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S. HRG. 108–914

NOMINATIONS OF BRUCE E. KASOLD, ALAN G.

LANCE, SR., LAWRENCE B. HAGEL, ROBERT

N. DAVIS, WILLIAM A. MOORMAN, AND MARY

J. SCHOELEN, TO BE JUDGES, U.S. COURT

OF APPEALS FOR VETERANS CLAIMS

HEARING

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST AND SECOND SESSIONS

MARCH 4, 2003, JUNE 17, 2003, APRIL 1, 2004 AND SEPTEMBER 30, 2004

Printed for the use of the Committee on Veterans’ Affairs

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate 

(II)

COMMITTEE ON VETERANS’ AFFAIRS 

ARLEN SPECTER, Pennsylvania, Chairman 

BEN NIGHTHORSE CAMPBELL, Colorado 

LARRY E. CRAIG, Idaho 

KAY BAILEY HUTCHISON, Texas 

JIM BUNNING, Kentucky 

JOHN ENSIGN, Nevada 

LINDSEY O. GRAHAM, South Carolina 

LISA MURKOWSKI, Alaska 

BOB GRAHAM, Florida 

JOHN D. ROCKEFELLER IV, West Virginia 

JAMES M. JEFFORDS, (I) Vermont 

DANIEL K. AKAKA, Hawaii 

PATTY MURRAY, Washington 

ZELL MILLER, Georgia 

E. BENJAMIN NELSON, Nebraska 

WILLIAM F. TUERK, Staff Director and Chief Counsel 

BRYANT HALL, Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

MARCH 4, 2003

NOMINATIONS INCLUDING BRUCE E. KASOLD TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

SENATORS 

Page 

Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania ...................... 1

Warner, Hon. John, U.S. Senator from Virginia ................................................... 1

WITNESSES 

Kasold, Bruce E., nominee to be Judge, U.S. Court of Appeals for Veterans 

Claims ................................................................................................................... 3

Prepared statement .......................................................................................... 4

Questionnaire for Presidential nominees ....................................................... 5

Supplemental questionnaire ............................................................................ 8

Attachments ............................................................................................... 14

APPENDIX 

Campbell, Hon. Ben Nighthorse, prepared statement .......................................... 21

Bunning, Hon. Jim, prepared statement ............................................................... 21

JUNE 17, 2003

NOMINATIONS OF ALAN G. LANCE, SR., AND LAWRENCE B. HAGEL

TO BE JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

SENATORS 

Page 

Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania ...................... 23

Craig, Hon. Larry E., U.S. Senator from Idaho .................................................... 23

Crapo, Hon. Michael, D., U.S. Senator from Idaho ............................................... 24

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado ............................ 72

WITNESSES 

Hagel, Lawrence B., nominee to be Judge, U.S. Court of Appeals for Veterans 

Claims ................................................................................................................... 25

Prepared statement .......................................................................................... 26

Questionnaire for Presidential nominees ....................................................... 27

Supplemental questionnaire ............................................................................ 35

Response to written questions ......................................................................... 51

Lance, Alan G., Sr., nominee to be Judge, U.S. Court of Appeals for Veterans 

Claims ................................................................................................................... 54

Prepared statement .......................................................................................... 54

Questionnaire for Presidential nominees ....................................................... 57

Supplemental questionnaire ............................................................................ 61

Page

IV

APRIL 1, 2004

NOMINATIONS INCLUDING ROBERT N. DAVIS TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

SENATORS 

Page 

Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania ...................... 79

Cochran, Hon. Thad, U.S. Senator from Mississippi ............................................ 79

Lott, Hon. Trent, U.S. Senator from Mississippi .................................................. 80

WITNESSES 

Robert N. Davis, nominee to be Judge, U.S. Court of Appeals for Veterans 

Claims ...................................................................................................................

Prepared statement .......................................................................................... 82

Questionnaire for Presidential nominees ....................................................... 83

Supplemental questionnaire ............................................................................ 88

Attachments ............................................................................................... 94

Response to written questions ......................................................................... 110

SEPTEMBER 30, 2004

NOMINATIONS INCLUDING MARY J. SCHOELEN AND WILLIAM A. MOORMAN

TO BE JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

SENATORS 

Page 

Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania ...................... 117

Graham, Hon. Lindsey, U.S. Senator from South Carolina ................................. 131

Rockefeller, Hon. John D., IV, U.S. Senator from West Virginia ........................ 131

WITNESSES 

Schoelen, Mary J., nominee to be Judge, U.S. Court of Appeals for Veterans 

Claims ................................................................................................................... 117

Prepared statement .......................................................................................... 119

Questionnaire for Presidential nominees ....................................................... 120

Attachments ............................................................................................... 124

Supplemental questionnaire ............................................................................ 125

Moorman, Major General William A. (Ret.), nominee to be Judge, U.S. Court 

of Appeals for Veterans Claims .......................................................................... 137

Prepared statement .......................................................................................... 138

Questionnaire for Presidential nominees ....................................................... 139

Supplemental questionnaire ............................................................................ 145

Attachments ............................................................................................... 151

(1)

NOMINATIONS INCLUDING BRUCE E. KASOLD 

TO BE JUDGE, U.S. COURT OF APPEALS FOR 

VETERANS CLAIMS 

TUESDAY, MARCH 4, 2003

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 3 p.m., in Room SR–

418, Russell Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

Present: Senators Specter, Warner, and Allen. 

OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,

U.S. SENATOR FROM PENNSYLVANIA 

Chairman SPECTER. The Committee on Veterans’ Affairs will now 

begin. We have the nomination of Bruce E. Kasold, Esquire, to be 

judge of the U.S. Court of Appeals for Veterans Claims. 

I will turn immediately to the senior Senator from Virginia for 

the introduction of judge-to-be Kasold. 

Senator Warner? 

STATEMENT OF HON. JOHN WARNER,

U.S. SENATOR FROM VIRGINIA 

Senator WARNER. Thank you very much, Mr. Chairman and 

Members of the Committee. I am delighted to appear here on behalf of this distinguished nominee. 

I have known Mr. Kasold for a very long time, Mr. Chairman. 

He was on my staff as a Congressional fellow more than 12 years 

ago. Later, when I was privileged to become Chairman of the Rules 

Committee in 1995, Mr. Kasold became our chief counsel. We 

steered our way through some heavy waters in those days. He was 

always by my side and really handled the tough questions very, 

very well. 

He has an impressive resume. Graduated from the United States 

Military Academy, Mr. Kasold went on to receive his law degree 

from the University of Florida where he was on the Law Review 

and earned the prestigious order of Order of the Coith. Mr. Chairman, with all your tremendous achievements in the law, you immediately recognize in this individual an outstanding person, am I not 

correct? 

Chairman SPECTER. You are correct. He may be overqualified. 

Senator WARNER. Thank you. In addition, he received his master’s in law from Georgetown University and a master’s of law 

2

equivalent from Judge Advocate General’s graduate program collocated on the University of Virginia. He has over 20 years of service 

with the United States Army, first in the combat arms, air defense 

artillery, and then as a judge advocate in the Army’s Judge Advocate General’s Corps. Furthermore, in addition to serving as the 

general counsel for the Augsberg Military Command, Mr. Kasold 

served as assistant general counsel in the Army’s Office of General 

Counsel. He also served as a special Assistant U.S. Attorney in 

military and administrative law where he prosecuted numerous 

criminal cases before court martial and tried cases before Federal 

magistrates. 

After retiring from the military, Mr. Kasold worked in the private sector with the well-known firm of Holland & Knight. In 1998, 

Mr. Kasold moved on to his current position as chief counsel for 

both the Secretary of the Senate and the Sergeant at Arms. In this 

role, he has continued to serve the Senate, the Members and the 

staff on issues such as administrative claims and personnel matters. Without a doubt, Mr. Kasold’s education, legal experience, and 

achievements make him well-suited, Mr. Chairman, and I am 

proud to be here on his behalf today. 

Might he at this time introduce to the Chairman the numerous 

members of his family in attendance today? 

Senator SPECTER. Thank you very much, Senator Warner for 

those——

Senator WARNER. If you will allow the nominee to introduce his 

family, Mr. Chairman? 

Chairman SPECTER. By all means. 

Senator WARNER. Thank you. 

Mr. KASOLD. We have my wife Patricia, my mom Louise, my son 

Adam, and my in-laws, a host of them, Billy, Pam, my father- and 

mother-in-law, my niece, Doris. 

Chairman SPECTER. You have a wonderful family. It is quite a 

turnout as a testament to you, Mr. Kasold. And that was an elegant introduction by an elegant introducer. There was only one 

item that I had awaited some comment on. Both of you—you and 

Senator Warner—have been an avid squash player. 

Senator WARNER. That is correct. 

Chairman SPECTER. And judge-to-be Kasold is an avid squash 

player. 

Senator WARNER. That is correct. 

Chairman SPECTER. Have you ever played squash? Are you able 

to testify to his capability in that important aspect? 

Senator WARNER. No. When you get to be my age you transfer 

to tennis, and he has been a frequent tennis partner, is and will 

always be one. His golf game is awful. 

[Laughter.] 

Chairman SPECTER. You did not comment on his tennis game. I 

can tell you his squash game is excellent. I know you have had that 

knee issue, but you are too young to have given up squash, Senator 

Warner. 

Senator WARNER. You are nice to say that. Thank you. We had 

many good times together. 

Chairman SPECTER. And we shall have some more. 

3

Mr. Kasold, and General Nicholson, if you will both rise I will administer the oath.

[Witnesses sworn.]

Chairman SPECTER. You may be seated, and we shall begin with 

Mr. Kasold. Let me state for the record, in the interest of full disclosure, that Mr. Kasold is a personal friend. For many years we 

have been friends and squash opponents. And both before and after 

his nomination, he has been a tenacious player; gives no quarter. 

None is asked and certainly none is given. 

Mr. Kasold, do you care to make an opening statement? 

Mr. KASOLD. Yes, sir, I have a brief one. 

STATEMENT OF BRUCE E. KASOLD, NOMINEE TO BE JUDGE, 

U.S. COURT OF APPEALS FOR VETERANS CLAIMS 

Thank you, Mr. Chairman. I would like to also thank Senator 

Warner for his kind words. 

Sir, it is an honor to have been nominated by the President to 

serve as a judge on the United States Court of Appeals for Veterans Claims. Indeed, I can think of no greater honor than to serve 

those who have served our Nation in time of war and in defense 

of peace. 

I would like to thank my wife and son, my mom and dad, for 

their total support and love, and my in-laws who are, indeed, a second family. I would also like to thank you, Mr. Chairman, for your 

support, and Senator Graham for his support in recommending to 

the President, along with Senators Warner, Lott, Thurmond, and 

Santorum, and Congressman Tom Davis. I would like to thank 

Chesterfield Smith and Dick Duvall of the law firm of Holland & 

Knight. There are many others to whom I also extend my heartfelt 

thanks for their support and I have noted them in my complete 

statement that I would ask be included in the record. 

Mr. Chairman, my education and experience are highlighted in 

the information I have previously provided to the Committee, but 

I would like to share with you some personal insights and the way 

I try to approach life and how it might apply, should I be confirmed. First, I try to follow the Golden Rule instilled by my parents and faith, to do unto others as I would have them unto me. 

Second, I try to live, work, and play by the ideals enshrined in 

my alma mater’s motto, Duty, Honor, Country. 

And third, I am a firm believer in the fact that Senator Warner 

has crystallized in words so often in our meetings when I worked 

for him, that there is no end to what we can accomplish if we work 

together as a team and not worry about individual glory.

4

Mr. Chairman, should I be confirmed to serve as a judge on the 

Court of Appeals for Veterans Claims, I can assure you, the Committee, the Senate, and those who come before the court that I will 

endeavor to give my best, and to render decisions in a fair and impartial manner based on the applicable law and facts in the case. 

I again thank you, and I am prepared to answer any questions 

to the best of my ability. 

[The prepared statement of Mr. Kasold follows:]

PREPARED STATEMENT OF BRUCE E. KASOLD, NOMINEE TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Mr. Chairman, Senator Graham, and Members of the Committee: 

It is an honor to have been nominated by the President to serve as a judge on 

the United States Court of Appeals for Veterans Claims. Indeed, I can think of no 

greater honor than to serve those who have served our Nation in time of war or 

in preparation therefore. 

First and foremost, I would like to thank my wife and son, and my Mom and Dad, 

for their total support and love, and my in-laws who are indeed a second family. 

I would also like to thank you, Mr. Chairman, for your support and that of Senator 

Graham, in recommending me to the President, along with Senators Warner, Lott, 

Thurmond, and Santorum, and Congressman Tom Davis. 

I would also like to thank Chesterfield Smith and Dick Duvall of Holland & 

Knight, as well as the other outstanding attorneys at Holland & Knight with whom 

I have had the pleasure to work. I thank Secretary of the Senate Emily Reynolds 

and former Secretaries of the Senate, Gary Sisco and Jeri Thomson, as well as the 

Sergeant at Arms, Al Lenhardt, and former Sergeant at Arms, Jim Ziglar, all terrific and supportive bosses of mine. The Senate has indeed been fortunate to have 

such capable leadership in its officer ranks. 

Thanks, too, to Ernie Heuter, President of the National Legal Center for the Public Interest and the Federal Bar Association for their full support. Finally, my heartfelt thanks to the many fine commanders, officers, and soldiers of the United States 

Army, the professors at West Point, the University of Florida, Georgetown University, and the Judge Advocate General’s Graduate School located at the University 

of Virginia, and the Sisters and teachers at St. John’s and at Mercy High, both in 

Riverhead, NY. 

Mr. Chairman, my education and experience are highlighted in the information 

I have previously provided to the Committee, but I would like to share with you 

some personal insight in the way I approach life and how it might apply should I 

be confirmed. First, I try to follow the golden rule, instilled by my parents and faith, 

to do unto others as I would have them do unto me. Second, I try to live, work, 

and play by the ideals enshrined in my alma mater’s motto: ‘‘Duty, Honor, Country.’’ 

Third, I am a firm believer in the fact, as Senator Warner often states, that there 

is no end to what we can accomplish if we work together as a team and not worry 

about individual glory. 

Mr. Chairman, should I be confirmed to serve as a judge on the Court of Appeals 

for Veterans Claims, I can assure you, this Committee, and the Senate, and those 

who come before the Court, that I will endeavor to give my best and to render decisions in a fair and impartial manner, based on the applicable law and facts in the 

case. 

I again thank you, Mr. Chairman and Members of the Committee, and I am prepared to answer any questions to the best of my ability.

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Chairman SPECTER. Thank you very much, Mr. Kasold. Let us 

begin with your concept of the nature and extent of the Federal 

Government’s obligation to the Nation’s veterans and their survivors or dependents. 

Mr. KASOLD. Sir, our Nation has always supported the veteran. 

President Lincoln, I think, said that it was a Nation’s duty to care 

for the veteran who fought in wars and their families, and I fully 

support that view. 

Chairman SPECTER. The Court of the Veterans Claims allows 

non-attorney practitioners to appear and argue for claimants. Contrasting attorneys with non-attorney practitioners, how would that 

affect your proceedings and your ultimate adjudication of a case? 

Also include in that the so-called pro se litigants, those who represent themselves. 

Mr. KASOLD. Sir, I do not think it would affect the ultimate adjudication at all. I believe this court was designed to ensure that the 

veterans receive the benefits that they are entitled to. I think that 

actually as a judge, your case and your workload might be easier 

when the claimant is represented by counsel or by the Veterans 

Service Organizations. But I think it is the duty of the judge to assess the facts, review the case, and ensure that those benefits that 

the claimant is entitled to are in fact awarded. So I do not think 

it would impact the end results at all. 

Chairman SPECTER. The judgeship is Article I as distinguished 

from Article III judges who have life tenure. I would be interested 

in your views as to what discretion as an Article I judge you would 

give to executive branch determinations contrasted with the approach of an Article III judge with an independence of Article III 

standing. 

Mr. KASOLD. Sir, I do not think it would be any different. I have 

reviewed the hearings before this panel and Chief Judge Nebeker, 

the first chief judge of the court, I think addressed it the way I 

view it, that deference is given to an agency when it is interpreting 

its own organic legislation. Questions of law are determined de 

novo, and the legislation creating this court makes it clear that 

questions of fact are determined by the Board of Veterans’ Appeals 

and overturned only when not substantiated fully. 

Chairman SPECTER. Would you hesitate to reverse a Veterans’ 

Administration decision that is consistent with long-standing VA 

practice but is contrary to your best reading of the words of the 

statute or reasonable statutory interpretation? 

Mr. KASOLD. No, sir. If the best reading of the statute was A, for 

example, I would not hesitate to overturn an interpretation that 

had B. I recognize that regulations that have been around for a 

long time are given certain weight, but I also recognize that this 

court is new. It has been around for about 12 years, and that many 

of the regulations in the Veterans’ Administration have not had a 

judicial review. So all of that would factor into an evaluation of any 

interpretations. 

Chairman SPECTER. Would the potential cost of overturning a 

historical but arguably erroneous statutory interpretation enter 

your decisionmaking in such a case? 

Mr. KASOLD. Sir, I do not think the cost of a decision based on 

clear reading of the statute would enter into a determination. If the 

18

statute is somewhat ambiguous, cost might be a consideration as 

to what was really meant by the statute. But if it is clear, cost 

would not enter into it. 

