S. HRG. 109–397, Pt 6

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

SEPTEMBER 6, 12, 19, AND NOVEMBER 14, 2006

Serial No. J–109–4

PART 6

Printed for the use of the Committee on the Judiciary

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34–698 PDF 2007

S. HRG. 109–397, Pt 6

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

SEPTEMBER 6, 12, 19, AND NOVEMBER 14, 2006

Serial No. J–109–4

PART 6

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, SEPTEMBER 6, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 1

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 178

PRESENTERS 

Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware presenting Kent A. Jordan, Nominee to be U.S. Circuit Judge for the Third 

Circuit ................................................................................................................... 7

Castle, Hon. Michael, a Representative in Congress from the State of Delaware presenting Kent A. Jordan, Nominee to be U.S. Circuit Judge for 

the Third Circuit .................................................................................................. 6

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio presenting Sara 

Elizabeth Lioi, Nominee to be U.S. District Judge for the Northern District 

of Ohio ................................................................................................................... 11

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa presenting 

John Jarvey, Nominee to be U.S. District Judge for the Southern District 

of Iowa ................................................................................................................... 4

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa presenting John 

Jarvey, Nominee to be U.S. District Judge for the Southern District of 

Iowa ....................................................................................................................... 5

Martinez, Hon. Mel, a U.S. Senator from the State of Florida presenting 

Marcia Howard, Nominee to be U.S. District Judge for the Middle District 

of Florida ............................................................................................................... 10

Voinovich, Hon. George V., a U.S. Senator from the State of Ohio presenting 

Sara Elizabeth Lioi, Nominee to be U.S. District Judge for the Northern 

District of Ohio ..................................................................................................... 8

STATEMENTS OF THE NOMINEES 

Howard, Marcia Morales, Nominee to be U.S. District Judge for the Middle 

District of Florida ................................................................................................. 54

Questionnaire .................................................................................................... 55

Jarvey, John Alfred, Nominee to be U.S. District Judge for the Southern 

District of Iowa ..................................................................................................... 88

Questionnaire .................................................................................................... 89

Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third Circuit ......... 12

Questionnaire .................................................................................................... 13

Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the Northern 

District of Ohio ..................................................................................................... 114

Questionnaire .................................................................................................... 115

QUESTIONS AND ANSWERS 

Responses of Kent A. Jordan to questions submitted by Senator Leahy ............ 160

SUBMISSIONS FOR THE RECORD 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, statement ............. 167

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, statement .. 170

Page

IV

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, statement ............... 176

Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, statement .. 183

TUESDAY, SEPTEMBER 12, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 185

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 284

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 334

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, prepared 

statement .............................................................................................................. 341

PRESENTERS 

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia presenting 

Lisa Wood, Nominee to be U.S. District Judge for the Southern District 

of Georgia .............................................................................................................. 189

Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma presenting Gregory Frizzell, Nominee to be U.S. District Judge for the Western 

District of Oklahoma ............................................................................................ 186

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia presenting 

Lisa Wood, Nominee to be U.S. District Judge for the Southern District 

of Georgia .............................................................................................................. 190

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Nora Fischer, Nominee to be U.S. District Judge for the Western 

District of Pennsylvania ...................................................................................... 188

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting Nora Fischer, Nominee to be U.S. District Judge for the Western 

District of Pennsylvania ...................................................................................... 186

STATEMENTS OF THE NOMINEES 

Fischer, Nora Barry, Nominee to be U.S. District Judge for the Western 

District of Pennsylvania ...................................................................................... 192

Questionnaire .................................................................................................... 193

Frizzell, Gregory, Nominee to be U.S. District Judge for the Western District 

of Oklahoma, prepared statement ...................................................................... 223

Questionnaire .................................................................................................... 224

O’Neill, Lawrence Joseph, Nominee to be U.S. District Judge for the Eastern 

District of California ............................................................................................ 256

Questionnaire .................................................................................................... 257

Wood, Lisa, Nominee to be U.S. District Judge for the Southern District 

of Georgia .............................................................................................................. 285

Questionnaire .................................................................................................... 286

SUBMISSIONS FOR THE RECORD 

Boxer, Hon. Barbara, a U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 328

Eagan, Claire V., Chief Judge, U.S. District Court, Northern District of Oklahoma, Tulsa, Oklahoma, letter ........................................................................... 331

Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma, statement ...................................................................................................................... 332

Sartin, Robert B., Barrow & Grimm, P.C., Attorneys at Law, Tulsa, Oklahoma, letter .......................................................................................................... 339

Wohlgemuth, Joel L., Attorney at Law, Norman, Wohlgemuth Chandler & 

Dowdell, Tulsa, Oklahoma, letter ....................................................................... 342

TUESDAY, SEPTEMBER 19, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 345

Page

V

Leahy, Hon. Patrick J., a U.S. Senator fromthe State of Vermont, prepared 

statement .............................................................................................................. 493

PRESENTERS 

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting 

Leslie Southwick, Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 346

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Leslie Southwick, Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 347

Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan presenting 

Paul Lewis Maloney, Janet Neff, and Robert Jonker, Nominees to be U.S. 

District Judges for the Western District of Michigan ....................................... 348

STATEMENTS OF THE NOMINEES 

Jonker, Robert James, Nominee to be District Judge for the Western District 

of Michigan ........................................................................................................... 350

Questionnaire .................................................................................................... 351

Maloney, Paul Lewis, Nominee to be District Judge for the Western District 

of Michigan ........................................................................................................... 377

Questionnaire .................................................................................................... 378

Neff, Janet T., Nominee to be District Judge for the Western District of 

Michigan ............................................................................................................... 402

Questionnaire .................................................................................................... 403

Southwick, Leslie, Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 441

Questionnaire .................................................................................................... 442

QUESTIONS AND ANSWERS 

Responses of Robert James Jonker to questions submitted by Senator Leahy .. 483

Responses of Robert James Jonker to questions submitted by Senator Kennedy ....................................................................................................................... 488

SUBMISSIONS FOR THE RECORD 

Levin, Hon. Carl, a U.S. Senator from the State of Michigan, prepared statement ...................................................................................................................... 492

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, prepared 

statement .............................................................................................................. 498

TUESDAY, NOVEMBER 14, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Leahy, Hon. Patrick, a U.S. Senator from the State Vermont, prepared statement ...................................................................................................................... 565

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 501

PRESENTER 

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Thomas Hardiman, Nominee to be U.S. Circuit Judge for the Third 

Circuit ................................................................................................................... 502

STATEMENT OF THE NOMINEE 

Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for the Third 

Circuit ................................................................................................................... 503

Questionnaire .................................................................................................... 504

QUESTIONS AND ANSWERS 

Responses of Thomas M. Hardiman to questions submitted by Senators Leahy 

and Feingold ......................................................................................................... 557

Page

VI

ALPHABETICAL LIST OF NOMINEES 

Fischer, Nora Barry, Nominee to be U.S. District Judge for the Western 

District of Pennsylvania ...................................................................................... 192

Frizzell, Gregory, Nominee to be U.S. Distrct Judge for the Western District 

of Oklahoma ......................................................................................................... 223

Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for the Third 

Circuit ................................................................................................................... 503

Howard, Marcia Morales, Nominee to be U.S. District Judge for the Middle 

District of Florida ................................................................................................. 54

Jarvey, John Alfred, Nominee to be U.S. District Judge for the Southern 

District of Iowa ..................................................................................................... 88

Jonker, Robert James, Nominee to be District Judge for the Western District 

of Michigan ........................................................................................................... 350

Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third Circuit ......... 12

Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the Northern 

District of Ohio ..................................................................................................... 114

Maloney, Paul Lewis, Nominee to be District Judge for the Western District 

of Michigan ........................................................................................................... 377

Neff, Janet T., Nominee to be District Judge for the Western District of 

Michigan ............................................................................................................... 402

O’Neill, Lawrence Joseph, Nominee to be U.S. District Judge for the Eastern 

District of California ............................................................................................ 256

Southwick, Leslie, Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 441

Wood, Lisa, Nominee to be U.S. District Judge for the Southern District 

of Georgia .............................................................................................................. 285

(1)

NOMINATION OF KENT A. JORDAN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE THIRD 

CIRCUIT; MARCIA MORALES HOWARD, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

MIDDLE DISTRICT OF FLORIDA; JOHN ALFRED JARVEY, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

IOWA; AND SARA ELIZABETH LIOI, NOMINEE TO BE DISTRICT JUDGE FOR THE 

NORTHERN DISTRICT OF OHIO 

WEDNESDAY, SEPTEMBER 6, 2006 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:12 p.m., in room 

226, Dirksen Senate Office Building, Hon. Mike DeWine presiding. 

Present: Senator Biden. 

OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR 

FROM THE STATE OF OHIO 

Senator DEWINE. The committee will come to order. 

Today we will have a confirmation hearing for four of the President’s judicial nominees, one nominee for the Court of Appeals and 

three District Court nominees. 

We appreciate everyone’s willingness to appear before the committee today. I am particularly glad to see Judge Lioi, a fellow Ohioan here with us today, and we welcome her. 

I believe that today’s hearing will show that all of our nominees 

are well qualified for their respective positions and that we will 

then be able to move all of the nominations quickly to the Judicial 

Committee for action. 

At this point let me turn to Senator Biden for any comments that 

he would like to make. 

[The prepared statement of Senator DeWine appears as a submission for the record.] 

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator BIDEN. Mr. Chairman, thank you for convening this 

hearing and allowing me, first of all, to welcome all the nominees. 

2

I think your assessment of their qualifications is correct, and I look 

forward to hearing the testimony. 

But I would also like to welcome to the committee my two Delaware colleagues, Senator Carper and Congressman Castle, who is 

twice as powerful as us. He is the only Representative in the State, 

and so he represents all the State; Tom and I split it up. 

[Laughter]. 

But I am glad my colleagues are here. 

I am also pleased to play a dual role today of not only serving 

as the Ranking Member for this hearing—by the way, this is the 

closest I have gotten to the Chairman’s seat in about 10 years, 

after sitting here 17 years. Thanks for letting me have this shot. 

Senator DEWINE. It is nice to be in it, actually. 

Senator BIDEN. That is right. 

[Laughter]. 

But I have the honor of introducing a really fine Delawarean, 

Judge Kent Jordan, who has been nominated by the President to 

sit on the Third Circuit Court of Appeals. 

But before I talk about the Judge, allow me to say a few words 

about the Judge whom Judge Jordan has been nominated to replace. This spring, Judge Jane Roth, our former colleague Bill 

Roth’s wife, informed the President that she would be seeking senior status. 

I would like to publicly acknowledge what a great judge Judge 

Roth has been, her service to this country, her dedication to the 

rule of law, and her stellar representation on the Third Circuit 

Court of Appeals. 

I am sure every Senator believes their circuit is the most 

vaunted and honorable of them all, but we have a great, great history in the Third Circuit and some truly nationally renowned 

Judges, as other circuits do as well. Jane Roth fit the Delaware 

seat marvelously. 

I have known Jane for many years, as both my colleagues have, 

and I look forward to her continuing her brilliant career as a senior 

Justice. 

By being nominated to fill Judge Roth’s seat, Kent Jordan has 

a very significant space to fill. I am confident, based on his conduct 

at the District Court level and all those in both political parties 

who have recommended him highly, that he will do exactly that. 

It is almost exactly four years to the day that I introduced Kent 

Jordan to this committee to be District Court Judge, and he has 

performed by every measure with flying colors. 

During his 22-year legal career, Judge Jordan has excelled at 

every step of the way. He started his legal career as a law clerk 

for one of the most respected Judges ever to serve on the Federal 

bench in our State, again known to both my colleagues, Judge 

James Latchum, who served on the very bench on which the Judge 

now serves. 

Kent went on to serve as Assistant U.S. Attorney in Delaware for 

five years, and at the time he worked on some highly publicized 

cases, bringing some very bad people to justice, and also administering justice with an even hand. 

He moved on to become a partner in one of Delaware’s top law 

firms, Morris, James, Hitchens & Williams, working there for five 

3

years. Then Kent became General Counsel to a 102-year-old corporation services company known as CSC, as it is known nationally 

as one of the leading incorporation service companies in the world. 

For the past four years he has served with distinction on the District Court. As I said, he has drawn praise from his colleagues on 

the District Court, from the lawyers who have appeared before 

him, and from his soon-to-be colleagues on this Third Circuit Court 

of Appeals. 

His colleagues describe him in many ways, but the adjectives 

that always come up are ‘‘bright’’, ‘‘hardworking’’, ‘‘deep sense of integrity’’, ‘‘intellectual honesty’’. I do not know what else you could 

ask for a Judge. I must tell you, I have become convinced he is 

open-minded, collegial, and most of all, fair. 

He is accompanied today by his wife, Michelle. Michelle, I did not 

warn you of this, and I do not want to embarrass you. Would you 

please stand up and let folks see you here? This is all the more reason why we should confirm Kent Jordan. 

Kent and Michelle have six children, and I will let him do the 

introductions of that, that range from ages 11 to 24. On my mother’s side—I realize Kent is LDS and I am an Irish Catholic. But 

if my mother were here, Kent, she would say, ‘‘no purgatory for 

you. Straight to heaven.’’ 

[Laughter]. 

Six kids, 11 to 24. Their youngest are here. Three of the youngest 

are here today, and I will ask Kent, when it comes his time, to introduce them as well. 

So, Mr. Chairman, I thank you again. I am anxious to hear from 

the witnesses. I know Senator Grassley has to leave very shortly, 

and I know Congressman Castle as well has to manage a bill in 

the House. But I want to welcome the Jordans, and I thank you 

for the time. 

Senator DEWINE. Senator, thank you very much. I will have to 

tell my wife about that purgatory issue. With eight kids, I have to. 

Senator BIDEN. She is in it right now and she does not know it. 

[Laughter]. 

Senator DEWINE. I will have to think about that, Senator, a little 

bit. That is good. 

Senator Grassley, we will start with you. I must say, Senator 

Grassley, before we let you start, I have to put a little plug in here 

for Ohio about Judge Jarvey. 

Although he is nominated for a position from Iowa, I would be 

remiss in my obligation as Senator from Ohio to mention that the 

Honorable Judge received his B.S. degree from Akron in 1978. So, 

I will put that little plug in there. 

Senator GRASSLEY. You do not get on the bench with a B.S., so 

remember his J.D. from Drake Law School. 

Senator DEWINE. I understand that. 

[Laughter]. 

I understand that. We have got a good start, though. 

You are up, Senator. 

4

PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA, 

BY HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 

STATE OF IOWA 

Senator GRASSLEY. You have made my speech. It is a pleasure 

today to introduce to the committee a distinguished Iowan who has 

been nominated to the Federal bench. Judge John Alfred Jarvey, 

from Cedar Rapids, Iowa, will serve as District Judge for the 

Southern District. He is an extremely qualified individual and I am 

proud to be here to support this nomination and introduce him to 

the committee. 

Judge Jarvey was born in Minneapolis. He is married to Mary, 

who is an instructor of piano. Judge Jarvey graduated, as you said, 

from the University of Akron in 1978 with a degree in Accounting, 

and then received his J.D. degree from Drake University in 1981. 

He clerked for two years for Judge Donald O’Brien of the Northern District of Iowa. In 1983, he joined the Justice’s Criminal Division as a trial attorney, where he prosecuted drug, tax evasion, 

money laundering, and firearms, and he happened to specialize in 

prosecuting medical professionals involved in pharmaceutical drug 

diversion. 

Since 1987, Judge Jarvey has been Chief Magistrate Judge for 

the Northern District of Iowa. In this position, Judge Jarvey has 

presided over a wide range of criminal and civil cases, such as 

cases involving personal injury, employment discrimination, and 

other employees’ rights, as well as patents, copyrights, and commercial disputes that are complex. 

In addition, since 1993, Judge Jarvey has been a trial advocacy 

instructor at the University of Iowa Law School. Judge Jarvey enjoys tremendous support from his peers. I received many letters 

praising Judge Jarvey’s judicial temperament, courteousness to all 

litigants, respect for, and commitment to, our judicial system, and 

favorable comments about Judge Jarvey’s ethics and abilities as an 

administrator, and complimentary statements about Judge Jarvey’s 

intelligence, command of the law, and rules of evidence, fairness, 

and respectful judicial demeanor in court. 

I just want to quote from a couple, but I have got a longer statement I am going to put in the record. From one attorney, ‘‘Judge 

Jarvey’s decisions are thoughtful and well-reasoned. He clearly is 

guided by the rule of law and does not legislate from the bench.’’ 

Another one: ‘‘What is clear to me from my experience with Magistrate Jarvey is that he is, first and foremost, an exceptional legal 

mind. His ability to grasp complicated and dense fact patterns in 

a clear and concise manner is well known and respected in our district. He issues decisions which are well-reasoned and in harmony 

with the law of our jurisdiction.’’ That is the end of that quote, but 

there are others that will be submitted. 

Judge Jarvey has had a distinguished legal career and shown 

tremendous dedication to public service. He will be a tremendous 

asset to the District Court of the Southern District of my State. 

As I noted, so many people agree that Judge Jarvey is a talented 

individual that deserves to be a Federal Judge and he brings with 

him the ABA unanimously giving him the rating of ‘‘Well Qualified’’. 

5

I am confident that Judge Jarvey possess the skill, integrity, 

commitment, intellect, and temperament that we all look for in 

good Judges, so it is with great respect and admiration that I recommend this highly qualified individual to the Judiciary Committee for favorable consideration and hope we can get him approved before we adjourn. 

Senator DEWINE. Senator Grassley, thank you very much. 

Senator GRASSLEY. Thank you. 

Senator DEWINE. Senator Harkin? 

PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA, 

BY HON. TOM HARKIN, A U.S. SENATOR FROM THE STATE OF 

IOWA 

Senator HARKIN. Thank you very much, Mr. Chairman. I join 

with my colleague, Senator Grassley, to give my unqualified support to John Jarvey to be a Federal District Judge for the Southern 

District of Iowa. 

As Senator Grassley said, John is currently a Magistrate Judge 

in the Northern District, a position he has had for 18 years. 

I had a chance to meet with him, not for the first time, last 

month in Iowa when we were out for our August break. And Mr. 

Chairman and members of the committee, I can tell you that, after 

18 years, I believe it is time for a promotion. 

John Jarvey started his legal career as a clerk to Federal Judge 

Donald O’Brien, as Senator Grassley said, an excellent training 

ground for a future Federal Judge. In his years as a Magistrate, 

he has developed an excellent reputation as a fair-minded Judge 

with a devotion to the law and as a strong believer in judicial independence. 

