S. HRG. 108–135, PT. 7

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MARCH 24, APRIL 8, JUNE 4, AND JUNE 16, 2004

Serial No. J–108–1

PART 7

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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96–683 DTP 2004

S. HRG. 108–135, PT. 7

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MARCH 24, APRIL 8, JUNE 4, AND JUNE 16, 2004

Serial No. J–108–1

PART 7

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, MARCH 24, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

statement .............................................................................................................. 34

PRESENTERS 

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Paul S. Diamond, Nominee to be District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 2

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting Paul S. Diamond, Nominee to be District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 1

STATEMENT OF THE NOMINEE 

Diamond, Paul S., of Pennsylvania, Nominee to be District Judge for the 

Eastern District of Pennsylvania ........................................................................ 3

Questionnaire .................................................................................................... 4

QUESTIONS AND ANSWERS 

Responses of Paul S. Diamond to questions submitted by Senator Leahy ......... 31

THURSDAY, APRIL 8, 2004

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 212

Graham, Hon. Lindsey O., a U.S. Senator from the State of South Carolina .... 37

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 215

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

statement .............................................................................................................. 222

PRESENTERS 

Bond, Hon. Christopher S., a U.S. Senator from the State of Missouri presenting William Duane Benton, Nominee to be Circuit Judge for the Eighth 

Circuit ................................................................................................................... 38

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

George P. Schiavelli, Nominee to be District Judge for the Central District 

of California .......................................................................................................... 42

Christensen, Hon. Donna M., a Delegate in Congress from the Virgin Islands 

presenting Curtis V. Gomez, Nominee to be District Judge for the District 

Court of the Virgin Islands ................................................................................. 43

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina 

presenting Robert Harwell, Nominee to be District Judge for the District 

of South Carolina ................................................................................................. 189

Page

IV

Hollings, Hon. Ernest F., a U.S. Senator from the State of South Carolina 

presenting Robert Bryan Harwell, Nominee to be District Judge for the 

District of South Carolina ................................................................................... 40

Talent, Hon. James M., a U.S. Senator from the State of Missouri presenting 

William Duane Benton, Nominee to be Circuit Judge for the Eighth Circuit 41

STATEMENTS OF THE NOMINEES 

Benton, William Duane, Nominee to be Circuit Judge for the Eighth Circuit ... 45

Questionnaire .................................................................................................... 46

Gomez, Curtis V., Nominee to be District Judge for the District Court of 

the Virgin Islands ................................................................................................ 166

Questionnaire .................................................................................................... 167

Harwell, Robert Bryan, Nominee to be District Judge for the District of 

South Carolina ..................................................................................................... 83

Questionnaire .................................................................................................... 84

Schiavelli, George P., Nominee to be District Judge for the Central District 

of California .......................................................................................................... 116

Questionnaire .................................................................................................... 117

QUESTIONS AND ANSWERS 

Responses of William Duane Benton to questions submitted by Senator 

Leahy ..................................................................................................................... 194

Responses of Curtis V. Gomez to questions submitted by Senator Leahy .......... 198

Responses of Robert Bryan Harwell to questions submitted by Senator Leahy 200

Responses of George P. Schiavelli to questions submitted by Senator Leahy .... 203

SUBMISSIONS FOR THE RECORD 

Carty, Amos W., Jr., President, Virgin Islands Bar Association, St. Crolz, 

Virgin Islands, letter ............................................................................................ 207

Christensen, Hon. Donna M., a Delegate in Congress from the Virgin Islands, 

letter in support of Curtis V. Gomez, Nominee to be District Judge for 

the District Court of the Virgin Islands ............................................................. 209

Clendinen, Monique, letter ..................................................................................... 211

Hollings, Hon. Fritz, a U.S. Senator from the State of South Carolina, statement in suuport of Robert Bryan Harwell, Nominee to be District Judge 

for the District of South Carolina ....................................................................... 220

FRIDAY, JUNE 4, 2004 

STATEMENTS OF COMMITTEE MEMBERS 

DeWine, Hon. Michael, a U.S. Senator from the State of Ohio ........................... 225

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, prepared 

statement ..............................................................................................................

