein. Thank you.
As Judge Huff indicated, Judge Benitez's role in setting up
the court in El Centro reflects really a significant
accomplishment. In 2003, he handled more initial appearances in
criminal cases, 1,494, than all 10 magistrates combined from
the Northern District of California. He is getting a special
hearing because he has received a poor rating from the ABA
Standing Committee on the Judiciary. And given this rating, I
think it is important to put his nomination into context.
Like the previous district court nominees from California
considered during the Bush administration, Judge Benitez is the
product of our State's bipartisan Judicial Advisory Committee.
The Committee consists of three members selected by Senator
Boxer and myself and three members selected by the Bush
administration. A nominee is only forwarded to the President if
he or she garners the support of a majority of the committee.
This process is designed to produce moderate, bipartisan
nominees, and it is a model I hope the administration can more
frequently emulate.
The Committee unanimously recommended Magistrate Benitez to
the President. Given this strong endorsement, I was surprised
by the negative ABA rating, and because I had never voted for
anyone with a negative ABA rating, I thought I ought to look
into it. So I directed a representative on my committee, Mr.
David Casey, who is the new president of the American Trial
Lawyers Association, to reinvestigate Judge Benitez. Mr. Casey
contacted dozens of lawyers and made more than 30 phone calls,
came back to Washington to report to me, and he confirmed the
committee's commitment to its original recommendation in favor
of Judge Benitez.
I find this compelling and give it great weight. I am also
impressed by the many testimonials in support, in favor of
Judge Benitez. As I mentioned, the entire Federal bench of the
Southern District has written to the Committee endorsing him.
And, additionally, a number of community leaders, the mayor of
El Centro, the Board of Supervisors, the chief public defender
of the county, the president of the Imperial--I beg your
pardon? Oh, the president of the Imperial County Bar
Association. It said ``president of Imperial County,'' and I
thought, you know, I know they can be difficult, but I didn't
know they had seceded.
[Laughter.]
Senator Feinstein. The sheriff and coroner of Imperial
County, and I just want to read a couple of excerpts of what
his supporters say. They say he is a man of the highest ethical
standard, that he has superb demeanor, intelligence,
pragmatism, and fairness. And the chief public defender notes
that he has good judicial temperament and is courteous to his
employees and the attorneys who appear before him.
I would like to note that he has served as a member of the
DeAnza Rescue Unit for over 15 years. That is a volunteer
search and rescue organization that operates in Imperial, San
Diego, and Riverside counties.
I am very eager to hear the American Bar Association's
testimony because, as we tried to go back over the accusations
of temperament, ill-advised temperament and that kind of thing,
it turned out that it all revolved around one incident, which
involved the calendaring of a case on Christmas Eve. My staff
got the case transcript, and the attorney in the case said,
``My goodness, you know, this shouldn't prevent his
consideration as a judge.''
So after more than 30 additional phone calls and talking to
dozens of lawyers, Mr. Casey was not able to come up with
anything that he felt should disqualify Judge Benitez.
Chairman Hatch. Well, thank you, Senator. That is very good
testimony.
I happen to have a very high regard for David Casey and
know how serious he takes appointments to the Federal bench.
Plus he is a very good leader of the American Trial Lawyers
Association, and I have a lot of respect for his integrity.
And, Judge Benitez, Mr. Benitez, you come very highly
recommended by others.
I think what we are going to do is have you come to the
table, and please stand and we will swear you in. Do you swear
to tell the truth, the whole truth, and nothing but the truth,
so help you God?
Judge Benitez. I do.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Please take a seat. Let me just say a few
words here myself.
Senator Feinstein takes this job very seriously on the
Judiciary Committee. She is one of our better members as far as
I am concerned, and I am pleased with her recommendation here
this morning. And I am pleased also to welcome to the Committee
this morning Judge Roger Benitez, whom President Bush has
nominated to fill a vacancy on the United States District Court
for the Southern District of California.
Judge Benitez comes before us today as a highly regarded
Federal magistrate, with an impressive record of judicial
service. Born in Havana, Cuba, Judge Benitez's life embodies
the spirit and the strength of this Nation. After coming to
this country, he overcame numerous obstacles to put himself
through college at San Diego State University and then obtained
his law degree at Wester State University College of Law in
1978, and then has distinguished himself in a diverse and
successful law practice in Imperial County, California.
Judge Benitez, as I reviewed the impressive list of groups
and individuals whom you have represented, I wonder if there is
anyone in El Centro that you didn't represent. You were
appointed to the Imperial County Superior Court in 1997 and re-
elected in 1998. I believe you have served with distinction
until 2001, and since then you have served as a Federal
magistrate judge in the Southern District of California.
Now, I would note that the bipartisan Committee selected
Judge benitez for his current position after a thorough review
of his record and experience. Another bipartisan nominating
commission found Judge Benitez to be highly qualified and
recommended that he be appointed a district judge.
Despite these accomplishments and endorsements, a majority
of the American Bar Association Standing Committee on the
Federal Judiciary returned a rating of ``Not Qualified'' for
Judge Benitez. In such instances, it has been the practice of
this Committee to invite representatives of the ABA to explain
their basis for this rating. Later in this hearing, we will
hear from Tom Hayward, who is Chair of the ABA Standing
Committee, and Richard Macias, a former member of the Committee
and circuit member who conducted the evaluation that led to
Judge Benitez's rating. And I welcome them on behalf of the
Committee.
Finally, we will also hear from Judge Benitez's current
supervisor, the Chief Judge of the Southern District of
California, Judge Marilyn L. Huff. We welcome you, Judge Huff,
to the Committee, and we understand you will attest to Judge
Benitez's fitness for the Federal bench, also his legal
aptitude and experience, his integrity, and, most notably, his
judicial temperament. It is my understanding that concerns
pertaining to temperament served as the basis for the ABA's
rating, but I expect that Judge Huff's testimony today should
satisfactorily address any lingering questions about Judge
Benitez's temperament. I understand that Judge Huff is in the
middle of a very important trial, and it is, I think, great
testament to you, Judge Benitez, that despite her extremely
busy schedule, she was eager to come to Washington on
relatively short notice to testify on your behalf.
I would note that Judge Huff's testimony is endorsed by all
11 active judges of the Southern District of California. Now,
these are the people with whom Judge Benitez has worked closely
for the past 3 years. They all support the nomination of Judge
Benitez. They have put the weight of their admirable
reputations behind Judge Benitez's nomination.
In addition to this testimony, the Committee has received
written testimony and letters which strongly support Judge
Benitez's nomination. So without objection, I will submit all
of these for the record. Since we will not hear from these
witnesses in person, I would like to take a moment just to
share some of their views on Judge Benitez.
U.S. District Court Judge John Houston got to know Judge
benitez both professionally and personally when they worked
together as magistrates in the Southern District. Judge Houston
writes that he has ``observed his good character, integrity and
temperament along with his dedication to public service to be
invariant. In addition, Judge Benitez's experience as a lawyer
and State court trial judge will make him an invaluable member
of our bench and a source of pride for the citizens in this
district for many years to come.''
Now, the presiding judge of the Superior Court of Imperial
County, Raymond Cota, was extremely surprised to learn of the
ABA's rating. He was born and raised in Imperial County and has
worked closely with Judge Benitez. He wrote that he has
``never, in 25 years as an attorney and judge in Imperial
County, heard any unflattering remarks or criticism of Roger
Benitez of any sort.''
Randy J. Rutten, the president of the Imperial County Bar
Association, submitted this testimony: ``I am the current
president of the Imperial County Bar Association. On August 6,
2003, the Board of Directors of the Imperial County Bar
Association unanimously and enthusiastically voted to endorse
and support the nomination of Roger T. Benitez as an Article
III judge for the Southern District of California. Our decision
was based on Judge Benitez's reputation in the legal community
as well as in the community in general.''
Gary Wyatt, Chairman of the Board of Supervisors, the
County of Imperial, offered this testimony regarding Judge
Benitez: ``In 1997 he was appointed to the Superior Court by
the then Governor of the State of California. Before he was
appointed, he was vetted by the Judicial Nominations Evaluation
Committee of the State of California. As part of that
evaluation, confidential questionnaires were sent out to over
150 lawyers and judges asking for information concerning his
legal ability, ethics, work ethics and temperament....During
his tenure on the Superior Court, Judge Benitez proved himself
to be a capable jurist who was valued and respected by the bar
and his fellow judges. He had a reputation for being able to
handle difficult legal tasks, exhibiting good judicial
temperament and always being more than willing to assist his
fellow judges, even if it meant asking other judges if he could
help them with their calendars....Because of his excellent
reputation in the legal community and the community in general,
our board of supervisors has unanimously adopted a
resolution...endorsing and recommending the confirmation of
Hon. Roger T. Benitez to the position of district judge for the
Southern District of California.''
Eduardo A. Rivera, former Democratic mayor of the City of
Calexico and an attorney, wrote: ``Judge Benitez is fair,
rational, intelligent, and just. I have been treated with
respect in all of my private practice dealings with Judge
Benitez before he assumed the bench and have been treated
fairly and equitably in his courtroom. Judge Benitez is
compassionate and fair. It is therefore with dismay that I find
some attorneys who have deemed his courtroom demeanor and
temperament as improper. At no time in the last 25 years have I
ever seen Judge Benitez exercise bad judgment or be
discourteous with any person he has dealt with in either his
capacity as a private attorney or as a State or Federal
judge.''
Neil Gerber, an attorney in the municipality of El Centro,
stated, ``As a State court judge, and then as a Federal
magistrate, Magistrate Benitez was always well prepared,
engaging, and fair. His judicial temperament was excellent in
all respects. He himself displayed the highest respect for the
courts, and inspired the same feeling in those who entered his
courtrooms. Both as a State court judge and as a Federal
magistrate, Magistrate Benitez enjoyed the highest reputation
for ability and integrity among the local bar.''
Now, these and other statements of support indicate clearly
that Judge Benitez has the legal experience, ability, aptitude,
character, integrity and temperament to serve as a Federal
district judge. So I am looking forward to hearing and
reviewing the testimony today as we consider this nomination,
and I will look forward to chatting with you, Judge Benitez,
and then with our American Bar Association, which, really, we
owe a debt of gratitude to for the work that they do in general
with regard to Federal judges. I have a lot of respect for the
current Standing Committee, and it is upsetting to find that
they did come up with this type of rating. But we will listen
to them and give every respect to them that we can, but we are
also going to listen to you, Judge Benitez, and go from there.
Now, I also am pleased to announce that this hearing is the
first of a pilot program to provide closed-captioning, and I am
pleased Senator Leahy and I, with the Secretary of the Senate,
were able to come to these arrangements. So we are very pleased
to start closed-captioning, and you are the first one to be
subjected to that. But that will be a good thing, I think.
Well, let me ask you, Judge Benitez, do you have any
opening statement you would care to make before we ask some
questions? You might press that button.
STATEMENT OF ROGER T. BENITEZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Benitez. Thank you, Mr. Chairman, Senator Feinstein,
ladies and gentlemen, staff members, and ladies and gentlemen
of the public. I don't have an opening statement, but if I
could, I would like to take a moment to introduce my family and
some of my friends.
Chairman Hatch. We would love you to do that.
Judge Benitez. Thank you.
I would like to commence with the chief judge our district,
Chief Judge Marilyn Huff.
Chairman Hatch. We are very honored you would take time to
come and help us with this matter.
Judge Benitez. My wife, Kitty Benitez; my mother, Elsa
Hegan. Starting from the left, my son, Dr. Benitez; his close
friend, Dr. Shannon Thyne; my daughter, Mary Benitez; and her
close friend, Zack Friesland.
Chairman Hatch. Well, we are delighted to have all of you
here. We welcome you to the Committee, and we hope it will be a
nice experience for you. We will have to see.
Judge Benitez. Mr. Chairman, I thank you and I thank the
Committee and I thank the President for giving me the
opportunity to be here today. I will certainly answer any
questions that you or Senator Feinstein may have, or any other
Senator may have.
Chairman Hatch. Well, thank you so much.
Judge Benitez. Thank you.