Based on the calls and letters received by my offices throughout 

Iowa, he has earned respect and admiration across the board. In 

fact, the Chief Judge of the Southern District, the Honorable Robert Pratt, and the Clerk of the Southern District, Marjorie Krahn, 

are with us today to demonstrate their support also. 

In his years as a Magistrate, John Jarvey has devoted a tremendous amount of time and energy to successful mediations, including 

a very difficult tribal dispute in Iowa. He also regularly teaches the 

trial skills he developed as a Federal prosecutor to students at 

Drake University and the University of Iowa Law Schools. 

As anyone who has spoken for more than a few minutes to John 

Jarvey knows, he is also a committed husband and father. 

In selecting John Jarvey to be a Federal District Judge I believe 

the President has made a very good choice, and I look forward to 

his speedy confirmation. 

Thank you very much, Mr. Chairman. 

Senator DEWINE. Senator, thank you very much. 

Representative Castle? 

6

PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. MICHAEL 

CASTLE, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF DELAWARE 

Representative CASTLE. Thank you, Senator. I am also pleased to 

be here to support Kent Jordan. I guess it is a little bit unusual 

that you would have the entire delegation from one State supporting a person when there is three of us. It is easy when we all 

know the person and think so highly of him. It is even simpler, perhaps, than that. 

Delaware, of course, is a small State, but for those who know 

anything about the law, it is a State which has a very highly-developed legal community and judicial community because of the incorporation statutes, and other reasons why Delaware is a central 

place for people to come. 

As a matter of fact, the Chamber of Commerce ranked Delaware’s Judges the highest in all five categories they looked at 

across the entire United States of America. 

Kent Jordan came to the Delaware District Court and has just 

done a wonderful job there. I followed this carefully because I was 

involved in the initial selection process when he was nominated. 

I can tell you, as one who practiced law in front of a lot of these 

Judges, very few do it as well as Kent has done it. He runs on 

time. He makes his decisions in a precise way. He has reduced the 

workload of that court for the other Judges. He has just done a 

great job—even a sensational job—on our District Court, so we are 

pleased that he has been nominated for the Third Circuit Court of 

Appeals. 

He did receive the unanimous vote of the Senate when he went 

before you for the District Court, and we hope it can be the same, 

and obviously swiftly, if possible, for the Third Circuit Court of Appeals. 

He, as Senator Biden has already indicated, was one of the top 

prosecutors and litigators in Delaware, and even has some corporation background, which is helpful as well. He is filling big shoes. 

Again, typical of Delaware, I guess I have known Jane Roth all 

my life. I guess she sort of knew me before I could know her, because she was a friend of my older sister’s, kind of thing. 

She was a wonderful Judge, too, and we are sorry to see her 

move on to senior status, but we are delighted that we have somebody of Kent’s ability to do this. All the things that one would look 

for in a Judge, patience, intelligence, experience, are there. The 

‘‘Well Qualified’’ rating unanimously by the Bar Association, which 

we all look for is there. 

In the case of Delaware, on the Third Circuit, we only have 2 of 

the 14 places and we have a wonderful Judge there, Judge Tom 

Ambrow, on that court now. But New Jersey, Pennsylvania, and 

the Virgin Islands—I have always wondered why the Virgin Islands was lumped with that, but it is probably a nice place to go 

on the circuit every now and then—serve that particular area, and 

we want the best Judges we can get from Delaware. 

In my judgment, we have picked one of the best Judges you could 

find in the United States of America. So, we are looking forward 

to supporting Kent in every way we can. 

7

He has a large family, most of which is here, his lovely wife and 

three of the kids, and many, many other supporters. When you are 

in a small State like ours, Senator, you hear a lot about people. 

You usually get to have a pretty good idea of who they are. 

I have never heard a disparaging or discouraging word about 

Kent and the wonderful job he is doing in our District Court. So, 

I recommend him heartily to all of you here in the United States 

Senate. 

If I may be excused at some point, I have got to manage a bill 

over on the floor of the House and I have to run. 

Senator DEWINE. We understand. 

Representative CASTLE. But I thank you so much for the opportunity of being able to speak on behalf of Kent. I appreciate it. 

Senator DEWINE. Thank you, Congressman. Thank you very 

much. 

Senator Carper? 

PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. THOMAS R. 

CARPER, A U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thanks very much. I have a sense of de ́ja` vu 

here. What was it, four years ago? 

Senator DEWINE. Another Ohio State graduate here. 

Senator CARPER. There we go. OH. OH. It was not that long ago, 

I think four years ago, that a number of us were here for a similar 

hearing when Judge Jordan was nominated to be a District Judge. 

At the time I think the children were a little bit younger, and 

I know there are three of them here that look a little bit bigger. 

I told them they have done a good job in raising their dad, and 

they all agreed that he turned out pretty well. 

As stated by my colleague Joe Biden and our colleague Mike Castle, Delaware is a little State and you know one another. If there 

are good things to say about a person, you hear those. If there are 

not such good things to say about someone, you hear those as well. 

In the time that I have known Kent Jordan, in the time that he 

has been in public life, we only hear good things about him. 

When I appeared before this committee with our Senator and our 

Congressman four years ago, I indicated when I used to be a governor, like Governor Voinovich over here, I used to have the opportunity to nominate people to serve on the bench. 

There was a litmus test of sorts that I used in nominating people. I always looked for people who were bright, I looked for people 

who knew the law. I looked for folks who had good judicial temperament, who treated people in the courtroom on either side with 

equal respect and made them feel welcome and listened to. 

I looked for people who had good judgment, not only who had 

good judgment, but were also able to make a decision. You do not 

always find that in everybody who serves as a Judge. 

I looked for folks who were hard workers. You never wanted to 

nominate anybody to the bench who was going to get on the bench 

and, frankly, not work very hard. Kent Jordan meets that litmus 

test to a ‘‘T’’. 

8

I am proud that we were able to support his nomination four 

years ago. I think it speaks volumes that the entire delegation is 

here on his behalf, voicing our support of him and our approval. 

I want to say to his children, half of whom are here, and to his 

wife Michelle, thank you very, very much for sharing with us a 

good father and a good husband to serve the people, not just in our 

State, but of our country. 

As we think about the Third Circuit Court of Appeals, we lost 

some real good people from the Third Circuit. One has gone on to 

be a Cabinet Secretary, one has gone on to be a Supreme Court 

Justice, and one has just gone to the end of his life, Ed Becker, who 

is one of the finest people I have ever had the privilege of knowing 

and working with. 

Now Judge Roth moves to senior status, and she will obviously 

be active and involved. Of all the people I have ever known on the 

bench, Federal or State, she was in many ways the epitome of what 

a Judge should be about. 

She was all the things I just mentioned. In addition to that, she 

is someone who has a sparkling sense of humor and someone with 

whom it is just great to spend a little bit of time. 

Speaking of her, my hope is that by the end of this year we will 

have the opportunity in our State, as Senator Biden and Congressman Castle know, of actually naming the most beautiful bridge in 

our State over the Chesapeake and Delaware Canal, a bridge built 

in large part because of the hard work of Bill Roth, after Judge 

Roth’s husband, the late Senator Bill Roth. 

I am pleased to be here to support Judge Jordan’s nomination 

and elevation to the Third Circuit Court of Appeals, and my hope 

is that he will be confirmed. Thank you so much. 

Senator DEWINE. Senator Voinovich? 

PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO, 

BY HON. GEORGE V. VOINOVICH, A U.S. SENATOR FROM THE 

STATE OF OHIO 

Senator VOINOVICH. Thank you, Mr. Chairman. It is a pleasure 

for me to be here today and to speak on behalf of a very deserving 

person from the State of Ohio, and I am here to express my strong 

support for Judge Sara Lioi. 

I feel kind of good about it, because I appointed Judge Lioi to the 

Court of Common Pleas back when I was governor of Ohio in 1997, 

and after that she was elected to retain her seat, then was elected 

to a six-year term. It is kind of satisfying to me today to know that 

the President has nominated her for a Federal Judgeship. 

I welcome the committee’s review of Judge Lioi. I believe that 

you will come to the same conclusion that I have, that she is well 

qualified to serve as a Federal District Court Judge, and should be 

confirmed by the Senate. 

She has a distinguished and impressive record as an attorney in 

private practice, as a Ohio Court of Common Pleas Judge, as I 

mentioned, a community leader, and she has deep roots in Stark 

County, Ohio. 

She is a native of that county and the youngest of seven children. 

Judge Lioi graduated from GlenOak High School and from Bowling 

9

Green State University, where she graduated summa cum laude 

and earned the distinction of Phi Beta Kappa, she was an outstanding student. 

She went on to attend my law school and alma mater, the Moritz 

College of Law at the Ohio State University, receiving her law degree in 1987. After graduating from law school, Judge Lioi joined 

the law firm of Day Kidder, the oldest law firm in Stark County, 

as an associate. 

She was later recognized by her colleagues when they elected her 

to the firm’s partnership in 1993. As an attorney, she represented 

individuals, schools, and other institutions of higher learning, cities, small business, and multinational corporations. While in private practice, she represented clients at both the trial and appellate levels. 

Since ascending to the bench, Judge Lioi has disposed of over 

9,500 cases and conducted over 350 trials, over 335 of which were 

jury trials. In sum, she has broad courtroom experience, both on 

and off the bench. This extensive experience will serve her well as 

a Federal trial court Judge. 

She has also earned the respect of her colleagues and fellow attorneys. During her time as a practicing attorney she served on the 

Supreme Court of Ohio’s Board of Commissioners on Grievances 

and Discipline, and for over 10 years she has served on the Supreme Court of Ohio’s Board of Commissioners on Character and 

Fitness, including the last five years as chairman of that commission. I believe her service on these commissions evidences the high 

esteem and the high character in which members hold her in terms 

of her background. 

Her legal credentials are not the only reasons I support her. 

Today, too many people do not take the time to become involved 

in their communities. However, the Judge Lioi participates actively 

in a number of civic organizations. 

A graduate of Leadership Stark County, she has remained active 

with that program and serves on the boards of several nonprofit 

community agencies, including community services of Stark County, Stark County Humane Society, the Walsh University Advisory 

Board, and the Plain Local Schools Foundation. 

I believe that one’s involvement in a community is important. We 

need Federal judges not only that have exceptional legal skills, but 

also recognize how the law impacts individuals and communities. 

I believe she has this understanding because she works in a community every day. 

As a result of her fine academic and professional achievements, 

I am not surprised that the American Bar Association found her 

unanimously ‘‘Well Qualified’’ to serve as a Federal District Court 

Judge. 

In reviewing her academic and professional record, it is clear 

that she is well qualified to serve as a Judge on the U.S. District 

Court for the Northern District of Ohio, and there is nobody in this 

room that knows more about the fact that she is well qualified than 

the Chairman of this committee, Senator DeWine, who has spent 

a great deal of time with the Judge. 

10

I am very happy to be here today to speak on her behalf and to 

second the good work that our Senator from Ohio has done in this 

case. 

Senator DEWINE. Senator, thank you very much. 

Senator Martinez? 

PRESENTATION OF MARCIA MORALES HOWARD, NOMINEE TO 

BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. MEL MARTINEZ, A U.S. SENATOR FROM THE 

STATE OF FLORIDA 

Senator MARTINEZ. Mr. Chairman, thank you very much, Senator 

Biden. I wanted to be here today to introduce to the committee a 

Floridian, a friend, Magistrate Judge Marcia Morales Howard. 

Judge Howard appears before the committee today for a discussion of her nomination to serve on the Middle District of Florida, 

and I appreciate the opportunity to be here to speak on her behalf. 

I am very proud of the fact that Judge Howard was recommended by the Florida Judicial Nominating Commission, which 

Senator Nelson and I have empaneled, which ensures that Florida 

has a nonpartisan judicial nominating process and allows us to 

move candidates forward in a timely manner with nominations for 

important Federal Judgeships, such as this one. 

I particularly take seriously an appointment to this court. I practiced for many years before the Middle District of Florida and always held in high esteem the members of the bench before whom 

I practiced, all of whom I thought were excellent Judges with the 

right judicial temperament and wisdom, as well as integrity. 

Judge Howard has a Bachelor of Science degree in Economics 

from Vanderbilt University, and she graduated with Honors from 

the University of Florida College of Law. She then went on to become an accomplished litigator for 13 years in Jacksonville, Florida, practicing insurance defense, labor, and employment law, and 

commercial personal injury litigation for two very fine law firms, 

Foley Lardner and McGuire Woods. 

During her litigation career, Judge Howard also gave of her time 

to public service, being appointed by Governor Bush to serve on the 

Jacksonville Board of Transportation Authority from 1999 to 2003, 

and also being appointed by the mayor of Jacksonville to serve on 

Jacksonville’s Human Rights Commission. 

In 2003, she was appointed to serve as a Magistrate Judge for 

the Middle District of Florida. Judge Howard, therefore, knows the 

Judges and the operation of the Middle District. As a Magistrate 

Judge, she has been responsible for adjudicating criminal cases, Social Security appeals, and resolving non-dispositive matters in civil 

cases. 

Judge Howard is an experienced Judge with a modest judicial 

philosophy who understands the supreme importance of judicial 

independence and the impartial role a Judge plays in our justice 

system. 

I believe she will be an outstanding Judge for the Middle District 

of Florida, a person that I believe to be extremely well qualified, 

and I am delighted to have an opportunity to be here today and 

recommend her to the committee. 

11

I know she will add very needed diversity to this Middle District 

of Florida. We have in Florida a very diverse State, and I think her 

appointment will only enhance the people’s confidence in the judiciary and the process by which we select our Judges. 

So, I thank you for allowing me an opportunity to present this 

very outstanding candidate. 

PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO, 

BY HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE 

OF OHIO 

Senator DEWINE. Senator, thank you very much. We will thank 

our panel very much. 

Before I bring up our nominees, I would like, as a Senator from 

Ohio, to say a few words about Judge Sara Lioi from Ohio. 

I will not give my entire statement. Senator Voinovich has covered a great deal of Judge Lioi’s background, and I would just like 

unanimous consent at this point to make my entire statement a 

part of the record, and it will be so made a part of the record. 

Just adding a few comments, it should not surprise anyone that 

those who know Judge Lioi best regard her with tremendous respect and admiration. Senator Voinovich and I, when we were 

searching for an individual to take this position to make the recommendation to the President of the United States, spent considerable time talking to lawyers in the Northern District. 

It came back unanimous, frankly, about her, her traits. She was 

described in glowing terms as bright, conscientious, fair, impartial, 

ethical. She is known as a Judge who treats everyone who appears 

before her courteously and with great respect. She has the sort of 

judicial temperament that we hope for and really expect from all 

our Judges. 

Not surprisingly, the ABA has given her, as Senator Voinovich 

said, a unanimous rating of ‘‘Well Qualified’’, which of course is the 

highest rating that they can give. 

For all these reasons, Judge Lioi is well suited to be a Federal 

Judge. She has the character, she has the intelligence you want to 

see in a Federal Judge. 

The other attribute that anyone who knows her will attribute to 

her, is how hard-working she is. She gets in early, she stays very, 

very late, and she is extremely dedicated. She understands the role 

of a Judge in our system of government. 

She is known by those who work with her as an excellent Judge. 

And just as important, she is the kind of person whom we can trust 

with the great responsibilities that come with being a Judge. 

So Senator Voinovich and I are proud to recommend her nomination as the United States District Court Judge of the Northern District of Ohio the President, and I am gratified that President Bush 

has nominated her for that position. I believe that she will serve 

very ably as a Federal Judge for the people of the State of Ohio. 

I would now ask that our nominees come forward to be sworn at 

this time. If all four nominees could come forward. Please remain 

standing. If you all would raise your right hand. 

[Whereupon, the nominees were duly sworn.] 

Senator DEWINE. Please take your seat. 

12

We welcome all of you today. Each one of you will be able to 

make a statement if you wish. We would also ask you to introduce 

any members of your family or friends that you have with us. 

We will start with you, Judge Jordan. 

STATEMENT OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE THIRD CIRCUIT 

Judge JORDAN. Thank you very much, Senator DeWine. It is an 

honor and privilege to be here. I appreciate having this opportunity 

to speak to you. I want to thank you, Senator DeWine, for chairing 

this hearing. 

I express my sincere gratitude to Senator Biden, to Senator Carper, and to Congressman Castle for taking time out of what I know 

are intensely busy schedules to be here and speak so kindly on my 

behalf. 

I am grateful to have members of my family with me today, my 

wife Michelle, and three of my sons: Clinton, who is known by one 

and all as ‘‘Bubba,’’ 16 years old; 14-year-old K.C.; and, as Jesse 

is quick to note, almost 12-year-old Jesse. 

My three older children are out west at school or serving in the 

mission field. I miss Bethany and Nate, but I know they are pulling for me where they are, as is Bethany’s husband, Thane, and 

my folks. 

I am very fortunate to have good friends with me here as well: 

my secretary for many years, Cheryl Stein, and my co-clerk when 

I was clerking at the District Court, Kevin Brady, is here with me, 

as well as several of my current and former law clerks, if I could 

be permitted to just mention their names. Here today is Matt Person, Susan Coletti, Rob Weinschenk, Jason Nance, and Bart 

Kirstinbluth are all here to support me, and I appreciate that extended clerk family. 

I would like to say a quick thank-you and note my appreciation 

as well for the mentoring I received over the years from Judge 

Roth, who people have spoken about here already today. She is a 

wonderful Judge, a great friend, and it is a real honor to be considered for the seat that she has filled with such great dignity and so 

very well these many years. 

[The biographical information of Kent Jordan follows:]

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Senator DEWINE. Judge, thank you very much. 

Judge Howard? 

STATEMENT OF MARCIA MORALES HOWARD, NOMINEE TO BE 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA 

Judge HOWARD. Thank you, Mr. Chairman. I want to thank all 

of the members of the committee for giving me the opportunity to 

appear before you here today. 

I am very grateful to Senator Martinez for his time and for that 

most gracious introduction that he gave. I am also grateful for the 

support that both he and Senator Nelson have given me through 

this process. 

I want to express my gratitude to the President for nominating 

me and giving me the opportunity to continue, or potentially to 

continue, in public service. 

I do not have an opening statement, but I would be honored to 

introduce my family who are here with me today, and some friends. 

My husband is here with me, Laurence Howard, and my two 

children, Amanda Howard, who is nine, and Webb Howard, who is 

six. I confess, when I looked back earlier, he was not awake. 

[Laughter]. 

Senator DEWINE. I am sure that was not a commentary on Senator Biden or the Chairman. 

[Laughter]. 

Judge HOWARD. I think it had to do with getting up too early to 

make the flight. 

Senator DEWINE. I am sure. 