Chairman SPECTER. There is a long-standing principle, justice 

delayed is justice denied, and in many cases it does a veteran little 

good to prevail on a claim after years of decisions, appeals, remands, et cetera. Have you studied the scope of authority that veterans court judges have to sua sponte craft remedies? And in what 

sorts of cases, if any, should the veteran court judges directly 

award compensation to veteran claimants or remand the case to 

the VA to craft the appropriate remedy? 

Mr. KASOLD. Sir, I would not say I have studied the scope of authority of the court to sua sponte award a particular remedy. I am 

aware that this is an appellate court. I am aware of its scope of 

review. I am also aware of, or at least my understanding of the legislation is that Congress intends for benefits to receive their benefits. Congress has directed the Government, through the Veterans’ 

Administration, to assist the veteran in developing the facts necessary to support a claim. And Congress has directed the Secretary 

and the Board of Veterans’ Claims to balance out—if it is evenly 

balanced, to give the benefit of the doubt to the claimant, and in 

your most recent legislation you directed the court to consider that 

requirement to have that balance. 

I think as a judge, the whole purpose for this court is to ensure 

that the veterans receive the benefits that they are entitled to. It 

would certainly be my personal goal to bring that about as quickly 

as possible. Whether or not the case gets remanded depends on the 

facts of the case; whether or not you can decide it on the facts before you and the law before you depends on the individual case. 

Chairman SPECTER. Public Law 107–330 provides that in deciding a case, the Court of Appeals must take into account the VA’s 

application of the so-called ‘‘benefit-of-the-doubt rule.’’ What is your 

understanding of this requirement and how would you analyze the 

VA’s compliance with the benefit of the doubt rule? 

Mr. KASOLD. Sir, my understanding is that if you have a set of 

facts—and I do not mean one on one side and three on the other 

side, but just a set of facts that leave you in some kind of doubt, 

that benefit of the doubt is to go to the veteran in the award of 

the benefits. At the appellate level, I believe Congress has made 

clear that we are to take that into consideration, and in assessing 

the case, make a determination as to whether or not that benefit 

of the doubt has, in fact, been given to the claimant. 

Chairman SPECTER. With your 21 years of active duty in the U.S. 

Army, and the U.S. Senate for the last 7 years, do you believe that 

your almost 30 years of Government service might be seen by VA 

claimants as a cause for pro-Government bias? How would you deal 

with that perception if, in fact, you found it to exist? 

Mr. KASOLD. I do not think it would be fair, but I recognize that 

some people may come with a view that an individual who has 

worked for the Government might be biased. If they were aware of 

my actual career, much of it in the JAG Corps for the Army, in 

that position you serve the Government at times and at other times 

you actually serve legal assistance in assisting the soldier. I actually believe most veterans would view somebody with that type of 

19

experience, JAG experience and having knowledge of the JAG 

Corps, would probably have a bias that you would get a fair hearing. 

But I believe the way you take care of the bias is by being fair 

and impartial in your dealings with claimants, from the hearings 

that might take place to writing a clear opinion based on fact and 

law so that they can understand, so that there are no biases to be 

taken from the opinion. 

Chairman SPECTER. Mr. Kasold, I know the answer to this next 

question, but I am going to ask it for the record. There is a large 

backlog of litigation and I know from our 6:30 a.m. meetings you 

are always there ahead of time. Are you prepared to work hard and 

be prompt and do your utmost in diligence to perform your duties 

and to get rid of the backlog and move very promptly on judicial 

decisions? 

Mr. KASOLD. Yes, sir. 

Chairman SPECTER. Senator Thurmond made a comment in a 

hearing during my early days on the Judiciary Committee more 

than 20 years ago. There were two judges from Pennsylvania, two 

nominees, and Senator Thurmond said, ‘‘If you are confirmed, do 

you promise to be courteous?’’ That is translated into, if you are 

confirmed, do you promise to be courteous? I thought to myself that 

was a peculiar question because what are they going to say except 

yes? And not surprisingly, both nominees answered yes. 

Then Senator Thurmond said, ‘‘the more power a person has, the 

more courteous the person should be.’’ Translated into, the more 

power a person has, the more courteous the person should be. 

Whenever I am at a hearing for a judge nomination and Senator 

Thurmond is not present, and he had been on this Committee up 

until his term ended last January 3, when he is not here I always 

ask that question. I know you are about to promise to be courteous, 

right? 

Mr. KASOLD. Yes, sir. 

Chairman SPECTER. But remember that once you have on that 

robe you have a great deal of power. Some of the lawyers are not 

going to suit your fancy. Some of them may not suit anybody’s 

fancy. And especially since you will not have lawyers, you will be 

having non-lawyers represent people who will not be familiar with 

the litigation rules, and pro se, Latin for representing yourself. So 

bear that in mind. Many nominees whom I have given the Thurmond admonition are to be reminded later how helpful it is to 

think about that when they tend to be irritated, or out of sorts, or 

feeling a little above the reach of common people who do not have 

black robes. 

Mr. Kasold, I am delighted to see you here today. It has been a 

long struggle getting you here, for reasons which we do not need 

to discuss. But I am confident that your confirmation will proceed 

rapidly, notwithstanding the Estrada filibuster. 

Chairman SPECTER. That concludes the hearing. 

[Whereupon, at 4:08 p.m., the Committee was adjourned.] 

(21)

A P P E N D I X 

PREPARED STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO

Thank you, Mr. Chairman. I appreciate your convening today’s hearing which will 

give us the opportunity to hear testimony from Bruce Kasold, nominee to be Judge, 

Court of Appeals for Veterans Claims, and John Nicholson, nominee to be Under 

Secretary for Memorial Affairs, Department of Veterans Affairs. I welcome both witnesses and look forward to their testimony. 

Mr. Kasold, I understand you have spent some time here on the Hill as Chief 

Counsel for the Secretary of the Senate and the Rules Committee and also have experience working with the Pentagon Credit Union. Your work reviewing benefit 

claims and issuing decisions on appeals for the VA will be an important part of the 

effort to expedite the claims process. Each veteran is entitled to fair and timely consideration of his or her appeal. 

And, Mr. Nicholson, I understand you are originally from Strubel, Iowa, which 

has a population of about 80 persons. That is even smaller than my town of Ignacio, 

Colorado. I think you will probably agree with me that lots of very good people come 

from the small towns of this Nation. 

Throughout my terms in the House and Senate, I have been especially interested 

in seeing that we honor the memory of those who have lost their lives serving in 

our Nation’s wars. And, one of the best ways we can do that is to recognize and 

protect the sanctity of veterans’ memorials. In fact, I have a bill in the Senate right 

now that would prohibit the desecration of veterans’ memorials and permit guide 

signs to veterans’ cemeteries on Federal aid highways. 

I am encouraged that the Department’s study last year provided a nationwide review of conditions at our VA national cemeteries, and I am hoping that the increase 

in funding for the National Cemetery Administration will allow for some new cemeteries where they are needed. 

I have always supported the VA’s efforts to do the absolute best they can with 

the money they are provided. This year, however, I am enormously concerned that 

the VA health care system is not currently able to meet the needs of our veterans. 

We have an obligation to help them get the care they need and deserve. 

Last month, I met with Secretary Principi to discuss the VA’s enrollment cuts. 

Though he has had to step up to the plate to make some hard calls, I was encouraged by his commitment to our veterans. I believe our Department of Veterans Affairs is being run by someone who truly has the welfare of veterans at heart. 

I believe it is important that we quickly move ahead with these nominations and 

give the Secretary the best help possible in tackling the tough job ahead. 

Thank you, Mr. Chairman. 

PREPARED STATEMENT OF HON. JIM BUNNING, U.S. SENATOR FROM KENTUCKY

Thank you, Mr. Chairman. 

I am glad this Committee is acting so quickly to fill vacant positions at the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. When 

confirmed, these nominees will help fulfill our country’s commitment to our veterans 

and improve the services the government provides. 

General Nicholson, I met with you last week and we had a good and frank discussion. I wish you the best in your new position, and I urge you, as strongly as possible, to keep this Committee informed and to always speak the truth—good or bad. 

Mr. Kasold, I congratulate you on your nomination. You will hold an honored and 

sacred position. I know this because one of my sons is a Federal judge, and I know 

the rigors of the job. I trust that once confirmed, you will always be mindful of the 

reason you were nominated, to serve our Nation’s veterans. 

I wish both of you the best. Thank you, Mr. Chairman. 

(23)

NOMINATIONS OF ALAN G. LANCE, SR., AND 

LAWRENCE B. HAGEL TO BE JUDGES, U.S. 

COURT OF APPEALS FOR VETERANS 

CLAIMS 

TUESDAY, JUNE 17, 2003

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:37 p.m., in room 

SR–418, Russell Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Specter, Campbell, Craig, and Crapo. 

OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,

U.S. SENATOR FROM PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. 

The Veterans’ Affairs Committee will now proceed with the nominations of Mr. Alan G. Lance of Idaho and Mr. Lawrence B. Hagel 

of Virginia. 

We have with us two distinguished senators from Idaho, and it 

is a great pleasure for me to yield to my colleague, Senator Larry 

Craig, the senior Senator from Idaho. 

STATEMENT OF HON. LARRY E. CRAIG,

U.S. SENATOR FROM IDAHO 

Senator CRAIG. Mr. Chairman, thank you very much. Both Senator Crapo and I are pleased to be before the Committee today to 

introduce the Committee to Al Lance, President Bush’s nominee for 

the United States Court of Appeals for Veterans Claims. 

I think it is because of Al’s extensive experience, both as an Attorney General of the State of Idaho, a member of the Idaho Legislature, and for years, a man who has worked his way up through 

the ranks of veterans organizations to become a National Commander of the American Legion, that President Bush felt he was 

eminently qualified to serve in this capacity. 

I can speak for Al and give him, I think, the highest praise that 

any one person can give another and say that he is my friend and 

I have had the privilege of working with him over the years to 

know him and to trust him, to respect his positions, both his legal 

positions as Attorney General of the State of Idaho. 

And then I watched him perform marvelously well on behalf of 

veterans across this Nation as he served as Commander of the 

American Legion. 

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Al and his family, and I and my wife, Suzanne, have known each 

other a good number of years. I respect him highly and I was extremely pleased that President Bush would nominate him and very 

pleased, Mr. Chairman, that you now have him before our Committee. 

Al Lance will serve this Nation and the veterans of this Nation 

very, very well in the capacity he has been asked to serve in. 

Thank you. 

Chairman SPECTER. Thank you very much, Senator Craig, for 

coming today and for making the recommendation. 

Senator Crapo? 

STATEMENT OF HON. MICHAEL D. CRAPO,

U.S. SENATOR FROM IDAHO 

Senator CRAPO. Thank you very much, Mr. Chairman. I, too, can 

give Al Lance my strongest recommendation and endorsement to 

the Committee. 

As a matter of fact, as I was walking over here from my office, 

I was thinking about the time I have spent with Al Lance. And this 

is one of those candidates for an office who come here to Washington for their hearing for whom I can honestly say I know him 

very well. We served in the Idaho Legislature together. When he 

decided to leave the legislature and run for Attorney General, I 

think I had already left and run for Congress or it was right in the 

same time frame. 

We worked with each other on our respective campaigns and on 

behalf of many, many other candidates in Idaho for their campaigns. He has been very extensively involved in Idaho politics. 

I am an attorney, as you know, and Al Lance as our Attorney 

General has worked very closely with me on many, many issues 

that have involved the State of Idaho and the Federal Government 

in terms of protecting States rights and standing up for the interests of the State of Idaho. 

As Senator Craig has so well stated, Al has, throughout all of 

that time, been an unequaled advocate for our veterans. I can honestly say that, as Larry said, he is a friend, and that the President 

of the United States could not have made a better selection. 

Chairman SPECTER. Thank you very much, Senator Crapo. 

You come very, very highly recommended, Mr. Lance, and your 

background is outstanding. I do not want to prejudge your nomination before at least I have a chance to hear from you, but it is always supportive to have both United States senators, and especially when one of the senators, Senator Craig, is a Member of this 

Committee. 

It seems to me on your career path you might have chosen to be 

headed to the U.S. Senate. But this nomination and confirmation 

is not a detour necessarily. It may be in line. But only time will 

tell. I say that only in jest. You have got two young vigorous senators here. 

Senator CRAPO. We were trying to figure out which one of us you 

were suggesting he knock off. 

Chairman SPECTER. I saw that contemplation, Senator Crapo. I 

know the feeling exactly, and that is why I detoured on my line of 

diversion. 

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I have a strong suspicion that Senator Craig and Senator Crapo 

have other duties this afternoon, other things they have to attend 

to. So they do not need me to tell them they are free to leave. Neither is under subpoena to be here. 

Senator CRAIG. I am going to change seats and listen to Mr. 

Lance’s testimony. 

Chairman SPECTER. I have deferred my comments until we heard 

from two introducing senators because my responsibilities require 

me to stay, but at least Senator Crapo is moving onto other duties. 

I welcome both Mr. Lance and Mr. Hagel to this hearing. Let me 

begin by asking you, Mr. Lance, to introduce any members of your 

family who are present. 

Mr. LANCE. Thank you, Mr. Chairman, and thank you for the opportunity. My wife of 34 years, originally from Sioux Falls, South 

Dakota, Sherrie. Our daughter, Lisa, who graduated from Willamette Law School, is a member of the Idaho Bar, and works for the 

Department of the Interior as an attorney. Lisa is a lawyer and 

works for them there. And recently, Mr. Chairman, last month, she 

presented us with the newest member of our family, my son-in-law, 

Brian Rund. Brian is a fine young man who is finishing his master’s program here at American University in Washington, DC. 

Brian and Lisa live in Arlington, Virginia. 

Our oldest son, Mr. Chairman, Alan Jr., lives in Las Vegas, Nevada. He is not with us as a result of his conflicting schedules. 

And last, but certainly not least, our youngest son, Luke who 

lives in Sacramento, California, and attends American River College as a business student. And when not engaged in his studies, 

he is a staff member for the Department of Justice Litigation Division of the Office of the Attorney General of California. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you. 

Mr. Hagel, would you care to introduce any members of your 

family who may be present? 

STATEMENT OF HON. LAWRENCE B. HAGEL, NOMINEE TO BE 

JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS 

Mr. HAGEL. Thank you, Senator. 

Accompanying me today is my wife, Virginia, of 30 years and my 

daughter, Jennifer, who has traveled here today from Chicago, 

where she is a member of the national touring company of the Second City Theatre. 

My son, Jack, who has also traveled here from Rhode Island He 

is a reporter with the Associated Press. 

My son, Joseph, is also here. Joseph just graduated from high 

school in Fairfax, Virginia, and is headed next year on a fellowship, 

under the auspices of the Rotary Club, to study in Argentina for 

a year. 

My brother, Randy, is here with his family, his wife Donna and 

their two children, Laura and John. 

I also have a number of colleagues from the Paralyzed Veterans 

of America here with me. And good friends. 

[The prepared statement of Mr. Hagel follows:]

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PREPARED STATEMENT OF LAWRENCE B. HAGEL, NOMINEE TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Mr. Chairman, thank you, and the Members of this Committee for convening to 

consider my nomination to what I believe is an extremely important position in our 

government. 

The U.S. Court of Appeals for Veterans Claims first came to my attention in 1989 

while I was serving on active duty as a Marine Corps Judge Advocate. News of the 

Court, then called the U.S. Court of Veterans Appeals, came by way of an article 

in a legal publication announcing the passage of the Veterans’ Judicial Review Act. 

Reading the article, I was struck with the significance of this event and of its potential impact on the administration of veterans benefits determinations. As I reflected on the newly enacted statute and gathered more information on the administration of the veterans benefits system, I came to realize that my background as 

a lawyer combined with my years of military service might be put to best use advocating for veterans before this new court. This course particularly appealed to me 

because, during my years in the Marines, I had witnessed so many exceptional examples of sacrifice and of selfless service to our country by young Americans. There 

appeared to be few career choices better than helping these veterans to obtain benefits earned by their dedicated service to America. Consequently, I set out to seek 

such a position, eventually leaving the Marine Corps to accept a position as counsel 

with the Paralyzed Veterans of America, joining PVA in January 1990. 

From this vantage point I have appeared before the Court on behalf of veterans 

and Veterans Service Organizations, served on the Court’s Rules Advisory Committee and participated in its judicial conferences. But most importantly, I have 

seen firsthand the impact of the Court on the lives of individual veterans and on 

the system of benefits designed to serve them. In short, over the past thirteen and 

one-half years, I have developed a deep appreciation for the significance of the 

Court’s work. I do not take lightly the responsibility of the position for which I have 

been nominated. 

This Nation has provided veterans of its armed services with a wide range of benefits. Additionally, Congress has enacted a number of procedural safeguards governing the adjudication of applications for those benefits. In simple terms, the 

Court’s job, as an independent reviewer of agency action, is to ensure, within its assigned scope of review, that the laws enacted by Congress are followed. In the process, each veteran, whether prevailing before the court or not, must be treated fairly 

and with dignity. If confirmed and appointed, I pledge my best efforts to accomplish 

this. 