[The biographical information follows:]
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Chairman Hatch. Let me start off by saying that we have a
vote, so we will see how far we can go for the next 7 or 8
minutes, and then Senator Feinstein and I--maybe you should go
vote, and if you come back, you can ask questions until I get
back. How will that be?
Senator Feinstein. I will not be able to come back.
Chairman Hatch. Oh, you will not be able to come back?
Well, then, why don't I let you begin with your questions. If
you can't come back, I would rather give you this opportunity,
if you would like.
Senator Feinstein. Thank you very much. I appreciate that.
Critics, Judge, have asserted that you tried to punish a
lawyer by scheduling a hearing on Christmas Eve. We read the
transcript of the incident, which occurred on December 10,
2002. On that day you considered three requests for
continuances. Two of the requests you scheduled for December
19th; the third you scheduled for December 24th. I did not
detect any animosity or hostile exchanges from the transcript.
The lawyer who had the hearing rescheduled for the 24th did not
object to the proposed date and actually said that day would be
fine.
Can you describe the event for us in that it seems to
circulate around about all of these sort of objections to you?
Can you explain how you determined the date when a hearing slot
is open on the court calendar?
Judge Benitez. Thank you, Senator. Yes, I will do my best
to be brief.
We try to schedule our hearings so that we have--we do not
have a cluttered calendar 1 day and a light calendar another
day. It is the practice in our court, because of the volume
that we handle, to have the attorneys as they come into the
courtroom to come to our courtroom deputy, who is my assistant,
and to discuss with the courtroom deputy what dates, if any,
they are going to continue any matters to.
Unfortunately, on that particular date, my normal or usual
courtroom deputy was out. It was her first week of maternity
leave, and we had a courtroom deputy who was filling in from
San Diego.
We do things a little differently in El Centro because,
again, of the geographic location and because of the volume
that we have. She talked to the attorney that was making the
special appearance, and she noted on my calendar, which is
customary for them to do, the dates that the matters would be
continued to. Two of those matters were scheduled for December
19th and one was scheduled for December 24th.
As I call the matters, I always ask the attorneys whether
or not that is a date that is agreeable with them, and, of
course, I then confirm it with the client. I did that in that
case. On all three occasions, the attorney that was appearing
specially indicated that, yes, the date that I had chosen was
okay.
Subsequently--and I can imagine and understand why--the
attorney who was supposed to specially appear discovered or
learned, because we normally call them to advise them of the
new dates, that we had scheduled him to come out to El Centro
on two different dates, and it did not make sense for us to do
that. And, frankly, I wished I would have caught it when I was
on the bench but I didn't. And so what we did was that very
next day, once we discovered the mistake, I issued a minute
order rescheduling the matter that had been scheduled for the
24th to the 19th so that that lawyer would only have to make
one trip to El Centro.
Senator Feinstein. The argument against--
Chairman Hatch. Senator, I think I will run over and vote.
Senator Feinstein. All right.
Chairman Hatch. You have about 10 more minutes before you
need to leave, and then I will try and hurry back so that we
will not detain this hearing longer than it should be.
Senator Feinstein. Fine.
Judge Benitez. Thank you, Mr. Chairman.
Chairman Hatch. So I will just leave you.
Senator Feinstein. Thank you.
The argument circulating around your candidacy or your
nomination seems to be one of temperament. Do you have a sense
of from whence that cometh? And how do you look at your
temperament as a magistrate judge as it would be as a full
Federal judge?
Judge Benitez. Thank you, Senator, for asking that
question. We have a high-volume court that we operate in El
Centro. Consequently, sometimes we don't have the liberty to
perhaps be as relaxed or as--I don't want to say ``friendly,''
but as accommodating as we might be if we had a lighter
calendar. It's important that we keep our calendar moving. And,
consequently, although I certainly strive to be fair and I
strive to be courteous, but we have to move our cases along.
And so what we do is we have a system which is what allows us
to keep the cases moving.
And so perhaps sometimes because of the fact that we are
trying to work with the numbers that we work with and may be
perceived by attorneys--perhaps those who don't know me, they
may perceive the fact that I'm trying to move the calendar
along as a sign of bad temper.
Another thing that's very important in our area, Senator,
is this: An awful lot of the people that appear before us are
not familiar with the system. And an awful lot of them have a
belief, not well-founded but they have a belief that perhaps
the prosecutors, the defense lawyers, and the judges are all
part of the same team. And so, therefore, I think it is
important for them to understand that I'm not part of the team
and that I have to maintain a certain distance. And the
courtroom is not the place for me to engage in familiarities.
Although I have made it a practice to welcome lawyers when they
come to El Centro and I make it a practice to wish them a good
trip home, generally we try to stick to the business at hand.
It is serious business. I take it seriously. And I generally
ask for people that appear in my courtroom to do likewise.
Senator Feinstein. I would like to ask you a question about
choice and the right to privacy, and this has to do with the
1973 Supreme Court decision Roe v. Wade. At that time the Court
held that the Constitution's right to privacy did encompass a
woman's right to choose. It established a trimester system of
when the woman would have the absolute right, first trimester,
when the State could enter the picture, et cetera.
Do you believe that the Constitution encompasses a right to
privacy?
Judge Benitez. Well, thank you, Senator. Let me add that if
I'm fortunate enough to be confirmed, my job as a district
judge is to follow precedent, to take a look at what the law is
and to apply the law to the facts of the case before me and to
make a decision based on the law and based on the facts.
I believe that the right to privacy is well established in
our jurisprudence. It has been considered by the Supreme Court
on several occasions, and certainly if I am confirmed, I will
more than follow the precedent that has been set.
Senator Feinstein. Then do you believe that that right to
privacy exists or encompasses the right of individuals then to
make that decision as laid out by Roe v. Wade?
Judge Benitez. I believe that Roe v. Wade is, in fact, the
law of the land, and I will definitely follow Roe v. Wade.
Senator Feinstein. Thank you.
Here is another one. In a September 2001 case, U.S. v.
Alvarez-Texta, you issued an order for the defense attorney to
show cause why he shouldn't be held in contempt of the court
after he failed to appear for two criminal court cases. Can you
tell us why you believe this order was necessary? And can you
describe your views on using the court's contempt powers?
Should they be used often or sparingly?
Judge Benitez. Thank you, Senator. I am glad you asked that
question because in six and a half years on the bench, I have
never held a lawyer in contempt. I have threatened to hold a
lawyer in contempt once, and that was the case.
What happened in that case, Senator, was that at the
initial preliminary hearing, the lawyer who had been appointed
to the case was not able to attend. We did not know why, but he
was not able to attend. He asked a second lawyer to appear on
his behalf. It was going to be a relatively routine matter, but
what happened was that when I asked the defendant whether he
would agree to the continuance, he contradicted the lawyer that
had been sent to appear for the first attorney. And he said
that, no, he did not want his preliminary hearing continued.
And, Senator, as you know, the preliminary hearing, the
right to a preliminary hearing is the right of the defendant
and not of the attorney. And so at that point in time, I was
faced with a situation where I had a lawyer who was saying that
he wanted to continue the preliminary hearing, but the client
did not.
Over his objection, I went ahead and continued it anyway
because the Government was not ready to proceed and, frankly,
neither was the court because we had not allotted time for an
evidentiary hearing.
At the second hearing, when I continued the case, a
different lawyer, that is, a third lawyer showed up for that
hearing. Again, that lawyer was not prepared to go forward with
the preliminary hearing.
Now, Senator, very important and valuable rights are at
stake. A defendant is in custody. Time is marching on, and that
defendant has a right to have a preliminary hearing. In
addition, in the Southern District it is customary for a
disposition, if it going to be agreed upon, to be agreed upon
prior to an indictment being issued. Generally once an
indictment is issued, the disposition is going to change
considerably.
I felt that it was important that this defendant have the
attorney that had been appointed to represent him to be there.
So what I did is I indicated that I would issue an order to
show cause for the attorney to be there the next day or show
cause why he should not be held in contempt.
Now, Senator, subsequent to that, I received a phone call
from the attorney. The attorney gave me a perfectly valid
explanation why he could not be there. He apologized for not
being able to be there. He told me that the problem was going
to be resolved in a particular way. In fact, we did have that
hearing the third time. That would be the third hearing in the
case. A fourth lawyer showed up specially appearing for the
attorney that had originally been appointed. We did, in fact,
resolve the problem. The case was dismissed and refiled.
And, Senator, perhaps as a footnote, I should state that
when I appointed a lawyer to the new case that was filed, I
reappointed that same lawyer that I had previously ordered to
show cause.
So as I said, in six and a half years, I have never held a
lawyer in contempt, and this is the only time that I can recall
ever threatening to hold a lawyer in contempt.
Senator Feinstein. Thank you. I think that sets the record
straight.
Do you have any sense of why the Bar Association came up
with the finding they did?
Judge Benitez. Senator, I know that the American Bar
Association has a difficult task at hand, and I know that they
do investigations and they come up with their conclusions. And
I'm really not in a position to speculate or to second-guess.
Perhaps it may be that some of the attorneys that were
contacted were not attorneys that regularly appear in my court.
Maybe they don't really know me as well. It may be a geographic
factor. I really don't know, Senator. It would be sheer
speculation on my part.
Senator Feinstein. Well, that really--well, let me ask one
other question, because with a district court it is always a
question of dockets and handling dockets. And you have handled
so many preliminary hearings at one time, nearly 1,500 in a
short period of time. How do you do that? And would you
continue that same process as a district court judge?
Judge Benitez. Well, Senator, thank you for asking that
question. We have established in El Centro what I think is a
fairly efficient, cooperative effort on the part of everyone--
the attorneys, the agencies that we work with, and the court
staff, of course. And that allows us to be able to move through
cases pretty quickly while yet allowing time for the parties to
express their issues and to fully brief them and argue them if
they feel like it's something that they need to do. But it is
more of a system that we have set up, again, partly because of
the unique geographic location that we have and partly because
of the number of cases that we have and the nature of the cases
that we have.
I think that in the past when I was on the Superior Court
bench, I think, I hope, that I had a reputation for being able
to manage my calendar efficiently and quickly. And as was
pointed out, it was not unusual for me when I was on the
Superior Court bench, if I finished my calendar, to ask another
judge if perhaps I could help him or her with the calendar.
Senator Feinstein. Thank you very much.
I have just received a note that there is about 60 seconds
left on the vote, so I am going to enter into the record a
statement by the ranking member, Senator Leahy, and recess the
Committee for a short time. And Senator Hatch, the Chairman,
will be back very shortly.
Judge Benitez. Thank you, Senator.
Senator Feinstein. Thank you very much.
[Recess 10:45 to 10:56 a.m.]
Chairman Hatch. Well, if we can resume the hearing.
Judge Benitez, before I begin with my questions for you, I
would like to make a note of sentiment. I expressed during a
hearing on Judge Alexander Williams--he was a Clinton district
court nominee who received a rating of ``Not Qualified'' from a
substantial majority of the ABA Standing Committee and who we
nevertheless confirmed as a district court judge for the
District of Maryland.
Now, during the hearing I told Judge Williams, ``I am aware
of the letter from the ABA, and I just want to assure you that
I do not treat the ABA's findings on nominees as the last word,
although I have to say that I think they are trying to do the
best job they can.''
Now, I feel the same way today as I did back in 1994. And
Judge Williams has proven to be an adequate and good judge,
even though there was some strong feeling that maybe he would
not be.
In your case, I do have strong disagreements, at least from
what I know today, with the ABA's vote based on my review of
your record.
Now, is it correct that you were selected by a bipartisan
Committee to serve as U.S. magistrate judge? This is a position
which you have held since the year 2001.
Judge Benitez. That is true, Senator. Before I was
selected, I was screened by a bipartisan selection merit
Committee that is established pursuant to Federal law.
Chairman Hatch. Is it also correct that you were found
highly qualified by a bipartisan nominating Committee and
unanimously recommended by that commission to be appointed to
the U.S. District Court for the Southern District of
California?
Judge Benitez. Thank you, Senator. I believe that is true.
Chairman Hatch. Do you have any thoughts of whether or not
either of these two commissions could have found you not
qualified and still nominated you to these prestigious
positions?