Judge HOWARD. My parents, Marcia and Ricardo Morales are 

here. I will not share their ages. My sister, Rosa Maria Morales 

King and my sweet nephew Gray King are here. My brother, Ricardo Morales is here. 

I am also very fortunate to have two dear friends with me, Jodi 

Wiles, who has worked with me both when I was in private practice and has served as my judicial assistant and courtroom deputy, 

and my dear friend Mary Summerville Welch. I am grateful to 

them for joining me, and I am privileged to answer any questions 

that you may have. 

[The biographical information of Marcia Howard follows:]

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Senator DEWINE. Judge, thank you very much. 

Judge Jarvey? 

STATEMENT OF JOHN ALFRED JARVEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA 

Judge JARVEY. I would also like to thank the President of the 

United States for the nomination and for the trust that he has 

shown in my abilities. 

I would like to thank Senators Grassley and Harkin for their 

support and for their kind, kind comments here today. 

I would like to also thank you, Mr. Chairman, for chairing this 

hearing, and to Senator Biden for also presiding at the hearing. 

I would like to thank the members of the Administrative Office 

of the Courts for their longtime support of Magistrate Judges and 

Judges of the United States, and for their presence here today. 

I would be pleased to introduce members of my family who are 

with me today. They include my sister, Carol Hawkins, my nephew, Edmund Hawkins, my brother, William Jarvey, Jr. I am particularly honored that my father could attend the hearing today. 

While the President and the Senate are most immediately responsible for my opportunity to sit in this chair, it is my mother 

and my father that paved the long road, so I am very pleased and 

honored that my dad could be here today. My mother is suffering 

from a brief, but temporary, illness and could not make it. 

My wife and children could not make it today. My kids all just 

started college and high school and were just unable to be here on 

short notice. 

I would like to also thank the Honorable Robert Pratt, Chief 

Judge of the Southern District of Iowa, and Southern District of 

Iowa Clerk of Court Marjorie Krahn for their attendance. If confirmed, I will be honored to serve with them in the Southern District of Iowa. 

With that, I have no further comments. Thank you. 

[The biographical information of John Jarvey follows:]

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Senator DEWINE. Judge, thank you very much. 

Judge Lioi? 

STATEMENT OF SARA ELIZABETH LIOI, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO 

Judge LIOI. Thank you, Mr. Chairman. I have no opening statement. However, I would like to thank the Chair for conducting this 

hearing today. I would like to thank Senator Biden for his presence. 

I would also like to thank the President for nominating me, and 

you, Senator DeWine and Senator Voinovich, for your very kind 

and gracious words and your support of me throughout this process. 

I do have some family members and friends here today and I 

would like to introduce them at this time. My mother, Rosaria, is 

here with us today. I consider that a blessing. She spent quite a 

few months in the hospital earlier this year and I feel very blessed 

that she was able to make the trip. 

Also, two of my sisters, Carmela Lioi and Germann are with us 

today, and my cousin, Helen Garofalo. I also have some very dear 

friends of mine, Diana Pittman, Judge Michael Howard, and Tim 

and Debby Bentivegna. I thank them for their attendance here 

today as well. 

[The biographical information of Sara Lioi follows:]

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Senator DEWINE. Good. Well, we welcome everyone. We are glad 

everyone is here. Thank you very much. 

Judge Jordan, you have written ‘‘it takes restraint to recognize 

that even when you have the tools to right wrongs, not everything 

that you perceive as wrong is yours to right.’’ 

Would you say that this is an accurate expression of your judicial 

philosophy, and how do you think this philosophy will manifest 

itself if, in fact, you are confirmed as the appellate judge? 

Judge JORDAN. That is a quick summary of an attribute I very 

much admire in judges that I have known. I know it is an attribute 

that I want, and I think I have, exhibited in my time on the bench. 

I feel a great responsibility whenever I walk into the courtroom 

to see to it that the elected offices in our government are given the 

deference and respect that they ought to have. 

I want to echo what the other judges have said here about gratitude to the President for the nomination. This is the second opportunity I have had to be nominated by President Bush, and my gratitude knows no bounds. 

I just feel it is really important that when we are wearing the 

robe and presiding, that we keep firmly in mind that we are to 

apply the law, we are not there to make public policy. 

Senator DEWINE. Judge, how do you feel your background as a 

trial judge will help you in your new position? 

Judge JORDAN. Well, I certainly will have a real appreciation for 

what it takes to create a trial record and to be conscious of the 

work and the many opportunities that come up for a district judge 

to make a close call on a point of evidence or on a motion that is 

before them. 

I would be very tuned in to the rules of deference that are in 

place for appellate review because they make our system function 

in a sensible way. 

Senator DEWINE. You have a great deal of background in intellectual property, certainly a specialized area of practice. How has 

that helped you in the district court, and what impact will that 

have, do you think, in your appellate work? 

Judge JORDAN. Well, the District of Delaware has a very full 

docket of patent cases. Those cases will, on appellate review, end 

up before the Federal Circuit. But the kinds of issues that frequently accompany them, antitrust issues, for example, and the 

kinds of procedural issues that come up in the patent cases, complicated cases as they are, will, of course, come to the Third Circuit. The trademark cases and copyright cases I have handled will 

also end up in the Third Circuit. 

I believe, having handled those at the district court level, I will 

again have an appreciation for the challenge it is when you have 

multiple parties and a lot of money on the table, as you do in these 

intellectual property cases regularly, what it has taken to get the 

case to appellate review, and hopefully that will stand me in good 

stead as I am considering the complicated issues that will arise on 

appeal. 

Senator DEWINE. Senator Biden? 

Senator BIDEN. Judge, tell me your view of stare decisis. I did, 

with the help of some constitutional scholars, a study about three 

years ago. Since the Supreme Court is not taking that many cases 

153

on cert these days, not hearing as many cases as they used to by 

a long shot, you guys are the last stop on the train for a significant 

number of constitutional issues, more than any time that I can 

think of in the last 75 years. 

Tell me how you, as a circuit court judge, would have a view different, if it is different, from your view of stare decisis as a district 

court judge. 

Judge JORDAN. Well, Senator, it would not be different in any 

material respect. As an appellate court judge, I know I would be 

working within the framework of decisions that the Third Circuit 

had already rendered, and those are typically only changed by an 

en banc ruling of the court, and certainly would be bound by the 

decisions of the Supreme Court. 

So as I have tried to do as a district court judge, I would be paying very close attention to the precedents set that would regulate 

and bind decision making that I would be called upon to make as 

a circuit court judge. 

Senator BIDEN. Would you look to the Third Circuit itself and be 

inclined to give it deference on matters that came before you as opposed to assuming that the question in question had not been litigated before the Supreme Court? 

Judge JORDAN. If it had been a matter decided by the Third Circuit—and I confess, I have not taken a look at the internal operating procedures of the court in some time—I believe that there are 

procedures that the court has so that panels will be following the 

precedent that is established within the circuit, unless there has 

been some wider review by the court sitting en banc. 

Senator BIDEN. One of the things I have learned as a Senator, 

I have been here a while, is that everything I have ever written 

has been read much after the fact. No one read it when I wrote it 

when I was in law school, but they sure read it now. You wrote an 

article, I believe at Georgetown, dealing with foreign intelligence 

gathering. 

You wrote that ‘‘although the intelligence function is subject to 

the shared powers of Congress and the President, it is a function 

which constitutional theory and practice is entrusted primarily to 

the President, and over which he has significant independent 

power.’’ 

You went on to claim that ‘‘because access to information is the 

very heart of the President’s ability to wield these powers, no 

amount of congressional action should be able to prevent him from 

gathering the intelligence he deems necessary in the exercise of 

these powers.’’ 

You may very well be in the Third Circuit, and it is a very hot 

topic now, as you know. The Foreign Intelligence Surveillance Act, 

so called FISA, which I co-sponsored and wrote. 

Does that automatically mean that the congressional definition of 

what the last stop on the train is is one that automatically would 

be dismissed, that there is no ability of Congress to in any way affect the President’s gathering of information as long as it is not inconsistent with the Fourth Amendment? 

Judge JORDAN. No, sir. I really wish that I had written on the 

Uniform Commercial Code when I was a law student. 

[Laughter]. 

154

Senator BIDEN. I do not know anything about the Uniformed 

Commercial Code. 

Judge JORDAN. But who knew, right, 22 years ago? 

Senator BIDEN. You tend to ask only those questions you know 

something about. 

Judge JORDAN. Yes. Yes. Senator, when I was writing that article 

lo those many years ago, I was endeavoring, for myself, to understand the framework that Justice Jackson had laid out in the steel 

seizure case, and get my arms around, as best I could, issues that 

were then very topical. As you have noted, they are topical again 

today. 

Senator BIDEN. You wrote that case about the time I was writing 

the law. That is worrisome to me that I am that old. 

[Laughter]. 

Judge JORDAN. As I tried to put into context, this is an area 

where politics and law intersect in a dramatic way, and that these 

are not easy cases. I mentioned FISA specifically and tried to address it in that article as well. If the matters were to come before 

me today, I can assure you that I would be giving it the most careful attention. And not to denigrate my work before because, frankly, I do not know how it stacks up now. I have not really given it 

as critical a read as perhaps I should. 

But hopefully with a mature viewpoint on the law and with the 

recent decisions that have come out, including some very recent 

pronouncements from the Supreme Court, I would be in a position 

to do justice to a structural constitutional issue like that. 

Senator BIDEN. Thank you. 

I say to the district court nominees, I do not have any questions 

for you. I have read your backgrounds and I am prepared to support you. But I am reminded of something that a man for whom 

I served under in this court, James O. Eastland from Mississippi, 

an old fellow who ran this committee for a long, long time, and I 

sat at the very end, the most junior member of the committee. 

One day, Mr. Chairman, he asked me whether I would come 

down to Mississippi and campaign for him. The reason was, they 

were running the campaign about, he was getting too old. 

At that time, I was 32 years old. My job was to go down and 

point out, which was accurate, that even though he was 84, he was 

more than twice my age, I had trouble keeping up with him, like 

your nominee does keeping up with her mother. I had trouble doing 

that. 

I went down and there was a big event he had for all the Judges 

that he had been involved in appointing in Mississippi. The room 

was as full as this room. It was at a dinner. All of them got up 

and said what you said, I want to thank the President for nominating me. 

Then they got all finished, and they turned to the Chairman of 

the Judiciary Committee, the most powerful man in the country at 

the time, and he stood up and he looked out at all the Judges and 

he said, ‘‘You all just got finished telling us how you got appointed 

by Eisenhower and Kennedy and Carter.’’ Carter had been President. He said, ‘‘You all know why you are Federal judges, don’t 

you? ’’ Everybody just looked. He said, ‘‘Because Jim Eastland said 

so.’’ 

155

[Laughter]. 

You are district court judges because of the Senators who nominated you and the President agreed. That has been the custom 

here. So, the President did have to be convinced, and he clearly 

was, that you are fully, fully worthy of the job. 

Circuit court judges are different. Circuit court judges are the 

place where Presidents have reserved the right, under the traditions of the Senate, because there are multiple jurisdictions, to pick 

whom he or she wishes to be on the court and not feel obliged to 

go through any senatorial picking process. 

But I was just reminded of old Jim Eastland when you said that. 

I think that Senator DeWine, as they say in the southern part of 

my State, ‘‘done good’’ in picking you, Judge. 

I wanted to say for the record that I have received telephone 

calls and notes from folks I know in Iowa who are in the opposite 

party, strongly, strongly supporting Judge Jarvey. 

I think, Ms. Howard, you did not need any notes. You are obviously qualified. So I want to thank you all for being here. Thank 

you for being willing to serve, and thank your families for being 

here. 

As I indicated to the Chairman, I am not able to stay. I have an 

appointment, that I am now a few minutes late for, at 3:00. But 

I wish you well, Judge Jordan. I think you will make a fine Judge. 

Mr. Chairman, thank you for convening the hearing. Thank you 

all. 

Judge JORDAN. Thank you, Senator. 

Senator DEWINE. Senator Biden, thank you very much. 

I do have a few questions, though. Let me turn to our district 

court nominees. I am going to ask all of you some general questions. And we will start with you, Judge Howard, then we will go 

right down the line. 

Let us start with your views on settlement procedures and what 

the proper role of a judge is in settlement procedures. Judge? 

Judge HOWARD. Thank you for allowing me to comment on that, 

Senator. The Middle District of Florida, as I am sure you know, is 

one of the busiest districts in the Nation. 

We have the seventh highest weighted caseload, so we rely a 

great deal on settlement conferences. Most of our Judges, our district judges, refer parties to the Magistrate Judges to conduct settlement conferences. I find them to be a very valuable tool. 

It is the opportunity for the parties to once again take control of 

the process. Frequently it allows them to get an outcome that 

would not be possible simply through litigation. 

The parties tend to be very satisfied with that. So I think it is 

a very useful tool, both for allowing people their respect for the judicial system, and also for reducing our caseload. 

Senator DEWINE. Judge Jarvey? 

Judge JARVEY. Thank you, Senator. Before I respond to the question directly, I neglected to mention that I am also joined here 

today by a longtime friend, Matthew Novak, and I am honored by 

his presence as well. 

I am a strong proponent of court-sponsored alternative dispute 

resolution. As a Magistrate Judge, I have conducted over 500 mediations, summary jury trials, and other settlement techniques. 

156

My anecdotal experience is that 90 percent or more of our civil 

litigants do not want a full-blown trial. For those folks, I believe 

that is important to offer another effective way to resolve their disputes. So I fully support court-annexed alternative dispute resolution. 

Senator DEWINE. Judge Lioi? 

Judge LIOI. Yes. Thank you for the opportunity to respond, Senator. I, as a State court trial judge, oftentimes will defer cases to 

settlement negotiations. We have a wonderful mediation program 

in Stark County. 

If I am fortunate enough to be confirmed to the district court 

level, it is my understanding that the U.S. district court for the 

Northern District has a very comprehensive alternative dispute 

resolution program where they offer the parties a variety of different dispute resolution mechanisms, from arbitration, to mediation, to early neutral evaluation of a case, to summary jury trials. 

I would make use of all of the tools to assist parties in resolving 

their disputes efficiently and effectively. It has been my experience 

that attorneys and parties embrace alternative dispute programs. 

Senator DEWINE. Judge Howard, let me turn to another issue 

that I experienced when I was a county prosecutor many, many 

years ago, and I think most attorneys who practice much in court 

experience, and that is the balance between a judge who needs to 

control the courtroom and a judge who sometimes goes too far, at 

least from the attorney’s point of view, and does not let you try 

your case. How do you deal with that? I want to try my case if I 

am a lawyer, but obviously you have to control what is going on 

in your courtroom. How do you do that? 

Judge HOWARD. Well, Senator, I think that being a trial judge requires a very careful balance, because you absolutely have to control the courtroom. It is necessary for the respect for the process. 

It is necessary to assure that lawyers treat the litigants with dignity and respect at all times. 

Certainly an advocate needs to be permitted to try his case, as 

you say. But there are permissible bounds of advocacy and it is the 

role of the judge to impose those. 

Senator DEWINE. Judge Jarvey? 

Judge JARVEY. Thank you, Senator. I see no inconsistency between keeping control of a courtroom and allowing lawyers to try 

their case. There are two different issues. I have steadfastly stayed 

out of the advocacy business as a judge. I believe that it is the prerogative of the lawyer to be in control of their case. 

For that reason, I do not ask questions of witnesses during jury 

trials for fear of the appearance in front of the jury that I am too 

far into the litigation. I have had no difficulty controlling my courtroom and I have never raised my court in order to do it. 

Senator DEWINE. Judge Lioi? 

Judge LIOI. Yes. I concur with the comments of my fellow nominees, that the role of a judge is to ensure due process. There is a 

careful balance that must take place, but the goal of the proceedings must be the orderly administration of the law. 

It is very important that while you permit attorneys to try their 

cases, that you also make sure that the trying of a case is done 

157

within the proper parameters of the code of responsibility, and also 

that everyone in the proceedings gets due process. 

Senator DEWINE. Let me ask, starting with you, Judge Lioi, why 

you want to be a Federal judge. 

Judge LIOI. Thank you for the opportunity to answer that question, Senator. I have had the privilege and honor of serving the 

public as a State court judge for nearly nine years now and I take 

my duties and responsibilities very seriously to administer cases 

and controversies which come before me impartially, fairly, and I 

consider it a very high honor to be considered to serve on the Federal court bench. 

I cannot imagine a higher honor for a sitting judge in a State 

court to be considered for a Federal position. I would welcome the 

opportunity to administer cases on the Federal bench. 

While I would still have the opportunity to apply case law in diversity cases, I would also have the opportunity to decide cases and 

controversies involving Federal law. And again, if I am fortunate 

enough to be confirmed, I would welcome and embrace that opportunity. 

Senator DEWINE. Judge Jarvey? 

Judge JARVEY. Thank you, Senator. I have devoted my entire career to public service in Federal Court. Over the last, almost 19 

years now of being a U.S. Magistrate Judge, I have had the privilege to preside over cases and controversies involving some of the 

most complex disputes in Iowa. 

After this amount of time, I believe that I am well qualified for 

the position. And, frankly, I am just looking for more challenges. 

I look forward to the opportunity to take on more responsibility 

and a steady stream of bigger challenges. Thank you. 

Senator DEWINE. Judge Howard? 

Judge HOWARD. Thank you, Senator. I am honored to serve as 

a Magistrate Judge in the Middle District of Florida right now. It 

is an amazing opportunity, and at the same time a very humbling 

experience, and one which I love. 

I recognize that the decisions that I would face, if I were fortunate enough to be confirmed as a district judge, would be more 

challenging decisions. They are more challenging intellectually, 

they are more challenging just sort of on a gut level, and I embrace 

that. 

I was raised by parents who immigrated to this country with 

nothing, basically, but their education. They never let my brother, 

my sister or I forget how fortunate we were to be here and to have 

the opportunities we have. They were great role models in teaching 

us that we owed something back. 

For me, the opportunity to serve as a district judge is the opportunity to continue to do what I love and to serve my country, so 

it makes it a very easy decision. I simply offer myself in that service. 

Senator DEWINE. Judge Lioi, you chaired the Supreme Court of 

Ohio Board of Commissioners on Character and Fitness. How has 

this experience helped shape your views of the legal profession? 

What impact, if any, might that have on your work as a Federal 

Judge? 

158

Judge LIOI. Thank you for the question, Senator. It has been an 

honor for me to serve on the Board of Commissioners on Character 

and Fitness for the Supreme Court. I believe that all lawyers and 

Judges should engage in activities which promote competence in 

the legal system and improve the legal system. 