STATEMENT OF THE NOMINEE 

Watson, Michael H., Nominee to be Circuit Judge for the Southern District 

of Ohio ................................................................................................................... 226

Questionnaire .................................................................................................... 228

QUESTIONS AND ANSWERS 

Responses of Michael H. Watson to questions submitted by Senator Leahy ..... 275

SUBMISSION FOR THE RECORD 

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

in support of Michael H. Watson, Nominee to be Circuit Judge for the 

Southern District of Ohio .................................................................................... 311

Page

V

WEDNESDAY, JUNE 16, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 313

prepared statement .......................................................................................... 510

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 316

prepared statement .......................................................................................... 519

WITNESSES 

Levin, Hon. Carl, a U.S. Senator from the State of Michigan ............................. 320

Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan .................. 322

PRESENTERS 

Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Virginia Maria Hernandez Covington, Nominee to be District Judge for the 

Middle District of Florida .................................................................................... 324

Camp, Hon. Dave, a Representative in Congress from the State of Michigan 

presenting Richard A Griffin, Nominee to be Circuit Judge for the Sixth 

Circuit ................................................................................................................... 324

Rogers, Hon. Mike, a Representative in Congress from the State of Michigan 

presenting David W. McKeague, Nominee to be Circuit Judge for the Sixth 

Circuit ................................................................................................................... 326

STATEMENTS OF THE NOMINEES 

Covington, Virginia Maria Hernandez, of Florida, Nominee to be District 

Judge for the Middle District of Florida ............................................................ 415

Questionnaire .................................................................................................... 416

Griffin, Richard A., of Michigan, Nominee to be Circuit Judge for the Sixth 

Circuit ................................................................................................................... 378

Questionnaire .................................................................................................... 380

McKeague, David W., of Michigan, Nominee to be Circuit Judge for the 

Sixth Circuit ......................................................................................................... 327

Questionnaire .................................................................................................... 328

QUESTIONS AND ANSWERS 

Responses of Virginia Maria Hernandez Covington to questions submitted 

by Senator Hatch ................................................................................................. 460

Responses of Richard Allen Griffin to questions submitted by Senator Hatch .. 463

Responses of David W. McKeague to questions submitted by Senators Leahy, 

Kennedy, and Durbin ........................................................................................... 466

SUBMISSIONS FOR THE RECORD 

Afendoulis, Stephen P., Chairman, Trial Department, Varnum, Riddering, 

Schmidt, Howlett, LLP, Grand Rapids, Michigan, letter .................................. 479

Allen, John W., Board Certifed Civil Trail Advocate, Varnum, Riddering, 

Schmidt, Howlett, LLP, Grand Rapids, Michigan, letter .................................. 481

Birkhold, Jeffrey O., Warner Norcross & Judd, LLP, Attorneys at Law, Grand 

Rapids, Michigan, letter ...................................................................................... 483

Brady, James S., Attorney at Law, Miller, Johnson, Snell & Cummiskey, 

P.L.C., Grand Rapids, Michigan, letter .............................................................. 484

Borman, Paul D., District Judge, Eastern District of Michigan, Detroit, Michigan, letter ............................................................................................................. 486

Borrello, Stephen L., Judge, Michigan Court of Appeals, Landing, Michigan, 

letters .................................................................................................................... 487

Cohan, Leon S., Counsel, Barris, Sott, Denn & Driker, P.L.L.C., Detroit, 

Michigan, letter .................................................................................................... 490

Corrigan, Maura D., Chief Justice, Michigan Supreme Court, Detroit, Michigan, letter ............................................................................................................. 491

Cragwall, J.A., Jr., Attorney, Warner Norcross & Judd, LLP, Grand Rapids, 

Michigan, letter .................................................................................................... 493

Damore, Joseph F., President and CEO, Sparrow Health System, Lansing, 

Michigan ............................................................................................................... 494

Derezinski, Anthony A., Ann Arbor, Michigan, letter .......................................... 495

Page

VI

Dilley, Frederick D., Attorney, Boyden, Timmons, Dilley & Haney, PLC, 

Grand Rapids, Michigan, letters ......................................................................... 496

Eaton, A. Gregory, Legislative Consultants, Government Affairs, Karoub Associates, Lansing, Michigan, letter ..................................................................... 501

Fulkerson, William C., Attorney, Warner Norcross & Judd, LLP, Grand Rapids, Michigan, letter ............................................................................................. 502

Ford, Hon. Gerald R., former President of the United States, letter .................. 503

Gass, David J., Attorney at Law, Attorneys and Counselors, Miller, Johnson, 

Snell & Cummiskey, P.L.C., Grad Rapids, Michigan, letter ............................ 504

Glaser, Richard A., Counsellors at Law, Dickinson Wright, PLLC, Washington, D.C., letter ............................................................................................... 506