Judge Benitez. Senator, that would probably call for some
speculation on my part, but I would think probably not.
Chairman Hatch. Okay. Now, your home town paper, the
Imperial Valley Press, said this about your nomination: ``It
would be hard for even the ABA to dispute that Benitez has a
fine legal career. He flourished in private practice in El
Centro, was appointed to an Imperial County Superior Court
judgeship where he did well, and in recent years excelled as a
Federal magistrate in Imperial County, handling a tremendous
workload. To us and many, many others, Benitez seems more than
qualified for a Federal judgeship.''
Now, from what I see I agree with that assessment, Judge
Benitez. You overcame significant obstacles to work your way
through school, establishing a thriving legal practice, and you
have significant experience in the judiciary. Would you please
tell the Committee how your background has prepared you to be a
Federal trial judge?
Judge Benitez. Thank you, Senator. I started out as a
private practitioner. I practiced law in a broad spectrum of
cases. I practiced law in numerous counties, several States
over the years, and I have experienced an awful lot of
proceedings and cases and sat before many, many, many judges.
And I have had an opportunity to observe them and how they
work.
I was appointed to the Superior Court bench in 1997. There
I presided over a significant State calendar, including
assisting in setting up a domestic violence calendar for
Imperial County. I tried several major felonies. I presided
over what we used to call the jail court, which was a really
hectic calendar where we handled preliminary hearings, pleas,
probation violations, and we did it all in 1 day.
As I said, I tried several major felonies, and I'm pleased
to say, Senator, that none of the cases that I ever tried were
ever reversed, nor was there a writ of habeas corpus granted on
any of those cases.
Subsequently, I was appointed to be the magistrate judge.
Again, I have seen the Federal court system from I guess what
you would say the inception of the case. I've seen how the
cases move along the system.
Personally, Senator, as you know, I was born in Cuba. I
came to the United States in 1961. When I arrived in the United
States, I could not speak English. I worked my way through
school, and I believe that as an immigrant, someone who came to
this country, I have a certain degree of empathy for people who
have had similar backgrounds.
I think all of that assists me in being able to reach what
I hope are good judgments about people and good judgments about
cases and to determine what the law is and to determine what
the issues are and to be able to sort through all of that in
order to come up with a fair and just decision.
Chairman Hatch. Well, you have been active in community and
civic affairs throughout your career. Would you care to
highlight some of your contributions in the area of assisting
disadvantaged youth, for instance?
Judge Benitez. Well, thank you, Senator. I have been very
active in the community. I have long been a believer that you
have to give back more than you have taken. And so I started
out--shortly after getting out of law school, I became very
involved in youth soccer associations. I put together a
traveling team. I put together kids who tried out for the
Olympic development program. Many, if not most, of those kids
were disadvantaged kids, mostly Hispanic kids.
I was very involved in youth swimming over the years. I was
president of the swim club. Again, many of the kids in that
program were disadvantaged kids.
I was very much involved in the high school mock trial
program put on by the Constitutional Rights Foundation. I have
been involved in that program, in fact, I just finished a
weekend of involvement in that program just last weekend.
Again, many of those kids are kids that come from disadvantaged
homes. They get quite an exposure to the legal system, to how
our justice system works, and I think it's a terrific
opportunity for them to learn about our system.
Not necessarily involved with youth, but I was appointed to
the Planning Commission of our city and sat as the Chairman of
that Planning Commission for one term, served on the commission
for two terms. I was appointed by the board of supervisors of
the county to serve on the board of directors of the Private
Industry Council, which is an organization that administers and
oversees funding under the Job Training Partnership Act, which
is an act enacted by the Congress of the United States.
I was a member of the Bioethics Committee of the local
community hospital and served in that position for many, many
years, and as was stated earlier, I was a member of the DeAnza
Search and Rescue Unit, which is a volunteer organization that
essentially calls upon us to spend numerous hours, whether it
be hot or cold outside, searching for and rescuing people that
are distressed in Imperial County, Riverside, and in Mexico.
Chairman Hatch. Well, thank you. You know, there have been
some criticisms of your temperament. Do you have any comments
about that?
Judge Benitez. Well, Senator, I--I try, I try my best to be
the best person that I can be, and sometimes that may not be
good enough. And there are people who may misinterpret or
misconstrue something that I say or something that I do. But I
assure you, I have always been a believer in the Golden Rule. I
believe that people are entitled to be treated the way you
would want to be treated. And I have adhered to that rule.
Being face to face with people that have been charged with the
most horrible crimes--murder, rape, child molestation--
notwithstanding their position or their situation in life, I
believe that it is important that people be treated with
respect and with dignity. And I hope to be able to do that if
I'm fortunate enough to be confirmed.
Chairman Hatch. Well, you know, some people worry because,
having tried a lot of cases in Federal court myself, I spent a
lot of time there myself, the closest thing to godhood in this
life is a Federal district court judge, as you know. And some
really believe it. And Utah has had a very checkered reputation
from time to time with Willis Ritter and a few others who have
been pretty tough when it comes to temperament, although I
always got along well with him. But to make a long story short,
Judge Benitez, I believe that the Committee is going to confirm
you and send you to the floor and confirm you on the floor. But
I suggest to you that should that happen, it is very, very
important not to try the attorneys' cases for them, to help
younger lawyers if they are having difficulty with evidentiary
rules or other problems in the courthouse, and to basically
have a good judicial temperament so that people who try these
very difficult cases at least do not have to contend with an
officious judge. And all I can say is, from what I know about
you, you should be able to do that going away.
So we are grateful to have you here, and with that, it has
been a pretty easy set of questions for you. I don't know what
Senator Feinstein asked you, but I think she feels along the
same lines as I do. So we will just let you take your seat, and
then we will turn to the ABA and hear what they have to say.
Judge Benitez. Thank you, Mr. Chairman.
Chairman Hatch. Now, if at any time you feel that you would
like to respond to the ABA, I would be happy to recall you as a
witness. Is that okay?
Judge Benitez. That's fine. Thank you, Mr. Chairman.
Chairman Hatch. Okay. Thank you.
Chairman Hatch. Let me call the ABA, Tom Hayward, who is
the Chair of the ABA Standing Committee on the Federal
Judiciary, and Richard Macias, who is the ABA Standing
Committee circuit investigator. So we are happy and honored to
have both of you here.
If you will, we will turn to you, Mr. Hayward, and then we
will turn to you, Mr. Macias, and go from there.
STATEMENTS OF THOMAS Z. HAYWARD, JR., CHAIR, AMERICAN BAR
ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIARY, AND
RICHARD M. MACIAS, CIRCUIT INVESTIGATOR
Mr. Hayward. Thank you, Mr. Chairman and members of the
Committee. My name is Thomas Z. Hayward, Jr. I am a practicing
lawyer in Chicago, and I am the Chair of the American Bar
Association's Standing Committee on the Federal Judiciary. With
me today is Richard M. Macias, a former member of our
committee, and circuit member for this investigation. We appear
here to present the views of the association on the nomination
of Roger T. Benitez to be a United States District Court Judge
for the Southern District of California. After careful
investigation and consideration of his professional
qualifications, a substantial majority of our Committee is of
the opinion that the nominee is ``Not Qualified'' for the
appointment. A minority found him to be ``Qualified.''
Before discussing the specifics of this case, I would like
to review briefly the committee's procedures so that you have a
clear understanding of the process the Committee followed in
this investigation. A more detailed description of the
committee's procedures is contained in the committee's booklet
entitled ``Standing Committee on Federal Judiciary: What It is
and How It Works.''
The ABA Standing Committee investigates and considers only
the professional qualifications of a nominee--his or her
competence, integrity, and judicial temperament. Ideology or
political considerations are not taken into account. Our
processes and procedures are carefully structured to produce a
fair, thorough, and objective peer evaluation of each nominee.
A number of factors are investigated, including intellectual
capacity, judgment, writing and analytical ability, industry,
knowledge of the law, breadth of professional experience,
character, integrity, compassion, courtesy, open-mindedness,
patience, freedom from bias, commitment to equal justice under
the law, and general reputation in the legal community.
The investigation is ordinarily assigned to the Committee
member residing in the judicial circuit in which the vacancy
exists, although it may be conducted by another member or
former member. In the current case, Mr. Macias, in his capacity
as a former member for the Ninth Circuit, was asked to
undertake this investigation because the current Committee
member from the Ninth Circuit was already undertaking another
investigation.
The investigator starts his investigation by reviewing the
candidate's responses to the public portion of the Senate
Judiciary Committee questionnaire. These responses provide the
opportunity for the nominee to set forth his or her
qualification, such as professional experience, significant
cases handled, and major writings. The circuit member makes
extensive use of this questionnaire during the course of the
investigation. In addition, the circuit member examines the
legal writings of the nominee and personally conducts extensive
confidential interviews with those likely to have information
regarding the integrity, professional competence, and judicial
temperament of the nominee, including, where pertinent, Federal
and State judges, practicing lawyers in both private and
Government service, legal services and public interest lawyers,
representatives of professional legal organizations, and others
who are in a position to evaluate the nominee's professional
qualifications. This process provides a unique ``peer review''
aspect to our investigation.
Interviews are conducted under an assurance of
confidentiality. If information adverse to the nominee is
uncovered, the circuit member will advise the nominee of such
information if he or she can do without breaching the promise
of confidentiality. During the personal interview with the
nominee, the nominee is given a full opportunity to rebut the
adverse information and provide any additional information
bearing on it. If the nominee does not have the opportunity to
rebut certain adverse information because it cannot be
disclosed without breaching the confidentiality, the
investigator will not use that information in writing the
formal report and the committee, therefore, will not consider
those facts in its evaluation.
Sometimes a clear pattern emerges during the interviews,
and the investigation can be briskly concluded. In other cases,
conflicting evaluations over some aspect of the nominee's
professional qualifications may arise. In those instances, the
circuit member takes whatever additional steps are necessary to
reach a fair and accurate assessment of the nominee.
Upon completion of the investigation, the circuit member
submits an informal report on the nominee to the Chair, who
reviews it for thoroughness. Once the Chair determines that the
investigation is thorough and complete, the circuit member then
prepares the formal investigative report, containing a
description of the candidate's background, summaries of all
interviews conducted--including the interview with the
nominee--and an evaluation of the candidate's professional
qualifications. This formal report, together with the public
portions of the nominee's completed Senate Judiciary Committee
questionnaire and copies of any other relevant materials, is
circulated to the entire 15-person committee. After carefully
considering the formal report and its attachments, each member
submits his or her vote to the Chair, rating the nominee ``Well
Qualified,'' ``Qualified,'' or ``Not Qualified.''
I would like to emphasize that an important concern of the
Committee in carrying out its function is confidentiality. The
Committee seeks information on a confidential basis and assures
its sources that their identities and the information they
provide will not be revealed outside of the committee, unless
they consent to disclosure or the information is so well known
to the community that it has been repeated to the Committee
members by multiple sources. It is the committee's experience
that only by assuring and maintaining such confidentiality can
sources be persuaded to provide full and candid information.
However, we are also alert to the potential for abuse of
confidentiality. The substance of adverse information is shared
with the nominee, who is given full opportunity to explain the
matter and to provide any additional information bearing on it.
If the information cannot be shared with the nominee, the
information is not included in the formal report and, I repeat,
is not considered by the Committee in reaching its evaluation.
Now, turning to the investigation of Judge Benitez,
Magistrate Judge Benitez was nominated on May 1, 2003. Carol
Dinkins of Houston, Texas, who was then Chair of the Standing
Committee, assigned Mr. Macias to the investigation, as I
previously explained. He began his investigation shortly after
receiving the nominee's May 21, 2003, responses to the public
portion of the Senate Judiciary Committee questionnaire. The
investigation took longer to complete than most investigations
because negative information about the nominee's professional
qualifications was uncovered.
On July 22, 2003, Mr. Macias submitted to Chair Dinkins an
informal report of the results of his investigation, including
summaries of all of his confidential interviews and a
description of his interview with the nominee. Because the
report contained information adverse to the nominee, Chair
Dinkins asked Mr. Macias to conduct additional interviews with
both lawyers and judges to assure that the concerns expressed
in the report were reflective of the views of a very broad
spectrum of individuals who had knowledge of the professional
qualifications of the nominee. On October 10, 2003, Mr. Macias'
formal report was transmitted to all members of the committee.