This is one small way that I have been fortunate enough to contribute to the profession in ensuring that the individuals who are 

licensed to practice law in Ohio have the requisite character and 

fitness qualifications to enjoy the privilege of being licensed. 

Service on this board has just underscored for me the qualities 

and characteristics that are necessary in a candidate for admission 

to the practice of law, the honesty, integrity, trustworthiness that 

are required of these individuals who will in turn serve their clients and the public. 

So, it has just been a great honor to serve on this board, to serve 

the bench, the bar, and the public. It has just, as I said, underscored the need for professionalism in the profession. 

Senator DEWINE. Judge Jarvey, tell us a little bit about your experience at the Justice Department and how that may impact on 

your work on the bench. 

Judge JARVEY. My experience at the Department of Justice was 

just a phenomenal beginning to my trial career. I tried cases in 

Federal courts all across the country, appeared before well over 50 

Federal district court judges, and argued many appeals. 

The experience of practicing in front of so many different Judges 

gave me an opportunity to see so many things that I appreciated 

and respected, and a number of things that, frankly, I did not. 

If confirmed as a district court judge, I would employ those practices that I have been employing that I learned from judges across 

the country during my experience at the Department of Justice. 

Senator DEWINE. All right. 

Judge Howard, in your experience as a magistrate judge, how 

has that prepared you to serve on the district court? 

Judge HOWARD. Well, Senator, as a magistrate judge, I perform 

a subset of the responsibilities of an Article 3 Judge. I am very fortunate, as I mentioned earlier. Because the Middle District is as 

busy as it is, the Middle District fully utilizes its magistrate judges. 

We enjoy the full authority that is permissible under the statute. 

So over the past three years, I have faced many of the very same 

decisions and the types of issues that I would face if confirmed as 

a district judge. 

In civil cases, on consent, I, in fact, sit as a district judge, and 

also on referral from the district judges handle many dispositive 

motions. So, I think it has given me a very unique opportunity to 

work with our district judges, to learn from them, and to do some 

of the same things that I would do if I am confirmed. 

Senator DEWINE. I have one final question for each one of you. 

Supreme Court precedents are, of course, binding on Federal circuit 

court judges, and both Supreme Court and Federal circuit court 

precedents are binding on district courts. 

Are you committed and willing to follow the precedents of the 

higher courts faithfully and give them full force and effect, even if 

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dan, your question, of course, would be in regard to the Supreme 

Court. 

Judge JORDAN. The answer to that is, absolutely, Senator. 

Senator DEWINE. Judge Howard? Judge Howard. And I answer 

it in the same way, absolutely. 

Senator DEWINE. Judge Jarvey? 

Judge JARVEY. Absolutely. Yes. 

Senator DEWINE. Judge Lioi? 

Judge LIOI. Absolutely. 

Senator DEWINE. The record will remain open. You may get additional questions from members of the committee. If you do, we 

would suggest that you respond to them as quickly as possible. 

For the record, I have a statement for the record from Senator 

Nelson, I have a statement from Senator Leahy, and Senator 

Grassley’s full statement for the record as well. 

[Whereupon, at 3:15 p.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.]

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(185)

NOMINATIONS OF NORA BARRY FISCHER, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF PENNSYLVANIA; 

GREGORY FRIZZELL, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA; LAWRENCE JOSEPH 

O’NEILL, NOMINEE TO BE DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF CALIFORNIA; AND LISA WOOD, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA 

TUESDAY, SEPTEMBER 12, 2006 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:08 p.m., in room 

226, Dirksen Senate Office Building, Hon. Tom Coburn presiding. 

Also present: Senators Specter and Feinstein. 

OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR 

FROM THE STATE OF OKLAHOMA 

Senator COBURN. The Judiciary Committee will come to order. 

Today we have a confirmation hearing for four of the President’s 

judicial nominees. On behalf of the committee, I would like to welcome all four of you. Some of you have traveled considerable distances, and I appreciate your willingness to appear before us today. 

I am particularly glad to see Judge Frizzell here, a fellow Oklahoman. It is our hope that we can move all of your nominations 

through the Committee quickly and get them voted on the floor before Congress goes out of session at the end of this month. 

I know Judge Frizzell will be particularly glad to hear that, because his term on the State court expires in January. We are going 

to do our best to make sure you have a job this winter, Judge. 

I would now like to turn to our full Committee Chairman, Arlen 

Specter, for any comments that he might have. 

186

PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Well, thank you very much, Mr. Chairman, 

for chairing this hearing. You have accurately stated the intention 

of the Committee is to move these nominations through as promptly as possible, and I think it is realistic, unless something unforeseen occurs, to complete them before we adjourn at the end of this 

month. 

I also want to take a moment or two to join my distinguished colleague, Senator Santorum, in the introduction of Nora Barry Fischer to be U.S. District Judge for the Western District of Pennsylvania. 

Ms. Fischer comes to this nomination with an outstanding 

record, academically and professionally. She graduated from St. 

Mary’s College Magna Cum Laude in 1973, and has a law degree 

from Notre Dame. She was editor at Callaghan and Company Legal 

Publications in 1976 and 1977. 

She was an associate at Meyer Darragh for 15 years, and then 

became an equity partner in the Pietragallo law firm, and she currently is the Defense Litigation Practicing Group co-chair. 

Included in her work has been administrative partner in charge 

of recruitment and training. She has represented General Electric 

in both toxic tort and product liability cases. She has had significant mediation practice, having served as an adjunct settlement 

judge and as an arbitrator for the Western District of Pennsylvania, which gives her some judicial experience before approaching 

the bench. 

I would ask unanimous consent to put my full statement in the 

record and a full resume before yielding, if I may, Mr. Chairman, 

to Senator Santorum. 

Senator COBURN. Without objection. It is my understanding, because of the time pressure on Senator Inhofe of a Committee hearing, that he would be recognized first, if the Chairman has no objection to that. 

Chairman SPECTER. Fine. 

Senator COBURN. I want to welcome our fellow Senators here and 

look forward to your statements. 

Senator Inhofe, you are recognized. 

PRESENTATION OF GREGORY FRIZZELL, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA, 

BY HON. JAMES M. INHOFE, A U.S. SENATOR FROM THE 

STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Mr. Chairman. I am hoping also 

that he will be allowed to introduce some of his family. Now, if he 

had all of his family here there would not be time to do that. But 

I am here today to support Judge Greg Frizzell, nominee for the 

U.S. district court for the Northern District of Oklahoma. 

His family is no stranger to the legal field. I can remember his 

daddy, who is here in the audience today—I saw him when he 

came in—Kent Frizzell. He served as Attorney General for the 

187

State of Kansas. That is when I first got to know his family. Later 

on when they moved to Oklahoma, we became very close friends. 

He has had all kinds of experience in the past in serving the 

Under Secretary of Interior, and he has taught at the University 

of Tulsa Law School for, I do not know, over 18 or 20 years. 

So given his father’s distinguished work, it is no surprise that 

Judge Frizzell felt compelled to pursue a career in public service, 

and his friends and colleagues have praised his professional qualifications and personal integrity, and all have emphasized his ability to rule fairly from the bench. 

Someone who has been around as long as this young judge has 

been around, you would think you would hear negative things. I 

have never heard anything negative about him. Robert Sartin, 

member of the Board of Governors of the Oklahoma Bar Association said, ‘‘Judge Frizzell is a man of extremely good character and 

high integrity, with a deep sense of personal responsibility toward 

his fellow man.’’ 

Judge Claire Eagan, who was before this Committee not too long 

ago, praised him and talked about the urgency, the fact that that 

court right now has three judges doing the work of six. 

One of the prominent and well-respected attorneys in Oklahoma, 

Joe Wohlgemuth of Norman, Wohlgemuth, Chandler & Dowdell in 

Tulsa, called Judge Frizzell ‘‘a man of integrity and a straight 

arrow’’. 

Before serving in the current position of district Judge of the 

14th Judicial District of Oklahoma, Greg Frizzell had a long and 

distinguished legal career and ample Federal experience. 

After graduating with a law degree from the University of Michigan, he clerked for Judge Tom Brett. Tom Brett is now in retirement and there is no one who has a better reputation than he, and 

he has praised and praised Greg Frizzell. 

Also, Ralph Thompson, who is getting very close to retirement, 

he is in senior status right now on the Federal bench in Oklahoma, 

has praised him. 

So, I just cannot think of anyone who has had a greater background and experience for this. He has held positions other than 

judicial positions. He was the General Counsel to the Oklahoma 

Tax Commission for a period of time. He has not only proven to be 

an effective and legal professional, but he is a devoted husband and 

loving father of six children. 

Getting back again to Mr. Wohlgemuth, he recalls an incident 

where Judge Frizzell, Mr. Chairman, had to stay late one night at 

work and he brought all six kids so he could spend time with them 

into the late hours. Anyone who can handle six kids while doing 

his judicial work, I think can handle this job. 

So, Judge Frizzell is a man of great moral integrity who has 

proven his character in both his private and public life. I cannot 

say enough about him and his qualifications to be the next U.S. 

district court judge for the Northern District of Oklahoma. 

Thank you very much. 

Senator COBURN. Thank you, Senator Inhofe. 

Senator Santorum? 

188

PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman. My colleague, 

Senator Specter, I think adequately reviewed Nora Barry Fischer’s 

resume. 

Just let me comment on a couple of things. First, in general, Senator Specter and I have developed a system in Pennsylvania where 

we have always tried to make sure that we have a balance on the 

court, whether it is a Republican or Democratic administration. 

During a Democratic administration we have worked out agreements to have Republicans every fourth nominee. One in every four 

would have to be Republican. We do the same when there is a Republican President. We make sure that there is a Democrat in 

there. Every four district court nominees, there is a Democrat in 

the mix, and we do that by district. 

In the Western District, we have been very fortunate to put some 

really outstanding jurists on the court. The court has a very, very 

strong reputation. Hopefully soon-to-be Judge Fischer would be an 

excellent addition, but she is a Democrat. She is someone who, 

when we put her forward in this political season, I have to tell you, 

I was not sure what the reaction would be. 

Let me assure you, the reaction has been unanimous from both 

Republicans, Democrats, folks in the plaintiff’s bar, the defense 

bar, you name it. We have not received a single negative word 

about Nora Barry Fischer. 

Given, again, the intensity of the political scene in Pennsylvania, 

I think it just speaks volumes for the kind of qualities that this 

woman brings to her practice of law, to the professional associations that she is involved with in the law, and as a past president 

of the Allegheny County Trial Lawyers Association, which is not 

necessarily an organization that is particularly complimentary to 

me on occasion, but she was an outstanding leader there and someone who has tremendous respect in our community. 

So when Senator Specter and I went through the names and we 

identified her name on the list, the feedback, again, we have gotten 

was extraordinary before we nominated her, and I will tell you, has 

been unanimously extraordinary since. 

My understanding from the Committee is that she was rated 

unanimously ‘‘Well Qualified’’ by the ABA. I am not surprised 

about that. She is someone who has been a trailblazer, as a woman 

in Pittsburgh in the legal profession, and has, as I said before, the 

utmost respect. 

I just mentioned lawyers. I should also say judges who have contacted us, including some of her future colleagues, I hope, on the 

court, who are ecstatic that her name has been placed in nomination. 

So, it is truly an honor for me to be here this morning to forward 

her nomination and encourage this Committee and the full U.S. 

Senate to act promptly on this nomination. Again, we have one vacancy and hope to have another one soon, so this is a court that 

definitely needs to have this vacancy filled. 

Thank you, Mr. Chairman. 

189

Senator COBURN. Thank you, Senator Santorum. 

Senator Chambliss? 

PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA, BY 

HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE 

OF GEORGIA 

Senator CHAMBLISS. Thank you, Mr. Chairman. I very much appreciate the opportunity to appear this afternoon before the committee, and to be back before the committee. As a former member, 

I am particularly pleased to be back here. 

Senator COBURN. As a matter of fact, I have my seat because you 

are not here. 

Senator CHAMBLISS. I think you have my seat, Mr. Chairman. I 

will always hold that against you, even though you are my dear 

friend. 

[Laughter.] 

But I am here both to introduce and heartily endorse President 

Bush’s nomination of Lisa Godbey Wood to be U.S. district Judge 

for the Southern District of Georgia. In nominating Lisa Wood, the 

President has demonstrated his commitment to ensuring both the 

integrity and the quality of the Federal judiciary. 

Lisa Wood is an extraordinarily qualified individual who comes 

before this body at a time of urgency for the Southern District of 

Georgia. Currently, this distinguished Federal bench has but a single active Federal judge with the recent election by two judges to 

take senior status. 

This, in addition to recent health developments affecting one 

such judge, highlights the need for swift action by the Senate to ensure that the administration of justice continues in this important 

Federal District. 

I, and the people of Georgia, appreciate you, Chairman Coburn, 

along with Chairman Specter and Senator Leahy, for agreeing to 

schedule this hearing today. I urge prompt action in reporting favorably her nomination, and prompt confirmation by the Senate. 

Lisa has served with distinction as U.S. Attorney for the Southern District of Georgia since 2004. She was unanimously confirmed 

by the Senate in November of that year, and since that time she 

has effectively managed this important prosecution office, while 

overseeing significant Federal criminal prosecutions, including successful high-profile corruption cases and racketeering prosecutions 

involving the fraudulent diversion of black market pharmaceuticals. 

Lisa is a Summa Cum Laude graduate of the University of Georgia, where she was Phi Beta Kappa, and the University of Georgia 

Law School, where she was selected as a member of the Order of 

the Coif and served as managing editor of The Law Review, and 

Chief Justice of the Honor Court, among many other accomplishments and honors. 

Following graduation from law school, Lisa served as a law clerk 

to Hon. Anthony A. Alaimo of the Southern District of Georgia before joining the Brunswick law firm of Gilbert, Harrell, 

Summerford & Martin, where she actively litigated cases involving 

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lar crime, and death penalty issues. She was elevated to litigating 

partner after just three and a half years, which is very significant. 

Ms. Wood served as president of the Brunswick Glynn County 

Bar Association in 1995 after many years of service in other leadership positions with the Bar Association. 

She served as a Magistrate Judge of the Glynn County Magistrate Court from 1998 to 2000, and is highly respected by members of the bench before whom she has appeared and by members 

of the bar who appeared before her and who served with her, including opposing counsel. 

Lisa has been active in community and civic associations, including the YWCA. She is active in her church. Moreover, Lisa Wood 

has contributed immeasurably to her profession, community, 

church, and country, while being a devoted wife to her husband 

Richard, and mother to two 4-year-old twins, Lachlan and Katherine, all of whom are with her today. 

I look back over here, Mr. Chairman, and I do not know what 

you did, but you put one of them to sleep over here. 

[Laughter.] 

These two children are obviously beautiful little 4-year-old twins. 

Her husband, Richard, has been a dear friend of mine for many 

years. He is not nearly as good-looking as the twins are. But this 

is a beautiful family, and I look forward to Lisa having the opportunity to introduce them to you. 

Mr. Chairman, I urge the committee’s swift and enthusiastic action to advance her nomination, and I look forward to the prompt 

confirmation of Lisa Wood to the Southern District of Georgia, and 

I thank you. 

Senator COBURN. Thank you, Senator Chambliss. 

Senator Isakson? 

PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA, BY 

HON. JOHNNY ISAKSON, A U.S. SENATOR FROM THE STATE 

OF GEORGIA 

Senator ISAKSON. Thank you, Mr. Chairman. I, at the outset, 

want to express my appreciation to Gregg Nunziata for his help in 

facilitating this hearing today, and I appreciate very much your 

chairing it. 

It is really an honor to introduce Lisa Godbey Wood to the committee, along with her husband Richard, her two children, and her 

mom and dad, who sit there proudly. 

I must mention, as part of the extended family, Hon. Judge Tony 

Alaimo from the Southern District of Georgia who is behind me 

and here today. He is a great servant of the United States of America, a great Georgian, and his service on the court for years is 

greatly appreciated. 

Mr. Chairman, in November of 2004, the U.S. Senate confirmed 

the appointment of Lisa Godbey Wood as U.S. Attorney in the 

Southern District of Georgia. In her term since that time she has 

served honorably and well the people of the United States. 

Senator Chambliss and I are in united support of her nomination 

to the U.S. district court in Georgia, and urge the Senate to facilitate its approval at a rapid rate. 

191

As Saxby as said, at the University of Georgia she was an Honor 

graduate. In fact, she earned the Meinhart Award for the highest 

grade point average all 3 years. She was the first Honor graduate 

at the University of Georgia. 

When she left the University of Georgia she went to clerk under 

this distinguished judge, Tony Alaimo, in the Southern District 

itself. She went into the private practice of law in 1991, became a 

partner in 1995, and as I have said, because U.S. District Attorney 

in 1996. 

Her record of prosecution and indictments in the Southern District has been well-noted by Senator Chambliss. She is probably 

the most universally popular nominee I have ever seen appointed 

to the court since I have served in the Congress of the United 

States and the U.S. Senate. 

For me on a personal note, it is also very easy to make this introduction. I have known Lisa and Richard since 1996. They are two 

of our State’s most outstanding students. She will be a great Judge 

on the court, and it is an honor for me today, as a U.S. Senator, 

to give her my highest commendation to this Committee and to the 

Senate. 

I thank you, Mr. Chairman. 

Senator COBURN. Thank you, Senator Isakson. I know that Senator Feinstein wanted to be here and is detained, so I might take 

the liberty right now of reading the resume on Lawrence Joseph 

O’Neill, the U.S. district Judge for the Eastern District of California nominee. 

Magistrate Judge Lawrence O’Neill was nominated to be a U.S. 

district court judge on August 2, 2006. He received his B.A. from 

the University of California at Berkeley in 1973, his M.P.A. from 

Golden Gate University in 1976, and his J.D. from the University 

of California, Hastings College of Law in 1979. 

During law school, Judge O’Neill served as a legal clerk to Hon. 

Roberts F. Cain of the First Appellate District of the California 

Court of Appeals. Following law school, Judge O’Neill joined the 

law firm of McCormick, Barstow, Sheppard, Wayte and Carruth as 

an associate. He became a partner with that firm in 1984. 

His practice focused almost exclusively on civil tort litigation. 

While working for that law firm, he also taught classes for 6 years 

as an Adjunct Professor at San Joaquin College of Law. He was 

honored by that college for his teaching skills and was presented 

with the ‘‘Professor of the Year’’ award. 

In 1990, Judge O’Neill was appointed to the Fresno County Superior Court. He served on that court until 1999, when he was appointed as U.S. Magistrate Judge in the U.S. district court for the 

Eastern District of California. 