In considering my qualifications for this position, I ask the Committee to be cognizant not only of my service to veterans and Veterans Service Organizations, but 

also of my significant involvement in other legal issues, including representing the 

United States in a number of capacities. This experience, which involved appearing 

on behalf of the government in both criminal and civil matters and advising government officials regarding legal responsibilities, is approximately equal in time to that 

spent representing veterans. My work as a government counsel will, I believe, help 

me to have a balanced perspective on the legal issues faced by the Court. 

In closing, I want to thank the Committee for the opportunity to present this 

statement, and would be happy to answer any questions the Members of the Committee may have.

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RESPONSE TO WRITTEN QUESTIONS SUBMITTED TO LAWRENCE B. HAGEL,

NOMINEE TO BE JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Question 1. The issue of statutory construction and the so-called ‘‘plain meaning’’ 

rule, has been pivotal in many critical cases before the U.S. Court of Appeals for 

Veterans Claims. 

A. Would you hesitate to reverse or remand a decision by the Department of Veterans Affairs (VA) that is consistent with long-standing VA practice—but is contrary 

to your best reading of the express words of a statute? 

Response. No. The age of a VA practice, or regulation for that matter, is not the 

test of its validity. This is especially true since the practices and regulations of VA 

until 1988 were not generally subject to judicial review. If, however, the language 

of the statute was unclear or subject to more than one reasonable interpretation, 

consideration of such matters as legislative history and consistent agency interpretation would be proper.

B. Would your judgment on such a question be influenced by your conception of 

the ‘‘common sense’’ of the VA’s historical interpretation? 

Response. If the VA interpretation conflicted with the plain language of the statute, its ‘‘common sense’’ would not be a basis for upholding the VA interpretation.

C. How about your sense of what is the preferable or most logical policy? 

Response. No. In my view it is not the place of the Court to determine what is 

good policy. Establishment of policy is the responsibility of Congress and VA when 

VA is acting within the limits of its authority to implement laws passed by Congress.

D. Would the potential cost of overturning a historical—but, arguably, erroneous—statutory interpretation enter into your decisionmaking in such a case? 

Response. The cost that VA may incur is not a proper element of making a decision regarding the validity of a particular policy or regulation.

Question 2. The Committee receives extensive mail expressing a common theme: 

justice delayed is justice denied, and it does a veteran limited practical good to prevail on a claim if it takes years of decisions, appeals, and remands to ultimately 

prevail. 

A. Do you think it takes too long for a claim to work its way through the administrative and judicial review process? 

Response. At least for certain cases, yes. I believe there is unanimity in both the 

veterans and VA communities on the response to this question. The Secretary has 

expressed his personal concern regarding this issue, and the Veterans Service Organizations have expressed this concern to Congress for some time. It is, however, important that the claim be adjudicated correctly. Consequently a focus on speeding 

up the adjudication process must not be achieved by unduly sacrificing the quality 

of the decision or important statutory rights of the claimant.

B. If so, do you have any proposed remedies the Committee might consider to 

speed up the process? 

Response. Finding the appropriate balance between speed and quality is at best 

a difficult task. I do not believe there is any single solution to resolve this problem, 

which involves the quality of the initial agency decision, the handling of remanded 

decisions, and the structure and authority of the appellate agencies. 

Several individuals and organizations (including VA), have offered remedies, some 

of which are highly controversial. Properly constructed and evaluated demonstration 

projects designed to test the effect that some of these suggestions have on the speed 

and accuracy of claims processing may provide sufficient empirical data upon which 

to base appropriate legislation or changes in practice and to convince these important critics of the value of change.

C. Do you know the extent of the authority of a judge in the U.S. Court of Appeals 

for Veterans Claims to, sua sponte, craft a remedy in a given case? 

Response. The jurisdiction and scope of review of the Court are proscribed by the 

enabling legislation. For matters that the statute reserves to the Secretary, those 

cases must be remanded for the Secretary to exercise his judgment. Subject to the 

judicial policy against issuing advisory opinions, I do believe, however, it is helpful 

for the Court to answer completely where possible the legal questions presented to 

it.

D. In what sorts of cases, if any, can that Court directly award, e.g., compensation 

to veteran-claimants? 

Response. There are very few cases where the Court can award benefits directly 

to the veteran. In order for the Court to do so the law would have to clearly dictate 

the right to a benefit and the evidence in the case would need to be fully developed. 

52

There are some cases, however, where Court rulings guarantee that the veteran will 

ultimately receive some benefit. I can think of at least two possibilities. One is a 

direct finding that a particular disability is service connected. The second would be 

a situation where the denial of benefits turned solely on the application of a regulation that the Court found to be contrary to law, e.g., Gardner v. Derwinski. While 

these findings will ultimately result in benefits, the individual case would still have 

to be remanded to the VA to adjudicate the level of disability and the amount of 

retroactive benefits due.

E. Should the Court have that authority? 

Response. In general, I do not believe that the Court is in the best position to 

determine the level of disability or to calculate the precise value of an award of a 

particular benefit to a veteran. Consequently, when entitlement has been established as discussed in the previous answer, the implementation of that decision in 

a particular case lies within the expertise of the Secretary, subject to the appellate 

process.

F. When must the Court remand a case and allow VA to craft the appropriate 

remedy? 

Response. When proper adjudication of the case requires action committed by 

statute to the Secretary.

G. Do you agree with these rules? 

Response. Yes, in general. But I do believe the Court should do what it can in 

its decisionmaking to reduce the possibility that the case will return to the BVA or 

the Court on a subsequent appeal.

H. What do you think the rules governing such matters should be? 

Response. If the Court is truly to be viewed as an appellate court, I believe the 

rules as they exist are appropriate. If Congress wanted to expand the ability of the 

Court to make more decisions that would result in the direct award of benefits by 

the Court, it would need to change the standard of review to permit de novo review 

of factual matters. I do not particularly favor this.

Question 3. As the General Counsel of Paralyzed Veterans of America (PVA), 

you’ve served with and supervised other attorneys, some of whom will presumably 

appear before you if you are confirmed. 

A. Do you think their clients might be perceived as having an unfair advantage? 

Response. It is not possible for me to know the perceptions of others. If confirmed, 

it would be my responsibility to judge each case on its own merits applying the appropriate law to reach a decision. This is what I intend to do. In time, those interested will review the decisions of which I have been a part and hopefully judge that 

I have been true to this aspiration.

B. Would the fact that a PVA staff member is serving as counsel to a claimant 

be cause for recusal? 

Response. No, that fact alone would not be sufficient cause for recusal.

Question 4. Since 1992, you have been a member of the Rules Advisory Committee 

of the Court of Appeals for Veterans Claims. 

A. Please describe the work you’ve done on the Committee. 

Response. My term with the Committee ended on June 30, 2003. Over the eleven 

years I served on the Committee, I offered suggestions regarding rule changes, considered and debated rule changes offered by others, performed research for consideration by the Committee members regarding proposed rule changes and drafted proposed final language of proposed rule changes adopted by the Committee.

B. Please describe changes in the Rules of Practice that have been made since 

you’ve been a member of the Committee. 

Response. It is difficult to recall, in absolute detail, all of the rule changes that 

have taken place during my eleven years as a member of the Committee. However, 

some of those changes involved: 

• Introduction of the concept of limited appearance to enable representatives to 

evaluate cases for representation. 

• Permitting the filing of various papers by facsimile. 

• Time limits for filing various papers with the Court. 

• Changes to the form of papers and expansion of the minimum length of briefs 

to be filed with the Court. 

• Standards for granting extensions of time to file required documents with the 

Court. 

• Rules evidencing date of mailing of documents to the Court. 

• Simplification of language to accommodate pro se appellants. 

• Citation rules regarding single judge opinions and other nonprecedential authority. 

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• The design and requirements of various forms included in the appendix to the 

rules.

C. Has the Court been responsive to the recommendations of the Rules Advisory 

Committee? 

Response. Rule changes suggested by the Committee are reviewed and discussed 

by the Board of Judges. While the Committee is not privy to those discussions, the 

Court has adopted a number of the changes recommended by the Committee. This 

causes me to believe that the Court gives serious consideration to Committee recommendations. 

Question 5. In one of your responses to the Committee’s Questionnaire for Presidential Nominees, you answered that you currently receive monthly disability compensation from VA for a service-connected disability, and that your mother receives 

Dependency and Indemnity Compensation from VA as a result of your father’s death 

on active duty. I do not want to inquire into the personal details of either your claim 

or your mother’s. But I am interested in learning whether you or your mother were 

forced to gain unwanted personal experience in the appellate mechanisms of the 

claims adjudication process. 

A. Did you or your mother have to appeal a VA Regional Office denial of your 

claims? 

Response. No.

B. How far up the appellate ladder did you or your mother have to go, if at all, 

before your claims were satisfactorily resolved? 

Response. No appeal was filed in either case.

C. What lessons, if any, did you take from that experience to your work as a veterans’ advocate? 

Response. Both my mother and I were represented by non-lawyer service officers 

of Veterans Service Organizations. In addition, I represented my mother in one particular part of her claim. My experience in both situations has led me to believe that 

a veteran is best served to have some knowledgeable representative assist in the 

prosecution of the claim at the agency of original jurisdiction.

D. What lessons would you take to your work on the bench? 

Response. Having experienced the claims process as a claimant and as a representative, if confirmed, I believe I would have an appreciation for obstacles facing 

claimants unfamiliar with VA as well as the complexities faced by VA adjudicators.

Question 6. In your article, ‘‘Five Years Under the Veterans’ Judicial Review Act: 

The VA is Brought Kicking and Screaming Into the World of Meaningful Due Process,’’ 46 Maine Law Review 43 (1994), you wrote there is a need for more trained 

advocates who were knowledgeable in the law of veterans’ benefits. 

A. Is a lack of properly trained advocates still a problem today? If so, how can 

it be addressed? 

Response. This remark referred to the high pro se rate the Court was experiencing at the time the article was crafted and the limited availability of properly 

trained or resourced advocates to represent the interests of veterans before the 

Court. Since 1994, the Veterans Consortium Pro Bono Program and the National 

Organization of Veterans Advocates have made great strides in increasing the number of advocates qualified to represent veterans. The Veterans Consortium alone, 

with the strong support of four Veterans Service Organizations, has trained over 

1,700 lawyers licensed in 49 states, the District of Columbia and the Commonwealth 

of Puerto Rico. While the initial pro se rate remains high, a much greater number 

of veterans whose cases merit it are now afforded representation than at the time 

of this article. 

For the reasons described in the referenced article, adequate representation of 

veterans remains an important issue and warrants constant monitoring.

B. What is the Court’s role in addressing that problem? 

Response. By its active role in the creation of the Veterans Pro Bono Program and 

its strong continued support, the Court has taken steps to address this issue. The 

Court should continue to be sensitive to this issue and should be alert to ensure 

that significant precedential decisions are not issued without the benefit of full representation on both sides of the issue.

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Chairman SPECTER. Thank you very much, Mr. Hagel. If you two 

gentlemen would stand for the administration of the oath. 

[Witnesses sworn.] 

Chairman SPECTER. You may be seated. 

Mr. Lance, do you care to make an opening statement? 

STATEMENT OF ALAN G. LANCE, SR., NOMINEE TO BE JUDGE, 

U.S. COURT OF APPEALS FOR VETERANS CLAIMS 

Mr. LANCE. Mr. Chairman and Members of the Committee, let 

me thank you for having this hearing. 

Let me extend my thanks as well to Mr. Tuerk and the staff 

members for their assistance during the last few weeks in getting 

prepared for this hearing today. 

In addition, I would like to thank our Congressional delegation, 

Senator Craig, Senator Crapo, Mike Simpson, and Congressman 

Butch Otter, for their continuing support, along with our Governor 

Dirk Kempthorne, who is a former colleague of yours. 

In addition, my thanks to Thorpe Orton and Janet Carter and 

Attorney General Lawrence Wasden of the Office of the Attorney 

General of the State of Idaho, for assisting me in locating certain 

documents and providing them to the Committee. 

Let me also thank, Mr. Chairman, my former colleagues, the Attorneys General of the United States, all of whom have endorsed 

me for this position, with special thanks going to Attorney General 

Mike Fisher of Pennsylvania and former Attorney General Bob 

Butterworth of Florida for coauthoring the letter of endorsement 

and representation. 

Mr. Chairman, my ambition and my livelihood for the last 30 

years has been devoted to the law as a means of making a living. 

For the last quarter of a century my passion has been serving veterans and I would like to continue to do so. 

Thank you. 

[The prepared statement of Mr. Lance follows:]

PREPARED STATEMENT OF ALAN G. LANCE, SR., NOMINEE TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

I want to thank Chairman Specter, Senator Graham, and the Committee for holding this hearing today to consider my nomination to serve as a judge on the United 

States Court of Appeals for Veterans Claims. It is an honor to appear before you. 

For more than 30 years, I have been dedicated to the Armed Forces of the United 

States and the brave men and women who served our country. During my career, 

I have been a soldier, an attorney, a veterans’ advocate, and a political leader. I am 

committed to the issues that are important to our Nation’s veterans. Promises were 

made to them in return for their service, and I have fought to make certain those 

promises are kept within the parameters of the law. 

After graduating from South Dakota State University as an Army Scholarship recipient, Distinguished Military Student and Distinguished Military Graduate, I was 

commissioned in the Regular Army in June 1971. I attended the University of Toledo School of Law, where I was member of the Law Review. I graduated in December 1973 and was admitted to the Ohio Bar on April 27, 1974. I then matriculated 

from Judge Advocate General’s School at the University of Virginia in 1974. My assignments included: Command Claims Officer, 1974–75; Defense Counsel, 172nd Infantry Brigade, Ft. Richardson, AK, 1974–77; Chief of Criminal Defense, 172nd Infantry Brigade, Ft. Richardson, AK, 1975–76; Military Magistrate, 172nd Infantry 

Brigade, Ft. Richardson, 1975–76; Prosecutor, Federal District Court of Alaska, Anchorage, AK, 1976–77; Command Judge Advocate, Corpus Christi Army Depot, Corpus Christi, TX 1977–78. Prior to my honorable discharge as a Captain in 1978, I 

was honored to receive a National Defense Service Ribbon and the Army Commendation Medal. 

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I became active and involved in veterans issues shortly after discharge. After 

moving my family to Meridian, Idaho in 1978, I joined American Legion Post 113, 

where I served as Post Commander on four separate occasions. My involvement 

with the American Legion included several positions at the local, state, and national 

levels, including: Department of Idaho State Judge Advocate, 1981–88; Department 

of Idaho State Commander, 1988–89; Ex-Officio member of the National POW/MIA 

Committee, 1996–1999; Alternate National Executive Committeeman, 1992–94; National Executive Committeeman, 1994–96; Chairman, National Foreign Relations 

Commission 1996–97; National Legislative Consultant, 1998–99; Chairman, National Advisory Committee, 2000. 

My fellow American Legion members elected me to serve as the National Commander of the American Legion for 1999–2000. The American Legion provides representation to over one-fifth of the veterans who make claims for benefits with the 

Department of Veterans Affairs and Board of Veterans’ Appeals. My long service in 

the American Legion has provided me with a detailed background and familiarity 

with the issues that are so important to our veterans, and that routinely are raised 

in cases before the United States Court of Appeals for Veterans Claims. 

I have also enjoyed a long and varied career as a practicing attorney. I operated 

a private law firm in Meridian, Idaho from 1978–94. Meridian was a growing, but 

small, community during that time period, and my law practice encompassed a variety of areas. I also stayed active in community, serving as President of the Meridian 

Chamber of Commerce and forming a new Rotary Club chapter. 

I also became active in state politics. In 1990, I was elected to serve as a member 

of the Idaho House of Representatives. After one term in the House, my colleagues 

elected me to serve as the House Majority Caucus Chairman. I served in the Idaho 

House of Representatives for two terms, from 1991–94, with assignments on the 

Committees on State Affairs, Judiciary, Rules and Administration, Transportation 

and Defense, and Ways and Means. 

In 1994, I was elected to serve as Idaho’s Attorney General. The Attorney General 

is a member of the executive branch and is the chief legal officer of the State. The 

Attorney General is also assigned the constitutional duty of managing the State’s 

endowment lands as a member of the State Board of Land Commissioners. I was 

also active in the National Association of Attorneys General, serving on the Executive Committee, and I was also elected to serve as the Chairman of the Conference 

of Western Attorneys General from 1999–2000. I am honored to have received the 

recommendation of all of my fellow Attorneys General for this nomination. The people of Idaho reelected me to serve as their Attorney General in 1998, and earlier 

this year, I left office as the longest serving Attorney General in Idaho history. 

One of my accomplishments as Attorney General involved resolution of a lawsuit 

that the State of Idaho filed against the United States Department of Veterans Affairs (VA). The lawsuit involved a proposed reduction of benefits to the residents of 

the State Veterans’ Home in Lewiston, Idaho. The VA eventually recognized its 

error and the matter was resolved in favor of the State. This lawsuit benefited veterans and State Veterans’ Homes across the country. 