Those who had questions were encouraged to contact Mr. Macias
directly. After all of the Committee members had an opportunity
to study the report and all the attachments, each member
reported his or her vote regarding the rating of the nominee to
the Chair. A substantial majority of the Committee found the
nominee ``Not Qualified'' and a minority found him
``Qualified.'' This vote was reported to you, Mr. Chairman, on
October 21, 2003.
I would now ask my colleague, Mr. Macias, to describe the
investigation of the nominee.
Mr. Macias. Mr. Chairman, my name is Richard M. Macias. I
am an attorney from California and, as Mr. Hayward indicated, I
am a former member of the committee. I served a full term on
the Committee starting in 1994 and have provided frequent
assistance on an as-needed basis since then. I have personally
conducted approximately 60 investigations for the Committee and
have reviewed many more reports prepared by other Committee
members.
In 2003, I was asked to undertake the investigation of the
qualifications of Roger T. Benitez to serve as a United States
district judge. My investigation was conducted in the same
manner all investigations by the Standing Committee are
conducted, as Thomas Hayward just explained.
My investigation took place during the summer of 2003. In
addition to carefully reviewing pertinent materials, such as
the nominee's responses to the questionnaire, his legal
writings, and other documents that he sent me to review, my
investigation of the professional qualifications of Judge
Benitez included approximately 67 confidential interviews with
members of his legal community, including 23 judges and 44
lawyers. During each conversation, I asked how the person knew
the nominee and what the person knew about the nominee's
professional competence, judicial temperament, and integrity
that would bear on his competence to a be a United States
district judge. I interviewed almost all--if not all--of the
district court judges and magistrate judges of the Southern
District of California and the Imperial County Superior Court
judges. I also made a particular effort to locate and speak
with attorneys who had made court appearances before the
nominee.
I also met privately with the nominee in his office in El
Centro on two separate occasions. During our meetings, each of
the many concerns over Judge Benitez's qualifications that had
been raised during my investigation was discussed, and the
nominee was given a full opportunity to respond to and rebut
the adverse information and to provide any other additional
data, information, or materials that he wished me to consider.
Because I received more negative comments concerning this
nominee than I had ever received about any other person I have
investigated, I met with Judge Benitez twice and spent
considerably longer conferring with him than what is normally
required.
A substantial number of the judges and lawyers I
interviewed raised significant concerns about Judge Benitez's
judicial temperament and his courtroom demeanor. Many of the
interviewees were initially reluctant to discuss the nominee
until I assured them that everything they told me would be held
in the strictest confidence. Over the past 10 years, I have
conducted many investigations for the Southern District of
California and, fortunately, I have established a reputation as
someone who keeps his word and can be trusted to keep matters
confidential when asked to do so.
The lawyers with whom I spoke were civil and criminal
practitioners, both prosecutors and defense lawyers, from San
Diego and Imperial County, where Judge Benitez practiced law
from 1979 to 1997, sat as an Imperial County Superior Court
judge from 1997 to 2001, and has served as a Federal magistrate
judge for the Southern District of California from 2001 to the
present.
Over and over I received negative comments regarding Judge
Benitez's judicial temperament. Interviewees repeatedly told me
that Judge Benitez displays inappropriate judicial temperament
with lawyers, litigants, and judicial colleagues, that all too
frequently, while on the bench, Judge Benitez is arrogant,
pompous, condescending, impatient, short-tempered, rude,
insulting, bullying, unnecessarily mean, and altogether lacking
in people skills.
Interestingly, a significant number of judges and lawyers
with whom I spoke specifically reported that Judge Benitez
would often become irrationally upset and outraged if an
attorney who had been appointed to represent a defendant had a
scheduling conflict and asked another equally competent and
prepared attorney to appear before the nominee on behalf of the
defendant. Scheduling conflicts are a fact of life for
litigators; they are a common, everyday occurrence. The people
who specifically mentioned this behavior as one example of the
nominee's injudicious temperament assured me that almost no
other magistrate judge in California or Arizona would be the
least bit perturbed under similar circumstances.
A number of people with whom I spoke expressed grave doubts
over Judge Benitez's ability to competently handle the more
demanding docket caseload of a Federal district judge and
efficiently manage a district courtroom, based on their
perception of his very slow and rigid manner of handling his
current court calendar in El Centro.
Based on their exposure to the nominee's mode of relating
professionally to others in his official capacity as a judge,
interviewees expressed doubt over Judge Benitez's ability to
become an accommodating and collegial member of the Federal
district court.
Many of the interviewees further expressed the sentiment
that the nominee's temperament problems are compounded by the
fact that Judge Benitez fails to appreciate the depth of
concern by the bench and bar regarding his temperament and has
not demonstrated that he is willing or able to address these
concerns.
I discussed each of the negative comments I received with
Judge Benitez when I interviewed him in person. His response
was to consistently deny the accuracy of what I had been told.
He was unable to explain why so many people would make
incorrect, negative comments about him. Frankly, in light of
the substantial number of negative comments brought to Judge
Benitez's attention, we would have hoped he might have
responded that he had not fully appreciated how he was
perceived by others and that he would strive to markedly
improve his temperament and demeanor. No such conciliatory
comments were forthcoming from the nominee.
Our Committee members, after reviewing my report on the
nominee, were particularly concerned about the clear,
consistent pattern to the criticisms that emerged from the
interviews. A substantial number of Judge Benitez's
professional peers that I interviewed complained about his lack
of interpersonal skills and were deeply concerned that he
lacked the judicial temperament essential for a district court
judge. My colleagues on the Committee were not dissuaded over
the seriousness of these allegations by the fact that I
reported that I interviewed some lawyers who told me that they
had not encountered any problems when they had appeared before
Judge Benitez.
After careful consideration of my report, a substantial
majority of the Committee was of the view that Judge Benitez is
``Not Qualified'' for a life-tenured appointment to the
district court. A minority of the Committee found him to be
``Qualified.''
Our Committee takes most seriously its responsibility to
conduct an independent peer evaluation of the professional
qualifications of judicial nominees. There is no simple formula
that we can apply to determine if a nominee is ``Well
Qualified,'' ``Qualified,'' or ``Not Qualified.'' Our
recommendation is not the result of tallying the positive and
negative comments we receive about a particular nominee or
giving an assigned weight to other factors that bear upon
professional competence. Rather, in making our evaluation, we
draw upon our own professional experience, the cumulative
experience of the Standing Committee as a whole, the
information and knowledge we gain about the nominee during the
course of the investigation, and our independent judgment. We
do our utmost to impartially apply the same standards and
criteria to every nominee, and we take our job very seriously,
especially when, like today, we have negative information to
report about the professional qualifications of a nominee for a
lifetime appointment to the Federal bench.
Thank you for the opportunity to appear before you today.
Tom Hayward and I stand ready to respond to any questions you
might have.
Chairman Hatch. Well, thank you so much. I appreciate the
hard work that the Standing Committee does and that the
investigators do. It is a lot of work, it is a lot of effort,
and we appreciate the work that you put in.
We have to weigh these things and balance them, and like I
say, we have a lot of letters, a lot of information from people
who know the judge very well who think he is terrific for this
position. So it is no reflection on the ABA if we decide to
ignore your recommendations. And it is no reflection sometimes
on the nominee if we decide to accept your recommendations. So
it is a tough decision sometimes,
Mr. Hayward, I particularly appreciate you and the work
that you do. I know it is a lot of work. I know it takes a lot
of time. Sometimes there is not much thanks for doing what you
do, and many times you are a political football kicked around
by this Committee. We know that has been the case in the past,
and we hope that somehow or other I think we have come a long
way from those days when there really was, in my opinion, some
politics on the Committee.
Mr. Hayward. Thank you, Mr. Chairman, and I agree with that
observation.
Chairman Hatch. And I think you have done an excellent job,
and I appreciate your presence today to answer questions from
the Committee regarding the ABA's evaluation of Judge Benitez's
nomination. But let me just ask some basic questions so we all
understand this a little bit better regarding procedures
followed by the Standing Committee.
Now, it is my understanding that one investigator is
initially assigned to a particular nomination.
Mr. Hayward. Yes.
Chairman Hatch. However, there may be cases where a second
investigator joins the case. For example, a second investigator
may be appointed where it appears at any time during the
evaluation process that the nominee may receive a ``Not
Qualified'' rating. I think that is correct.
Mr. Hayward. Yes.
Chairman Hatch. What was the thinking regarding a second
investigator in this case?
Mr. Hayward. My judgment as Chair when I received the first
informal report and we asked Mr. Macias to do additional
investigation, that if it had been a close call, Mr. Chairman,
in terms of review of the report, I most certainly--and always
do, as my predecessors have--appoint a second investigator. In
this case, the finding as recommended to your Committee, sir,
was a substantial majority found the nominee not qualified. It
was on that basis that we asked, after Mr. Macias had gone back
a second time, done additional interviews, talked with the
nominee, that I reviewed his report, made the judgment that the
trend in the report was so strong in terms of our finding that
a second investigator would not change that report and,
accordingly, authorized the formal report to go forward to our
Committee and for the Committee to make its recommendation on
the basis of that report.
Chairman Hatch. In the case of Judge Benitez, that was a
split report, as you say. You say a substantial majority of the
committee.
Mr. Hayward. Right.
Chairman Hatch. Is there a way of quantifying that?
Mr. Hayward. Yes, sir. As you know, including myself, there
are 15 persons on the committee. A substantial majority is more
than 10, and in this particular case, the Chair does not vote
unless there is a tie. I did not vote, so 14 members of the
Committee voted and 10 or more found the nominee not qualified.
Chairman Hatch. Now, it is clear that Judge Benitez enjoys
widespread support from his colleagues and peers from what has
come to us.
Mr. Hayward. Right.
Chairman Hatch. And as you know, in 1997 he was appointed
to the Superior Court of Imperial County by the then Governor
of the State of California.
Now, prior to his nomination, he was vetted by the Judicial
Nomination Evaluation Committee of the State of California, and
as part of that evaluation, confidential questionnaires were
sent out to 150 lawyers and judges asking for information
concerning his legal ability, ethics, and temperament. Now,
that Committee found him to be qualified to be a judge, and in
his present nomination, Judge Benitez was also found to be
highly qualified by a bipartisan nominating commission tasked
with selecting exemplary candidates for service on the Federal
bench.
Now, that Committee unanimously recommended Judge Benitez
for this position, and 3 years previous to that recommendation,
he was selected by another bipartisan commission to serve as a
magistrate judge after a thorough review of his record and
experience.
Now, Judge Benitez's nomination is unanimously supported by
the board of directors of the Imperial County Bar Association.
He has the support of all 12 active judges of the Southern
District of California and the support of the presiding judge
of Imperial County, Mr. Raymond Cota, Judge Raymond Cota. And
they all agree he is qualified. The only evidence we have that
he is not qualified are the anonymous comments of his
detractors as reported by your Committee without specifics.
Now, I think naturally a question that needs to be asked
is: Do you have any real explanation why the ABA rating is so
inconsistent with other commission findings and the
endorsements in favor of Judge Benitez?
Mr. Hayward. I think my answer, Mr. Chair, in all due
respect to the individuals who have sent those recommendations
to the Committee directly or those findings, is that the job
that the American Bar Association's Standing Committee
undertakes on behalf of this Committee is to provide this
Committee with a peer review. The peer review consists of three
legs: temperament, professional competence, and temperament--
integrity, temperament, and professional competence.
We had no problem in evaluating this nominee with respect
to two of those criteria--integrity and professional
competence. We provide this Committee with our independent
review. Remember, except for the investigator, all of the
members of our Committee are distinguished practicing lawyers
from around the country representing each of the circuits who
have read hundreds of evaluations, undertaken hundreds of
evaluations, that we provide this Committee and you, Mr.
Chairman, with our best judgment, our best call. And you are
right, Mr. Chairman, there are many other considerations that
go into your nomination and confirmation of a nominee.