Graham, Hon. Bob, a U.S. Senator from the State of Florida, statement .......... 507

Gribbs, Roman S., Retired Judge, Michigan Court of Appeals, Northville, 

Michigan, letter .................................................................................................... 508

Gustafson, Peter L., Attorneys at Law, Warner Norcross & Judd, LLP, Grand 

Rapids, Michigan, letter ...................................................................................... 509

Kay, Richard A., Attorneys at Law, Varnum, Riddering, Schmidt & Howlett, 

LLP, Grand Rapids, Michigan, letters ............................................................... 514

Kuhnmuench, Nell K., Partner Governmental Consultant Services, Inc., Lansing, Michigan, letter ........................................................................................... 518

Levine, Randall S., Attorneys at Law, Levine & Levine, Kalamazoo, Michigan, 

letters .................................................................................................................... 524

March, Jon G., Attorney at Law, Miller, Johnson, Snell & Cummiskey, 

P.L.C.,Grand Rapids, Michigan, letter ............................................................... 528

McFarland, Robert E., Foster, Swift, Collins & Smith, P.C., letter .................... 530

McInerney, Gary J., McInerney & Bowen, Grand Rapids, Michigan, letter ....... 532

McRay, Gary J., Foster, Swift, Collins & Smith, P.C., letter ............................... 533

Members, Michigan’s Congressional Delegation, Washington, D.C., letter ........ 534

Nelson, Hon. Bill, a U.S. Senator from the State of Florida, prepared 

statment ................................................................................................................ 536

Phelan, Lawrence J., Attorney at Law, Haehnel & Phelan, Grand Rapids, 

Michigan, letter .................................................................................................... 537

Pinsky, H. Rehett, Attorney at Law, Pinsky, Smith, Fayette & Hulswit, 

LLP, Grand Rapids, Michigan, letter ................................................................. 539

Pirich, John D., Attorney at Law, Honigman Miller Schwartz and Cohn, 

LLP, Lansing, Michigan, letters ......................................................................... 540

Puerner, Michael W., Foster, Swift, Collins & Smith, P.C., Lansing, Michigan, 

letter ...................................................................................................................... 542

Reynolds, Frank Harrison, Reynolds Law Firm, P.C., Grand Rapids, Michigan, letters ............................................................................................................ 544

Rogers, Hon. Mike, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 549

Rominger, Charles S., Attorney at Law, Dilley & Rominger, PLC, Grand 

Rapids, Michigan, letter ...................................................................................... 552

Rynders, Perrin, Attorney at Law, Varnum, Riddering, Schmidt, Howlett, 

LLP, Grand Rapids, Michigan, letter ................................................................. 553

Silsbury, Lori, M., Dykema Gossett, PLLC, Lansing Michigan, letter ............... 555

Skaggs, Elizabeth Wells, Varnum, Riddering, Schmidy, Howlett, LLP, Grand 

Rapids, Michigan, letter ...................................................................................... 557

Smith, Webb A., Foster, Swift, Collins & Smith, P.C., Michigan, letters ........... 559

Wernstrom, James L., Attorney at Law, Law Weathers & Richardson, Grand 

Rapids, Michigan, letter ...................................................................................... 563

Whitbeck, William C., Chief Judge, Michigan Court of Appeals, Lansing, 

Michigan, letter .................................................................................................... 564

Whitmer, Richard E., President and Chief Executive Officer, Blue Cross Blue 

Shield of Michigan, Detroit, Michigan, letter .................................................... 566

Willey, Larry C., and Charles E. Chamberlain, Jr., Willey & Chamberlain, 

Law Office, Grand Rapids, Michigan, letters ..................................................... 567

Yates, Christopher P., Grand Rapids, Michigan, letter ........................................ 571

ALPHABETICAL LIST OF NOMINEES 

Benton, William Duane, Nominee to be Circuit Judge for the Eighth Circuit ... 45

Covington, Virginia Maria Hernandez., of Florida, Nominee to be District 

Judge for the Middle District of Florida ............................................................ 415

Page

VII

Diamond, Paul S., of Pennsylvania, Nominee to be District Judge for the 

Eastern District of Pennsylvania ........................................................................ 3

Gomez, Curtis V., Nominee to be District Judge for the District Court of 

the Virgin Islands ................................................................................................ 166

Griffin, Richard A., of Michigan, Nominee to be Circuit Judge for the Sixth 

Circuit ................................................................................................................... 378

Harwell, Robert Bryan, Nominee to be District Judge for the District of 

South Carolina ..................................................................................................... 83

McKeague, David W., of Michigan, Nominee to be Circuit Judge for the 

Sixth Circuit ......................................................................................................... 327

Schiavelli, George P., Nominee to be District Judge for the Central District 

of California .......................................................................................................... 116

Watson, Michael H., Nominee to be Circuit Judge for the Southern District 

of Ohio ................................................................................................................... 226

(1)

NOMINATION OF PAUL S. DIAMOND, OF 

PENNSYLVANIA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA 

WEDNESDAY, MARCH 24, 2004 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C.