The reason I seek your confirmation of my nomination to serve as a judge on the 

United States Court of Appeals for Veterans Claims is because I am committed to 

serving those who served in our Armed Forces. This court was created in 1988 to 

deal with veterans’ issues involving disability and survivor benefits, education benefits, life insurance, home loan foreclosures, and waivers of indebtedness. This Committee certainly knows how important these issues are to the men and women who 

served, and you are also, no doubt, aware that the caseload of this court has almost 

doubled over the last 10 years. It is vitally important that this court be fully staffed 

so that these issues are resolved in a timely and regular fashion. As an attorney 

committed to the rule of law and quite familiar with interpreting legislation and legislative intent, and as a long-time veterans advocate, I will be dedicated to the mission of this court so that claims are resolved in a legal, fair, and uniform manner. 

I also recognize that a judge on this court must understand the relationship between the Secretary of Veterans Affairs, the Board of Veterans’ Appeals, the Court 

of Appeals for Veterans Claims, the Court of Appeals for the Federal Circuit, and 

the Supreme Court of the United States. When cases are remanded, the directives 

must be followed. Each of these entities plays a vital role in the uniform body of 

veterans’ benefits law, and all of them must work together in order to resolve cases 

in a timely and reliable manner.

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In conclusion, I want to once again thank Chairman Specter, Senator Graham, 

and this Committee for holding this hearing. My service in the United States Army 

led me to become an active member of the American Legion for over 25 years. I believe my record of service and commitment to our veterans and the issues that are 

important to them will serve me well if I am confirmed to this court. More importantly, I believe my record will be a benefit to the constituents of this court and 

the entities that Congress has created and assigned duties to implement our veterans’ benefits laws. I thank you and ask for your favorable consideration of my 

nomination to the United States Court of Appeals for Veterans Claims.

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Chairman SPECTER. Thank you very much, Mr. Lance. 

In your resume there is a notation of your service as National 

Commander of the American Legion which is a very important position. In that role, you obviously have had the obligation as an advocate for veterans interests. When you serve in a judicial capacity 

you are the arbiter, the umpire. 

Would you comment on your approach to that role and the difference which you see with the assurances that you can provide to 

this Committee that you will be able to shed your role, so to speak, 

of advocate to be an impartial arbiter? 

Mr. LANCE. Thank you, Mr. Chairman, I will. 

Mr. Chairman, I think that those who represent the American 

Legion who are here today can vouch for the fact that I will be fair 

and impartial. The obligation of a judge of this court is to the Congress of the United States, as well as to the taxpayer, as well as 

to the executive branch and the Secretary. I would intend to fulfill 

that obligation in trying to service veterans and to provide them 

justice in their claims. 

If anything, Mr. Chairman, I might hold the American Legion 

advocates, who account for about 21 percent of the cases before the 

Board of Veterans’ Appeals, to a higher standard than the other 

colleagues. 

I would assure you, Mr. Chairman, and others, that I would fulfill my oath in office to be fair and impartial irrespective of whether or not the veteran were represented by private council or one of 

the VSOs. 

Chairman SPECTER. Mr. Hagel, I think it most expeditious, since 

there are overlapping questions, to deal with the nominations jointly. 

And you, like Mr. Lance, have had an advocacy role as General 

Counsel for the Paralyzed Veterans of America. What assurances 

can you provide that in your new judicial role you will be able to 

exercise the imperatives of the different perspective? 

Mr. HAGEL. Thank you, Senator. In addition to the almost 14 

years that I served in the General Counsel’s Office, both as Deputy 

General Counsel and General Counsel of the Paralyzed Veterans of 

America, I have indeed represented veterans and their interests 

and I am proud of that. 

But almost for an equal amount of time, as the information I 

submitted to the Committee notes, I have represented the interest 

of the Government in various capacities. I understand the issues on 

both sides of the fence, if you would. 

The responsibility of a judge is to know the law, to read the law, 

to apply the law to the facts of the particular case. That is what 

I would intend to do if I were confirmed by the Senate. 

Chairman SPECTER. Mr. Hagel, let me begin with you on the 

next general question, and that is with respect to the deference, if 

any, that an appellant tribunal should give to an executive branch 

agency’s findings of fact in deciding claims for benefits from that 

agency. Is there any difference in deference which you would give 

to an Article 1 court, contrasted with the deference to an Article 

3 court? 

Mr. HAGEL. No, Senator, I don’t think there would be any appreciable difference in fact-finding. I think the statute is clear that the 

72

court must review findings of fact made by, in this case, the Board 

of Veterans’ Appeals, under a clearly erroneous standard and that 

is what I would apply. 

Chairman SPECTER. Mr. Lance, with all of your extensive experience, do you place any credence in the complaint that is heard from 

time to time about Article 1 courts serving a little too closely to the 

branch that they are a court of, contrasted with the life tenure 

which is accorded to Article 3 judges? Is there anything to it that 

there is a little partiality, a little administrative control sometimes 

that creeps into the Article 1 courts? 

Mr. LANCE. Mr. Chairman, thank you. 

No, not in my opinion. The criticism is made, the Chairman is 

correct, you hear that criticism periodically. But in reviewing the 

cases that at least I have reviewed of the U.S. Court of Appeals for 

Veterans Claims, it is clear to me that they do their level best to 

apply the law, are not as closely affiliated to the VA or the BVA, 

as some would suggest that they are, in terms of applying the law 

fairly and uniformly and executing and exercising those mandates 

as provided by Congress. 

So in response, Mr. Chairman, no, I do not give any credence to 

that complaint. 

Chairman SPECTER. There are many more questions which I 

have, but I have taken some time, now let me yield to my distinguished colleague, Senator Campbell. 

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,

U.S. SENATOR FROM COLORADO 

Senator CAMPBELL. Thank you, Mr. Chairman. 

First, let me say that I have read the backgrounds on both our 

nominees. They are very highly respected, well qualified, fine families and they have done a great job in the jobs they have already 

finished before they came here. 

And I would think that because of that strong support and no 

real vocal opposition that they would not have any problem at all 

getting through the process. I am sorry to say, however, we have 

seen other nominees, at least one, to the same court being held up, 

as you know, Mr. Chairman. I am sorry that it has become sort of 

a partisan issue, a lot of our nominees that are being held up, as 

you probably know. 

I just would hope you do not get discouraged. This is not an easy 

process. And when you have 100 senators, about a third of whom 

are running for president themselves, and all of the rest of them 

are a bunch of flaming eagles, too, it is very difficult to get anything through. 

I just would hope that you are in it for the long run and you do 

not get discouraged and go home. And I hope your families will 

stick it out with you, too. 

Thank you, Mr. Chairman. I have no questions. 

Chairman SPECTER. Thank you very much, Senator Campbell. 

The Court of Veterans Appeals allows non-statutory practitioners 

to appear and argue cases for claimants. When I first joined the 

Judiciary Committee, Senator Strom Thurmond was the Chairman. 

And at one of the first hearings, he asked two nominees from PennVerDate 0ct 09 2002 11:05 Apr 03, 2007 Jkt 000000 PO 00000 Frm 00076 Fmt 6601 Sfmt 6601 H:\RD41451\DOCS\32820.TXT SENVETS PsN: ROWENA
73

sylvania if they promised to be courteous. And that is translated 

into do you promise to be courteous. 

And I thought to myself that really was not a very erudite or 

piercing question because what could the nominee do but say yes. 

The nominees, Judge Caldwell and Judge Mannesmann, appeared 

that day, this was 1982. 

And then Senator Thurmond said, ‘‘The more power a person has 

the more courteous a person should be.’’ Translated the more power 

a person has, the more courteous the person should be. 

And having practiced law for some time, I have noted the tremendous authority of the black robe. Having learned a good deal 

from Senator Thurmond, that being one of the items, whenever I 

am at a confirmation hearing I ask the question. But I think that 

is something which I will not ask you if you promise to be courteous because I know the answer. 

I think that is something which ought to be in your mind at all 

times. It is very, very easy to be out of sorts and the power is just 

overwhelming. People like Senator Campbell and Senator Craig 

and Senator Crapo and I have to, at least sometimes, be deferential 

to voters. But judges who have either fixed terms, 15 years or life, 

have great temptation to be a little less than courteous. 

And many, many people who have been confirmed years after the 

fact have said, ‘‘I remember when you mentioned to be courteous 

and I just want you to know I have been courteous.’’ I consider no 

attribute of a judge more important than being courteous. 

And you might be tested when you have some of these non-attorney practitioners appear before you or people who appear pro se before you, that is representing themselves. And you also might be 

tempted when some lawyers appear before you, because there have 

been known occurrences where lawyers are not too relevant or responsive or professional in their approach. 

So I would ask you to make a comment about what special consideration you would give to the non-attorney practitioners or the 

pro se litigants who appear before you. 

Mr. Lance? 

Mr. LANCE. Thank you, Mr. Chairman. 

I think it is correctly pointed by the Chairman that this court, 

given the number of pro se litigants, I believe 52 percent of all 

cases before the court start out pro se and that number dwindles 

back down to 35 percent. 

But it is very difficult, as the Chairman is aware, to deal with 

advocates who are advocating their own case and to have to tell 

them in a polite, courteous, and professional manner that, in fact, 

maybe their cause of action is not as strong as they perceive it to 

be. 

I believe that I can do that, Mr. Chairman. In my capacity as National Commander, of course, I came under the same types of conditions and circumstances as the Chairman has described. I will 

promise you, Mr. Chairman, and all the veterans in this room and 

the veterans throughout the United States that I will be courteous. 

Chairman SPECTER. Are you going to give a similar answer, Mr. 

Hagel? 

Mr. HAGEL. Yes, Senator. 

Chairman SPECTER. OK, gentlemen. 

74

Senator CAMPBELL. There is a moral in that story, Mr. Chairman. 

Chairman SPECTER. Bear it in mind. 

Mr. Lance, in response to the Committee’s supplemental questionnaire, you identified two organizations that you had been a 

member of, the Sons of the American Legion and the Forty & Eight 

Society. Are these organizations open only to men? 

Mr. LANCE. Mr. Chairman, the Sons of the American Legion, I 

think the name speaks for itself. Yes, sir, that is a male organization. Where a person has had a father or a grandfather who is a 

member of the American Legion. 

The Forty & Eight, unfortunately, is indeed, as we speak, Mr. 

Chairman, still restricted to males. The American Legion has been 

attempting to convince the Forty & Eight over the last several 

years that that policy is no longer applicable in today’s society. 

As National Commander of the American Legion, I wrote them 

a letter and suggested that they needed to come in conformance 

with the 21st century. Unfortunately, to date, that has not happened and I am no longer a member of that organization. 

Chairman SPECTER. Did you terminate your membership because 

of the practice that you concluded was discriminatory? 

Mr. LANCE. That was one of the reasons, yes, sir. 

Chairman SPECTER. Were there other reasons? 

Mr. LANCE. Their inability to address the problem in a businesslike and professional manner. 

Chairman SPECTER. But that turned on the discrimination issue 

as well? 

Mr. LANCE. Yes, sir. 

Chairman SPECTER. How do you distinguish your reaction there 

from your reaction to the Sons of the American Legion which, as 

you accurately stated, speaks for itself, covering only men. 

Mr. LANCE. There, sir, the Sons of the American Legion has been 

organized. We have a very vibrant American Legion Auxiliary consisting of 2 million members and we have the Juniors Auxiliary, 

that is for the females, the counterpart or the distaff, if you will, 

for those interested in Legion activities and Legion work. 

Chairman SPECTER. Mr. Hagel, in response to one of the questions, you stated that you represented a claimant in a case captioned Thielman vs. Derwinski, and during the consideration of 

that case by the Board of Veterans’ Appeals you filed a motion with 

a request that certain members be disqualified after information 

surfaced which suggested that, on reconsideration, those members 

might not be impartial. 

Are any of the individuals you sought to have disqualified still 

members of the BVA? 

Mr. HAGEL. I do not know the answer—I know that at least one 

of the individuals is not, Senator. I do not know, I would like to 

go back to look at the files of the case and the roster of the BVA 

to determine that. 

Chairman SPECTER. If there are members still sitting from the 

BVA, would that influence you in any way on matters which come 

before you in a confirmed capacity? 

Mr. HAGEL. I would only say that I would look at each case as 

it came before me and judge it based upon the facts that were beVerDate 0ct 09 2002 11:05 Apr 03, 2007 Jkt 000000 PO 00000 Frm 00078 Fmt 6601 Sfmt 6601 H:\RD41451\DOCS\32820.TXT SENVETS PsN: ROWENA
75

fore me. I would not allow facts that I knew from other cases to 

influence my decision in a particular case. 

Chairman SPECTER. Mr. Lance, in your response to the Committee questionnaire, you listed as one of your significant legal activities is your involvement in the revision of the search and seizure provisions of the Idaho code. What revisions were incorporated 

on that activity of yours? 

Mr. LANCE. Mr. Chairman, I believe it was last legislative session or two legislative sessions ago, working with our legislature, 

we brought the search and seizure provisions of the Idaho law up 

to the Federal standards. 

Chairman SPECTER. Did you have to do that? You were bound by 

them anyway. 

Mr. LANCE. In Federal District Court, yes, sir. But in State 

Court, we had an old code that went back to the 1970s. 

Chairman SPECTER. 1970s? 

Mr. LANCE. Yes, sir. 

Chairman SPECTER. Was that an ancient time? 

Mr. LANCE. Sir, it was before cell phones. Our law, strictly construed, would indicate that a district judge in the State of Idaho, 

who wished to issue a phone tap order had to issue it for that telephone sitting on that desk and not the roving situs cell phone. So 

we brought it up into the 21st century. It complies, to a great extent, to the Federal law that does exist. 

Chairman SPECTER. Were there Federal Court judicial decisions 

dealing with cell phones prior to that revision? 

Mr. LANCE. In the Federal system, sir, yes. The State judges, 

however, were somewhat impaired as a result of our reading of 

Idaho law. 

Chairman SPECTER. So, it existed for the Federal system but not 

for the State system and the point of the revision in the code was 

to give guidance to the State Court judges which would be applicable without going through the interpretation process? 

Mr. LANCE. That is correct sir, in State Court. 

Chairman SPECTER. That is a long and complicated history. For 

so many years States were not bound by search and seizure rules. 

And they came into the 19th century in Mapp vs. Ohio in 1961. I 

was an Assistant DA at the time. And one of the first cases that 

came into the criminal court, one of the elderly judges listened to 

the motion to suppress and said, ‘‘Motion denied, this is not Ohio.’’

I argued a case as an Assistant DA, a case called Commonwealth 

vs. Richardson. The defendant’s lawyer was making the point that 

the search and seizure was unreasonable and the president, Judge 

Chester Rhodes of the Superior Court, kept saying but they found 

the glass from the jewelry store in his cuff links. And the lawyer 

tried to make the point that it had to be tested by probable cause 

in advance of the search and it was totally incomprehensible to the 

judge. 

But a lot has happened since that time and I commend you for 

your work on the code. That is, I think I commend you for your 

work on the code. I have not read it. 

Mr. LANCE. It is a good piece of work, sir. 

Chairman SPECTER. Mr. Hagel, in your article Five Years Under 

the Veterans Judicial Review Act, the VA is brought kicking and 

76

screaming into the world of meaningful due process. You stated the 

value of the Court of Appeals for Veterans Claims would depend 

on the court’s ability to maintain its independence. Did you have 

some reason to believe that prior to the wisdom in that Law Review article, the court had not established its independence? 

Mr. HAGEL. Senator, I think that at the time that article was 

written, I believe, on approximately the fifth year anniversary of 

the court. And at that time, my coauthor and myself believed that 

it was important to remind those readers that it was a danger that 

any Article 1 court should always guard against. 

Chairman SPECTER. A little too much influence from the agency 

that it sat in judgment on? 

Mr. HAGEL. That is correct. 

Chairman SPECTER. That is the question I asked Mr. Lance earlier. He said it was all copacetic. Some disagreement with your 

soon-to-be colleague on the court, if confirmed? 

Mr. HAGEL. I do not have any disagreement. I think in answering your question what I was trying to say is that, it is extremely 

important that being an Article 1 court and constantly dealing with 

the same agency, constantly having the same litigants before the 

court, it is important that it ensures that it maintains its independence because the criticism can easily be made that it is not independent. And it is something that the court should always guard 

against. 

Chairman SPECTER. That certainly is a critical factor. That is the 

overreach, and the great beauty of the American judicial system is 

the independence. Some think that the Congress is unduly influenced by being reelected and that the executive branch is unduly 

influenced by being reelected. But there is a quality of independence that the judicial branch has which is superb. 

The Constitution does not establish the courts as supreme, but 

the courts took care of that earlier in Marbury vs. Madison in 

1803. And now major issues of national and international importance are decided by one judge on five to four decisions. So the 

independence is really very, very important. 

However, there are pitfalls in writing Law Review articles. We 

had a confirmation hearing—one where more war story, a short 

one. 

We had a confirmation hearing on Chief Justice Rehnquist. He 

was asked a lot of questions about court stripping. Does the Congress have the authority to take away the jurisdiction of the court 

on First Amendment issues? And he would not answer the question. 

Overnight one of the staffs found an article which William H. 

Rehnquist had written in the Harvard Law Record back in about 

1960 or 1958. In that article he criticized the Judiciary Committee 

for asking softball questions to Justice Whittaker, whose main 

achievement was that he represented two States, he lived in Kansas and practiced law in the Missouri or vice versa. 

The author, William H. Rehnquist, suggested that there ought to 

have been some more directed questions. 