What we try to do as a Committee advising the Senate
Judiciary Committee is make the call as I have described in my
testimony, as Mr. Macias has described in his testimony, and,
unfortunately, in this particular case, it does not comport
with the many recommendations that you have from distinguished
Chief Judge Marilyn Huff through other members of the bar. But
I give this Committee and the Chair my assurance as Chair,
having carefully reviewed Mr. Macias' report, that it was
balanced, that it was not a close call in this particular
incidence, and the best explanation I can give you, Mr.
Chairman, is over the years that we have been doing this, since
early in the Eisenhower administration, but certainly as the
Chair indicated, over the last few years, we enjoy the
confidence of the people that we are dealing with that they may
open up to us in a manner that they may not open up to others
that are more local, that are doing the investigation. And with
the assurance of confidentiality, we call them as we see them.
Chairman Hatch. I understand that and I appreciate it. And
I have no doubt, Mr. Macias, that you are a well-informed,
decent investigation who is just trying to do the best you can.
And if people report this to you, you have got to report it
back.
I am also aware that there are a lot of--in some of these
instances, there could be enemies and there could be people who
can cause troubles to a nominee who aren't as honest as they
should be. So it is something we have to weigh, but it is a
matter of great concern to me. It is tough to do your job, and
I respect people like yourself who have to do this job.
Well, we want to thank both of you for being here.
Mr. Hayward. I would just like to underline, Mr. Chairman,
along your last comments, if I could, with all due respect,
that if we do receive an adverse comment, I just want to re-
emphasize that unless we can tell the nominee about it in
general so the nominee has an ability to respond to our
investigator, we reject it, we discount it. So if there is any
incident where somebody just is trying to poison the well, so
to speak, we pick that out.
Chairman Hatch. I believe that.
Mr. Hayward. And if it is a one-off type criticism, such as
Senator Feinstein indicated, we also look into that, and that
doesn't sway our recommendation one way or another.
Chairman Hatch. Well, as you know, we on this Committee
sometimes have done lousy decisionmaking with regard to judges.
So we are not going to blame you guys for doing the best you
possibly can, and you are one element of this consideration.
And you have been honest in admitting that we have many other
elements we have to consider. And should we confirm Judge
Benitez, we don't want the ABA to think that we are just
rejecting your recommendations, but that we have taken them
into consideration, and we certainly will. I mean, we respect
you and we respect what you are doing, and we will do our best
on the Committee.
Mr. Hayward. Mr. Chairman, thank you for those comments,
and on behalf of the American Bar Association and my committee,
I would say to you, Mr. Chairman, that all the members of the
Judiciary Committee thank you for the confidence that you place
in us each time a nomination comes forward, that we will do the
peer review and provide you with our best advice concerning
that particular nomination.
Chairman Hatch. Well, thank you, Mr. Hayward. Thank you,
Mr. Macias.
Mr. Macias. Thank you, Mr. Chairman.
Chairman Hatch. We appreciate having your input.
Chairman Hatch. Now we are going to call on Judge Huff at
this point for any comments that she would care to make one way
or the other, and then we will--unless, Judge Benitez, do you
need to make any further comments? We would be happy to--let
the judge sit in the middle, and you can use this one over
here.
Judge Benitez. Mr. Chairman, let me just say this: I, too,
think that the ABA has a difficult task at hand. I appreciate
the work that they have put into their investigation. I wish
that the outcome would have been different. I wish I could
definitively find out how we can have the two conflicting
versions of who I am, but I can't. And anything that I would
say would be speculation.
All I can say is this: Obviously there is a problem, or at
least it is a perceived problem. And if given the opportunity
to serve as a district judge, I will certainly attempt to
address those issues that have been raised by the ABA.
Chairman Hatch. Well, thank you. I appreciate that.
Judge Benitez. Thank you, Mr. Chairman.
Chairman Hatch. Judge Huff, we will take your statement. We
are honored that you would take time to come back here, and I
think it is a tribute to Judge Benitez that you would take the
time to be with us.
STATEMENT OF HON. MARILYN L. HUFF, CHIEF JUDGE, U.S. DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Huff. Thank you. I had to recess a death penalty case
to come here, but I did believe that it was important.
I favor the confirmation of Roger Benitez as a district
judge, as do significantly all of my active district judge
colleagues on the bench, as we believe that he does have the
skills and judicial temperament to help us with our heavy
caseload. My written testimony has been submitted for the
record.
Chairman Hatch. We will put it in the record.
Judge Huff. So I will summarize, then, my comments with
respect to Magistrate Judge Benitez.
I think it is significant to know and thank Senator
Feinstein for setting up the bipartisan merit selection
committee. That committee, after significant investigation at
the local level, with knowledge of the lawyers and judges who
were speaking, unanimously recommended Roger Benitez for one of
these positions to help us with our heavy caseload.
At the same time, we as district judges of the court had
appointed Magistrate Judge Benitez as a magistrate judge for
Imperial County. Significantly, he was the first full-time
magistrate judge in Imperial County, and the best way that I
can reconcile the comments of the ABA with our different
perceptions of Judge Benitez is I do attribute some of the
criticism to the natural growing pains in setting up a new,
functioning, and very busy court in a geographically distant
community approximately 2 hours away from San Diego.
Magistrate Judge Benitez came to our attention based on the
recommendations of a merit screening panel that consists of
lawyers and community representatives. They forwarded his name
as one of the five finalists for magistrate judge. We district
judges then undertook our own due diligence, and significant to
us was what kind of judicial temperament did Superior Court
Judge Benitez possess. We learned that he possessed the
attributes to be an excellent magistrate judge. He was
diligent, resourceful, efficient, knowledgeable, and, most
significantly for your consideration here today, compassionate,
fair, and considerate.
Based on his excellent reputation, our interview, and the
favorable results of his FBI and IRS background investigations,
we appointed him as United States magistrate judge in January
2001.
As I said, we set up a new court. Previously, we had all
defendants transferred to San Diego and didn't appoint counsel
until, some days, 3 days later. When we took a look at the
numbers, we realized that approximately 30 percent of the
initial appearances were happening in Imperial County. Our
Acting United States Marshal estimates that for the 3 years
that Magistrate Judge Benitez has been on the bench, he has
saved approximately $5.2 million for the United States Marshals
Service over this 3-year period because they were able to house
the prisoners in Imperial County rather than in the more
expensive San Diego contract facilities.
We believe that Magistrate Judge Benitez has actually
improved the quality of justice for indigent defendants in
Imperial County. He set up a system that is functioning and
works well, and, significantly, unquestionably he has been a
diligent judge. His 4,524 initial appearances as of February 13
in Imperial County saved the court the repetition of these
appearances in San Diego.
We have reviewed his work, and beyond his work ethic, he
has demonstrated an ability to set up a functioning and
successful divisional court. For example, in 2003, he handled
1,494 initial appearances for criminal cases. To put this in
context, I took a look at the Northern District of California.
They have ten magistrate judges. We have ten magistrate judges.
Their ten magistrate judges collectively only handled 1,341
initial appearances, and Magistrate Judge Benitez handled more
than all ten of the district judges in the Northern District of
California. And Judge Benitez took a look at the statistics and
said that out of all of the districts in the United States
that, except for five districts, he singlehandedly handled more
initial appearances than any of them, the whole court combined.
So he has been a very diligent worker.
He has, in the court's view, been an asset to the Federal
bench. We have taken a look at the ABA criticism and taken a
look at that significantly. I have attempted to parse through
the information to try to find out if there are trends here. As
chief judge, I would be concerned if there was a concern about
judicial temperament.
As required by law, until the law recently changed, we were
required to review transcripts of all guilty pleas taken by
Magistrate Judge Benitez. So over the life that he has been
there, for 3 years, we have had no criticism based on our
review of the actual transcripts of his judicial temperament or
compassionate quality. Indeed, to the opposite, we have found
him to be a very wonderful and diligent Federal magistrate.
In sum, we do believe that he will make a positive
contribution to the administration of justice in the Southern
District of California and help us to reduce our heavy
caseload. We believe he possesses the intellect, experience,
and temperament to be an excellent district court judge. We
also have the ability to broaden the diversity on our court
because, as you have heard, he has a wonderful life story. He
is the embodiment of the American dream. As an immigrant, he
came to the United States with very little, and he has risen to
become a very respected judge.
We were surprised and disappointed to learn that the ABA
has a different view of his qualifications. While I deeply
respect the ABA and its judicial evaluations process, in this
case I am more persuaded by the unanimous recommendation of the
bipartisan merit selection committee, the additional
investigation done by David Casey at the request of Senator
Feinstein--he is the president of the American Trial Lawyers
Association--and the views of my fellow district court
colleagues, the active judges, who collectively believe and
support that Magistrate Judge Benitez will be an excellent
district judge.
I am open to any questions you have.
Chairman Hatch. Well, thank you so much. I think it is a
tremendous honor for Judge Benitez to have you take the time to
come back and be with us and give what I consider to be very,
very excellent testimony. It is a real tribute to you, Judge
Benitez. And, look, I give weight to the ABA findings, but they
are not always right, and I mentioned the Williams case just as
a perfect illustration, an African-American nominee who was
found not qualified by, I think everybody on that Standing
Committee, and we just overruled them, and we find that he is
doing an excellent job today.
In the case of Judge Benitez, I think you have come through
a lot in your life, and I think that will redound very well to
the benefit of those who appear before you. The only thing I
can say is if there is any truth to any lack of temperament--
and let me tell you, being a magistrate judge is not a walk in
the park. You sometimes have to be firm. Just being a district
court judge, you have to be firm. You cannot let lawyers walk
all over you. And in this day and age, lawyers tend to think
they can do that to judges, even. And any time a judge settles
them down, they take offense to it.
In my day, when I started out, we were very respectful in
all ways to judges, and especially those who might not have
temperament. But the fact of the matter is we know that there
is a different segment of the whole Bar Association in various
communities that doesn't always abide by the rules of decorum,
and then they blame the judges for getting tough with them in
the courtroom.
And, frankly, we understand that. We have become such a
litigation-minded community throughout America that it has also
become a community that is less reasonable than it should be.
And I know that, Judge, you have experienced that as a district
court judge, and nobody minds an advocate doing the very best
he or she can in front of the court and raising very strong
positions. But you do mind people who go way beyond where they
should be, abuse the rules of evidence, and do other things
that literally cause a judge, whether magistrate or district or
even a circuit judge, to come down pretty hard on them. And we
expect judges to come down hard from time to time.
So I would say, Judge Huff, that your testimony is the most
significant testimony here today outside of Judge Benitez's,
and it is very persuasive to me, as is Judge Benitez's
testimony. And I am certainly going to recommend confirmation,
and I believe this Committee will do so in spite of some of the
tough times we have on this Committee from time to time. So we
will do our very best to get you confirmed, and I would just
suggest you be the very best judge you possibly can because you
will bring credit to a lot of people outside of your family and
your own immediate circumstances if you do a great job as a
Federal district court judge. And I am going to count on your
doing that.
Judge Huff, we are just very honored to have you here, and
we respect you and respect the work that you do.
Judge Huff. Thank you, and thank you so much for getting us
the positions. We really do appreciate it.
Chairman Hatch. Thank you. We will do our best in the
future, too.
[The prepared statement of Judge Huff appears as a
submissions for the record.]
Chairman Hatch. Well, with that, we are going to recess
until further notice.
[Whereupon, at 11:50 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF PETER W. HALL, OF VERMONT, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT; JANE J. BOYLE, OF TEXAS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF TEXAS; MARCIA G. COOKE, OF FLORIDA,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND
WALTER D. KELLEY, JR., OF VIRGINIA, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF VIRGINIA
----------
WEDNESDAY, MARCH 10, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:33 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Cornyn and Leahy.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. This hearing of the Senate Judiciary
Committee will come to order. I appreciate Senator Hatch, the
Chairman of the Committee, for allowing me to chair this
hearing as the list of four distinguished nominees includes one
from Texas as well as those from Vermont, Virginia, and
Florida. It is an honor to welcome each of you here today as
well as your families and friends and guests to the Committee.