Judge O’Neill has received numerous awards for his community 

service, including the annual Judicial Award presented by the Rape 

Counseling Service of Fresno County, and the ‘‘20 Years of Service’’ 

award presented by the Fresno County Mock Trial competition program. 

While serving as a presiding judge of the Juvenile Courts of 

Fresno County, Judge O’Neill was recognized for his outstanding 

efforts to prevent child abuse with the Judy Andreen-Nilson 

192

Award. The Fresno County Juvenile Justice Commission also presented him with the ‘‘Award for Achievement in Juvenile Justice.’’ 

Let me ask, if I might, first, unanimous consent to enter into the 

record Ranking Member Senator Leahy’s statement, and that will 

be done by unanimous consent, as well as the further statement of 

my own. 

Senator COBURN. I would ask our nominees to come forward. I 

would also note that Senator Feinstein is on her way, and we will 

give her the opportunity from the dais to present her recommendations for her nominee. 

If you all would come forward, please. 

If you would each raise your right hand. 

[Whereupon, the nominees were duly sworn.] 

Senator COBURN. By tradition, we will ask each of you to make 

an opening statement, and then we will have some questions for 

you. Hopefully this will be as painless as possible. We will interrupt your statement, as one of you finishes, when Senator Feinstein arrives. 

Ms. Fischer, please start. 

STATEMENT OF NORA BARRY FISCHER, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

Ms. FISCHER. Thank you, Mr. Chairman. I have no prepared 

statement here today, but what I would like to do is, first, thank 

you, Mr. Chairman. I would certainly like to thank the Senators of 

my home State, Pennsylvania, Senators Santorum and Specter, for 

their kind words. 

In addition, I thank President Bush for considering me, and also 

nominating me to the potential judgeship on the Western District 

of Pennsylvania. 

Not having a statement, with your permission I would like to introduce my husband of 30-plus years. 

Senator COBURN. Absolutely. 

Ms. FISCHER. Dr. Donald Fischer, who is with me here today. 

Unfortunately, our three children, Erin, Lauren and Adam, could 

not join us. 

I would also like to tip my hat to my parents, Michael and Olga 

Barry, who, because of health reasons, could not join us here today. 

I would also like to acknowledge my partners and friends at 

Pietragallo, Bosick & Gordon. My managing partner, Bill 

Pietragallo, has been particularly helpful in this quest. 

I would also like to thank all of the associates who are back on 

the ranch doing the work that needs to be done today, and my legal 

assistants and secretaries who worked hard on the applications. 

I would also like to say a word in thanks to my six sisters, who 

I will not all name, and my brother, who have supported me along 

the way and e-mailed and cheered me on today. A special salute 

to my godchild and niece, U.S. Army Captain Meghan Cumpston, 

who is serving in Afghanistan. 

[The biographical information of Nora Barry Fischer follows.]

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Thank you. 

Senator COBURN. Thank you. 

Judge Frizzell? 

STATEMENT OF GREGORY FRIZZELL, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA 

Judge FRIZZELL. Thank you, Mr. Chairman. 

Like Ms. Fischer, I have no prepared statement, but would first 

like to thank the President for the honor of his nomination. I would 

also thank you for your kind words, and thank Senator Inhofe for 

his kind words. 

I want to thank the Committee for having scheduled this hearing 

today, and if I might, introduce my family who is here today. 

Senator COBURN. Absolutely. Please do. 

Judge FRIZZELL. First of all my wife of 15-plus years, Kelly Nash 

Frizzell, my mother, Shirley Frizzell, my father, Kent Frizzell, and 

my sister, Angela Frizzell. 

Senator COBURN. Great. And where are the six kids? 

Judge FRIZZELL. With notice on Friday afternoon, we could not 

load them all up on the bus and get them here in time. 

Senator COBURN. Right. 

Any other comments? 

Judge FRIZZELL. No, sir. Thank you. 

[The biographical information of Gregory Frizzell follows.]

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Senator COBURN. Thank you. 

Judge O’Neill? 

STATEMENT OF LAWRENCE J. O’NEILL, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA 

Judge O’NEILL. Good afternoon. I would first like to thank, also, 

the President for the nomination. I would like to thank you for 

your words and for convening this Committee meeting so that we 

could move forward. I would like to—and I will hold off just a second if you would like. 

[The biographical information of Lawrence J. O’Neill follows.]

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Senator COBURN. Senator Feinstein? 

Senator FEINSTEIN. Can I get settled? 

Senator COBURN. You bet. You bet. We will wait and allow you 

to settle. 

PRESENTATION OF LAWRENCE O’NEILL, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA, 

BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 

STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

apologize. We were in our caucus and I was the last one up to talk 

about FISA. So, I appreciate this opportunity. 

I would like to, first of all, thank Chairman Specter for the accommodation of my request for expedited consideration of Judge 

Lawrence O’Neill’s nomination to the Eastern District of California, 

and it is my great pleasure to introduce him here today. 

His appointment is really critical because there is a major judicial emergency in the Eastern District of California. The Fresno Division to which Judge O’Neill is nominated is suffering from a particularly acute overload of cases. 

Judge Oliver Wanger and Senior Judge Anthony Ischi are currently the only judges in this division. They share a caseload of 

2,928 active cases. Now, this is an average caseload of 1,464 active 

cases per judge. It is the highest caseload by far in the Nation. By 

contrast, the average weighted caseload nationally for a Federal 

district court judge is 524 cases, so this is three times that. 

The people of Fresno and the Eastern District truly need the 

help that Judge O’Neill can provide. Fortunately, he is uniquely 

qualified to step in and offer some immediate relief because he has 

been a Magistrate Judge in the District since 1999, or for 7 years. 

In addition, for the last 17 years he has been a judge in California, spending 10 years as a Superior Court Judge in Fresno before becoming a Magistrate. He is a home-grown Californian. He 

was born in Oakland. 

He attended school in our State. He received a Bachelor’s Degree 

in Criminology from the University of California at Berkeley, a 

Master’s degree in Public Education from Golden Gate University, 

and a law degree from Hastings College of Law, which is where my 

daughter, now a judge, received her law degree as well. 

So before attending law school, he was a police officer for the 

City of San Leandro, and I think that additional perspective is actually an asset on the bench because I assume he then has street 

smarts as well as academic smarts. The ABA has unanimously declared him to be ‘‘Well Qualified’’, their highest rating. 

Now, as you know, in California we have a bipartisan process. 

Anyone that would like to be considered to be a judge can apply. 

They are screened, they are interviewed, and this commission, 

chaired by Mr. Parsky, contains three Democrats, three Republicans, and Judge O’Neill’s nomination was the product of this commission. 

He was one of five nominees submitted to the President for his 

consideration. Although Senator Boxer could not be here today, she 

asked me to relay her support for his nomination. She will be entering a separate statement into the record. 

285

So, Judge O’Neill, I congratulate you on this nomination. Mr. 

Chairman, I thank you, and hope we can move this through speedily so that this emergency can be alleviated. 

Thank you. 

Senator COBURN. Thank you, Senator Feinstein. And Judge 

O’Neill, I do not know if you introduced family or not, but you are 

more than welcome to do so. 

Judge O’NEILL. Not yet. Senator Feinstein’s entrance was very 

timely because I was about ready to thank her as well. 

I do thank you, Senator, for your words, and also the help that 

your office and Senator Boxer’s office has been to move us forward 

so that we can take care of the emergency that you have amply discussed. 

I would like to introduce my family, if I could. My wife, Kathleen, 

and my son, William. William flew all night to be here. He is in 

his last year of Hastings Law School as well. My daughter Erin 

sends her best, as she is starting her last year at Northwestern 

University in Evanston, Illinois. After hearing for 10 minutes why 

it was just impossible to be here, I understood. I accepted it. 

Lastly, my mother sends her best. She is also a lawyer. She 

started University of California, Bolt Hall, back in 1940. She is 87, 

and her health does not permit her to be here, but she is certainly 

here in spirit. 

Senator COBURN. I understand. Well, you certainly have the 

background and academics to handle 1,500 active cases a year. 

Judge Wood? 

STATEMENT OF LISA WOOD, NOMINEE TO BE DISTRICT JUDGE 

FOR THE SOUTHERN DISTRICT OF GEORGIA 

Judge WOOD. Thank you. I want to first begin by thanking the 

Committee for giving us the opportunity to have this hearing, and 

to thank my home State Senators, Senator Chambliss and Senator 

Isakson, for supporting me, and the President as well for nominating me. 

I would also like to introduce my friends and family who have 

made the journey from Georgia. I have with me my husband, Richard Wood. The first of our twins, Katherine Wood, and my son, 

Lachlan Wood, fell asleep earlier. But he is in my mother’s arms. 

That is my mother, Sue Godbey, my father, Dr. Edsel Godbey. 

Also here with me is Judge Anthony Alaimo, who, as an 86-yearold, got up at 4:00 this morning to fly to be here with us today. 

I was privileged to clerk with him and he is my mentor, and I am 

honored by his presence. 

Also with him is his courtroom deputy, Loyal Buford Rowe. My 

two best friends have come to be with us as well, Rita Spalding and 

Ginger Adams. 

Finally, I would like to thank the staff of the U.S. Attorney’s Office for making me look good. Thank you. 

[The biographical information of Lisa Wood follows.]

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Senator COBURN. Thank you. 

Well, we will proceed with some questions now. I have a limited 

number of questions for each of you. There will be no time contingency in terms of how you answer them. They are fairly general 

questions, but it will give me a feel and an opportunity to get to 

know you a little bit better. 

I am going to begin with Ms. Fischer, if I might. Your legal career has really encompassed a broad mix of civil and legal work, 

particularly focusing on trial work. 

Would you share with us how your experiences have prepared 

you to serve as a U.S. judge? 

Ms. FISCHER. Thank you, Mr. Chairman, for that question. As 

you know from your review of my resume, I have been practicing 

law in Western Pennsylvania, and also in West Virginia, I might 

add, the last 30 years. I have covered a broad range of cases in 

both State and Federal work. Early on I handled a number of civil 

rights and employment cases, for example, in the Federal district 

court. 

I think that the mix of skills that I have learned, the ability to 

look at cases, analyze the facts and then apply the law, I think I 

can carry that into the judiciary, if I should be so fortunate. Further, as it has been indicated, I have some training in mediation, 

arbitration, and alternate dispute resolution. It would be my hope 

to bring those skills to the table as well. 

Senator COBURN. You just answered my next question. I actually 

consider that to be a tremendous asset, because what that means, 

as you recognize in mediation and alternate dispute resolution, is 

you are a trusted advocate for fairness. I think that is a tremendous compliment to you. 

When we see 1,500 cases per judge, if they go to trial, that is an 

impossibility in our judicial system today. So mediation, and actually the concept of reconciliation, reconciling two people apart or 

two parties to a common denominator, is a key factor. 

In your mind, of all the judges you have been in front of, what 

are the qualities that you are most impressed with that makes a 

good judge? 

Ms. FISCHER. First, Mr. Chairman, I would say that the judges 

who I admire are fair-minded and open, listening to both sides of 

the case, sometimes more than two sides of the case. Certainly 

hardworking, people who spend the time, the energy to learn the 

facts of the case and the parties to do justice. 

In addition to that, I think that the people that I most admire 

are those who welcome the citizens into their courtroom and provide an atmosphere, a fairness, even- handedness, and integrity as 

they address cases. 

Senator COBURN. Thank you. 

I am going to ask each of you this question. You do not have the 

advantage of having it heard it prior to coming up. I am not a lawyer. I am a physician/businessman. As all of you know, judges have 

become a political issue, which I think is much to the detriment of 

our country. 

There is a difference between political ideology and judicial philosophy. I do not think anybody ought to have to explain their poVerDate 0ct 09 2002 12:14 May 03, 2007 Jkt 034698 PO 00000 Frm 00329 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\34698.TXT SJUD1 PsN: CMORC
322

litical ideology, but would you care to explain what you see as a 

proper judicial philosophy? 

Ms. FISCHER. Thank you, Mr. Chairman, for that question. I 

know that it is an important question. As a Federal district court 

judge, if I should be so fortunate to become one, I would have to 

address the facts of the case and apply the law. 

As any sitting judge in the Western District, or in any other district court, I would first have to look to precedent. In that vein, I 

would look to the Third Circuit, and certainly to the Supreme 

Court, as precedent. From that, then I would proceed to make the 

rulings that would be required in a case on a case-by-case basis. 

Senator COBURN. All right. And you recognize, your authority 

comes from the Constitution, the statutes, and the treaties of this 

country, as well as stare decis? 

Ms. FISCHER. Certainly. 

Senator COBURN. And nothing else. 

Ms. FISCHER. That is the basis. 

Senator COBURN. As far as the authority for the basis of your 

opinions. 

Ms. FISCHER. That would be correct. 

Senator COBURN. All right. Thank you. 

Judge Frizzell, you have served in the State of Oklahoma as a 

judge for 9 years. First of all, let me thank you for doing that. 

Given your service on the bench, you have some insight about the 

roles that judges play. Can you kind of share with us your thoughts 

on the role of the judiciary in our tri-part government? 

Judge FRIZZELL. Yes, sir. Having tried some 185 or so cases, I 

have found that the judiciary, the judge, playing a central role in 

the trial of cases, first of all, has to be extremely courteous. The 

judge sets the tone in the courtroom. So, courtesy, humility, and I 

think restraint, first and foremost. 

Obviously, restraint in following stare decis, restraint in recognizing that addressing a case in controversy, one must limit one’s 

self to the case before the judge and utilize those tools that are applicable and can resolve the case and not going beyond. 

Senator COBURN. How do we promote more cases into reconciliation rather than trial? 

Judge FRIZZELL. Clearly, alternative dispute resolution—fortunately, in Tulsa, as you know, Mr. Chairman, we have on the State 

level an actively-used municipal early settlement procedure that we 

use quite a bit. I personally referred a lot of cases there a lot of 

times, because parties simply want to be heard. 

They want to make their case, and many times by presenting 

their case to a mediator they have that catharsis and are able to 

get an impartial evaluation regarding the strength of their case. 

So, mediation is absolutely essential, as you have previously mentioned. 

In addition, the Northern District of Oklahoma has an active 

process. The Magistrate Judge who is in charge of that was my coclerk for Judge Brett, Magistrate Judge Paul Cleary, and he is 

doing an excellent job. 

Senator COBURN. All right. Thank you. 

Judge Frizzell, for 9 years you have been involved with the local 

chapter of the American Ends of Court, which, as you know, is an 

323

organization dedicated to improving the skills, professionalism, and 

ethics of the bench and bar. 

Can you tell me how your experience has shaped your skills as 

a judge and how you will apply those skills during your service, 

should you so be confirmed to the district court? 

Judge FRIZZELL. I think in three ways, Mr. Chairman. First of 

all, as you know, the American Ends of Court is designed to promote civility amongst the bench and amongst the bar. They do so 

by dining together, breaking bread together once a month, which 

fosters relationships. 

Second, through education. Each month we have a presentation 

made by one of the people groups, and one that always, if you keep 

your ears open, you can pick up tips on how to address a lawsuit 

and how the administration of justice ought to be performed. 

I think, third, I have dived head-first into the idea of mentoring. 

I think we have lost in the American legal system because recently 

you see many people from law school going into solo practice and 

not going into law firms. 

It is essential that they have mentors. Just last week I started 

up with a new mentee, who is a private practitioner who has just 

a few years of experience and is a solo practitioner in the criminal 

area. 

Senator COBURN. You have done a lot of pro bono work for both 

the Tulsa Speech and Hearing Association, as well as for indigent 

Tulsans through the Rotary Club. If it is appropriate, or would it 

be appropriate for you, and if so, how would you use your experience in pro bono work to increase the amount of pro bono work 

that is done by the bar that sits before you? 

Judge FRIZZELL. I know that on the State bench we have attempted to increase the amount of pro bono work done for individuals participating or who otherwise would be pro se before the 

courts. 

I, frankly, do not know whether the Northern District of Oklahoma promotes—excuse me. I do. But in the area of criminal practice, because I was a member of the board at one point in private 

practice, we had an adjunct board where we represented criminal 

defendants. So, we do promote that in the Northern District of 

Oklahoma. 

Senator COBURN. Thank you. 

Then to my final question: judicial philosophy. 

Judge FRIZZELL. Yes, sir. I think, first of all, the linchpin is that 

of judicial restraint, as I previously alluded. One must not use the 

totality of powers that a judge is given. It is much like being a parent; you do not want to go beyond that which is necessary to resolve a particular case. I think, obviously, firm adherence to the 

doctrine of stare decis and unfailing courtesy. 

Senator COBURN. All right. Thank you. 

Judge O’NEILL. A really interesting career. You should be proud. 

You have had a varied career. You worked as an advocate, then on 

the State bench, and now recently as a Federal magistrate judge 

for the same court. Probably a lot of this work has been falling on 

you anyway, I would imagine. How about all of those experiences, 

and how does that fit with making you a great Federal judge? 

324

Judge O’NEILL. I think starting out as an advocate, that being 

a lawyer, makes you understand that there are judges you like to 

come before and judges you would prefer never to be before again. 

I think that it is important for a judge to remember those experiences so you are the type of judge that people want to appear before again and again. 

With regard to the State court, I handled more than 2,000 criminal cases. You mentioned earlier the part about mediation. That is 

a good part of what occurs every day in the criminal field, as well 

as the civil field. I ran that calendar for several years at the end 

of my State years on the Superior Court. 

Moving then into the Federal court, I handled, and have continued to handle, settlement conferences on a weekly basis. Sometimes it is the traditional settlement conference, sometimes it is 

mediation, sometimes it is a hybrid. But all of those things, coupled 

with more than 500 trials that I have handled, I believe, make me 

ready for this position. 

Finally, when you mention that perhaps I am handling some of 

the cases now that I will be handling, that is a true statement. As 

you know, in the Federal court a magistrate judge can handle a 

case sitting as a district court judge with the consent of all parties. 

The consent rate for me is in excess of 90 percent. So for the past, 

almost 8 years, on the civil side of it, I have been acting as a district court judge. 

Senator COBURN. That is great. 

You have been recognized also as well for your pro bono and community service activities, including your service for the Fresno 

County Mock Trial competition, and other teaching activities. 

Can you describe these activities for the committee, what you 

have done? 

Judge O’NEILL. Yes. Generally it is junior high school and high 

school, and it is almost not ever grammar school level. I am invited 

back to the junior high school level to teach six to eight classes per 

year, either on the first day that they are going to be handling the 

Constitution, or the last day that they are handling the Constitution. 

As far as the high school level is concerned, I teach the Advanced 

Placement review course for the Government class, specifically the 

courts and the Constitution arena, and in between all of that, a lot 

of speeches. 