The Committee met, pursuant to notice, at 9:13 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter presiding. 

Present: Senator Specter. 

Senator SPECTER. My apologies for being late. I now have an appreciation for women who spend laborious hours with makeup, 

something Karen Santorum does not have to do because she is a 

natural beauty. 

On Saturday night, as I have said, I left a restaurant in the 200 

block of Market Street. The street has been there for 315 years and 

it was paved 314 years ago, and there was a major defect which 

I did not notice and the result was a crash. My nose was not broken, but the sidewalk was, so I consider it a Pyrrhic victory. 

PRESENTATION OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. The Committee today will have a hearing for 

Paul Diamond, a very distinguished Philadelphia lawyer. And at 

the outset, I disclose in the interest of full disclosure my long 

friendship with Mr. Diamond, going back more than two decades, 

and state that Mr. Diamond has been my lawyer, along with his 

law firm, and Thomas Leonard, who is with us today. Obermeyer, 

Rebmann, Maxwell and Hippell have represented me in a number 

of matters. So I think that ought to be on the record. I do not believe that this nomination will be contentious in any way, but it is 

always good to have everything on the record. 

Mr. Diamond went to Hunter College, graduated from Columbia 

University, magna cum laude, and the University of Pennsylvania 

Law School; served in the Philadelphia District Attorney’s office as 

an assistant D.A., which is superb training; clerked for Justice 

Bruce Kauffman, of the Pennsylvania Supreme Court, a very eminent jurist who now sits on the United States District Court for the 

Eastern District of Pennsylvania; has been an adjunct law proVerDate 0ct 09 2002 10:53 Nov 17, 2004 Jkt 096683 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96683.TXT SJUD4 PsN: CMORC
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fessor at Temple University; and for the past 14 years has been 

with the firm of Obermeyer, Rebmann, Maxwell and Hippell, one 

of Philadelphia’s longstanding, very distinguished law firms, where 

he is now a partner. He will take a substantial cut in pay to come 

to the Federal bench, but he will make as much as Senator 

Santorum does. 

I now want to recognize my distinguished colleague from Pennsylvania, Senator Santorum, with whom I have established a nonpartisan judicial nominating panel. There must be screening by 

that panel before Senator Santorum and I make recommendations 

to the President. 

We have, I think, established a process which has produced extraordinary judges. The United States District Court for the Eastern District of Pennsylvania has been heralded as one of the best, 

if not the best court in America. Senator Santorum and I are 15 

for 15 on judicial confirmations, which is a pretty good record considering what happens in the United States Senate. We have 7 confirmations waiting in the wings and we may well be 22 for 22 

shortly. 

Senator Santorum, my regrets for keeping you waiting. I know 

how busy you are and I know everyone wants to hear your comments about Mr. Diamond. 

PRESENTATION OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman, and I want to 

thank you for the tremendous work that you have done. When we 

came to the U.S. Senate, you had this procedure in place and we 

have worked hand-in-glove in making sure that, number one, we 

screened candidates both for the prior administration and for this 

administration, and we did so on a non-partisan basis. 

In fact, we continue, I guess, the idea that you came up with 

Senator Heinz, the idea that even during a Democratic administration, with two Republican Senators, Republicans should have an occasional judge appointed in Pennsylvania. And even when we have 

two Republicans and a Republican President, the Democrats should 

have some representation on the judiciary. 

Such as it is, we have a formula that for every four judges appointed in Pennsylvania, three are Republicans and one is a Democrat, even though there are no Democrats in the process on the 

Federal level, with two Republican Senators and a Republican 

President. 

I think that does add a balance to the system and it allows the 

best and the brightest from both parties to rise and have an opportunity to serve. This is a case where one of the best and brightest 

has risen and certainly is, I think, eminently qualified to serve. 

When I came into the room, I said to Paul, where is everybody? 