I note that all four nominees--one for the Federal appeals
court bench and three for the district court bench, are
distinguished lawyers, each having received a ``well
qualified'' rating from the American Bar Association. Peter
Hall is the nominee to be U.S. circuit judge for the Second
Circuit. In addition, we have three nominees to the Federal
district courts: Jane Boyle, the nominee for the Northern
District of my home State of Texas; Marcia Gail Cooke is the
nominee for the Southern District of Florida; Walter Kelley,
Jr., is nominee for the Eastern District of Virginia. I commend
President Bush for nominating each of you, and I look forward
to your testimony.
Now, we have a number of Senators who want to naturally
introduce their nominees from their State, and out of deference
to them, I will proceed to your introductions, and then follow
accordingly as Senators arrive, and I know they have got to
balance a variety of different responsibilities so we will try
to accommodate each of the introducers as much as we possibly
can.
But first let me turn, of course, to the distinguished
ranking member, Senator Leahy, for his opening statement.
Senator Leahy. Mr. Chairman, I am going to be here for a
while, and I see the distinguished senior Senator from
Virginia, my Senator when I am away from home, and the
distinguished Senator from Vermont, my Senator when I am home,
and I would be happy to withhold as a courtesy to the two of
them, if they would like to go first.
Senator Cornyn. Very well.
We would be delighted to hear from you, Senator Warner, any
comments you would care to make.
PRESENTATION OF WALTER D. KELLEY, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON. JOHN
WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman. And I thank my
good friend Senator Leahy, who is recognized in this
institution as setting the decorum and standards which all of
us aspire to.
Colleagues and other distinguished guests here in this
important hearing of the U.S. Senate, I am privileged to
introduce Walt Kelley and his family. I am going to ask Walt,
since my voice is a little raspy and I have got to preserve it
for a tumultuous speech I am going to give on the floor
shortly, would you introduce your family?
Mr. Kelley. Certainly. I am delighted to have with me today
my three children, Collier Kelley, Catherine Kelley, and
Thurman Kelley.
Senator Warner. Stand up there, young man.
[Laughter.]
Mr. Kelley. And also my wife, Jennifer Kelley, and my
mother, Frances Kelley, and a couple of dear friends who are
adopted family, Roy and Bev Graeber. They all came up from
Norfolk today.
Senator Cornyn. Excellent. Welcome to each of you. Thank
you for being here.
Senator Warner. I thank the Chair and the members for
welcoming this family. As we all know, these are arduous tasks
that are taken on by jurists, and the family support is
essential to the discharge of their responsibilities.
Now, this fine individual fills the vacancy of Judge Henry
Morgan, and sort of like you, Senator Leahy, you and I have
been here long enough, we are down on the third rung of judges
that we are reporting. When we first came, those that we first
put in are gone, and the second are retiring, and here you and
I are on the third round in filling this particular post.
Senator Leahy. We are like the old war horses.
Senator Warner. Yes, we are the old war horses.
Judge Morgan informed Senator Allen and me about his intent
to take senior status, so we began our usual very thorough
search, and it is interesting. I approach these things very
pragmatically because I was privileged at one time to be in the
profession of law. And this fine individual came to the
forefront in each of our meetings, when we talked about various
persons that we consult with in connection with judicial
appointments. And it was clear to the good Senator Allen and
myself that this man was eminently qualified.
He graduated from Washington and Lee where I was privileged
to graduate from, and then after working for years as press
secretary to a Member of the United States House of
Representatives, he returned to Washington and Lee and earned
his law degree magna cum laude. Subsequent to law school, Mr.
Kelley served as law clerk to a judge on the United States
Court of Appeals for the Second Circuit in New York City, and
we are fortunate that after his 1-year clerkship was completed,
he returned to his home town in Norfolk to practice law.
Since then, for 22 years, he has practiced law for two of
Virginia's best law firms, Wilcox and Savage, and Troutman
Sanders. And during these two decades-plus of his legal career,
his practice has focused primarily on complex business
litigation before the Federal courts.
I am going to ask unanimous consent to place the balance of
my remarks into the record, Mr. Chairman.
Senator Cornyn. Without objection.
Senator Warner. I have to join the members of the
Intelligence Committee. We have got an emergency meeting at
this point in time. So I am going to ask that the Chair allow
my distinguished colleague and dear friend, Senator Allen, to
complete my remarks on my behalf.
I thank you for the courtesies.
[The prepared statement of Senator Warner appears as a
submissions for the record.]
Senator Cornyn. Thank you, Senator Warner.
Senator Allen, we would be pleased to hear any remarks you
would like to make by way of introduction.
PRESENTATION OF WALTER D. KELLEY, JR., OF VIRGINIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON.
GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. I will. Thank you, Mr. Chairman and Senator
Leahy, and I thank my colleague Senator Warner. I will put the
rest of his statement in the record.
Senator Cornyn. Without objection.
Senator Allen. I was crossing through some of my remarks,
so I will try not to repeat.
I am very happy to be here and pleased and honored to
support Walter DeKalb Kelley, Jr.--we know him as ``Walt''--to
serve as judge in the Eastern District of Virginia, U.S.
District Court.
I have known Walt for a long period of time now, and I am
always impressed by him. I will get into some of his
background. But I have found him to always be even-tempered. No
matter the situation, no matter how fractious things might be,
he always had a good, steady demeanor, which I think is an
important aspect for being a trial judge. Where things can get
a bit hectic, does someone keep their cool? Are they
evenhanded? Are they fair-minded?
Senator Warner and I interviewed many outstanding nominees
for this judgeship in the Eastern District of Virginia. The
things I care about are experience, to the extent you can
determine someone's experience as a judge, and also their
judicial philosophy. On the latter point of judicial
philosophy, Walt Kelley as a judge is one who understands the
proper role of the judiciary, to adjudicate disputes based on
the evidence before them and not make the law. This is
something I know, Mr. Chairman, that you care a great deal
about, as I do, and my colleague Senator Warner. It is
important. And I feel very safe in saying that as a judge, Walt
Kelley would understand the proper role of the judiciary.
As far as experience, while not a judge having judicial
experience, he has a tremendous amount of experience in the
courtroom, arguing and taking to final adjudication 25 cases in
various Federal courts. That is an impressive number. He has
been supported and endorsed by the Virginia Association of
Defense Attorneys, the Virginia State Bar. The American Bar
Association has given Walt Kelley a unanimous opinion of ``well
qualified.'' He is rated ``AV'' by Martindale-Hubbell. The
Virginia Bar Association supports his nomination as well as the
Virginia Women Attorneys Association.
It is no wonder he has been listed since 1997 as one of the
best lawyers in America for business litigation, and it may not
sound all that great all the time, but in Virginia Business
Magazine, they call him the ``legal elite,'' and he is amongst
the legal elite, according to Virginia Business Magazine for
civil litigation.
Senator Warner went through all his education, and other
matters that I think are important are what he does in the
community. He is the Chairman or Rector of the Board of
Visitors at Old Dominion University in Norfolk. He is a trustee
at Norfolk Collegiate School, where he attended and where his
three children currently attend school. He is an adjunct
professor in antitrust law at the law school at Regent
University. He served on the Virginia Attorney General's Task
Force on Higher Education. He also is the director of the
Hampton Roads Salvation Army Adult Rehab Center Advisory Board,
making sure that folks are rehabilitated from being addicted to
drugs or using drugs, and to become more productive citizens.
Senator Warner has introduced his wife and twin sons and
daughter and his mother, Frances. I know there are friends--Bev
Graeber is back there, and he has a lot of support--that have
come all the way up from Norfolk here.
I will just sum it up, Mr. Chairman and Senator Leahy. Walt
Kelley is an outstanding individual. He has the experience, he
has the temperament, and I think he will be an outstanding
judge for many decades to come in the Norfolk division in the
Eastern District of Virginia. He has the qualifications, he has
the temperament, and he is a quality individual whom we will
all be proud to support and watch as a judge.
I thank you for your time and your care, and I hope you
will promptly move this nomination forward so he can get to
work in handling the caseload there as soon as possible.
Senator Cornyn. Thank you, Senator Allen, for those glowing
remarks, and we appreciate your time here very much.
At this time we would be delighted to recognize Senator
Jeffords for any introductory remarks he may care to make.
Senator Leahy. Incidentally, I might mention, Mr. Kelley
may want to save a transcript of what you and Senator Warner
said. Those are glowing tributes from two Senators I respect
greatly, and I have a feeling if his career is like anybody
else's career in the judiciary or anything else, there may be
occasions when some, probably as he sentences them to prison or
something, may have less flattering things to say. So this will
give him something to look at.
[Laughter.]
Senator Allen. Thank you, Senator Leahy. Appreciate it.
PRESENTATION OF PETER W. HALL, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND CIRCUIT, BY HON. JIM JEFFORDS, A U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Well, thank you. I am very pleased to be
here. I know Senator Leahy agrees with me wholeheartedly in
what I will say, and I will agree wholeheartedly with whatever
he says. I just want to let you know that we believe that Peter
W. Hall for a seat on the United States Second Circuit Court of
Appeals is a most qualified individual and are delighted to
recommend him.
But I am also a bit melancholy because the nomination is
for the seat that was held by my very close friend, the late
Fred Parker. The loss of Judge Parker created a tremendous void
in the legal community of Vermont and the Second Circuit. Judge
Parker left some big shoes to fill, both literally and
figuratively. But Peter is the ideal candidate to accomplish
this task.
Peter and I both live in the Rutland area of Vermont. This
has permitted me to know him and closely follow his career for
over 20 years. The insight and knowledge allowed me to
confidently nominate Peter in 2001 to serve as the U.S.
Attorney for Vermont, and now enthusiastically support his
nomination for a position on the Second Circuit Court of
Appeals.
I have the utmost faith in his ability to continue the line
of excellent judges from Vermont in the Second Circuit Court of
Appeals. The nomination comes from a Committee with strong
support of a large bipartisan group of Vermonters. Jim Douglas,
the Governor of Vermont, offered Peter's name to the President
as the nominee for this seat, and both Senator Leahy and I
supported this nomination. In addition, my constituents believe
Peter will be an outstanding judge on the Second Circuit Court
of Appeals, and I know from so many members of the bar letting
me know how they feel that he will certainly be welcomed by the
Vermont Bar Association and their members.
Peter will come to the Second Circuit with an extensive and
wide knowledge of the law. Following law school, he clerked for
Hon. Albert W. Coffrin, a U.S. District Court Judge for
Vermont. Peter has also worked for a prestigious law firm in
Rutland and held a variety of positions in the United States
Attorney's Office, most recently as a U.S. Attorney for
Vermont, a position for which the Senate unanimously confirmed
him in 2001.
In all these positions, Peter has excelled and done
extraordinary work. I have heard nothing except praise from his
colleagues and firmly believe he will continue this record of
excellence on the Second Circuit.
Peter has also exhibited a proper temperament to be an
exceptional jurist. I believe this comes naturally to Peter
through his upbringing in Vermont, and I know that Peter will
serve in the Vermont tradition of prudence and fairness.
I appreciate this opportunity to introduce Peter Hall to
you for a seat in the Second Circuit Court of Appeals. I
believe you will see in him what I have seen in many years, an
individual who has strong values and exceptional judgment. I
hope the Senate will swiftly confirm him to the seat, thus
extending the line of excellent Vermont judges on the Second
Circuit.
Thank you.
Senator Cornyn. Thank you, Senator Jeffords.
Senator Leahy?
PRESENTATION OF PETER W. HALL, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND CIRCUIT, BY HON. PATRICK LEAHY A U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman, and like
Senator Jeffords, I am very pleased to introduce and recommend
Peter Hall to the Committee. We have been saying such nice
things about him. I wonder, Peter, if you might just stand up
so we can see who it is we are talking about. In a few minutes,
you will get a chance to introduce everybody else who is with
you, and I might mention that I see with Mr. Hall one of his
predecessors as U.S. Attorney, Charlie Tetzlaff, who was also a
superb U.S. Attorney, and both long-time friends.