So being armed with that article, I went back to the question the 

next day, does the Congress have the authority to take away the 

jurisdiction of the Federal courts on First Amendment issues? He 

77

still hesitated, and I produced the article and said there was a William H. Rehnquist who wrote this article. He answered a question 

with a question and said, ‘‘Did I say that?’’

And I said, ‘‘I do not know whether you said it or not, but that 

is what the book says you said.’’ And he said , ‘‘Well, if I did, I was 

wrong.’’ And then he answered the question. He said that Congress 

did not have the authority to strip the Federal courts of jurisdiction 

on First Amendment questions. 

So then, as you might suspect, I asked him does the Congress 

have the authority to strip the court of Fourth Amendment issues? 

And he refused to answer that, as he did the Fifth Amendment, 

Sixth, Seventh and Eighth. 

I said why answer as to the First and not as to the Fourth, Fifth, 

Sixth, Seventh, and Eighth. He would not answer that question either. 

He was confirmed 65 to 33, and it was touch and go, leading to 

what many of us concluded was that nominees answer just as 

many questions as they think they have to be confirmed. 

But I think, you gentlemen, have answered more questions than 

you have to to be confirmed. The principal purpose, or a principal 

purpose of these hearings is to get an idea as to how you will respond, your demeanor, how you handle questions, how you reason. 

There are a number of other questions which we are going ask you 

for the record which will be propounded, which we would like you 

to return in writing. 

We would like to take much more time, but we have taken a fair 

amount of time in today’s hearing. We have the Medicare Reform 

bill on the floor and it is a very, very busy calendar. We are taking 

up the issue of asbestos reform the day after tomorrow and there 

is a tremendous amount of preparation necessary. 

So we are going to conclude the hearing at this point. We thank 

you for coming in. I do not like to make firm predictions, but I 

think your nominations are very sound and highly likely to be confirmed. 

I made that prediction for a Court of Appeals nominee 2 years 

ago and I was wrong. The nominee had superb qualifications, but 

there is a little difference of opinion depending on politics in the 

Senate these days. 

But I do not think that is going to impede you in any way. 

Senator Campbell, would you care to add anything? 

Senator CAMPBELL. No, Mr. Chairman. Well, maybe a comment 

or two. 

I was interested in your story about Justice Rehnquist. I think 

he is a fine jurist, but if he had to go through the confirmation 

hearing now, as opposed to say even 6 or 7 or 8 years ago, I think 

he would find it tougher, unfortunately. Because now not having an 

answer does not seem to be sufficient for some of our colleagues. 

They want you to have an answer, and it better be the right one. 

And it is almost a litmus test answer unfortunately, as you know. 

I did want to ask one question of Mr. Lance. You mentioned that 

you belong to the Sons of the American Legion and another group. 

You said the Forty & Eight, or something? Is that what it is called, 

Forty & Eight? 

Mr. LANCE. Yes, sir. 

78

Senator CAMPBELL. What is that? I am sorry, I have never heard 

of that group. 

Mr. LANCE. It was an offshoot of the American Legion that was 

begun after World War I. 

Senator CAMPBELL. Where did the name Forty & Eight come 

from, a battle or something? 

Mr. LANCE. No, sir, it came from the box cars that they used in 

France in World War I that had the notation on the side of 40 men 

or 8 horses. And that is where they took their name from. 

In fairness to them, their traditions and their rituals and so forth 

are the result of basically the draft during World War I and so 

forth and so on. And of course, in World War I women were not 

drafted. 

However, we are now in the 21st century and it is the American 

Legion’s opinion that possibly they should change their bylaws and 

Constitution to include female members of the Armed Forces honorable discharged. 

Senator CAMPBELL. Since you told a couple of war stories, I think 

I better fess up and tell you, Mr. Chairman. I belong to an all 

man’s club. We cannot get any women to join the club. 

It is true. It is based in Los Angeles and they do an awful lot 

of charity work. They have a number of very high profile people, 

some in the movie industry and so on that belong to it. It is called 

the Ugly Motorcycle Club. 

Funny name but in their bylaws they say anybody is welcome to 

belong to it but they have got to subscribe to the bylaws, which 

means you have got to be ugly. And we have not found any women 

who would admit it, yet. 

So far, it is an all male club, but we are still trying. 

Thank you, Mr. Chairman. I think that is enough for today. 

Chairman SPECTER. Thank you very much, Senator Campbell. 

There will be some more questions submitted for the record. 

Thank you both very much. 

The Committee is now adjourned. 

[Whereupon, at 3:14 p.m., the Committee was adjourned.] 

(79)

NOMINATIONS INCLUDING ROBERT N. DAVIS 

TO BE JUDGE, U.S. COURT OF APPEALS FOR 

VETERANS CLAIMS 

THURSDAY, APRIL 1, 2004

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:35 p.m., in room 

418, Russell Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

Present: Senators Specter, Cochran, Lott and Congressman Murphy. 

OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,

U.S. SENATOR FROM PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. The 

hearing of the Veterans’ Affairs Committee will now proceed. 

We are joined by high-level dignitaries today, Members of the 

Congress of the United States, two United States Senators, and 

without further ado, I turn to the senior Senator from Mississippi, 

Senator Thad Cochran. 

STATEMENT OF HON. THAD COCHRAN,

U.S. SENATOR FROM MISSISSIPPI 

Senator COCHRAN. Thank you, Mr. Chairman. It’s a pleasure and 

an honor for me to be here with Robert Davis, who taught at the 

University of Mississippi School of Law for 13 years. He is now on 

the faculty at Stetson University College of Law in Florida. 

He has been a friend of mine because I was on the campus from 

time to time for events at the law school. I came to know him really as the founder of the Journal of National Security Law. He is 

a scholar. He has written numerous articles, not only for that publication but on a variety of subjects in many other law journals 

around the country. But he was well respected at the university 

and well liked by the students. 

He had also taught, before he came to Ole Miss, at Georgetown 

University and at Washington Lee University, among other colleges and universities around the country. He is a graduate from 

Georgetown University Law Center here in Washington. He is a 

naval officer, a Reservist, who was activated after September 11, 

2001. He is a fine naval officer and law professor, and I am confident that he will serve with distinction on the Veterans Court of 

Appeals. 

80

It is a pleasure to recommend him to you and to introduce him, 

Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cochran. 

Your recommendation is very weighty with this Committee and 

with the U.S. Senate. 

I will now turn to Senator Trent Lott. 

STATEMENT OF HON. TRENT LOTT,

U.S. SENATOR FROM MISSISSIPPI 

Senator LOTT. Thank you, Mr. Chairman. It’s a pleasure to be 

before you, as Chairman of this very important Committee. It is a 

great honor to be here to endorse this nominee, Robert Davis, for 

this important judicial position. 

As is usual, when you follow your senior colleague, you just say 

‘‘me, too.’’ I know that Senator Cochran has pointed out some very 

important things about this distinguished nominee. I, too, knew 

him when he was at Ole Miss, my alma mater. He has an outstanding record and a diversity of backgrounds at a lot of different 

schools. 

As has been pointed out, he not only worked in national security 

law, but also in administrative law, alternative dispute resolution, 

and sports law. He has quite a diversified background of education 

and teaching. He also worked as a government attorney with the 

Commodity Futures Trading Commission and the Department of 

Education. 

I think that combination of education, experience, teaching and 

in the military, serving now as a Commander in the Navy, the Reserves, makes him uniquely qualified to take this position with the 

U.S. Court of Appeals for Veterans’ Claims. 

He is an outstanding individual, one that we’re very proud of, 

that we had a significant portion of his life in Mississippi. It is a 

great honor for me to be here and to endorse his nomination for 

this important position. 

Chairman SPECTER. Thank you very much, Senator Lott. You 

have great references, Professor Davis, to have two distinguished 

lawyers, two distinguished Senators, men I have known for a very, 

very long time. I have high regard for their opinions. So thank you 

very much, Senator Cochran, Senator Lott. 

I know you have many obligations this afternoon, so if you wish 

to take leave at this time, thank you. 

Chairman SPECTER. Professor Davis, tell us a little bit about 

your own background, where you went to school, what your professional career has entailed. 

Mr. DAVIS. Thank you, Chairman Specter, for the opportunity. 

I spent most of my youth in Davenport, IA. I went to college in 

Connecticut, at the University of Hartford, and law school at 

Georgetown here. Upon graduation——

Chairman SPECTER. What year at Georgetown, the graduation? 

Mr. DAVIS. 1978, sir. 

Chairman SPECTER. And since then? 

Mr. DAVIS. Since then, I practiced in Washington for 10 years in 

a variety of government positions, as a government attorney. I 

taught part time at——

81

Chairman SPECTER. With what departments were you associated? 

Mr. DAVIS. With the Commodity Futures Trading Commission 

initially, and then the Department of Education. After that, shortly 

with the United States Attorneys Office for the District of Columbia. 

I began teaching in 1988. At the same time, I joined the military 

for the first time as a Reserve Officer. I moved to Oxford, MS. I 

stayed there for about 16 years, I guess, teaching and—actually, 13 

years there, and then 3 years in Florida at Stetson University College of Law. 

Chairman SPECTER. You reviewed a book authored by Professor 

Christopher Edley, agreeing with his idea that there should be judicial deference to agency decisions. 

Mr. DAVIS. I vaguely remember the book review, Senator. 

Chairman SPECTER. I hadn’t come to a question yet. 

[Laughter.] 

Chairman SPECTER. Why do you think there should be deference 

to agency decisions? 

Mr. DAVIS. Senator, the short answer is the agencies are the experts, and certainly in terms of fact finding in the areas within 

which the Congress has provided legislation for those agencies to 

operate, the authorization. It seems to me that they are the best 

first place to interpret the law since they deal with it on a daily 

basis. 

Chairman SPECTER. Do you think that sometimes agencies take 

advocacy positions, like to uphold the government’s view, just as a 

matter of predisposition after hearing so many matters and tending 

to side with the government? 

Mr. DAVIS. Senator, I think that is a danger. I think it probably 

happens from time to time. But in my experience, agency counsel 

has been very interested in objective and fair decisionmaking. 

Chairman SPECTER. Senator Thurmond was Chairman of the Judiciary Committee, and in an earlier hearing that I attended in 

1982 with two Pennsylvania nominees, Senator Thurmond asked 

the nominees, ‘‘If you’re confirmed, do you promise to be courteous?’’ Translated into English, that is ‘‘If you’re confirmed, do you 

promise to be courteous.’’ I thought it was a rather nonrevealing 

question. What could they say, but, Yes. Both nominees said yes, 

and Senator Thurmond said, ‘‘The more power a person has, the 

more courteous the person should be.’’ Translated into English, 

‘‘The more power a person has, the more courteous the person 

should be.’’ I have since come to regard that as a very profound 

question and a very profound observation. If you are confirmed, do 

you promise to be courteous? 

Mr. DAVIS. Absolutely, Senator. Absolutely. 

Chairman SPECTER. Sometimes when you don those black robes 

and you have either life tenure or tenure for 15 years, judges tend 

to become impatient. 

You taught constitutional law. What would you think of a constitutional amendment that subjected Federal judges to election 

every 6 years, and Senators to serve for life? 

[Laughter.] 

Chairman SPECTER. Be careful now. Be careful in your answer. 

82

Mr. DAVIS. Do you want——

Chairman SPECTER. I withdraw the question, Professor Davis. 

Professor Davis, we have a long list of questions for you to respond to here. I am hopeful we can get you confirmed. 

[The prepared statement of Mr. Davis follows:]

PREPARED STATEMENT ROBERT N. DAVIS, NOMINEE TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Chairman Specter, Senator Graham and the distinguished Members of this Committee. I appreciate the opportunity to appear before you today as you consider my 

nomination to serve as a judge on the United States Court of Appeals for Veterans’ 

Claims. I would also like to thank the distinguished Senators from Mississippi, Senator Thad Cochran and Senator Trent Lott, for their joint appearance here today 

and that very kind introduction. 

My remarks will be brief. If confirmed, I will dedicate my efforts to assisting my 

fellow judges to efficiently and fairly adjudicate cases and decrease the backlog of 

matters pending before the Court consistent with the rule of law. If confirmed, a 

priority mission will also be to ensure that those veterans who have business before 

the United States Court of Appeals for Veterans’ Claims receive thorough, expeditious, and objective decisions. My diverse background and twenty-six years of experience as a lawyer will allow me to bring a fresh perspective to the Court, if confirmed. This experience includes thirteen years as a law professor, and an equal 

amount of time as a government attorney trying both criminal and civil cases, a 

Commissioner to the National Commission on Uniform State Laws, an Arbitrator 

and Mediator with the American Arbitration Association and the United States 

Postal Service, a Hearing Officer for the SFOR Claims Tribunal in the Republic of 

Serbia, Sarajevo, Bosnia, and a member of the United States Navy Reserves. This 

diverse background and experience will assist me, if confirmed, in adjudicating the 

variety of veteran’s benefIt claims that fall within the jurisdiction of the Article I 

United States Court of Appeals for Veterans’ Claims. 

As a young boy growing up in Davenport, Iowa, I dreamed of becoming a lawyer 

someday. That dream became a reality when I graduated from law school. It was 

made possible because of the support I received from my parents and family members, teachers at all grade levels, and friends. It was also made possible because of 

the freedoms we enjoy as Americans. However, I did not dream that someday I 

would be teaching law at the University of Mississippi School of Law or at my 

present station, Stetson University College of Law in Gulfport, Florida, the home 

state of my father who is now deceased, and my grandparents with whom I would 

frequently visit in Fort Pierce as a child. And I most certainly did not dream that 

someday I would be nominated by the President of the United States of America 

to become a Federal judge. However, this great Nation of ours with all of its quirks 

and imperfections has a way of making dreams become reality. Even things that I 

may not have dreamt, may happen to anyone of us if given the opportunity to 

achieve in a free nation. 

In conclusion, I would like to thank the Committee for the opportunity to appear 

before you today and present this statement. I would be happy to answer any questions that you may have.

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RESPONSE TO WRITTEN QUESTIONS SUBMITTED TO ROBERT N. DAVIS,

NOMINEE TO BE JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Question 1. In 1991, you reviewed a book authored by Professor Christopher 

Edley, Jr. titled, Administrative Law: Rethinking Judicial Control of Bureaucracy. 

See 43 Admin. L. Rev. 819 (1991). Professor Edley advanced some rather novel ideas 

on the issue of judicial deference to agency decisionmaking, and your commentary 

seemed to agree with them. You said, for example, that ‘‘I agree totally with [Professor] Edley’s proposition that our traditional approach [to administrative law] does 

not provide adequate guidance on when [judicial] deference [to administrative agencies] is appropriate.’’ Do you believe that ‘‘guidance’’ on the issue of deference owed 

by the courts to administrative agencies has been clarified since you wrote that 

statement? If you are confirmed, what principles would guide you in determining 

the appropriate degree of deference owed by the U.S. Court of Appeals for Veterans 

Claims (‘‘the Court’’) to decisions of the Department of Veterans Affairs (‘‘VA’’)? 

Response. A. Yes, I believe that ‘‘guidance’’ on the issue of deference has been 

clarified and reinforced since I wrote the above statement. When the book review 

was written in 1991, my major point of agreement with Professor Edley was with 

his thesis that often, administrative agency action is not always so easily divided 

into the law, fact or policymaking categories. Because agency action may frequently 

involve a mix or blend of these categories, it may not always be easy to apply conventional judicial review approaches to mixed agency action. However, since writing 

the book review, I have not found a better approach than the traditional one based 

on the separation of powers model. The issue of deference owed by courts to administrative agencies is a consistent theme in administrative law. The debate regarding 

scope of review and judicial deference will probably continue to occupy jurists, administrative law scholars and practitioners for some time to come. However, I believe, as do several administrative law scholars, that the United States Supreme 

Court has consistently sent strong signals to the lower Federal courts, to leave agency determinations alone unless the agency has abused its discretion or acted inconsistent with its statutory authority. Recent administrative law cases indicate that 

the early messages of cases like Chevron U.S.A., Inc. v. Natural Resources Defense 

Council 467 U.S. 837 (1984) and Vermont Yankee Nuclear Power Corp. v. Natural 

Resources Defense Council, Inc. 435 U.S. 519 (1978) has been received and followed. 

See, for example, Household Credit Inc., v. Pfenning, 2004 WL 840101, April 21, 

2004, holding that the Federal Reserve Board’s promulgation of Regulation Z interpreting the ‘‘finance charge’’ definition to exclude over-limit charges under the Truth 

in Lending Act, was not unreasonable and therefore entitled to judicial deference. 

B. If I am confirmed, I would be guided by the following principles in determining 

the appropriate degree of deference owed by the United States Court of Appeals for 

Veterans Claims (CAVC) to decisions of the Department of Veterans Affairs. First, 

I would be informed by the express provisions of the relevant statute(s) providing 

judicial review authority. Second, I would follow precedent to the extent that it is 

consistent with statutory authority. Third, I would recognize that the agency is usually in the best position to determine facts and defer to such factfinding determinations by the Board of Veterans Appeals (BVA) unless they are ‘‘clearly erroneous.’’ 

Fourth, with respect to issues of law, I would review Board determinations ‘‘de 

novo’’ to ensure a consistent rule of law development. Additionally, constitutional 

principles of fundamental fairness and procedural regularity would also inform my 

decisions on the bench.