This is a situation where the fact that Paul, his wife and his partner as the only three people in the room gives you an understanding of how non-controversial this nominee is. 

The number of people who show up for these kinds of hearings 

is directly related to the controversy surrounding them. So the fact 

3

that there aren’t a lot of people here concerned about this nominee, 

I think, shows the tremendous strength of Mr. Diamond, his tremendous legal experience, educational background, temperament, 

public service, his writings in the area of Federal practice and procedure, all of which make him eminently qualified for this position 

and someone whom I am very happy to be here to represent and 

to present to the Committee. 

I thank you, Mr. Chairman, for getting this hearing scheduled, 

and I am hopeful that if anyone can get the next seven nominees 

through the process in the Senate that you are just the man to do 

it. I will be happy to work at your side to make that happen. 

Senator SPECTER. Thank you very much, Senator Santorum, for 

your outstanding work in the Senate generally, leadership position 

number three, and for your leadership on judicial nominations and 

judicial selection. 

I have a suspicion you have other commitments, Senator. 

Mr. Diamond, I was about to say, while you are standing, just 

move to the podium, and if you would raise your right hand. 

Do you solemnly swear that the testimony you give before this 

panel of the Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth? 

Mr. DIAMOND. I do. 

Senator SPECTER. You may be seated. 

May the record show that Mr. Diamond is accompanied by his 

distinguished wife, Robin Margaret Nilon Diamond, who is an assistant professor at the Temple Law School, and Thomas Leonard, 

who is a partner from the firm. 

Mr. Diamond, would you care to amplify the introductions? 

STATEMENT OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Mr. DIAMOND. Yes. I am grateful to both my wife and to Mr. 

Leonard for coming. And I am, of course, very grateful and honored 

by the President for having nominated me and I am overwhelmed 

by the support over the years that you have shown you, Senator 

Specter, and that, of course, Senator Santorum has shown me. 

[The biographical information of Mr. Diamond follows:]

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Senator SPECTER. As Senator Thurmond would always say under 

these circumstances, pull the machine a little closer. That was his 

standard comment. 

What Senator Thurmond also would say might not sound profound on its surface, but I think is very profound. In 1982, we had 

our first nominees in from Pennsylvania and I was sitting on the 

dais and Senator Thurmond was presiding. He was the Chairman, 

and he leaned forward into the microphone and said to two Pennsylvania nominees, Judge Caldwell and Judge Mansman, if you are 

confirmed, do you promise to be courteous. 

Translated: If you are confirmed, do you promise to be courteous? 

And I thought to myself, what a question. What is anybody going 

to say but yes? And true to form, both nominees said yes. Then 

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

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

more courteous a person should be. 

I have always relayed Senator Thurmond’s admonition, and 

many jurists over the years—and I have been at this for a while—

have come back to me and have commented about that statement. 

It is something that I don’t believe you need, Mr. Diamond, a reminder, but I think may who do who don the black robes and have 

that kind of power, life tenure. 

You get up on the wrong side of the morning and somebody may 

be a little late or may not be directly responsive to your question 

or may not be too succinct in legal argument or many of the other 

foibles and fallibilities of people, and it is easy to become impatient. 

But remember Senator Thurmond. 

Mr. DIAMOND. I intend to, Mr. Chairman, and I will strive, if I 

am fortunate enough to be confirmed, to convince everybody who 

appears before me that they have been treated fairly and courteously. 

Senator SPECTER. Mr. Diamond, I am going to ask you the questions which are prescribed so there will be no doubt that the issues 

have been covered, notwithstanding my declaration of partiality. 

Under what circumstances do you believe it is appropriate for a 

Federal court to declare a statute enacted by Congress unconstitutional? 

Mr. DIAMOND. It is obviously a very, very important question, 

Senator. It seems to me that a statute comes to the court with an 

overwhelming presumption of constitutionality and courts should 

strike down acts of the legislature only in the rarest circumstance 

when something is palpably, obviously in violation of the Constitution, and that should be very rare indeed. 

Senator SPECTER. In general, Supreme Court precedents are 

binding on all lower Federal courts, and circuit court precedents 

are binding on the district courts within the particular circuit. 

Are you committed to following the precedents of higher courts 

faithfully? 

Mr. DIAMOND. If I am lucky or fortunate enough to be confirmed, 

of course, my job is to follow the direction from the Third Circuit 

and the U.S. Supreme Court. That is what district court judges do. 

If I am fortunate enough to be confirmed, that is what I will do. 