In this position, the President, as has been said, has
nominated Mr. Hall for a seat on the Second Circuit. By
tradition, Vermont has had one of the seats on the Second
Circuit. And in mentioning that, I should say, as Senator
Jeffords has, there is a reason this seat is vacant. There was
a superb Second Circuit judge, Fred Parker, who was there. Fred
was a close friend of mine, of Senator Jeffords, of Mr. Hall,
Mr. Tetzlaff, and so many others. He died tragically of a heart
attack this past summer. And Judge Parker had been appointed to
the U.S. District Court for Vermont back in 1990 by the first
President Bush and the strong recommendation of Senator
Jeffords and with my support. He was a well-known Republican
and the deputy attorney general, and later he was appointed to
the Second Circuit by President Clinton, again on my
recommendation and Senator Jeffords' recommendation. It was
maintaining the sense that we have tried to stay out of
partisan politics in our judges. Fred was a good man, a good
lawyer, and a good judge. I was a schoolmate of his at
Georgetown. I knew him from that time on as a man of integrity
and intelligence, and he is missed.
Now, I mention all these things because it is fitting that
we have Peter Hall, our current U.S. Attorney, again carrying
on this tradition of bipartisanly supported, nonpartisan
judges. He was appointed U.S. Attorney by President Bush. He
has the strong support of Governor Jim Douglas, a Republican
Governor of Vermont, of Senator Jeffords, Independent Senator
from Vermont, and of this Democratic Senator from Vermont. And
I think he is up to the job.
Now, he did have certain problems, I should point out, to
be honest, Mr. Chairman. He had the nerve to be born in
Connecticut. If only someone had spoken to him in time. He went
all the way to North Carolina for college. He attended law
school in New York. But he did finally come to his senses as he
graduated from law school. He came back and worked as a clerk
for Judge Albert Coffrin, actually a man who had been appointed
by President Nixon to the court, and both Mr. Tetzlaff and I
had worked in the law firm that Mr. Coffrin had been in before.
After he completed that clerkship, he joined the United
States Attorney's Office in Vermont. He was a Federal
prosecutor for the next 18 years, becoming first assistant,
later named U.S. Attorney.
During those years, he gained invaluable trial experience,
which is so beneficial for any judge. He also learned about the
Federal criminal law. So Mr. Hall's experience is not just
Government service. In 1986, he began a 15-year career in the
private practice of law, in civil practice, with a particular
emphasis on mediation. But he also used that time to serve the
State Bar Association. He provided ethics training to Vermont
State prosecutors. He held the Office of the President of the
Vermont Bar Association where he advocated funding for public
defenders and equal access to justice. And he also found time
for pro bono work, something I think is so important for those
who are going to be considered as judges, getting involved in
the Vermont family court system, serving as guardian ad litem
for children caught up in disputes between their parents.
He has been a tough but fair prosecutor. His Republican
credentials--and I will put all that in the record--are very
clear: a member of the National Republican Party and so on. He
also held one of the most important offices a citizen can hold
in Vermont--he was a member of the Select Board of the Town of
Chittenden, which is in Rutland County, not Chittenden County.
Mr. Hall has proven--I think everybody who has been involved
with him as a prosecutor would agree that, there has never been
any indication in his work as a prosecutor that anybody is
treated differently because of their political affiliation.
They are all treated fairly. They are all treated honestly. The
public has been served.
So I will put the rest of my statement in, but I also
wanted to put in, Mr. Chairman, a letter from our Governor,
Governor Douglas, addressed to both Senator Hatch and myself,
strongly supporting him.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Leahy, for those
remarks.
At this time it is my pleasure to recognize the other
Senator from Texas, Senator Hutchison, for any introductory
remarks you care to make.
PRESENTATION OF JANE J. BOYLE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF TEXAS, BY HON. KAY BAILEY HUTCHISON, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Well, thank you very much, Mr. Chairman.
I am very pleased to have the opportunity to introduce our
candidate, our joint candidate for U.S. District Judge for the
Northern District of Texas. It sits in Dallas. Jane Boyle is
the current U.S. Attorney for the Northern District of Texas.
Previously, she served for 12 years as the U.S. Magistrate
Judge for the Northern District of Texas and gained significant
judicial experience in the region. She earned her undergraduate
degree with honors from my alma mater, the University of Texas
at Austin, and she earned her law degree from SMU, Southern
Methodist University, School of Law.
She has received outstanding reviews of her job as U.S.
Attorney. She took this job at a fairly tough time, and I have
talked to lawyers throughout the region who believe that she
has done a wonderful job of being totally fair and balanced,
and everyone has great confidence in the job that she is doing.
She is married to John Boyle, also an attorney, and has two
children: her son, Joe, 15, who just became an Eagle Scout, and
her daughter, Casey, is 12.
I would like to ask her to stand and then introduce her
family as well. Judge Boyle? And her father--well, let's see.
Start with her husband, John Boyle, who is with her. Her father
is Raymond Patvel, and her sister, Katie; her mother, Catherine
Jackson; and her father, Richard Jackson. And I am sorry, that
was her brother-in-law. I am very sorry. That is very nice of
you to be here.
So we really are so pleased that all of you are here, and
we welcome you.
Mr. Chairman, I know that you join me in giving our highest
recommendation to Jane Boyle, and since she is the sitting U.S.
Attorney, I would ask for as much of an expedited review of her
as possible because we would like to not only fill the
judgeship but also fill the U.S. Attorney position so that
there is a seamless transition there.
I thank you.
Senator Cornyn. Thank you, Senator Hutchison, and I
certainly concur in all of your remarks.
I know Senator Nelson is here, and I am going to defer any
introductory remarks I might make so that he can speak, and
then I will continue with a few remarks about this excellent
nominee for the Northern District of Texas. Senator Nelson?
PRESENTATION OF MARCIA G. COOKE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BILL NELSON, A
U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Mr. Chairman, that is very kind of you.
Thank you.
I am supposed to be going to Mars this afternoon. We have a
hearing on Mars, so thank you for allowing me to go ahead. And
I am here on behalf of Marcia Cooke to the United States
District Court for the Southern District of Florida, and I am
speaking on behalf of Bob Graham and myself. And if Ms. Cooke
would stand up, and her family as well, the members of her
family. Thank you all.
Senator Cornyn. Thank you all for being here.
Senator Nelson. Well, Mr. Chairman, our nominee comes to us
originally from Michigan, then went to Georgetown University
and the Wayne State University Law School. She has been a
prosecutor, and at one point, as well as a public defender,
plaintiff's attorney, and a defense attorney. She has been in
private practice and Government service. She has represented
all kinds of clients, the poor and the wealthy. And she was 8
years as a U.S. magistrate judge in Michigan.
She came to Florida and ended up in a legal position for
our Governor and became quite familiar then with all of this
wonderful diversity that we have in our State. Interestingly,
if the Senate confirms the nomination, she will be the first
female African-American Federal judge in Florida, and again, an
important point to note because of Florida's considerable
diversity.
She has been an instructor with the National Institute of
Trial Advocacy. She has been an adjunct professor with Wayne
State and the University of Miami Law School. And so I will
submit this statement for the record, Mr. Chairman, but you can
see that we have an extremely qualified candidate that is the
nominee, and Senator Graham and I give her our wholehearted
endorsement.
[The prepared statement of Senator Nelson appears as a
submissions for the record.]
Senator Cornyn. Thank you, Senator Nelson, for those
remarks, and of course your written statement, as well as those
of the other Senators here today will be made part of the
record without objection.
Senator Nelson. Thank you.
PRESENTATION OF JANE J. BOYLE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF TEXAS, BY HON. JOHN CORNYN, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. At this time I would like to make a few
remarks in addition to those highly glowing remarks that
Senator Hutchison has already made about Jane Boyle. She has
had a long and distinguished career of public service, and
rather than repeat some of the nice things that Senator
Hutchison has already said about her, I know particularly if
you are Ms. Boyle's family, you cannot hear enough nice things
about here, and you agree with all of them.
Let me just read a couple of excerpts from letters that the
Committee has received on her behalf. Susan Hayes, Chair of the
Dallas County Democratic Party, said, ``Having worked on both
sides of the bar, I can attest that both sides view Judge Boyle
as a respected jurist who will follow the law regardless of any
political pressures.'' And she continued, ``If any nominee is
deserving of an election year confirmation, it is Judge
Boyle.'' I would also note that a prominent Dallas Democratic
Party activist and fund raiser, Mark Stanley, signed on to this
letter as well.
I would also like to read excerpts of a letter from
Congressman Martin Frost, Democrat from the 24th District of
Texas. He noted, ``I believe that she is an extraordinarily
qualified candidate who should be confirmed by the Senate with
ease. She has a strong legal background and commitment to
service in the community, and I believe she will serve on the
Federal Bench with honor and distinction.''
Finally, I would like to read a few words from Ken Mulberg,
the Senior Member of the Texas State Democratic Executive
Committee and the former Dallas County Democratic Chair. He
said, ``It is seldom that I have written in support of a
judicial nominee, particularly one submitted by the opposition
party. It is more likely you have heard from me in opposition
to various nominees. The nomination of Jane Boyle, however,
merits different comment.'' He went on to add, ``Judge Boyle
possesses an ability to be firm and fair in the adjudicatory
process. She was always well studied and prepared in her
intellect. Preparedness and perception are top notch.'' He
closed, ``I urge a speedy confirmation of this excellent
nominee.''
Judge Boyle, I just want to add that there were Republicans
who said nice things about you too.
[Laughter.]
Senator Cornyn. Without objection, I will submit these
letters and another letter from the Texas Employment Lawyers
Association to be made a part of the record, without objection.
Would each of the nominees please step forward so I can
administer the oath, please? Raise your right hands, please.
Do each of you swear the testimony you are about to give
before the Committee is the truth, the whole truth and nothing
but the truth, so help you, God?
Judge Cooke. I do.
Mr. Hall. I do.
Mr. Kelley. I do.
Ms. Boyle. I do.
Senator Cornyn. Thank you. Please have a seat.
Mr. Hall, we would be glad to hear any opening statements
or comments you would care to make.
STATEMENT OF PETER W. HALL, NOMINEE TO BE CIRCUIT JUDGE FOR THE
SECOND CIRCUIT
Mr. Hall. Thank you, Mr. Chairman. I do not have any
specific opening comments, but I would like, if I may, to take
this opportunity to thank the President of the United States
for placing my name in nomination, to thank you as Chair for
convening this hearing to hear the nomination.
If I may, may I introduce the three persons who are here
from Vermont, who have been kind enough to show up to watch
this process go forward?
Senator Cornyn. You mean other than the Ranking Member, who
I know has already spoken glowingly on your behalf? But please
go ahead and do so.
Mr. Hall. Thank you. I would like to introduce Lilly
Sojourner and Elizabeth Woodcock, if they would stand up. Ms.
Sojourner is a close friend of my daughter's and is here at
college at Georgetown, graduating this year. Ms. Woodcock is an
Assistant U.S. Attorney, and has lived here in Washington, came
up to Vermont to be an Assistant U.S. Attorney in the Office.
Then the third person here has already been mentioned by
Senator Leahy as Charles Tetzlaff, who was my predecessor as
U.S. Attorney and a close friend.
Senator Cornyn. Welcome.
Thank you very much for introducing them.
Mr. Hall. Thank you, Mr. Chairman.
[The biographical information of Mr. Hall follows:]
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Senator Cornyn. Professor Kelley, we would be glad to hear
any opening comments or statement you care to make.
STATEMENT OF WALTER D. KELLEY, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
Mr. Kelley. I do not have any opening statement, Senator. I
too would like to thank President Bush and this Committee,
President Bush for the nomination, this Committee for affording
me the opportunity to have a hearing, and look forward to
answering your questions.
[The biographical information of Mr. Kelley follows:]
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Senator Cornyn. Thank you.
Judge Cooke, we would be glad to hear your opening.
STATEMENT OF MARCIA G. COOKE, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF FLORIDA
Judge Cooke. Good afternoon. I do not have an opening, but
I would of course like to thank President Bush for the
nomination, the cooperation of my two State Senators, Senators
Nelson and Graham, and to introduce my friends who managed to
make it here from Florida today, Cynthia Johnson-Stacks;
Cynthia Everett; my colleague from the Georgetown University
Board of Directors, Jack Cassidy; Karl Pilger, a fellow teacher
of mine with the National Institute of Trial Advocacy; my
college roommate, who proves that I still have long-serving
friends, Gwendolyn Baylor and her daughter Samantha.