Question 2. Further with respect to Professor Edley’s article, you state that he advances the notion that courts and agencies should ‘‘form a partnership in which the 

courts make decisions based on how effectively and efficiently the agency is responding to the needs of society.’’ Do you believe that courts should take into account how 

well an agency is responding to the needs of society when it reviews agency actions? 

How can it do that? Do you think judges have particular expertise in making such 

judgments? 

Response. A. While I do not believe it is the role of the courts to take into account 

how well an agency is responding to the general needs of society when it reviews 

agency actions, it seems to me that part of what the court must do when it reviews 

agency actions is to answer several fundamental questions in the case. What is the 

problem? What is the remedy? Is there a way to fix the cause in order to avoid similar problems in the future? I do not believe the agency focus should be on the ‘‘needs 

of society’’ generally; however, I do believe that the reviewing court should certainly 

consider in the context of each case presented whether or not the agency is fulfilling 

its specific statutory mandate efficiently. Thus, questions regarding whether the 

Board of Veterans Appeals or the CAVC case processing procedures ensures timely 

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decisions for claimants go directly to the issue of whether the agency is responding 

to the needs of its constituents. 

B. I believe the ability of courts to address the question of whether the agency 

is responding to the needs of its particular constituents is limited to the context of 

the specific case when it reviews agency actions. However, the end of year reports 

of the CAVC, for example, should certainly be scrutinized by the judges, from a big 

picture perspective, in an effort to detect patterns, trends, gaps, highs and lows or 

particular areas of case processing that need attention or are problematic at the 

agency level. 

C. While I do not believe that judges have a particular expertise in making determinations about the agency response to the needs of society generally, I do believe 

judges are in a good position to determine whether agencies are efficiently fulfilling 

their statutory mandates based on an assessment of the kinds of cases brought before the court, or the frequency of the type of case or the problems that certain agency rules generate for claimants. However, the question of whether or not agencies 

are ultimately fulfilling their statutory role by meeting the needs of their constituents seems to me to be a job better left to the Congress.

Question 3. You are a Professor of Law at Stetson University College of Law, and 

you have taught administrative law there and at the University of Mississippi. 

Which two or three administrative law cases would you cite as being the most significant on the topic of judicial review of an agency’s actions? Why these cases? 

Response. A. In my view, the two most significant cases on the topic of judicial 

review are Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 

(1984) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense 

Council, Inc., 435 U.S. 519 (1978). Both cases are law defining moments in administrative law because they directly address the role of the courts in reviewing administrative action. Chevron addresses judicial review for issues of law and Vermont 

Yankee addresses judicial review in the context of administrative rulemaking. 

B. In Chevron, the United States Supreme Court developed a two-step approach 

for the courts to follow when addressing scope of review issues of legal interpretation. There, the Court said, if the intent of Congress is clear and it has spoken directly to the precise question at issue then follow that intent. However, if the court 

determines that Congress has not directly addressed the issue, the court’s role is 

not to simply impose its own construction on the statute but rather to determine 

whether the agency’s interpretation is based on a permissible construction of the 

statute. The Court has long recognized that considerable weight should be accorded 

to an executive department’s construction of a statutory scheme it is entrusted to 

administer. 

In Vermont Yankee, the Court held that §553 of the Administrative Procedure Act 

established the maximum procedural requirements which Congress was willing to 

have the courts impose on agencies conducting rulemaking procedures. Agencies are 

free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen 

to grant them. 

Thus, both cases stand for the general proposition that because agencies are 

charged with the day to day administration of the organic statute, agencies are entitled to a good degree of deference and discretion regarding the best methods to pursue the discharge of their statutory duties.

Question 4. The issue of statutory construction, and the so-called ‘‘plain meaning’’ 

rule, has, on occasion, been pivotal in veterans’ litigation. Would you hesitate to reverse or remand a decision by the VA that is consistent with long-standing VA practice, but is contrary to your own best reading of the express words of a statute? 

Would your judgment on such a question be influenced by your conception of the 

‘‘common sense’’ of VA’s historical interpretation or by your sense of what is the 

preferable or most logical policy? Would the potential cost of overturning a historical—but, arguably, erroneous—statutory interpretation enter into your decisionmaking in such a case? 

Response. A. I would hesitate to reverse or remand a decision by the VA that is 

consistent with long-standing VA practice, but is contrary to my own best reading 

of the express words of a statute. I would hesitate to substitute my judgment for 

that of the agency charged with implementing the statute as long as the agency construction is a reasonably permissible one. This approach is consistent with administrative law precedent. 

B. My judgment on such a question would be influenced by my concept of the 

‘‘common sense’’ of the VA’s historical interpretation and its logic as applied. 

C. A cost-benefits analysis would certainly enter into my decisionmaking regarding whether or not it is appropriate to overturn a historical, but arguably erroneous, 

112

statutory interpretation. However, if the interpretation is clearly contrary to the 

statutory scheme I would be more inclined to overrule the agency despite the cost. 

If, on the other hand, the agency interpretation is a close call (as to whether it is 

erroneous) and the potential cost of overturning the interpretation is excessive, I 

would be less inclined to overrule the agency.

Question 5. The Committee receives extensive mail that expresses a common 

theme: that justice delayed is justice denied, and that it does a veteran limited practical good to prevail on a claim if it takes years of decisions, appeals, and remands 

to ultimately prevail. From what you have been able to learn about the adjudication 

of veterans’ benefits since your nomination, do you think it takes too long for a 

claim to work its way through the current administrative and judicial review process? If so, do you have any proposed remedies the Committee might consider to 

speed up the process? 

Response. A. I strongly believe that one of the major weaknesses of the VA processing system is precisely that it takes too long for a claim to work its way through 

the current administrative and judicial review process. On average, it takes the regional offices 184.2 days to render a decision on an initial claim and an average of 

672 days to process a remand from the CAVC or the BVA. (June 3, 2002, Draft Report of ABA Section of Administrative Law and Regulatory Practice.) The time 

frame for CAVC decisionmaking, from filing to disposition has averaged around 1 

year for the last 7 years. (Report to the Social Security Advisory Board by Paul 

Verkuil and Jeffrey Lubbers, March 1, 2002.) For veterans who may have limited 

resources at their disposal, justice delayed is justice denied. 

B. The proposed remedies that I would give serious consideration to include many 

of the recommendations contained in the October 2001, VA Claims Processing Task 

Force Report to the Secretary of Veterans Affairs. The Task Force identified flaws 

to exist in accountability, communications, and change management. The Task 

Force recommended actions to improve the appeal resolution time of veterans’ 

claims at the Board of Veterans’ Appeals and actions to improve the timeliness and 

quality of compensation and pension medical examinations conducted by the Veterans Health Administration. Among the suggested recommendations include the 

creation of Teams from experienced staff in order to expedite resolution of Compensation and Pension claims cases over 1-year old; Revision of the operating procedures in VBA manual (M21-1) involving the time for submitting evidence by a 

claimant, physician or hospital; Require that BVA process the current workload of 

appeals rather than issuing remands; Establish specialized claims processing teams 

within defined claims processing functions; Designate specialized Regional Offices to 

work specific tasks in order to increase efficiency; Decrease the time delay necessary 

to place incoming claims under control; Improve record recovery from record center; 

Authorize VBA Regional Offices to hire administrative staff and contract for administrative services to support claims processing; Better utilize Veterans Service Organizations; and Consolidate the function of income matching. 

Additionally, according to a March 2002 Report to the Social Security Advisory 

Board by Paul Verkuil and Jeffrey Lubbers, the main criticisms of the VA appeals 

process concerns the slowness of the administrative process and the penchant of 

both the BVA and the CAVC to remand cases back to the rating boards. Recommendations in this report similarly include taking remand authority away from 

the BVA or elimination of the reconsideration option before a hearing officer at the 

VBA and go directly to the BVA. 

Similarly, the administrative law and regulatory practice section of the American 

Bar Association in its July 2002 Report on Recommendations for Improvements in 

Veterans’ Judicial Review, recommends that the CAVC should hear all questions of 

law presented to it rather than refusing to resolve a legal claim not expressly argued before the BVA; and exercise its statutory authority to expedite VA decisions 

when it remands a case for further administrative proceedings by ordering VA to 

readjudicate the case by the date ordered by the court. 

In my view, these recommendations are certainly starting points for a major system overhaul with a focus on providing timely, fair, and expeditious resolution of 

VA claims. If confirmed, I would dedicate my energy to ensuring that claims processing systems at all levels work efficiently so that veterans will recognize that 

there has been a major improvement in the amount of time it takes for a claim to 

reach finality. Moreover, none of the reform recommendations that I have read seem 

to include an alternative dispute resolution process. I would recommend, to the extent possible, that it would be worthwhile to investigate whether there may be a 

role for mediation or arbitration in the VA claims process and/or some expanded use 

of the CAVC’s case settlement process.

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Question 6. It has been posited that the U.S. Court of Appeals for Veterans 

Claims should have broader discretion to craft remedies sua sponte when it finds 

errors in VA decisionmaking. Do you have any views on this subject? 

Response. I believe giving the CAVC broader discretion to craft remedies sua 

sponte could significantly aid the Court in addressing backlogs and ultimately assist 

in providing a better and more efficient appeals system by resolving issues itself 

rather than remanding issues to the BVA. The administrative law and regulatory 

practice section of the ABA stated in its July 2002 Report that ‘‘When the CAVC 

remands a case, it contributes to delay by refusing to resolve issues presented to 

it other than the ground relied upon for remand.’’ The ABA Report concluded that 

the impact of the CAVC remand practice is significant because it has remanded 

nearly 70 percent of the cases it has heard over the last 7 years. In my view, this 

remand percentage is too large. One of the ABA recommendations to Congress was 

that it enact legislation to require the CAVC, when it remands a claim for further 

administrative proceedings, to resolve all allegations of error presented by and 

briefed by the appellant that, if left unresolved, could be the subject of a subsequent 

dispute before the VA. Additionally, the ABA has recommended that the CAVC as 

a matter of general practice should hear all questions of law presented to it rather 

than refuse to resolve a legal claim not expressly argued before the BVA.

Question 7. The U.S. Court of Appeals for Veterans Claims allows non-attorney 

practitioners to appear and to argue cases for claimants. Further, the Court hears 

many appeals—more than most courts, I think—where a non-attorney claimant appears pro se. How would the participation of a non-attorney advocate in a case before you affect your approach to hearing—and deciding—a case? Do you think judges 

should make special accommodations for non-attorney practitioners? For pro se litigants? 

Response. A. I understand that dealing with pro se cases is one of the Court’s biggest problems. The participation of a non-attorney advocate or a pro se litigant can 

be even more demanding of judicial resources because of the necessity to ensure 

that the claimant is adequately and fairly represented. The participation of a nonattorney advocate in a case before me would affect my approach to hearing and deciding a case only to the extent that I would take particular care to make sure that 

the litigant received fair representation. The public list program and the National 

Organization of Veterans Advocates have helped to provide a baseline standard of 

non-attorney representation, but the quality of advocates is not always consistent. 

B. While I do not believe special accommodations for non-attorney practitioners 

or pro se litigants should be made in the general conduct of a hearing or in the way 

a judge should decide a case, I do think the judicially responsible approach should 

be to take all steps to ensure that the litigant gets a fair hearing and decision. This 

is no more or less than any other litigant is entitled to but ensuring a fair process 

may take more time when the litigant is a non-attorney or pro se.

Question 8. The Committee’s staff—and the White House Counsel’s Office and the 

Department of Justice—are currently researching a legal question that has arisen 

as we consider your nomination. The question is, generally, whether Reserve Officers have to—or ought to—resign their commissions if they serve on the bench. 

Have you considered this question? In your White House vetting process, did anyone 

there raise the issue? Do you intend to remain a Reserve Naval Officer if you are 

confirmed by the Senate? 

Response. A. I remember raising the question when I was initially interviewed by 

the White House regarding my status in the Naval Reserves but no one had an answer. While I am not aware of any express prohibition of a judge serving in the military Reserves, to the extent that it would become difficult or impossible for the Reserve Officer to meet his or her obligations on the bench I think it would be appropriate and prudent to resign the commission. The potential difficulty would arise if 

the officer were activated or recalled to active duty based on a national emergency 

like 9/11. 

B. I have considered the question and am aware of several judges who have also 

been Naval Reserve Officers. The judges that I know are state court judges in Florida. 

I am not aware of any law prohibiting a Federal judge from serving in the Naval 

Reserves. I know the Soldiers and Sailors Relief Act requires employers both public 

and private to maintain the servicemembers’ job. 

C. In my own experience, I have attempted to balance my professional career with 

my responsibilities as a Naval Reserve Officer. It has not been easy but my employers have been supportive of my service to my country. I recognize that it may be 

much easier to take a leave of absence from an academic institution than from a 

private or public employer or from the bench. If I am confirmed by the Senate, my 

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intention is to maintain my Reserve commission unless it clearly interferes with my 

responsibilities on the bench. If the Reserve commission interferes with my judicial 

duties then I would resign my commission.

Question 9. Committee staff has been informally advised by the Department of 

Justice that it sees no per se proscription against retention of a commission in the 

Armed Forces and service on the bench—at least so long as a Judge’s service in the 

military is not of a legal nature. One might wonder, however, whether the time-demands of the military might prevent a Judge from executing his or her judicial responsibilities. Do you forsee any problems of this nature? What will you do if you 

are activated again? Would you be forced to resign from the bench? Would you be 

forced to—and would you be allowed to—resign your commission? 

Response. A. The normal time demands of the military would not prevent a judge 

from executing his or her judicial responsibilities. The requirements are to perform 

military drills with a unit 1 weekend a month and a minimum of 2 weeks active 

duty per year. In. my military career, I have usually performed much more service 

on an annual basis than the required minimum. 

B. The situation is complicated when a national exigency requires activation of 

the Reserve forces. In the past, I have volunteered for active duty service in exigent 

circumstances or when I thought I could contribute to a mission. However, I understand that there are categories of Reserve military service that may not require activation. I would have to look into this. If I am on the bench and activated, I don’t 

believe I would have the option of resigning my commission until after the period 

of activation has ended. 

C. Activation with the military would not force me to resign from the bench but 

it would temporarily delay my ability to continue the day to day work of the court. 

Usually, involuntary recalls are no longer than 2 years. The longest period of time 

for which I have been activated has been 2 years and even then I, along with many 

servicemembers, was allowed to return to my civilian career after 1 year.

Question 10. During your time as a Law Professor at the University of Mississippi, you spent a considerable period of time away from the law school to serve 

in the Navy. 

This Committee oversees the administration of two statutes by the Department 

of Labor that protect servicemembers and their families in such situations. First, 

the ‘‘Uniformed Services employment and Reemployment Rights Act,’’ 38 U.S.C. 

§4301 et seq., assures that employers will not penalize employees for serving in the 

Reserves. Second, the recently recodified ‘‘Servicemembers Civil Relief Act,’’ Public 

Law 108–189, December 19, 2003, protects servicemembers and their families from 

lawsuits, evictions, and default judgments during periods when they are away from 

home on active duty service. Has your experience with your employers provided you 

with any insight on the efficacy of these statutes in protecting the rights of 

servicemembers? Do you feel like your career at Mississippi suffered because of absences from campus for active duty service? 

Response. A. My experience with my employers both at the University of Mississippi and at Stetson University has always been extremely positive regarding my 

military service. Both institutions have been exceptionally supportive and have accommodated my service commitment without question. Both institutions were cognizant of their legal responsibilities under the Servicemembers Civil Relief Act and 

the Uniformed Services Employment and Reemployment Rights Act. In my experience, most employers of my brothers and sisters at arms have been supportive generally. However, I am aware of situations where the servicemember’s military commitment has caused problems at his or her place of employment. In my judgment, 

these statutes are critically important to attracting and keeping good people in the 

military Reserves. Without employment security, I believe it would be more difficult 

to maintain the high quality of the current volunteer Reserve service. 

B. Yes, I believe my career did suffer because of absences from campus for active 

duty service in two basic ways. First, because of my unavailability during the summer months (my choice) and the potential to recall for active duty, I believe administrators may have been reluctant to seek me out for academic administrative positions. While, I have never applied for such a position, other colleagues who did not 

have the military commitment that I did, were considered and received administrative positions. Second, the time that I spent away from home on active duty delayed 

some of my writing projects. Though I always exceeded my publication requirements 

for regular promotion and tenure, I was not always able to complete other projects 

within the timeframe that I anticipated because of military service interruptions. 

Again, these decisions to serve were my decisions and I realized the impact they 

could have on my civilian career at the time. However, ultimately, I believe my miliVerDate 0ct 09 2002 11:05 Apr 03, 2007 Jkt 000000 PO 00000 Frm 00118 Fmt 6601 Sfmt 6621 H:\RD41451\DOCS\32820.TXT SENVETS PsN: ROWENA
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tary career enhanced my legal career by providing me opportunities in the national 

security law field that I would not have had otherwise.

Question 11. You recently wrote an article titled ‘‘Striking the Balance: National 

Security vs. Civil Liberties,’’ in the Brooklyn Journal of International Law. In the 

article, you concluded that in enacting the USA Patriot Act, Congress struck an appropriate balance between national security and Fourth Amendment privacy concerns. But you also noted at the outset of the article that ‘‘the USA Patriot Act is 

not perfect; no piece of legislation is,’’ What defects—or ‘‘imperfections’’—have you 

identified in the USA Patriot Act? Do you have suggestions for changes that Congress should consider as it considers reauthorization of this legislation? 