I think that judges, from time to time, as best we can, need to 

get out of our chambers and out of our courtrooms and into the 

public to explain what we do, because so many people do not know. 

Senator COBURN. Right. Right. 

Do you plan on continuing that work, should you be confirmed? 

Judge O’NEILL. I absolutely do. 

Senator COBURN. Yes. The key to that is making sure the public 

has confidence in our judiciary, and I think you are right on. 

Judge O’NEILL. And if they do not know what we do, there is no 

way they can have that confidence. 

Senator COBURN. Right. 

And how about the answer to my question on judicial philosophy? 

Judge O’NEILL. There are several things that I think a judge 

must do. First, is to be prepared, to have read not just the briefs, 

325

but the law, to be ready to proceed with that case before you come 

out on the bench. 

Second, to be efficient with your time. If you waste time or have 

people waste time in your courtroom, you do not have time to give 

the people at the end of the calendar the same type of listening 

that you need to do in every case. 

Civility is absolute. It is an absolute requirement for a judge. I 

think that ultimately people need to come into your courtroom 

knowing that you are going to apply the law as it is. Not how you 

might think it should be, not just on the things that you agree 

with, but apply the law as it is. 

The only way you are ever going to do that as a judge is to recognize that there are three branches of government, and that means 

something. That is not just a convenience, it is the law itself. 

Senator COBURN. Thank you. 

Ms. Wood, a similar question. You have had broad experience, 

both in terms of civil and criminal work, and prosecutorial work. 

How has that prepared you to be a Federal judge? 

Judge WOOD. Well, Senator, I think it puts me in a unique position of having been able to see the Federal district court from just 

about every angle possible, beginning with behind the scenes as a 

law clerk, and to see the decisional process and how that goes on, 

then next as a private practitioner representing civil plaintiffs and 

defendants, and also defending accused people who have been 

brought to the court, then as a county magistrate court, to pass on 

issues regarding search and seizure and arrest warrants, and so 

forth, then, finally, as the U.S. Attorney, to represent the United 

States in civil and criminal matters. 

So, I get to see from all those vantage points how crucial it is 

for the members of the Federal judiciary to be honest, fair, hardworking, patient, and humble. 

Senator COBURN. Thank you. 

Speaking of your role as a U.S. Attorney in the Southern District 

of Georgia, what would you outline or lay out for us that are your 

major accomplishments as a U.S. Attorney there? 

Judge WOOD. Senator, I have been U.S. Attorney for approximately 2 years. I was confirmed in 2004. During that time our office has increased its productivity, and last year we had the most 

productive year that we have ever had in terms of pursuing criminal defendants resulting in convictions, and complex cases that we 

have been able to pursue. This year, as well, we are track to best 

that. I also think that the morale in our office is good, and that 

affects everyone’s work ethic. 

I guess, lastly, I would say, touching on something that Judge 

O’Neill mentioned, and that is the public face of the office. I agree 

with him that, as public servants, we need to let the public know 

what we are doing. Our buildings of justice stand only so much as 

we have public confidence and that they trust us. 

So I spend a lot of time going to schools, elementary schools up 

to colleges and law schools, going to civic clubs and groups, and 

telling them about what the Federal law enforcement initiatives 

are and what we are doing in our part of the world to accomplish 

those. 

Senator COBURN. Great. 

326

Then to my last question about judicial philosophy? Judge Wood. 

My judicial philosophy is fairly simple. I think it is important to 

understand the role that a Federal district Judge plays within the 

larger system within the three branches of government and within 

the appellate system itself. 

As a district court judge, I am bound to apply the precedent of 

the 11th Circuit Court of Appeals in my State, and the U.S. Supreme Court. My task will be to discern the facts as fairly as I can 

and to research and discover the law as diligently as I can. If I 

were to be fortunate enough to be confirmed, that is what I would 

do every day of my career. 

Senator COBURN. All right. Thank you. 

I have just one final question for each of you. It is something 

that you see reflected here in the U.S. Congress. The difference is, 

we are not appointed for life, although we might act like it. 

[Laughter.] 

What will each of you do in your personal life to have a check 

or balance so that the position of a lifetime appointment and the 

power that comes with that will be moderated, influenced, or a 

Governor put on so that our normal human nature of being approached to ourselves of significance, will never get in the way of 

your decisions as a U.S. district court judge. 

Ms. Fischer? 

Ms. FISCHER. Thank you. 

Senator COBURN. And by the way, I will give you an out. My balance is my wife. She cuts me down all the time and puts me right 

back where I belong. 

Ms. FISCHER. Thank you, Mr. Chairman, for that question. I 

could echo the same. I would say that my husband Don certainly 

adds balance to my life, as do my children. In fact, my husband, 

who happens to be a physician, such as the Chairman, makes sure 

that I get exercise. I was 25 years old when he started to teach me 

how to swim, and I am still learning. I am getting there. 

But in addition to that, I think in approaching my every day, I 

would expect to approach the matters at hand, if you will, with the 

same kind of evenness, if you will, that I currently have in my law 

firm practice where I work with a team of younger associates and 

partners, paralegals and staff. 

We know when to crack a joke. We know when to celebrate somebody’s success. We support each other. I think I would take those 

same kinds of attributes, if you will, to the bench if I would be so 

fortunate to be appointed and committed to the bench. 

Senator COBURN. Judge Frizzell? 

Judge FRIZZELL. Thank you, Mr. Chairman. Obviously that is a 

critical question with this particular job. I would echo Ms. Fischer’s 

statement, substituting my wife for her husband, and the children. 

Obviously that keeps one humble. 

In addition, I have tried to operate on the ‘‘bathroom mirror’’ philosophy. I want to be able to look myself in the mirror the next day 

without any second thoughts. That has kind of helped me through 

nearly 10 years of service on the State bench. I think, as Ms. Fischer says, you have got to keep active, you have got to keep exercising. With the YMCA right across the street, I use that often. 

Senator COBURN. Judge O’Neill? 

327

Judge O’NEILL. One of the finest judges I have met, who is now 

deceased, his name was Hollis G. Best, and he was the presiding 

Justice of the Fifth district court of Appeals in California. 

When I first got appointed by the Governor of the State of California to the Superior Court, before I was sworn in he took me to 

lunch and he said, ‘‘The best judges focus in on responsibility and 

not on power.’’ That is a philosophy that I have followed since the 

first day some 17 years ago. 

Second, I, too, have a spouse who, in one word, can put me back 

where I need to be from time to time. That one word is: overruled. 

[Laughter.] 

Senator COBURN. Great answer. 

Ms. Wood? 

Judge WOOD. Thank you, Senator. I, too, have a spouse that 

keeps me in check. We serve that role for each other. My parents 

taught me that you shine brightest when you are polishing others, 

and I would take Judge Alaimo’s cue and speak softly and listen 

hard. 

Senator COBURN. Well, thank you each very much. The Chairman will make a determination of when you will come on the business calendar. I appreciate you responding on short notice to this 

hearing. We are trying to accomplish your nominations through. 

I must say, each of you are impressive in your own right. It is 

a reflection on the legal profession in this country, as well as our 

system of government, that we see such quality individuals before 

us. 

The record will remain open for one week should you want to 

amend or add anything to what you might have said. 

With that, the hearing is adjourned. 

[Whereupon, at 3:00 p.m. the hearing was adjourned.] 

[Submissions for the record follow.]

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NOMINATIONS OF ROBERT JAMES JONKER, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF MICHIGAN; PAUL 

LEWIS MALONEY, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT 

OF MICHIGAN; JANET T. NEFF, NOMINEE TO 

BE DISTRICT JUDGE FOR THE WESTERN 

DISTRICT OF MICHIGAN; AND LESLIE 

SOUTHWICK, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

MISSISSIPPI 

TUESDAY, SEPTEMBER 19, 2006

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, Washington, DC 

The Committee met, Pursuant to notice, at 3:07 p.m., in room 

226, Dirksen Senate Office Building, Hon. Sam Brownback, presiding. 

OPENING STATEMENT HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Senator BROWNBACK. The hearing will come to order. 

Thank you all for joining us today. We have a confirmation hearing for several highly qualified individuals nominated by President 

Bush to serve on district courts in Michigan and Mississippi. 

The nominees include the following four individuals: Robert 

James Jonker, who has been nominated to be U.S. district Judge 

for the Western District of Michigan; Judge Paul Lewis Maloney, 

who has also been nominated to be U.S. district Judge for the 

Western District of Michigan; Judge Janet Neff, similarly nominated to be U.S. district Judge for the Western District of Michigan; and, finally, Judge Leslie Southwick, nominated to be U.S. 

district Judge for the Southern District of Mississippi. 

On behalf of the Committee I want to welcome all of the nominees, you and your families. You have traveled a great distance to 

be here today. I appreciate your willingness to appear before us. It 

is quite a day. This is as big deal, as they would put it, to go 

through a nomination hearing, and hopefully a confirmation process, to be confirmed to be a Federal judge. 

346

We have in attendance today several Senators from the home 

States of these fine attorneys. I will leave it to my colleagues to discuss their superb qualifications and to vouch for their fitness to 

serve on the bench. I am delighted that you are here. 

Since my Ranking Member is not present, I will go to the individual Senators to speak for their nominees. 

We have in panel one Hon. Thad Cochran, my Chairman on the 

Appropriations Committee who I have been delighted to serve with; 

from Mississippi, Hon. Trent Lott, a dear friend, the Senator from 

Mississippi. I understand that Senator Levin may be coming later, 

but is not here yet; and Hon. Debbie Stabenow, a U.S. Senator 

from Michigan. 

We will go in the order of seniority, as that is the way this place 

operates. So, Senator Cochran, I will go with you first. I am delighted that you are here to discuss your nominee. 

PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much. 

I am pleased to introduce to you and the Committee Leslie H. 

Southwick, and to recommend to the Committee his confirmation 

as a U.S. district court judge for the Southern District of Mississippi. 

I have known Leslie for about 30 years. He is well qualified by 

his temperament, his intelligence, his education, and experience to 

serve as a U.S. district court judge. 

During his distinguished career he has demonstrated a keen 

knowledge of the law as a lawyer and a judge. He will reflect credit, in my opinion, on the Federal judiciary. I am glad to notice that 

his daughter Cathy is representing his family and is here today to 

be with him on this special occasion. 

Leslie was born and educated in Texas, but he has deep roots in 

Mississippi. He came to the State in 1976 to serve as a law clerk 

to U.S. Court of Appeals Judge Charles Clark, who served at that 

time on the Fifth Circuit Court of Appeals. 

Leslie had graduated Cum Laude from Rice University in 1972. 

He then entered the University of Texas School of Law, graduating 

in 1975. Following law school graduation, he clerked for Chief 

Judge John Runyan, Jr. on the Texas Court of Criminal Appeals 

in Austin, and then he came to practice law in Jackson, Mississippi 

with the firm of Bernini, Grantham, Grauer & Hughes. 

I was practicing law in Jackson at the time and I came to know 

him very soon as a keen intellectual, thoughtful, personable member of our Bar. He became a respected member of the Bar on a 

wide range of legal issues. 

He served as Deputy Assistant Attorney General in the Civil Division of the U.S. Department of Justice. He supervised there 125 

lawyers of the Federal Programs Branch. He also supervised the 

Office of Consumer Litigation, a 25-lawyer division charged with 

civil and criminal enforcement of Federal consumer laws. 

In November 1994, Leslie was elected to serve on the Mississippi 

Court of Appeals. He served there with distinction. I read some of 

347

his opinions and followed his career there on the appellate bench. 

He has been one of the most respected judges in that court. 

Then he was called to serve as a Staff Judge Advocate for the 

155th Armored Combat Brigade of the Mississippi National Guard. 

He was deployed to Iraq. He served there with distinction. He has 

become the citizen soldier, and he has distinguished himself by answering the call to duty and for this mobilization in support of Operation Iraqi Freedom. 

He has been an Adjunct Professor at the Mississippi College 

School of Law, where he taught courses in administrative law, consumer law, evidence, statutory interpretation, and judicial history. 

He has also served as an instructor at the U.S. Military Academy 

at West Point. 

He has written several legal and historical articles, been published in the Mississippi Law Journal, the Mississippi College of 

Law Review, the Wall Street Journal, and other journals and magazines. 

He is the author of Presidential Also-Rans and Running Mates, 

a historical discussion of the American candidates for presidents 

and vice presidents. It won the American Library Association’s 

Best Reference Book of the Year Award in 1985. 

He has enjoyed politics. He has been active in the political life 

of our State and we are very proud of him. Few decisions made by 

a U.S. Senator have a farther-reaching effect than the recommendation to a president of an individual to serve on the Federal bench. 

I am confident that Senator Lott and I have made a good decision in recommending Leslie Southwick to President George W. 

Bush to serve on the Federal bench. I am pleased the President 

submitted his name to the Senate for consideration, and he deserves to be confirmed by the Senate. 

Senator BROWNBACK. Thank you very much, Senator Cochran. 

Senator Lott, welcome. 

PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT LOTT, A U.S. SENATOR FROM THE 

STATE OF MISSISSIPPI 

Senator LOTT. Thank you, Senator Brownback, for having this 

timely hearing. I would like to ask that my statement be submitted 

for the record in its entirety. 

Senator BROWNBACK. Without objection. 

[The prepared statement of Senator Lott appears as a submission 

for the record.] 

Senator LOTT. A lot of it is discussion about the resume and the 

history of this very fine nominee. I am quite pleased to be here and 

to recommend his nomination to the President. I just wanted to 

come and vouch for the character of the man. I think that is important, too. 

While his resume is obviously extremely impressive, his reputation goes way beyond his legal qualifications, his educational background, his involvement in public service, his writing ability, his 

military career. He has an outstanding record, but he also has a 

reputation of just being a fine man of very good temperament. 

348

I believe that people, the Senate, looks for that in a nominee. I 

doubt that we have had many nominees for the Southern District 

of Mississippi, or anywhere in Mississippi for that matter, that exceeded the qualifications of this nominee. 

I focused on two things in particular, his experience there on the 

Mississippi Court of Appeals where he served as a presiding judge 

for several years, 1999 to 2004, and he amassed a very outstanding 

record in that position. 

Also, the fact that he chose, at a particular point in his life, to 

go into the U.S. Reserves and then transfer to the Mississippi National Guard and serve as lieutenant colonel and Staff Judge Advocate of the 155th Brigade. He served in Iraq, where, when I asked 

him, ‘‘How did it go?’’ he said, ‘‘Well, it was character building.’’ I 

suspect that was the most diplomatic way he could describe his experience there. 

So this really is a unique nominee. He has shown great wisdom, 

Mr. Chairman, beyond that, having been born in Texas. He graduated Cum Laude from Rice University and attended the University of Texas School of Law, and clerked there for the Texas Court 

of Criminal Appeals. 

He had the wisdom for to then become a law clerk for one of the 

finest judges I have ever known in my life, Fifth Circuit Court of 

Appeals Chief Judge Charles Clark, in Jackson. 

After that experience, having lived in Jackson, Mississippi, he 

then went to one of the finest law firms in the State and has chosen to live in Mississippi from that day till this, showing the great 

wisdom of this nominee in choosing the place where he lives, Mississippi. We are proud of him. We believe he will make an excellent 

Federal judge. I am delighted to be here and vouch for his candidacy for this position. 

Senator BROWNBACK. Thank you very much. I thank my colleagues for their statements in support of the nominee from Mississippi, an outstanding nominee and fantastic statements in support. 

If my colleagues need to excuse themselves, that is certainly understandable. If you would like to stay, we would love to have your 

presence. But we will proceed now to Senator Stabenow and the 

discussion of the Michigan nominees that we have on the panel. 

PRESENTATION OF PAUL MALONEY, JANET NEFF, AND ROBERT JONKER, NOMINEES TO BE DISTRICT JUDGES FOR THE 

WESTERN DISTRICT OF MICHIGAN, BY HON. DEBBIE 

STABENOW, A U.S. SENATOR FROM THE STATE OF MICHIGAN 

Senator STABENOW. Well, thank you, Senator Brownback. It is 

my great pleasure today to be here. I thank you for holding this 

hearing on the nominations of Judge Paul Maloney, Judge Janet 

Neff, and Robert Jonker to the U.S. district court for the Western 

District of Michigan. 

Let me start by indicating that Senator Levin had fully intended 

to be here. He is speaking on the floor at this moment and asked 

me to submit his written testimony for the record. He is in full support of all three nominees. If it is possible, he will be here. If not, 

certainly it is not because of lack of support for the nominees. So, 

I would submit that. 

349

Senator BROWNBACK. His full statement will be submitted to the 

record. 

Senator STABENOW. Thank you. 

[The prepared statement of Senator Levin appears as a submission for the record.] 

Senator STABENOW. And in addition to introducing them, I want 

to indicate that all three of them bring distinguished legal careers 

to the Federal bench, and their resumes are impressive. 

In the interest of time, because I want you to have an opportunity to hear from them directly, I will not go into extensive discussion of each of their resumes, except to say that we are very 

proud of them in Michigan. 

Judge Paul Maloney has served as a Circuit judge on the Berrien 

County Trial Court for almost 10 years. Judge Maloney also brings 

a wealth of public service experience to the bench, including working as a Berrien County prosecutor, a Deputy Assistant Attorney 

General in the Department of Justice, and as Chairman of the 

Michigan Sentencing Commission. I want, personally, to welcome 

Judge Paul Maloney to the Senate hearing today. 

Judge Janet Neff has served as a judge on the Court of Appeals 

for the Third District of Michigan for almost 17 years. In addition 

to her very distinguished career on the bench, Judge Neff has been 

an active leader in Grand Rapids, including serving as the first 

woman president of the Grand Rapids Bar Association. I would 

like, also, to welcome her, along with her husband Dave and 

daughter Meredith, and congratulate her on her nomination as 

well. 

Robert Jonker has been a partner at Warner, Norcross & Judd 

in Grand Rapids for almost 12 years. A lifelong Michiganian, Robert Jonker is a graduate of Calvin College and the University of 

Michigan Law School, and has served as a law clerk for U.S. district court judge John Feikens in the Eastern District. I would welcome Robert Jonker to the Senate today. 

Again, Mr. Chairman, these are brief overviews of what are three 

distinguished careers. We are very proud to come together and 

have worked with the White House on these nominations. 

Senator Levin and I are bringing our full support, enthusiastic 

support, for the nominees. I would also indicate that it would be 

my hope that we would move expeditiously on the floor on these 

nominations. Thank you, Mr. Chairman. 

Senator BROWNBACK. Thank you very much, Senator Stabenow. 

I appreciate your thoughts, comments, and recommendations of 

these highly qualified nominees. I appreciate your attendance here 

today. 