Senator Cornyn. Welcome to all of you. Thank you for being
here today.
[The biographical information of Judge Cooke follows:]
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Senator Cornyn. Ms. Boyle, I would be glad to hear any
opening comments you would care to make.
STATEMENT OF JANE J. BOYLE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF TEXAS
Ms. Boyle. Chairman Cornyn, I do not have an opening
either, but I would like to thank you for your kind remarks,
and also than Senator Leahy and the rest of the Committee for
having this hearing and including me on the panel. I appreciate
that very much.
I also would like to thank Senator Hutchison for her kind
remarks as well.
You have met my family, so I will not reintroduce them, but
it is a tremendous honor to be here today. Thank you.
[The biographical information of Ms. Boyle follows:]
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Senator Cornyn. Thank you very much.
Of course, each of you have been through some investigation
and background check before you had gotten here today, so this
is not meant to be a reiteration of that, but I know Senator
Leahy and I will probably have a few questions for each of you.
Let me just start with Mr. Hall, and ask each of you to
comment on this. I know we frequently hear reference to
judicial activism in the media and sometimes I wonder if we all
mean the same thing when we talk about judicial activism, but I
think what most people mean, whether they approach it from the
left or the right, is a judge who takes some liberty with
either a statute or precedents that state what the common law
is, or with a constitutional interpretation and an attempt to
perhaps pursue some agenda other than faithfully interpreting
the law.
I wonder if, starting with you, Mr. Hall, if you could
comment on that and what you consider to be illegitimate
judicial law making from the bench.
Mr. Hall. Thank you, Mr. Chairman. That is obviously an
important issue as one considers and hopes that one will become
a judge, a Federal judge. If I may, let me answer by way of
giving you my philosophy on that, and that really is that it is
up to Congress essentially to pass the laws of this country. It
is up to the Supreme Court of the United States ultimately to
interpret the Constitution and to provide final interpretation
on the laws.
It would be my intention as a judge, if I am confirmed, to
follow the laws as closely as I could to divine Congress's
intention from the written text of those laws and from the
legislative history if there were a question around them, and
to be bound by those laws and to be bound by the interpretation
of the U.S. Supreme Court.
Senator Cornyn. I noticed you used the word ``divine'' and
that may be an appropriate word in some instances, to try to
figure out what Congress did mean by a statute, not always an
easy task.
Mr. Kelley, would you care to comment, please?
Mr. Kelley. I concur with everything my colleague just said
I would add from the perspective of a District Court Judge, the
constraints within which we operate would be even more narrow
than those that an Appeals Court Judge would operate. Again,
looking at it from the practical, trying to get the cases moved
and get them done right in a manner that is fair to the
litigants, if you end up taking a judicial activist view, one
that seeks to achieve present results as opposed to following
the law, you are going to end up with a wide variety of
decisions on very similar facts which is going to have the
effect of encouraging more litigation because it destroys the
notions of predictability upon which our legal system is based.
So from a would-be District Court Judge perspective, precedent
and stare decisis, and the words that Congress have used are
really everything that we need in our jobs.
Senator Cornyn. I certainly agree with you that
predictability is a very important function of the rule of law,
so people know what the rules are and can order their personal
and business and other affairs accordingly. If they do not like
the way the law is, then certainly we in this country recognize
the right of every citizen to petition for a change of that
law, and to work to see the law changed. So thank you for those
comments.
Judge Cooke, would you care to comment on that issue?
Judge Cooke. Thank you, Senator. I support my colleagues in
that. I think that it is important for a judge, a United States
District Judge, to follow precedent and stare decisis, and if
confirmed, I plan to do that. I plan to respect the three
branches of Government and to respect the role that a United
States District Court Judge should play, and that is to decide
the matter before him or her, and to proceed from well-
recognized stare decisis and precedent.
Senator Cornyn. Thank you very much.
Ms. Boyle.
Ms. Boyle. Senator Cornyn, I think that my colleagues have
stated very eloquently my views on the issue of judicial
activism. Just to say that it is a basic premise of our
Founding Fathers and the whole idea of separation of powers as
the Judicial Branch interprets the law, and that is what we do.
We do not make the law.
Senator Cornyn. Thank you, Ms. Boyle. Your comments remind
me of something I have learned since I have come here to the
Senate, that is, the saying that everything has been said but
not everyone has said it yet.
[Laughter.]
Senator Cornyn. Which seems to be a commonly observed
proposition here in Congress. But in all seriousness, thanks to
each of you for your answers, and I will be glad to recognize
Senator Leahy for any questions he may have at this time.
Senator Leahy. Thank you, Mr. Chairman. I might say, in the
time that Senator Cornyn has been here, he has obviously
learned all about the right of unlimited debate in the Senate,
when you have 100 who want to say something.
I ask this question both of Mr. Hall and Ms. Boyle.
Obviously, in Vermont, between the papers of the various cases
or at least a lot of the cases that go through the U.S.
Attorney's Office, and I realize there are a lot of prosecutors
there, but you are responsible for all of the cases being
brought or dismissed or prosecuted.
It has been in my experience as a prosecutor that if
somebody gets convicted and gets any period of time, you know
they are going to appeal if they possibly can. Some of those
appeals will circulate up to the Second Circuit. If you are
confirmed, what would be your practice if a case came to the
Second Circuit that had been in the U.S. Attorney's Office when
you were there, even if you were not the attorney handling that
particular case?
Mr. Hall. I would recuse myself, Senator. That is an
excellent question. It is certainly a matter that I have
thought about and that I have had to think about as I
transitioned from private practice to becoming United States
Attorney. But I think Section 455 of Title 28, if I am
recalling the section correctly, quite clearly would mandate
that I be recused--that I recuse myself from any matter that
had been in the office while I was there. And as head of the
office, it is really assumed under the Code of Professional
Responsibility, that I have knowledge of that case, so that is
my answer.
Senator Leahy. I would expect in the Second Circuit,
considering the jurisdiction of all of New York State and
Connecticut, as well as Vermont, that the Chief Judge would
probably be able to find enough other cases to assign to than
just those from Vermont.
Ms. Boyle, let me ask the same question. A case you have
been involved as a prosecutor, is now, for whatever reason, now
percolating to the District Court. What do you do?
Ms. Boyle. Absolutely, Senator, and I really appreciate the
question because I think the issue of fairness--both fairness
and fact and the appearance of fairness is crucially and
critically important to a sound judiciary.
What I would do--and I have thought about this ahead of
time, is I do not plan to be involved in any cases that were in
any way in my office, either as an investigative matter or as
an indicted matter once I am on the bench. So I will talk to
the Clerk of Court, as well as the General Counsel's Office at
the Administrative Office of U.S. Courts for guidance on how we
determine and ferret those out as to which ones they are. But I
would not preside over any case that was in the office in any
capacity since I have been U.S. Attorney.
Senator Leahy. Thank you.
Judge Cooke, you have seen--I am not asking you for a
listing of it--but you have seen good judges and bad judges in
your career. And I am going to ask the same question of Mr.
Kelley. The glories of our system, and also it can be a real
problem in our system of Federal judges, is the lifetime
tenure. Obviously, the Founders wanted to give as much
independence as possible. I happen to agree with that. But I
have seen judges who take on themselves the idea that now they
are so much different than the rest of the world, and they will
take it out on lawyers. They will treat lawyers in such a way.
The question has often been asked, I mean it is a question of
judicial temperament, something that we normally see. What is
your view? You are going to have plaintiffs, defendants, rich,
poor, every other kind coming in. Are you prepared from your
past experience at all to keep telling yourself, okay, we have
to be even-handed on this?
Judge Cooke. Thank you, Senator Leahy, that is a very
important question. Yes, that is, if confirmed, what I plan to
do. I think it is important to remember that every person that
approaches the bar in any capacity is a person that should be
treated politely, courteously, and always with respect.
Senator Leahy. Professor Kelley, in your work you have been
in and out of courts enough you know what I am saying about
the, ``Oh, my God, not him or her as a judge,'' as compared to,
``We are going to get a fair shake here.''
Mr. Kelley. Through 23 years of private practice, I have
been on the receiving end.
Senator Leahy. Of the ``Oh, my God, not him.''
Mr. Kelley. Of an imperious judge here or there, so I
understand well what you are saying. One of the things about
those kinds of experiences is the effect to me that it has on
the litigants. We lawyers are somewhat hardened to it. You
know, it is just another day at the battle, and some days you
get the bear and some days the bear gets you.
To the litigant whose case it is, to encounter a judge who
comes into a hearing or a trial with his mind made up, and acts
in an imperious fashion that does not allow people really the
opportunity to state their case, is very destructive of the
public respect for the judicial system, and while not everyone
ends up in Federal Court, people who do have friends. They talk
at the neighborhood picnic, and pretty soon there is a notion
that somehow the game is rigged and you are not really able to
say your case.
One of the most important things to me is not only being
courteous, but having the patience to allow people to state
their position. Whether you ultimately agree or disagree with
that position, if the litigants feel like they have had their
day in court, they will respect to result that comes out of it.
Senator Leahy. Thank you. What you say about the litigants,
this may be their one time ever in the court. We have to remind
ourselves of that here in the Senate. We sort of take it for
granted. You come in, park your car and go up to your office
and get on with the day, and walk by the monuments and go into
the hearings and all, and it is sometimes probably more routine
than it should be, but I am brought up short every so often
when I have somebody, a constituent from home, never been here
before, and what they thought about it in seeing it, or
somebody who is testifying before a Committee for just a few
minutes, and this is a major event in their life, and may be
one of 20 we will see that day. You have to stop and remind
yourself that we do have a responsibility.
Our Federal Courts--and I will stop with this, Mr.
Chairman, I do not mean to give everybody a lecture--but our
Federal Courts, their independence, their standards, the fact
that we see people of the quality of the four of you, this is
something, this is a glory in our country that we have this,
and we have to constantly, all of us, do our best for this.
I say to the families and friends who are here with all of
you, you should be very proud to have this opportunity.
And with that, because some of you may want to go other
places, Mr. Chairman, I will stop, and thank you very much.
Senator Cornyn. Thank you, Senator Leahy for those
questions, and thanks to each of you for your comments.
I am tempted to philosophize some about the role about the
Federal Judiciary, but in the interest of time, I will not.
I will just tell you that each of these very bright young
men and women who sit behind us, help us go through each of
your records, and we have excellent staff. So please do not
assume because we are not asking you by cross-examining you or
grilling you today, that we are not very interested in your
record and your attitude and your thoughts about how you will
perform on the Federal Bench, because I agree with Senator
Leahy. Once you get on the Federal Bench, you are virtually
untouchable, some would say unaccountable, but I would say even
untouchable. But I appreciate the comments that you made, Mr.
Kelley, and others about your responsibility because even
though as a judge you are interpreting precedent or a statute
or the Constitution, it is a tremendous responsibility, and it
is one that gives you tremendous power over the lives of the
individuals that come before your court.
It is also important--and I will stop with this bit of
preaching--to keep the public trust and confidence. When people
see judges making it up, or perhaps pursuing some agenda that
is not readily apparent in anything the legislature has
written, or the Founding Fathers wrote, or any precedent
written by the superior court, then they begin to wonder about
the very legitimacy of the rule of law itself. So it is a very
important work that you are undertaking, and I know each of you
take that very seriously, and I trust you will discharge your
responsibilities to the very best of your duty.
We will keep the record open for a week until Wednesday the
17th, in case there are any additional written questions that
either Senator Leahy or I or any other member of the Committee
would like to send to you, and we would of course like you to
answer those.
I have also submitted a written statement from Chairman
Hatch for the record, which will be made, without objection, a
part of the record.
Senator Leahy. I would, if I might submit also for the
record, an editorial in the Burlington Free Press today, our
State's largest newspaper, very supportive of Mr. Hall.
Senator Cornyn. Very good. With that, we will conclude this
hearing, and thanks to all of you and good luck to you as well.
[Whereupon, at 3:23 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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