Response. A. One of the major criticisms of the USA Patriot Act is that it was 

passed in haste without appropriate Congressional deliberation and thus, contains 

provisions that undermine individual freedoms. A number of highly controversial 

USA Patriot Act provisions have been identified by several organizations (Center for 

Democracy & Technology and the American Civil Liberties Union) for Congressional 

review as USA Patriot Act II is considered. These provisions include, Sec. 203(a) 

sharing grand jury information; Sec. 213 sneak and peek searches; Sec. 215 records 

searches; Sec. 216 pen registers for the Internet; Sec. 358 exceptions to financial privacy laws; Sec. 505 National Security Letter exceptions to privacy laws; and Sec. 

802 definition of domestic terrorism. 

B. The recommendations I included in the law review article were to: 

1. Ensure that the next version of the USA Patriot Act II, goes through the full 

legislative process including full committee hearings and debate. 

2. Integrate the findings of the DOJ Report on the implementation of the USA 

Patriot Act on the proposed new USA Patriot Act II. 

3. Study the DOJ report and make any abuses identified by it the focal point for 

amendments, revisions and new legislation.

Question 12. During your employment with the Department of Education you participated in an agency exchange program that allowed you to be assigned to the office of the U.S. Attorney for the District of Columbia. There, you tried a variety of 

criminal cases. How long were you so assigned to the U.S. Attorney’s office? During 

your time with the exchange program, did you ‘‘first chair’’ these prosecutions? Was 

your time as a prosecutor valuable to you? Did it teach you anything about good—

or bad—judicial temperament? 

Response. A. My position as Special Assistant United States Attorney for the District of Columbia was part of an agency exchange program with the Department of 

Education. The goal was to give lawyers at the Department of Education an opportunity to get a good amount of trial experience working with the United States Attorney’s office. The program was approximately 4 months and during that period, 

most of the attorneys had both bench and jury trials. 

B. During that 4-month assignment, I first Chaired at least twenty cases about 

ten jury trials and ten bench trials. After the first trial as second Chair, we usually 

were given our own caseload to work and take to trial. 

C. My time as a prosecutor was probably one of the most rewarding experiences 

of my legal career. I learned so much about trying cases and the judicial process. 

After that experience, I had a new confidence in my abilities as a lawyer. 

D. Fortunately, the experience was instructive on many levels. I learned that the 

quality of the District of Columbia bar and bench was very high. Most of the judges 

on the District of Columbia Superior Court while polite, were no nonsense in their 

approach to handling cases on their docket. I saw colleagues get upbraided by 

judges and on at least one occasion I remember during an initial appearance, one 

of the judges asking me in an exasperated tone, why I did not make the observation 

earlier that the defendant appeared to be intoxicated. During that experience, I 

learned that judges are people too with different personalities. I saw a consistent 

thread however, on the bench, most of the judges exercised very calm and careful 

control over their courtroom. They all took great care to make sure that the defendant received a fair trial and they were not hesitant to put the prosecutors to the 

test regarding the strength of their cases against the defendants.

Question 13. I note in your nomination materials that you served as a Hearing 

Officer on a Claims Tribunal in Serbia in 1999. Please elaborate for the Committee 

the nature of that service. Was this quasi-judicial service of any assistance to you 

as you prepare to ascend the bench? 

Response. A. My experience as a Hearing Officer for the SFOR Republic of Serbia 

Claims Tribunal was the result of being in the right place at the right time. My 

assignment in Sarajevo was as an intelligence officer, but several people were also 

aware that I was a lawyer. As a result of my legal background, I was asked to fill 

a position as an American hearing officer on the SFOR Claims Tribunal for a day. 

116

This claims tribunal was gearing up to hear a number of cases in Bosnia. I sat as 

one of five judges and heard personal injury and property cases. These cases included alleged property damage from NATO ordnance explosions and automobile accidents on the narrow, poorly maintained, and dangerous Bosnian roads. Accidents 

with SFOR vehicles occurred frequently and were often fatal for both the military 

personnel and local residents. My job as a hearing officer was to vote on whether 

under the circumstances of the case we would recommend and authorize payments 

of claims filed. 

B. This unusual quasi-judicial international experience was very helpful as I prepare to ascend the bench if confirmed. Not only did my years as a mediator and 

arbitrator aid in this function, but hearing cases involving local residents claims 

against coalition military forces reinforced to me the importance of having a judicial 

system that is fair. Even in the context of a combat environment, the SFOR coalition partners were attempting to expose the Bosnians, Serbians, and Croatians to 

a fair legal system and judicial process that worked without corruption. As I prepared for hearings that day, I was told that one of our goals was to help demonstrate to the local people that judicial systems can work even at a rudimentary 

level. In some ways, the experience with SFOR makes me even more committed to 

ensuring that the veterans who file claims with the VA get expeditious and fair resolution. The SFOR tribunal did not have the resources of a large executive department at its disposal but we were committed to quickly and fairly resolving claims.

Chairman SPECTER. We have a real snarl today in the Senate 

about confirmation of judges. We’re having a hard time getting 

judges confirmed for the U.S. Court of Appeals for Veterans 

Claims. It’s all tangled up in a lot of lines. 

The Administration will not allow Senators to look at the confidential investigative files, and in the Judiciary Committee, Members can see the files. We should be able to see them. I have taken 

it up with White House counsel, Alberto Gonzales. But right now 

we have a judge being tied up on that point, isn’t that right, Mr. 

Tuerk? 

Mr. TUERK. That’s correct. 

Chairman SPECTER. Then on the broader issue, we have an escalation of controversy where when we had the President of one party 

and the Senate controlled by the other, a stalemate. And now that 

we have both the White House and the Senate controlled by the 

same party, we come to the filibuster. The President has exercised 

his constitutional prerogatives for interim appointments, and now 

the Senate is exercising its asserted power for filibuster. So I do 

not know where the nomination is going to go. 

You are obviously very well qualified. There are quite a number 

of questions I would like you to respond to for the record. But unlike Ms. Iovino, where I think confirmation will occur in due 

course—unless the stalemate proliferates to all nominees, which is 

a possibility—but I think at this time it’s unlikely. I just wanted 

to make you aware of that. I was on the floor within the hour trying to find a judicial protocol to solve the problem. 

Mr. DAVIS. I appreciate that, Mr. Chairman. 

Chairman SPECTER. Professor Davis, I will do my best to move 

for your confirmation. You have a very distinguished record and I 

think the court is lucky to have a man of your background and 

qualifications. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Chairman SPECTER. That concludes the hearing. 

[Whereupon, at 3 p.m., the Committee adjourned.] 

(117)

NOMINATIONS INCLUDING MARY J. 

SCHOELEN AND WILLIAM A. MOORMAN TO 

BE JUDGES, U.S. COURT OF APPEALS FOR 

VETERANS CLAIMS 

THURSDAY, SEPTEMBER 30, 2004

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:04 p.m., in room 

SR–418, Russell Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Specter, Craig, Graham, and Rockefeller. 

OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,

SENATOR FROM PENNSYLVANIA 

Chairman SPECTER. Good afternoon, ladies and gentlemen. We 

will now proceed with the hearing for three nominees who are before the Committee. 

If you will all stand and take the oath. 

Do you all solemnly swear that the testimony you will give before 

the Committee will be the truth, the whole truth and nothing but 

the truth, so help you God? 

Ms. SCHOELEN. I do. 

Gen. MOORMAN. I do. 

Chairman SPECTER. The nominees before us today are Mary J. 

Schoelen, and Major General William A. Moorman, United States 

Air Force (Retired), to be Judges of the United States Court of Appeals for Veterans Claims. 

Ms. Schoelen is no stranger to this Committee, having served on 

the staff here for many years, and we will turn to her first. 

Ms. Schoelen, do you have an opening statement? 

STATEMENT OF MARY J. SCHOELEN, NOMINEE TO BE JUDGE, 

U.S. COURT OF APPEALS FOR VETERANS CLAIMS 

Ms. SCHOELEN. Yes. Thank you, Mr. Chairman. 

I am honored to have been nominated by the President an associate judge on the United States Court of Veterans Claims. I would 

like to thank Senator Rockefeller for his unwavering support, not 

just for my nomination, but for my work on the Committee. It was 

a true privilege to work for someone who cares so passionately for 

the American people and who has devoted himself to improving the 

quality of their lives. 

118

I have had the tremendous fortune to work for not one, but two 

great Senators. I can express nothing but admiration for Senator 

Bob Graham’s integrity and intellect. Their efforts are great examples of what can be accomplished through a lifetime’s commitment 

to public service. 

From the time that I first set my sights on law school, I was also 

determined to pursue a life in public service. My father, Commander Lawrence Schoelen, did have such a life, serving more than 

27 years in the United States Navy. Through him, I learned firsthand of the sacrifices that servicemembers and their families are 

asked to make. 

My abiding respect for those who have answered the call to service has grown into a career spent working on veterans issues. 

While still a law student, I joined the National Veterans Legal 

Services Program and represented veterans who were appealing 

VA decisions on their benefits claims. I found this work immensely 

rewarding. 

After graduating law school, I came to work for this Committee 

as an intern and developed a great appreciation for the ability of 

the legislative process to touch millions of lives. From there, I returned to representing veterans in their appeals, as well as training and supervising other veterans’ advocates, at the Vietnam Veterans of America. 

I returned to the staff of the Senate Committee on Veterans’ Affairs in 1997, where I have worked on a wide range of veteransrelated issues. During this time, I have been privileged to work 

closely with the Veterans Service Organizations, VA, the Department of Labor and my colleagues on the House VA Committee 

staff. 

Through these experiences, I have become very familiar with the 

complexities of the VA benefits delivery system and its controlling 

statutes. I believe that the insights and skills I have gained representing disabled veterans before VA and working on veterans legislation here in the Senate have prepared me for the challenges 

that judges on this court face. 

Throughout my career, I have labored to achieve a balance that 

ensures veterans receive the benefits they earned through their 

service, while striving to develop sound policy that guarantees the 

long-term integrity of the system. If confirmed, I will continue to 

seek this balance on the court. I will review the facts and the applicable laws of each case and dedicate myself to rendering fair and 

timely decisions. 

Mr. Chairman, thank you for the opportunity to appear here 

today. It is a true honor to be considered for this position. I would 

like to thank your Committee staff for their assistance during the 

nomination process, as well as their professionalism and 

collegiality over the many years that we have worked together. Finally, I would like to thank my family, Brad Smith, colleagues and 

friends who have gathered here today to show their support. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Schoelen follows:]

119

PREPARED STATEMENT OF MARY J. SCHOELEN, NOMINEE TO BE JUDGE,

U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Thank you, Mr. Chairman and Members of the Committee. 

I am honored to have been nominated by the President to serve as an associate 

judge on the United States Court of Appeals for Veterans Claims. 

I would like to thank Senator Rockefeller for his kind introduction and his unwavering support—not just for my nomination, but for my work on the Committee. It 

was a true privilege to work for someone who cares so passionately for the American 

people and who has devoted himself to improving the quality of their lives. 

I have had the tremendous fortune to work for not one, but two great Senators. 

I can express nothing but admiration for Senator Bob Graham’s integrity and intellect. 

Their efforts are great examples of what can be accomplished through a lifetime’s 

commitment to public service. From the time that I first set sights on law school, 

I was also determined to pursue a life in public service. My father, Commander 

Lawrence Schoelen, did have such a life, serving more than 27 years in the United 

States Navy. Through him, I learned firsthand of the sacrifices that servicemembers 

and their families are asked to make. 

My abiding respect for those who have answered the call to service has grown into 

a career spent working on veterans issues. While still a law student, I joined the 

National Veterans Legal Services Program and represented veterans who were appealing VA decisions on their benefits claims. I found this work immensely rewarding. After graduating law school, I came to work for this Committee as an intern, 

and developed a great appreciation for the ability of the legislative process to touch 

millions of lives. From there, I returned to representing veterans in their appeals, 

as well as training and supervising other veterans’ advocates, at the Vietnam Veterans of America. I returned to the staff of the Senate Committee on Veterans’ Affairs in 1997, where I have worked on a wide range of veterans-related issues. During this time, I have been privileged to work closely with the Veterans Service Organizations, VA, the Department of Labor, and my colleagues on the House VA Committee staff. 

Through these experiences, I have become very familiar with the complexities of 

the VA benefits delivery system and its controlling statutes. I believe that the insights and skills I have gained representing disabled veterans before VA and working on veterans legislation here in the Senate have prepared me for the challenges 

that judges on this court face. 

Throughout my career, I have labored to achieve a balance that ensures veterans 

receive the benefits they earned through their service, while striving to develop 

sound policy that guarantees the long-term integrity of the system. If confirmed, I 

will continue to seek this balance on the court; I will review the facts and these applicable laws of each case and dedicate myself to rendering fair and timely decisions. 

Mr. Chairman, thank you for the opportunity to appear here today. It is a true 

honor to be considered for this position. I would like to thank your Committee staff 

for their assistance during the nomination process, as well as their professionalism 

and collegiality over the many years that we have worked together. Finally, I would 

like to thank my family, Brad Smith, colleagues and friends who have gathered here 

today to show their support. I would especially like to thank Jim Gottlieb, Bill Brew, 

Ellen Doneski, Bryant Hall, and Buddy Menn. Without them, this would not have 

been possible. 

I am prepared to answer any questions that Members of the Committee may 

have.

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Chairman SPECTER. Senator Graham has entered the room, and 

it is our custom that when a Senator arrives, we recognize them 

immediately. 

So, Senator Graham, we will hear from you now. 

STATEMENT HON. LINDSEY O. GRAHAM,

SENATOR FROM SOUTH CAROLINA 

Senator GRAHAM. Mr. Chairman, that is a great custom. 

It is with great pleasure that I appear before our Committee. I 

have enjoyed serving on the Committee under your chairmanship, 

and today is one of the fun things a Senator gets to do and introduce to his colleagues a very fine gentleman for a very important 

position. 

General Moorman—in our relationship, I always waited on him 

because he was a two-star general and I was a lieutenant colonel. 

But, Mr. Chairman, I could not more highly recommend a person 

to this Committee than General Moorman. He is the most recent 

Judge Advocate General of the Air Force. He is now retired. He has 

had about every job an Air Force lawyer could have. He led the Department extremely well as the Judge Advocate General for the Air 

Force, a man of the highest integrity. 

He was in the Pentagon on September 11, 2001, and took a leadership role of evacuating the building, caring for those who were 

hurt, then went with the air staff to plan a counter-response. 

Since his retirement, General Moorman has served in the Department of Veterans Affairs as a counselor to the general counsel 

and as Assistant to the Secretary for Regulation Policy. In this 

role, Mr. Chairman, he was responsible for a comprehensive review 

of all VA regulations to ensure clarity, consistency, user-friendliness and compliance with the law. In other words, he tried to take 

the regulatory scheme of the VA and put it in understandable 

English. 

He has been there for his country in a variety of roles. He has 

served the Veterans Department well. He has served his Nation 

well in uniform, and I think he would be a great addition to the 

Court of Appeals for Veterans Claims. He will make it more efficient. He is an eminently fair man, and it is with great pleasure 

that I recommend his appointment to the Committee. 

General, I am very proud of you. 

Chairman SPECTER. Thank you very much, Senator Graham. 

Senator Rockefeller. 

STATEMENT OF HON. JOHN D. ROCKEFELLER IV,

SENATOR FROM WEST VIRGINIA 

Senator ROCKEFELLER. Thank you, Mr. Chairman. I am unaccustomed to sitting here. This is a first. I am grateful to you for holding this, welcoming our nominees, Robert Allen Pittman and Mary 

Schoelen. They are very qualified, and I wish to say a word about 

Mary. 

I am particularly happy that Mary is having her hearing today. 

She is no stranger to us. Indeed, the Chairman and I put Mary’s 

nomination forward in June of 2002. So it is a long time in the 

works, but I am very glad that this hearing has been scheduled 

and I appreciate it. 

132

Mary first came to this Committee in 1994 as an intern, working 

for free—that impresses me—and eager to gain more experience in 

an area where she has always been interested and passionate, and 

that is called veterans, individually and collectively. 

I have always been most impressed with Mary’s compassion for 

veterans that we serve and her commitment to work on matters 

and people in whom she believes so strongly. 

She never loses sight of serving the individual veteran. One example of that is, I specifically recall one young West Virginia veteran who was losing his fight with Lou Gehrig’s disease. His family 

felt that the law VA was applying to the adaptive housing grant 

for his home was unjust. She listened, she researched, and then 

she set about to successfully fix what was wrong and make it right. 

She took the plight of one individual veteran and worked to 

change the entire law so that thousands of veterans could benefit. 

That is just one small example of the many successful pieces of legislation that Mary has championed and helped usher through this 

process in this Committee and in this Congress to a positive solution. 

Mary has a huge range of experience, part of which I had to cut 

out because it was so extensive so I wouldn’t go on too long. All 

of this experience will serve her well on the court. 

When Mary finished her internship with this Committee, she 

joined the staff of Vietnam Veterans of America. She represented 

veterans before the VA and trained other advocates for veterans. 