Senator STABENOW. Thank you. 

Senator BROWNBACK. We will call the second panel, the nominees, forward, if you would join us up front. I do have an oath that 

I would like for you to take. 

Calling forward Robert James Jonker, to be U.S. district Judge 

for the Western District of Michigan; Judge Paul Lewis Maloney, 

to be U.S. district Judge for the Western District of Michigan; 

Judge Janet T. Neff, to be U.S. district Judge for the Western District of Michigan; and Judge Leslie Southwick, to be U.S. district 

Judge for the Southern District of Mississippi. 

350

I would ask, if you would, to repeat after me. Hold your right 

hand up, please. 

[Whereupon, the nominees were duly sworn.] 

Senator BROWNBACK. Thank you all. Please take your seats. 

Again, as I said at the outset, I thank you all for attending and 

being here today. This is one of the key jobs of the Senate, is putting people on the Federal bench. It is a lifetime appointment and 

it is an important appointment to be put in such a position of authority and trust. 

What I would like for each of you to do, is to give me a brief 

opening statement if you have one prepared. As you do that, because I recognize that families are involved in this as well, I would 

like for you to introduce your family to me and to the Committee 

as well so we can meet them and thank them because, while it is 

a lifetime commitment of you, it is also a lifetime commitment of 

theirs. 

We do not come into this world by ourselves and we do not stay 

here by ourselves, either. There are a lot of people that are around 

us that are very key and important. 

So, Mr. Jonker, I would like for you to start off. If you would 

present your testimony, but please start by introducing any family 

members you have here present with you today. 

STATEMENT OF ROBERT JAMES JONKER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN 

Mr. JONKER. Well, thank you, Mr. Chairman. I appreciate that. 

I do have a great cloud of witnesses and supporters back in Michigan cheering me on today that were not able to be with me other 

than in spirit, and they are here that way today. 

I want to thank you, Mr. Chairman, and the entire Committee 

for convening this hearing and giving me an opportunity to appear 

before you and respond to your questions. 

I certainly want to thank, in particular, Senator Stabenow for 

personally coming today to deliver that introduction. Thanks to 

both Senator Stabenow and Senator Levin for their courtesies and 

support throughout this process. 

Of course, I do need to thank President Bush for honoring me in 

the first place with this nomination. I aim to do credit to that nomination, and also to the Senate’s confirmation, if I am fortunate 

enough to receive that. 

[The biographical information of Robert Jonker follows:]

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Senator BROWNBACK. Thank you very much. 

Judge Maloney? 

STATEMENT OF PAUL LEWIS MALONEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN 

Judge MALONEY. Thank you, Mr. Chairman. Thank you for conducting this hearing today on our nominations to be District judges 

for the Western District of Michigan. I am honored by the President’s nomination to be a Federal judge, and look forward to answering your questions during the course of this hearing. 

I want to personally thank Senator Stabenow for her appearance 

this afternoon in support of our nominations. I look forward to your 

questions. Unfortunately, my family was not able to make it today. 

They are with me in spirit back in Michigan and assorted other 

places across the country, Texas and Pennsylvania, to be more specific. 

Thank you, Senator. 

[The biographical information of Paul Maloney follows:]

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Senator BROWNBACK. Thank you. It is a delight to have you here. 

Judge Neff? 

STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN 

Jude NEFF. Thank you, Senator. Thank you particularly for your 

comments with regard to the support of family, which is very important, as you know as someone in public life. 

I would like to introduce to you my husband of almost 35 years, 

David Neff, and the younger of my two daughters, Meredith Neff, 

who is with us here from Wisconsin, where she lives and works. 

My older daughter, Genevieve, unfortunately could not be here. 

She is in law school in New York City. 

Senator BROWNBACK. Welcome. Delighted to have you all here. 

Jude NEFF. I also am appreciative of the opportunity to have this 

hearing. I am extremely grateful to Senators Levin and Stabenow 

for forwarding my name to President Bush for consideration and 

for his nomination. 

I also think it appropriate to thank the staff at the Department 

of Justice, particularly David Best and the people who have worked 

with him who have helped us so very much through this process, 

which can be a little daunting at times, as well as the staff of Harriet Meyers in the White House. 

They were extremely helpful to me and I am very, very grateful 

for all of the courtesies and assistance that have been shown me. 

So I am more than pleased to be here and more than honored to 

be nominated to this position. Thank you. 

[The biographical information of Janet Neff follows:]

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Senator BROWNBACK. Thank you. Welcome here. 

Judge Southwick? 

STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

Judge SOUTHWICK. Senator, I appreciate your chairing this hearing today. I think you opened with the phrase, and if you do not 

mind my borrowing it, that this is a very big deal today to have 

this hearing and to have the opportunity to discuss whatever comes 

to the committee’s and your mind regarding our background. 

I am honored beyond, I think, her understanding, that my 

daughter Cathy has joined us today. She flew up from Houston 

early this morning. It required her getting up at 3:30 in the morning to catch a 5:30 flight, and that is doing it for the team. Thank 

you, Cathy. 

Senator BROWNBACK. Cathy, thank you. And we have extra coffee 

if you need it. 

[Laughter.] 

Welcome. Delighted you are here. 

Judge SOUTHWICK. Her mother is back in our hometown, Jackson. My wife’s mother has been ill and she is helping out with her. 

We have one more child, Philip, who is an architect in Austin who 

is doing his client’s business today. I respect all of their decisions, 

and I am glad Cathy is here. 

Also with me today, coincidentally—he told me he flew up just 

for the occasion and I will accept that—is Andy Taggert, who is out 

in the audience. He is a supervisor from a county just north of 

Jackson and is one of the outstanding leaders in Mississippi political life today, and an outstanding lawyer as well. 

I want to thank the committee, but I want to thank two Senators 

in particular who have addressed you already, Senators Cochran 

and Lott. They have been stalwarts in my support through this 

process and I am extraordinarily pleased to have their support. 

President Bush’s nomination of me is an honor that almost goes beyond description. So with my personal comments, I am ready for 

whatever questions you might have. 

[The biographical information of Leslie Southwick follows:]

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Senator BROWNBACK. Thank you. And congratulations on each of 

you being moved thus far. 

I have got some questions I would like to ask, and we can go 

down the row if you would like. But one I would like to ask you 

about is just a thought or your opinion on this topic. Three of you 

are judges. Mr. Jonker, I believe you have clerked for a judge. 

Just this notion of judicial restraint has been one where we are 

seeing a lot more conflict. I call it at times ‘‘tectonic plates’’ moving 

back against each other as far as the legislative and executive 

pushing against the judicial. 

I asked John Roberts, during his confirmation hearing, what is 

the check and balance on the judiciary? His answer was, judicial 

restraint. An appropriate answer. But it needs, then, further definition. How do you determine whether or not this is a topic that the 

judiciary should not be involved in, that the judiciary should show 

restraint on? 

I would just appreciate a thought, as you look at the topic of judicial restraint and you have a case coming in front of you, that this 

is a questionable area whether or not the judiciary should cover it 

or not, what goes on in your mental processes as your determination of whether this is something subject to a Federal court to review or not? Mr. Jonker? 

Mr. JONKER. Thank you, Senator. I think the first place that I 

begin when I think about judicial restraint is with the text of Article 3 of the Constitution itself, which plainly limits the judicial 

power to cases and controversies that come before it. 

And out of that language, as I know the Senate Committee understands and realizes, a great variety of justifiability doctrines 

have evolved which I think require the judge to carefully examine 

whether the particular issue that has come before him or her is 

properly conceived for judicial determination. 

I think after you go through those justifiability tests, you also 

have the statutory jurisdiction gateways that this body puts in 

place which further limit and restrain what the judiciary does. 

Of course, any policy choices that the Congress makes and embodies in legislative enactment must always constrain the judge in 

his or her role, because it is certainly not the judge’s role to impose 

personal predilections of his or her own. Then, finally, you have the 

great body of case law that I think constrains every judge who is 

rendering a decision. 

Senator BROWNBACK. Why is this an issue now? Why is this coming up more and more at this point in time in history than, say, 

over the past 50 years? Or perhaps it has been coming up that 

much and I have just not been as aware of it. But do you have a 

thought on that? 

Mr. JONKER. Well, I do think there has been, probably since the 

founding of the Republic, inherent tension between the different 

branches of government, because I think the Founders did wisely 

build that into the structure of things. 

I think at times when we are all cognizant of public policy issues 

that are coming before the country, where there are strong feelings 

on either side, that it is only natural that the various bodies of government would push and pull next to each other. I think that will 

479

always be a part of the process and I think it would be incumbent 

on whoever has the honor of being a judge. 

If the Senate so confirms that on me, to always remember that 

in the midst of that tension, it is the legislature that makes the 

policy choices and it is the judge who applies them, regardless of 

whether the judge agrees with them. I do pledge to you that that 

is what I would do, if I am fortunate enough to be confirmed. 

Senator BROWNBACK. Judge Maloney? 

Jude MALONEY. Thank you, Senator. To answer your second 

question first, I think the discussion and the public debate on this 

particular issue is part of a healthy debate about the relationship 

between the three branches of government, the executive, the legislative, and the judicial branch of government. 

I think in terms of cases that come before the trial court, as Mr. 

Jonker has already indicated, the doctrines of justiciability are very 

important to first examine whether this is a case in controversy 

that requires the judicial branch of government to get involved. 

Once having determined that, then the issue is, in my judgment, 

applying the law as it is given to us by the legislative branches of 

government, the executive branch of government, and the policymaking branches of the government, apply the law as written 

based on the law as it is given to us, both in statute and in case 

law, and apply the precedent and follow the dictates of the precedent to render a decision in the case. If I am confirmed by the Senate, that would be the approach I would take. 

Senator BROWNBACK. Judge Neff? 

Jude NEFF. Thank you, Senator. I think probably the watch word 

for judicial restraint, and indeed for most of judicial work, is intellectual honesty. If we have to look at the narrowness of the question in front of us, if we look to legislative guidelines, if we look 

to precedent honestly, and intellectually honestly view what is in 

front of us, that is ultimately, in my view, the restraint on the 

judge. The judge has got a role to play in our system. 

The fact that there is, as Mr. Jonker has indicated, longstanding 

tension built into our system, and it is healthy, I think, and it is 

something that we struggle with all the time as a country, and it 

has, I think, made us healthier. It has helped to establish our judicial independence, but within the framework of the guidelines that 

are set by the Congress and by the executive. 

Again, as the others, if I am fortunate enough to be confirmed 

by the U.S. Senate to sit on the Western District of Michigan, I will 

do my very best to remain within those confines. 

Senator BROWNBACK. Judge Southwick? 

Judge SOUTHWICK. Senator, it is hard for me to come up with 

something fresh after such comprehensive review of the issue by 

my three colleagues today. I would say, from my perspective as an 

appellate judge over the last nearly 12 years, where courts go 

astray is in failing to decide the case in front of them, trying to use 

it as vehicles to go elsewhere, maybe further than they need to go, 

not to decide the case purely on the facts as honestly understood, 

and interpretation of the law as written in the precedents; like 

cases are supposed to be decided alike. 

I think an honest interpretation of facts and law is one of the primary restraints. To use Judge Neff’s term, the intellectual honesty 

480

of the exercise is absolutely critical for judges to keep within the 

bounds that they are supposed to stay in any particular case. 

Senator BROWNBACK. Three of you have served as State judges, 

a court with general jurisdiction, and now you go to a court of limited jurisdiction. Have you, at any time, wondered when you have 

watched Federal judges rule, saying, I do not think that one belongs to you guys? 

Jude NEFF. Well, if you will let me speak to that, Senator. 

Senator BROWNBACK. I would be happy to. I have got to think 

you sat there in your chamber at some time and said, now, I do 

not think you guys ought to be chewing on that one. 

Jude NEFF. One of the watch words in my chambers, and one of 

the first things I talked to my new law clerks about, is we are not 

ever going to decide anything other than what is directly in front 

of us. I think that is even more important on the Federal bench. 

You have to make sure, first of all, that the parties in front of 

you have standing, second, that the court has jurisdiction, and that 

it is a proper topic to be justified to be there. 

The narrower you can be as a judge, the more constrained you 

can keep your decisionmaking, in my view, the better off you are 

in the long run. It gets you in a lot less trouble eventually. 

Senator BROWNBACK. Judge Maloney? 

Jude MALONEY. Senator, I would concur with Judge Neff’s comments. I cannot say that I have speculated about why a particular 

Federal court was handling a case as opposed to a State court, but 

I think the jurisdiction of the Federal court is fairly well delineated. 

As Judge Neff has indicated, if I am confirmed, I will make sure 

that the appropriate jurisdictional bases are there before the case 

is decided. The parties need to have standing. Case in controversy 

requirements need to be met as well. So, I will be very careful on 

that subject matter if I am confirmed by the Senate. 

Senator BROWNBACK. It strikes me, in the last campaign, I was 

up for reelection in 2004. One of the big issues were the courts and 

people feeling like things were being decided by the courts that the 

people ought to decide through their legislative bodies. Now, I happen to have a preference for legislative bodies deciding things, and 

I recognize there are pressure back and forth. 

Although, through a lot of our history there has always been the 

push for authority that has been through the executive and legislative branch. That is usually what historians chronicle, is, well, the 

President was more powerful in this period of time and less powerful in that. Now I think historians would have to look at this period 

of time and ask about the power of the court. At least, that is what 

the people are feeling. 

That is why judges, it seems like, become a lot more of a hot political topic, because people look at it and say there are things 

being decided there that I think ought to be decided by the people, 

and the court moves in and says it is a constitutional issue, and 

therefore you cannot deal with it unless you amend the Constitution. 

That has really stirred a big movement across the country. I just 

point it out to you because I think each of you could well serve on 

a Federal bench for a number of years, and I hope you do. I think 

481

each of you will do an outstanding job. It does strike me that this 

is going on. 

I appreciate, Judge Neff, your comments that this is a healthy 

thing. I begin to wonder after a while when it becomes so much, 

that then you get legislative bodies saying, how do we limit the jurisdiction of the Federal court? Let us remove this jurisdiction 

under the authority that we have in the Congress. 

I personally do not like that tool. That, to me, is a blunt instrument approach tool. It would be much better if there were judicial 

restraint, that you could just say, no, I trust the judges, that they 

will decide the issues that they should rather than us removing appellate court review in the Congressional bodies. 

I hope this is one that we can all, through a lengthy dialog and 

discussion, each looking at our own roles, be one that we work 

through over a period of time in a healthy fashion for the good of 

the Republic. I think it is a very important one, and certainly a key 

one for our times now. 

I have got to ask you, Judge Southwick, this Presidential AlsoRans, for anybody in the U.S. Senate, that is always considered a 

great topic. What is the key to being an also-ran? Is it just that 

you had this interest in people that also ran, but did not win? 

Judge SOUTHWICK. Well, I have never had anybody, to my face, 

psychoanalyze what it means to have written a book about Presidential losers, and I do not know if anybody is reflecting on what 

that might mean in here right now. There seemed to be a niche 

there. I was interested. 

Perhaps the idea of looking at what might have been intrigued 

my fancy. So it is a book on the losing major party nominees for 

200-plus years. What makes an also- ran is also what makes a 

President, just not quite as much, I suppose. They have risen to the 

penultimate level of American politics, but could not quite get 

across the finish line ahead of somebody else. So, I consider it an 

honorable category of individuals. 

Senator BROWNBACK. So is it a book of ideas or is it a book of 

failed campaigns? 

Judge SOUTHWICK. It is biographies of the losing major party 

nominees. There may be some ideas in there, but I do not particularly analyze why they lost. I just try to suggest who they were in 

biographical form. 

Senator BROWNBACK. That is an interesting topic. 

Judge SOUTHWICK. Well, I did have my concern when Senator 

Cochran mentioned that in here, about what that might engender. 

[Laughter.] 

Senator BROWNBACK. Well, there is a caucus in the U.S. Senate 

of people who swear that they never want to run for President. I 

understand there are only two members. 

[Laughter.] 

So, there are a lot of others that say, well, all right, maybe this 

year. 

We are pleased to have you all here. In the process, hopefully we 

will move your nominations going forward. I appreciate your attendance and appreciate your willingness to answer questions. 

There may be written questions submitted to the record, and if so, 

those will be sent to you directly as well. 

482

I wish you all godspeed in moving forward. This is an important 

position. To be a judge is a key position, and three of you are currently serving in that. This is something that society looks up to. 

People can be mad at a judge or concerned, but this is a position 

of honor and authority, so we want to make sure that we have people who have the highest intellectual capacity and good hearts, too, 

so that they can process and analyze the case, but also that they 

have that heart that looks at it and has wisdom along with the 

knowledge to be able to apply that. And it is key. It is a key spot. 

So, I wish you all the best. 

I do have a statement to put into the record for Senator Leahy, 

who unfortunately could not be here. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator BROWNBACK. As I said, the record will remain open for 

the requisite number of days. You may have written questions submitted to you. 

With that, thank you all for coming. 

[Whereupon, at 3:42 p.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.]

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(501)

NOMINATION OF THOMAS MICHAEL 

HARDIMAN, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE THIRD CIRCUIT 

TUESDAY, NOVEMBER 14, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:01 p.m., in room 

226, Dirksen Senate Office Building, Hon. Arlen Specter (chairman 

of the committee) presiding. 

Also present: Senator Coburn, Santorum. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. It is 

2, and we have made it a practice on the Judiciary Committee to 

start our hearings precisely on time. 

Our nominee today is Thomas Michael Hardiman, a U.S. district 

Judge for the Western District of Pennsylvania, whose name has 

been submitted by the President to be on the Court of Appeals for 

the Third Circuit. 

Mr. Hardiman comes to this position with an outstanding record, 

a very young man, at 41, to have already been a Federal judge. He 

is a graduate of Notre Dame in 1987, was a Notre Dame Scholar. 

He went to Georgetown University Law Center in 1990, and was 

associate editor and Note and Comment editor of the Georgetown 

Law Journal, which is a mark of academic distinction in law school. 

He was an associate at Skadden, Arps for 2 years. His leaving 

that firm was a sign of real dedication to something other than 

making money, because that is a firm which has long hours and 

large compensation. 

Then he was an associate at Titus & McConomy, a partner in 

Reed Smith, and, since 2003, a judge on the U.S. district court for 

the Western District of Pennsylvania. 

Judge Hardiman has very, very extensive professional and community activities. He was a delegate to the American Bar Association House of Delegates, a Fellow of the Academy of Trial Lawyers 

of Allegheny County, a Hearing Officer for the Disciplinary Board 

of the Pennsylvania Supreme Court, a member of the Federalist 

Society. They are having their annual dinner on Thursday. He has 

a very, very fine record. 

Judge Hardiman, if you would step forward. We have been joined 

by Senator Santorum, a distinguished Senator from Pennsylvania, 

502

who is completing is second term, was in the House of Representatives for 4 years, and has a phenomenal record. He is a little older 

than you, Judge Hardiman, but not much. Senator Santorum is 48. 

You two young men have accomplished a great deal before the big 

5–0. 

Senator Santorum, it is a pleasure to have you before the Judiciary Committee. 

Senator SANTORUM. Thank you, Mr. Chairman. 

Chairman SPECTER. You are recognized. 

PRESENTATION OF THOMAS MICHAEL HARDIMAN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. 

RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF 

PENNSYLVANIA 

Senator SANTORUM. I got here just in the nick of time. I should 

know better that you start your meetings on time. I apologize. 

It is an honor to be here to appear again before my colleague, 

Senator Specter, the great Chairman of this committee, and in particular to be here to introduce to the Committee someone who I 

have known for many, many years, someone who I have tremendous respect for, for his wife, for his family, his extended family. 

It is a great family in western Pennsylvania. He has provided tremendous service to the people of western Pennsylvania, as has his 

family. 

It is great to be here with them to testify here in this hearing 

before the committee. Judge Hardiman is someone who I had the 

pleasure of introducing when he was up for the district court. 

I said at that time that he was a young man with tremendous 

potential, and someone who had tremendous respect from the Bar 

in western Pennsylvania, and that he would be an outstanding 

judge in spite of his youth. 

I took that as someone who got involved in loftier offices at a 

young age that Judge Hardiman had a better temperament than 

I did when I was at his age to prepare himself for this job, and in 

fact, he has shown that. He truly has been an outstanding judge. 

I can tell you that I get—as I know, Senator Specter, you do—compliments for the people that we have nominated to the bench. 

I cannot think of any judge that I have gotten more compliments 

about, from not just litigants, but from fellow jurists, fellow judges, 

than I have from Judge Hardiman. So I am ecstatic to be here 

today to recommend him to the committee. 

He is someone who has earned the respect of his peers, earned 

the respect of the entire bar in western Pennsylvania, and I know 

that, at least from the correspondence that we have received, he is 

someone who is universally supported for this position. So it is an 

honor for me to be here to put his name forward and to introduce 

him. 

I assume, Senator Specter, even though I am sorry I missed your 

introduction, you usually go through all of the academic record, so 

I will not go through that again. 

But Tom and Lori are great citizens. Lori’s parents, who I know 

are here, and the Zappala family, which is a great western Pennsylvania family, is here also. They represent, really, the best that 

503

western Pennsylvania has to offer. So, it is a pleasure to be here 

to recommend him to the committee. 

Chairman SPECTER. Well, thank you very much, Senator 

Santorum, for those words of support and for all you have done in 

the nominating process. You and I have a Commission which 

screens for the district court, and you and I have had a voice in 

the submission of Judge Hardiman’s name to the President, and 

the President has agreed with us on this occasion, which is a great 

tribute to Judge Hardiman. Thank you very much. 

While you are standing, Judge Hardiman, if you would raise your 

right hand to take the oath before the committee. 

[Whereupon, Judge Hardiman was duly sworn.] 

Chairman SPECTER. You may be seated. Let us begin by having 

you introduce your family formally for the record. 

STATEMENT OF THOMAS MICHAEL HARDIMAN, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT 

Judge HARDIMAN. Thank you, Senator Specter. With me today is 

my wife, Lori, our children, Kate Josephine, Matthew Robert, Ann 

Marissa Frances. 

I am also privileged to have my parents, Robert and Judith 

Hardiman, and also my in-laws, Richard and Nancy Zappala, and 

my sister-in-law, Jordan, who is a resident of Washington. 

In addition, friends from Bethesda, Maryland, Dr. Frank and 

Carol Bergin, originally from my hometown of Waltham, Massachusetts, and my dear friend from Skadden, Arps, Alan Swirski and 

his wife are with us today. 

[The biographical information of Judge Hardiman follows:]

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Chairman SPECTER. Judge Hardiman, I begin by repeating a 

statement that I first heard 24 years ago from Senator Thurmond. 

The occasion was the hearing for Judge Manisman, who was up for 

district court, and in the Middle District, Judge Caldwell. 

Senator Thurmond asked them in his inimitable Southern drawl, 

‘‘If you are confirmed, do you promise to be cuhrteous?’’ Translated 

into English, that is, ‘‘If you are confirmed, do you promise to be 

courteous?’’ 

Not surprisingly, Judge Manisman said yes, and Judge Caldwell 

said yes. Then Senator Thurmond said, ‘‘Because the more pohwer 

a person has, the more cuhrteous a person should be.’’ ‘‘The more 

power a person has, the more courteous a person should be.’’ 

While I had initially thought that it was a question which had 

no significance because the nominee was bound to say that he/she 

promised to be courteous, but I have since come to think that it is 

a very profound question and a very significant answer. 

Many nominees over the years—and when Senator Thurmond is 

not here—and he is not here. Senator Thurmond was 100 on December 2, 2002, and he served until January 3 of 2003, and was 

over 100 years old when he left the U.S. Senate and passed about 

6 months thereafter. But whenever he is not here, I bring Thurmond’s views to mind. 

Many nominees have told me years after the fact that they 

thought about what Senator Thurmond had said. Because when 

you put on a black robe, especially a Federal black robe and you 

have life tenure, sometimes even a judge gets up on the wrong side 

of the bed and sometimes might not be as considerate or as 

thoughtful, and might find people not as well prepared as he or she 

thought, or not as direct. But that is a very wise thing to recall, 

so I take a few moments here today to repeat it to you. 

Judge Hardiman, the basic question which is addressed to all 

nominees is a commitment to interpret the law and not to make 

the law. Tell me what you think about that general proposition. 

Judge HARDIMAN. Thank you for that question, Senator. It is 

very important to tell you that, as a district judge, I view my role 

quite differently than the role of legislators, whether they be Representatives or Senators. 

In the legislative branch, you make the laws. They are placed 

into the U.S. Code, as you know, and our role as judges is to interpret the law, not to inject our own policy preferences. So, our task 

is to give an honest construction to what laws are passed by the 

legislature. 

Chairman SPECTER. Can you illustrate the application of this 

principle in any cases which have come before you on the district 

court? 

Judge HARDIMAN. Well, yes, I can, Senator. In some cases it is 

a rather straightforward application. It may be something as basic 

as applying Section 1988 in the Civil Rights arena when a prevailing party in a Section 1983 action, after the case it over and 

they have prevailed, then it is the judge’s duty to award attorneys’ 

fees to that prevailing plaintiff, pursuant to Section 1988 of the 

Act. 

552

In other instances, the statute may not be as direct or clear, but 

it is our role to read the statute as passed by Congress, signed into 

law by the President, and to interpret that law honestly and fairly. 

Chairman SPECTER. Do you find any problem, Judge Hardiman, 

in applying a principle of law, even though you may have very profound differences with the rule that has been articulated by the 

higher courts? 

Judge HARDIMAN. Thank you, Senator, for asking about that. Not 

at all. I have no hesitation in applying a law, regardless of what 

I might think about it. I think any good judge recognizes his or her 

place in our constitutional government, and that place is not to 

upset the will of the people as expressed through their elected representatives. So, I do not have any compunction about following the 

law as written by Congress. 

Chairman SPECTER. Can you think of any issue which has come 

before you where you had an intuitive reaction that was adverse 

to the ruling that you felt you were required to make? 

Judge HARDIMAN. I cannot say that I have, Senator. Quite honestly, we get one new civil case every business day of the year. We 

spend so much of our time reading the law and interpreting the 

law, that that does not leave much time for consideration of whether the law is prudent or might be written in a better way. 

I spend all of my time, with the assistance of my law clerks, trying to read the law and interpret it and apply it to the facts presented in any particular case. So I cannot say that I have spent 

much time at all considering the propriety of the laws that I have 

had occasion to interpret. 

Chairman SPECTER. Judge Hardiman, you have ethical issues 

which come before you. Did your service on the Disciplinary Board 

of the Pennsylvania Supreme Court give you any special insights 

into those issues? 

Judge HARDIMAN. Thank you for asking about my service on the 

Disciplinary Board, Senator. I viewed that as a very valuable exercise. We adjudicated cases of lawyers who had done terrible things, 

or at least had been accused of doing terrible things, by their clients. 

It was a real eye-opener because, in a very real sense, those of 

us who worked on the Disciplinary Board Hearing Committee saw 

the under-belly of the legal system that was very difficult. It has 

helped me keep in mind all times that not all lawyers always work 

in the best interests of their clients. It is a very delicate situation. 

If a lawyer does not appear to the judge to be working in the best 

interest of the clients, I think the way to deal with that is to have 

hearings on the record and hope that the parties might appear. 

Sometimes from the bench, or sometimes in a conference on the 

record, the court is in a position to give guidance that not only is 

for the ears of the attorney, but may also be for the ears of the litigant, him or herself. 

Chairman SPECTER. With respect to case management, I have 

seen matters which are dragged out in a very protracted way in a 

court where the judge who is assigned to the case simply lets 

events occur, with voluminous discovery, without focusing on the 

issue, without narrowing what has to be done, at enormous cost to 

both parties. 

553

Now, if there is a contested issue of fact, or if depositions are 

necessary, or if discovery has to take place, that is what the judge 

should permit. But I believe it is really an oversight in many, many 

cases of the judges not spending the time on case management to 

see to it that the matter is focused and resolved at an early stage, 

either one way or another. 

Have you had experience on the application of case management 

principles to economize on the time of the litigants, the time of the 

court, and the expense of the litigants in maneuvering and pushing 

through a case? 

Judge HARDIMAN. Yes, I have, Senator. Thank you for the opportunity to talk about case management. It is very, very important, 

in my view, that judges are proactive in managing their caseloads. 

I agree with you wholeheartedly that the litigants should not have 

to waste time and money to have their day in court. We try very 

hard in our district, and I personally, along with my colleagues, try 

to get cases to trial within 12 months. 

Certainly you have to be considerate of the particular case. Some 

complex litigation in the intellectual property field or other cases 

involving voluminous documents might take longer. I am certainly 

willing, and have granted extensions of time when good cause is 

shown, but I think it is important to move the case along. 

We have also instituted a pilot alternative dispute resolution program in our court specifically to deal with that issue. I don’t know 

if you want me to go into that program, but that’s an important 

initiative that Chief Judge Ambrose has started, and I am cochairing that initiative, to address the concern that you have 

raised. 

Chairman SPECTER. Are you sure you want to be an appellate 

judge? On the trial court, you have lots of action, see lots of lawyers, see lots of witnesses, see lots of people. 

On the appellate court, you will be cloistered. You will have all 

those lengthy, scintillating, exciting briefs to read for not only decisionmaking, but entertainment. 

Are you not a little young to be an appellate judge? I asked you 

this question when you wanted to be a district court judge, if you 

were not young to be a district court judge so I know you would 

have been disappointed not to have this question. 

Judge HARDIMAN. Thank you for that question, Senator. First, let 

me state that I thoroughly enjoy my work on the district court. I 

enjoy my colleagues. Chief Judge Ambrose has been an extraordinary colleague and leader on our court. The other colleagues have 

been wonderful. So I am grateful for the opportunity that this Committee gave me, and the full Senate gave me, to serve as a district 

judge. 

I do, however, wish to become a circuit judge. I think it would 

be an extraordinary opportunity to not only have colleagues and 

the collegiality that I share on the district court, but deciding cases 

with colleagues is an enterprise that appeals to me tremendously. 

I have had an opportunity to meet many of the judges on the 

Court of Appeals. They are extraordinarily bright, talented people. 

I would learn a great deal from them and I would hope to contribute a great deal to the decisions of that court as a colleague 

that they would like to work with. So, that would be my goal. 

554

You served on the Governors’ Judicial Advisory Commission, in 

which capacity you evaluated and recommended potential judicial 

candidates to the Governor. Did that not whet your appetite to be 

an appointor, like the Governor, or perhaps an appointor, like the 

President, or perhaps recommender like Senator Santorum or 

Arlen Specter? 

Judge HARDIMAN. Senator, thank you for asking about that. 

Chairman SPECTER. Stated differently, are you going to stay on 

the bench or are you going to run for political office, Judge 

Hardiman? 

Judge HARDIMAN. Well, with all due respect, Senator, I hold you 

and your colleagues in the legislative branch and the executive 

branch in the highest esteem. I recognize the— 

Chairman SPECTER. No plan to run against me in 2008? 

[Laughter.] 

How about for Governor in 2010? Or how about for President in 

2008, something more immediate? 

Judge HARDIMAN. I feel that I have found my home in the judiciary, with all candor, Senator. 

Chairman SPECTER. You have been actively engaged in the Big 

Brothers Big Sisters program for many years. What would you say 

to people to try to encourage more to join those organizations, to 

try to mentor the so-called at-risk young people? 

Judge HARDIMAN. I would tell them, Senator, to give it a try. I 

think the hardest challenge we face in recruiting Bigs is to get 

them to take the first step, to come into the agency and to fill out 

the application. 

Once the prospective Bigs meet the Littles, then there is tremendous desire on the part of the Bigs to serve. In my personal case, 

I had worked in the corporate capacity on the Board of Directors 

and had served as president, but I wanted to get involved with a 

Little. 

But as a husband and a father of three children, I wasn’t convinced that I had the time to do that. So we started a school-based 

mentoring program, and that is where I met my little brother, 

Saddiq. It was a 1-hour commitment a week, and I knew I could 

give 1 hour a week to a fourth grader. What I did not think I could 

do, was give more of my time. 

As it turned out, Saddiq and I became such great friends that we 

converted our match out of the school-based program and now we 

are part of the traditional program so we can spend entire days together, or entire afternoons together. So, my hope would be that 

other busy people might take that first step and they would see 

what kind of experience they might have. 

Chairman SPECTER. Is it possible for you to maintain any of 

those activities while serving on the Federal bench? 

Judge HARDIMAN. Yes, certainly it is, Senator. My relationship 

with Saddiq has continued to grow. He is now a freshman. 

Chairman SPECTER. So you are still working with Big Brothers 

Big Sisters? 

Judge HARDIMAN. Yes. I cannot raise money. I used to do a lot 

of fundraising for that organization. I am not able to raise money. 

Chairman SPECTER. I am sure you are sorry not to be able to do 

that, are you not? 

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[Laughter.] 

Judge HARDIMAN. I have redirected my efforts in ways more important than the financial, I would like to think, Senator. 

Chairman SPECTER. When I talked to you about running for office, Judge Manisman was on the State Supreme Court and ran for 

the U.S. Senate in 1964. That was the last time that has been 

done. He lost in the primary to Genevieve Blad, and he was able 

to stay on the bench. You could not do that as a Federal judge. 

Judge HARDIMAN. No. 

Chairman SPECTER. I do not even know that you could do that 

as a State Supreme Court justice any more. 

When Chief Justice Roberts was up for his confirmation, I asked 

him how he thought, at the age of 50, he would be able to handle 

Justice Stevens, who was 85, 35 years his senior, or Justice Scalia, 

who was 68 and having some very strongly held views. 

He responded by saying that he had appeared 39 times before 

the Supreme Court of the United States, and when he appeared in 

court to present his case it was a ‘‘dialog among equals’’. 

So I asked Ken Starr, who had been Solicitor General, what he 

thought of Roberts’ answer about a ‘‘dialog among equals’’. He said 

he thought it was exactly wrong. I asked Ken Olson what he 

thought about the dialog among equals. He agreed with Ken Starr. 

Olson had been Solicitor General as well. 

I appeared three times before the Supreme Court. At the podium 

with the justices, it did not seem to me it was a dialog among 

equals either. But I reflect upon how Judge Edward Becker handled his courtroom, really one of the greatest jurists of all time, a 

recipient of the Davit Award; among some 900 Federal judges, he 

was the Outstanding Federal Judge. 

Judge Becker conducted his courtroom almost as a dialog among 

equals. He had a really excellent way of dealing with his clerks 

when he would say that in their association he wanted no deference. No defence. He wanted the clerks to tell him exactly what 

they thought. That is the way he thought he would get the best 

work done. 

An argument to encourage that kind of total openness has great 

merit, so I am not going to ask you whether you agree with Chief 

Justice Roberts. He may know whatever your answer would be and 

he may have some occasion to review some of your work some day, 

but I would commend to you his approach to oral argument, his approach to involvement of the advocates and lawyers who appear before him, as did Judge Becker. 

Judge Becker’s stopwatch did not work. When he was in the middle of an argument, he went on and on if he thought he was moving in a direction of greater understanding of the case. 

Chief Justice Rehnquist was the opposite. When I argued the 

Navy Yard case in 1994, the first sitting Senator to do that since 

the 1920s, he cut me off in mid-sentence. I was later told that he 

was rather lenient because he had been looking for an opportunity 

to interrupt a lawyer in the middle of the word ‘‘if’’. 

When he presided on the impeachment proceeding of President 

Clinton—and I apologize not only to you, but all the judges in the 

impeachment proceedings—he did not cut me off. We had 15 minVerDate 0ct 09 2002 12:14 May 03, 2007 Jkt 034698 PO 00000 Frm 00563 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\34698.TXT SJUD1 PsN: CMORC
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utes for closing arguments. It was curious. It was a session not 

open to the public. All the rest of it was televised. 

When we got to the important part where the Senators spoke 

about how they were going to decide the matter, there was a closed 

session. But I give you that little insight into Judge Becker, who 

I think would be a good model. 

Without objection, I am going to introduce the statement of Senator Leahy, our distinguished Ranking Member, and in conclusion 

ask if you have anything you would like to add. 

Judge HARDIMAN. Only to thank you, Senators, for scheduling 

this hearing. I want to thank the President for the nomination, and 

thank you for those words of advice regarding Judge Becker. 

I, like Judge Becker, have scheduled many arguments on motions 

for 15 minutes a side, and an hour and 10 minutes later we are 

still hearing argument. So, I take to heart your advice in that regard. The late, great Judge Becker is certainly a role model for all 

of us coming behind him. 

Chairman SPECTER. Well, you are being considered for a court of 

the highest caliber, some great judges. I think Judge Biggs was a 

judge on the Third Circuit even younger than you. I think he was 

37. Judge Hasty, the first African-American judge to serve on the 

Federal Court of Appeals. Judge Maris. I do not mean to leave anybody out, but there are really some extraordinary jurists. That concludes our hearing. 

[The prepared statement of Senator Leahy appears as a submission for the record.]

[Questions and answers and a submission for the record follow.]

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