In 1997, I was very fortunate to convince Mary to return to what 

at that point was my Committee staff it is nice to say, where she 

later became the Committee’s General Counsel and Deputy Staff 

Director for Benefit Programs. She understands veterans’ matters 

from all angles. 

Mary’s unique perspective and knowledge gained while advocating for veterans before the VA and here in Congress make her 

particularly well-suited to be a judge on this court. This Committee 

and the full Senate should be enormously proud that one of our 

own is again willing to continue to serve veterans in a very direct 

way. 

Mr. Chairman, I feel very strongly about Mary professionally and 

personally. I think she is a superb person, an exceptionally wonderful person. I want very much to thank you, Mr. Chairman, for moving these nominations expeditiously to make this all happen. It is 

critical that these nominees for this important and special court 

are approved. Your efforts to achieve this should be properly recognized. I also want to acknowledge your Chief Counsel, Bill Tuerk, 

for his fine work during this process. 

I thank you for your attention and recommend highly Mary 

Schoelen to the position for which she has been nominated. 

Chairman SPECTER. Thank you, Senator Rockefeller. 

Ms. Schoelen, is there anyone in the hearing room you would like 

to introduce? 

Ms. SCHOELEN. Yes. Thank you, Mr. Chairman. With me today 

I have my brother, Larry Schoelen, and my boyfriend, Brad Smith. 

Chairman SPECTER. General Moorman, is there anyone in the 

hearing room you would like to introduce? 

133

General MOORMAN. Yes, Mr. Chairman. I have with me my wife, 

Bobbie. 

Chairman SPECTER. Since both Ms. Schoelen and General 

Moorman are up for the same position, I will ask the questions and 

ask each of you to respond. 

As a generalization, Ms. Schoelen, what are your views as to the 

role of a judge with respect to interpreting or making law? 

Ms. SCHOELEN. Well, a judge has the role to interpret law. It is 

not their role to make law. The jurisdiction of the court and the 

areas in which it is supposed to interpret statutes and regulations 

have been clearly laid out, and that was what I would endeavor to 

follow if I were to be confirmed. 

Chairman SPECTER. What is your thought on that subject, General Moorman? 

General MOORMAN. Senator, I would agree with what Mary has 

just said. I think that the role of a judge is to apply the law to the 

facts that come before him, in accordance with the statutes that 

govern the court. 

Chairman SPECTER. What is your view of the unique procedure 

in this court, where there are advocates for claimants who are not 

members of the bar? Does that give you any pause, General 

Moorman? 

General MOORMAN. No, Senator, it doesn’t. In this particular 

case, I think in keeping with the general construct of the court to 

handle veterans’ claims, it is important that veterans have the opportunity to come before the court and to present their own cases, 

if they see that as in their interests, and not feel as though they 

have to hire an attorney to get a fair and just hearing of their 

claims. 

Chairman SPECTER. Well, the issue of hiring an attorney may not 

influence the court in terms of making a fair adjudication, but how 

about the quality of presentation? Would you encourage pro se litigants, people who are representing themselves, to try to get professional assistance, a member of the bar? 

General MOORMAN. I think that the rules of the court, Senator, 

actually, if there is going to be a panel decision, do encourage 

claimants who are appearing pro se to consider representation. But 

in terms of what a judge should bring to a particular case, I would 

hope that in my considerations it would not matter whether the 

litigant came before me representing himself or herself, or was represented by counsel, because the duty of the judge is to decide the 

case fairly based on the facts and the law. 

Chairman SPECTER. Ms. Schoelen, do you think that there is any 

significant advantage for a claimant to have a member of the bar 

represent him as opposed to representing himself or herself pro se, 

or having a non-lawyer advocate? 

Ms. SCHOELEN. I don’t believe that there is necessarily an advantage between a member of the bar and a non-attorney practitioner. 

There are many skilled non-attorney practitioners who have practiced for years as veterans’ advocates through the service organizations that practice before the court. 

I do think that the system of laws and regulations is complex, 

and a pro se litigant would probably be greatly aided by the help 

of an attorney or a non-attorney practitioner. But I echo General 

134

Moorman’s sense that it is their right, and if that is what they 

wish to do, the court should certainly allow for pro se litigants and 

review the evidence and the facts in whatever manner they are 

presented. 

Chairman SPECTER. Well, at one of the first hearings after being 

elected to the Senate on the Judiciary Committee, Senator Strom 

Thurmond was the Chairman and one of the questions which he 

addressed to the nominees was, in his inimitable accent, ‘‘If you are 

confirmed, do you promise to be courteous?’’ Translated into 

English that is, if you are confirmed, do you promise to be courteous? And the thought that went through my mind was what a 

meaningless question. What is a nominee going to say. 

Both of the nominees responded in the affirmative, and then Senator Thurmond said, ‘‘The more power a person has, the more courteous the person should be.’’ Translated again, the more power a 

person has, the more courteous a person should be. Over the years, 

I have come to regard that as a very profound statement, and when 

I have presided on hearings in the Judiciary Committee or on this 

Committee, I have always asked that question. 

Ms. Schoelen, do you promise to be courteous? 

Ms. SCHOELEN. Yes, Mr. Chairman. 

Chairman SPECTER. General Moorman? 

General MOORMAN. Absolutely, Mr. Chairman. 

Chairman SPECTER. Well, remember that, because there are 

nominees who have told me years later, more than decades later 

that was a very important comment which was made because there 

tends to be an attitude, once you have that black robe on, of sort 

of omnipotence, and especially in a context where you are going to 

have people who are pro se or who are not trained in the law. It 

is true that some of the non-attorney advocates are very wellversed and very, very experienced, and may have superior skills 

than some beginning lawyers would who appear before the court. 

But bear that in mind. 

Ms. Schoelen, do you anticipate having any extra expertise on 

being a judge of this court, if confirmed, as a result of your work 

for the Committee? Do you think you will know a little more about 

legislative intent, or have a little different insight than, say, General Moorman will? 

Ms. SCHOELEN. Well, I don’t believe that any one staffer can really try and nail down what congressional intent is, since it is an understanding of the entire body and of both chambers. And I don’t 

really think that it would affect my judgment in a particular case. 

I would look at the facts and applicable law and, if necessary, then 

move on to the publicly available legislative history. 

Chairman SPECTER. Well, wouldn’t congressional intent be a relevant factor on interpretation of a statute which is not plain on its 

face? 

Ms. SCHOELEN. Yes, Mr. Chairman, and to that avenue I would 

look to the publicly available documents that all judges would have 

available to them. 

Chairman SPECTER. And suppose you had some special expertise. 

How could you close your mind to that? 

Ms. SCHOELEN. Well, a judge’s role is to be fair and impartial, 

and I think that carries into that area of you have to look at the 

135

facts that are before you and the law that is before you and the 

available evidence that would clarify that material. 

Chairman SPECTER. General Moorman, do you think there is any 

such thing as congressional intent, or do you think that Justice 

Scalia is pretty much right when he says it is an irrelevancy; that 

you only have to look at the face of the statute? 

General MOORMAN. Senator, I think that in the cases where the 

statute is clear on its face, obviously there is no need to look for 

legislative intent. But I would hope that in cases where the statute 

is not clear on its face that I could look to the record to define, if 

necessary, what the legislative intent was and help inform my decision. 

Chairman SPECTER. How would you seek to determine that legislative intent, Ms. Schoelen? 

Ms. SCHOELEN. I would look at Committee reports, joint explanatory statements, floor statements that may have been published in 

the Congressional Record. 

Chairman SPECTER. Would you look at Committee reports? 

Ms. SCHOELEN. Yes, sir. 

Chairman SPECTER. Haven’t you seen Committee reports always 

prepared by staff? Would you say that staff intent is relevant? 

Ms. SCHOELEN. Staff intent is illustrated through their Members’ 

direction and intent. 

Chairman SPECTER. If it is ratified? 

MS. SCHOELEN. I’m sorry, sir? 

Chairman SPECTER. Ratified? 

Ms. SCHOELEN. Does the staff ratify what the Members say? 

Chairman SPECTER. No. Does the Member ratify the staff? I 

hadn’t heard it in the reverse. 

Ms. SCHOELEN. I would say it would perhaps depend on the committee, sir. 

Chairman SPECTER. I am sorry that Colonel Graham is gone. 

How does a Senator’s rating compare to a general’s rating, General 

Moorman, contrasted with a lieutenant colonel’s rating to a major 

general? And this is specifically with Senator Graham, not any 

other Senator. 

General MOORMAN. Well, I will be deeply indebted to Senator 

Graham for the fine words that he spoke today, regardless of how 

you would sort out the relative merits or whether or not we are in 

uniform. And it is unlikely that I will be in uniform again, so there 

would always be deference to Senator Graham. 

Chairman SPECTER. Hypothetically, Ms. Schoelen, if you found a 

longstanding precedent from the court which you thought was erroneous under the plain meaning of the statutory construction as you 

read it, how would you balance your own view of a clear-cut statutory construction as opposed to a longstanding practice of the court 

which you thought was wrong? 

Ms. SCHOELEN. Mr. Chairman, if the interpretation of the statute 

was clear on its face to be incorrect, it would be the court’s role to 

overturn that interpretation, despite longstanding precedent. 

Chairman SPECTER. What is your sense on that, General 

Moorman? 

General MOORMAN. I would agree completely, Senator. A judge 

must rule on those legal issues as he sees the law——

136

Chairman SPECTER. Or she. 

General MOORMAN.—or she sees the law. 

Chairman SPECTER. Would the potential cost of overturning a 

historically established rule enter into your decision on how to adjudicate a case? 

General MOORMAN. Senator, it wouldn’t enter into my decision if 

we were talking about a statute that was clear on its face. However, if it was a statute that was not clear on its face and I felt 

as though we were operating in an area where, because there was 

latitude left in the statute, the agency appropriately acted, then the 

agency’s analysis, including cost, would become an important factor 

in determining whether or not they had taken an appropriate 

course in regulating within the law. 

Chairman SPECTER. To what extent do you think it’s appropriate 

for the agency to consider cost in its decisionmaking process? 

General MOORMAN. I think that, from time to time, it has to be 

an important factor. I would think that it ought to weigh less heavily where it is clear that the intent of Congress is to deliver benefits, compensation and pension, to veterans. And the overriding 

principles that underlie veterans’ compensation and pension programs are the delivery of those benefits. 

Chairman SPECTER. Well, should it weigh at all under those circumstances? Should cost weigh at all under the circumstances you 

have just described? 

General MOORMAN. With regard to particular benefits, I would 

say not. With regard to defining the right policy decisions within 

the law with regard to what conditions might have to be met in 

order to qualify for benefits, I would say it might be a consideration. I would not give it great weight. 

Chairman SPECTER. Well, what kind of policy matters are you 

thinking about where cost would be a factor? 

General MOORMAN. I think the one situation that would come to 

mind for me, Senator, would be not in the benefits area, but more 

in the medical care delivery area, where the Secretary made the 

decision, I think, reluctantly to stop enrollment of Category 8 veterans because the net result of continuing to enroll those veterans 

for care was that it put them behind the queue of veterans who 

had been injured in service. Those kinds of decisions. 

Chairman SPECTER. Ms. Schoelen, how about the cost factor as 

a consideration in your judgments, if confirmed? 

Ms. SCHOELEN. I would again agree with General Moorman’s 

analysis that if an interpretation of the agency was wrong, clearly 

wrong on its face, that cost should not play a factor. But the court 

is not intended to overturn regulations or rules that are not arbitrary and capricious. So, if there was not a clear finding that the 

agency was acting in error, then it would not come into play. 

Chairman SPECTER. So you agree with what he said just like he, 

a few moments ago, agreed with what you said? 

Ms. SCHOELEN. Yes, sir. 

Chairman SPECTER. Have you conspired in advance? 

Ms. SCHOELEN. No, sir. 

General MOORMAN. No, sir, we have not. 

Chairman SPECTER. Senator Craig. 

137

Senator CRAIG. Mr. Chairman, I am not going to try to follow 

that line of questioning, but let me say thank you for convening 

this hearing and having these folks before us. We have a critical 

need in this particular area. The U.S. Court of Appeals for Veterans Claims has a mounting caseload of substantial proportion. In 

2003, new case filings reached an all-time high of 2,532. That is 

more than 200 case filings per month. We have a nine-member 

court and four vacancies. They are not at full speed and full muscle, and it is important that they be for the sake of our veterans. 

So, I do appreciate this hearing and I do appreciate qualified people coming before us, and I think that is what we have in both of 

these folks today. I look forward to moving them forward, giving 

them the attention they need, and those who have languished seeking the attention of the full Senate. I hope that we can, at least, 

fill three of those four vacancies. 

Thank you very much. 

Chairman SPECTER. Thank you, Senator Craig. The Committee 

has been very, I think fairly stated, diligent in proceeding. 

Senator CRAIG. I appreciate that. 

Chairman SPECTER. We have had some delays which are regrettable, but none that has been attributable to the excellent management of Bill Tuerk, the Staff Director, who handles me like a mannequin. 

Senator CRAIG. And then there is another factor here, too. One 

more hearing during this session of Congress would give you that 

opportunity to preside and this might well be your last opportunity 

before this Committee. 

Chairman SPECTER. Well, I consider it a high calling and if I am 

not here, there will be someone excellent in the wings, like Senator 

Craig. But we have tried to push this along very, very expeditiously. 

Senator CRAIG. And it is appreciated. Thank you. 

Chairman SPECTER. The staff work here has been really excellent. And ‘‘mannequin’’ might be the wrong word. It might be more 

like Edgar Bergen and Charlie McCarthy. The only thing I do not 

read are his questions. I use my own. 

General Moorman, I didn’t give you a chance to make an opening 

statement. Would you like to make a concluding statement? 

General MOORMAN. Senator, I would like to make a brief statement, if I may. 

STATEMENT OF MAJOR GENERAL WILLIAM A. MOORMAN 

(RET.), NOMINEE TO BE JUDGE, U.S. COURT OF APPEALS 

FOR VETERANS CLAIMS 

Mr. Chairman, Members of the Committee, I am honored to have 

been nominated by the President for a position on the Court of Appeals for Veterans Claims. I want to thank you for the opportunity 

to appear here today. I also want to thank Senator Graham for his 

gracious introduction, and most of all my wife, Bobbie, who is here 

today and has always supported me. 

Thirty-three years ago this month, I entered active duty in the 

Air Force with the expectation that I would complete my 4 years 

of obligated service and return to practice law in my hometown of 

138

Chicago. More than 30 years later, I retired from the Air Force in 

the spring of 2002

During that 30-plus years, I learned firsthand about the extraordinary men and women who serve our country in uniform. Shortly 

after my retirement, I was offered a position at the Department of 

Veterans Affairs. And in the last two years, I have learned more 

about the lasting sacrifices that our veterans have made for our 

country. If confirmed, I pledge to the Committee and to the Senate 

that I will bring all that I have learned to my new position, where 

I might assure that every veteran and every veteran’s family member who comes before the court gets the full and fair hearing to 

which they are entitled. 

Thank you, Mr. Chairman. 

[Prepared statement of General Moorman follows:]

PREPARED STATEMENT OF MAJOR GENERAL WILLIAM A. MOORMAN (RET.),

NOMINEE TO BE JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Mr. Chairman, Members of the Committee, I am honored to have been nominated 

for a seat on the Court of Appeals for Veterans Claims. Thank you for the opportunity to appear here today. 

My thanks also go to my mother and father, Mary and Jim Moorman, who taught 

me to treat others as I wanted to be treated, to always act with integrity, and to 

believe that hard work is always worth the effort. I thank my mother-in-law, Junice 

Zook, for her always positive outlook, no matter how dire the situation and my late 

father-in-law, Roy Zook, for his service in World War II and his loving example of 

a life well-led. I thank our daughter, Kelly, just for being the terrific person she is, 

for marrying a great guy, and raising two marvelous grandchildren who are a constant source of joy in our lives. Finally, I want to thank my wife, Bobbie, who is 

here today, for her constant, loving support. Without her by my side, I could not 

continue in public service. 

Thirty-three years ago this month, I entered active duty in the Air Force with the 

expectation that I would complete my 4-year tour of duty and return home to Chicago to practice law. More than thirty years later, I retired from the Air Force in 

the spring of 2002. During that thirty plus years, I learned firsthand about the extraordinary men and women who serve our Country. I saw the endless demands 

they faced. I saw them put duty above all else. And, I saw their families willingly 

shoulder the burden of service as well. 

Shortly after my retirement, I was offered a position at the Department of Veterans Affairs. In the last 2 years, I have learned still more about the lasting sacrifices of those who have served our Country. I have visited with wounded soldiers 

at Walter Reed and I have met veterans from every conflict since World War II. I 

have heard their stories of service, and I have seen the toll their service has taken 

on their health. 

If confirmed, I pledge that I will bring all that I have learned over these last thirty-three years to my new position where I might assure that every veteran and 

every veteran’s family member gets the full and fair hearing concerning their claims 

that our Nation has promised to each. 

Thank you Mr. Chairman. I’ll be happy to respond to any questions you and the 

Committee may have for me.

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Chairman SPECTER. Thank you General Moorman, and thank 

you, Ms. Schoelen. We will try to act expeditiously on your nominations. We know the need for speed so that the court will be able 

to discharge its duties. 

That conludes our hearing. 

[Whereupon, at 2:43 p.m., the Committee adjourned.]

Æ