29

Senator SPECTER. And would you make that determination even 

in circumstances where you personally disagree with such precedents? 

Mr. DIAMOND. I will, Senator. I am obligated to, and I am not 

always right. Just because I think they are wrong doesn’t mean 

they are wrong. If I am fortunate enough to be confirmed, I will 

do what the Third Circuit and the U.S. Supreme Court tell me to 

do. That is my job. 

Senator SPECTER. What would you do if you believed the Supreme Court or the court of appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision, or 

your own best judgment on the merits? 

Mr. DIAMOND. No, no, Senator. If I am fortunate enough to be 

confirmed, I would be obligated to apply that decision as that decision is written. 

Senator SPECTER. If there were no controlling precedent 

dispositively concluding an issue with which you were presented in 

your circuit, to what sources would you turn for a persuasive authority? 

Mr. DIAMOND. If we are dealing with a statute, say, the statute 

itself. And since language is by its nature ambiguous, legislative 

history seems to me to be a rich source for the intent of the people 

that created the statute. The Senators and Congress people who 

drafted, approved, passed the statute, it seems to me, is the most 

obvious place to look. 

Senator SPECTER. As you know, the Federal courts are facing 

enormous pressures as their caseload mounts. If confirmed, how do 

you intend to manage your caseload? 

Mr. DIAMOND. If I am fortunate enough to be confirmed—I have 

always worked very, very hard all my life. I think hard work is no 

substitute for it, and paying attention to detail—I have to manage 

a client load now; I have over the last 20, 25 years. And I think 

with careful attention to detail, thoughtfulness and responsible delegation, I believe a caseload can be managed. 

Senator SPECTER. Has your client load increased or decreased or 

stayed the same since it has become publicly known that you were 

the President’s nominee for the Federal bench? 

Mr. DIAMOND. It has dramatically decreased, Senator. 

Senator SPECTER. How have your partners felt about that? 

Mr. DIAMOND. My partners have been very supportive, fortunately. 

Senator SPECTER. Do you believe that judges have a role in controlling the pace and conduct of litigation? And if confirmed, what 

specific steps would you take to control your docket? 

Mr. DIAMOND. I believe judges do have such a role, Senator, and 

if I were fortunate enough to be confirmed, I believe that judges 

should allow lawyers to try their cases and not, as I say, ride the 

brake all the time and micromanage trials. But it is a judge’s obligation to see that a trial goes smoothly, swiftly and fairly, because 

I do believe justice delayed is justice denied. 

Senator SPECTER. Given your background and prior experience, 

could you address the subject of the role and significance of judicial 

temperate and indicate what elements of judicial temperament you 

consider to be most important? 

30

Mr. DIAMOND. I think the element of judicial temperament I consider to be most important is the appearance of fairness, the appearance of impartiality. If the parties before a judge don’t believe 

they have been treated fairly, even if they have been treated fairly, 

they are not going to believe it. 

So I think that appearing to be fair and neutral and even-tempered is the most important ingredient. And if I were fortunate 

enough to be confirmed, I would strive to do just that. 

Senator SPECTER. Mr. Diamond, I know your work ethic, how 

hard you work and how efficient you are. Judges really ought to 

focus much more than they do on prompt disposition of pending 

matters. You come from a big firm and you know the cost of litigation. Judges really ought to move their docket along and ought to 

go to the core issues and get them decided and move ahead. 

The delays in both the district and appellate courts are very, 

very costly to the system, and that is something which this Committee may spend more attention on in the future—very, very 

lengthy delays. The discovery process is virtually endless and enormously expensive, and it does not have to be so constructed. 

I would like to see judges take a much stronger hand in the early 

stage of the litigation, bring in the parties and find out what the 

case is really all about and see if it can be resolved one way or another, and if can’t be, then to move to the core issues, have a determination of what factual discovery is necessary and get the matter 

concluded. You and I were involved in a matter which represented 

the worst in judicial management. So that is my first comment 

about it, but this is a privileged proceeding. 

Well, I think that covers the ingredients. You have a large audience here, Mr. Diamond. You have the staffs of the Judiciary Committee and they will be scrutinizing your record very carefully. 

They may not know you as well as I do, so they may not have all 

of the same views. 

Senator Leahy commented to me that he would not be here this 

morning. Without objection, we will enter Senator Leahy’s statement for the record. 

I am scanning Senator Leahy’s statement, Mr. Diamond. I believe he likes you. The statement will be made part of the record. 

The record will remain open for Senators to submit statements 

or questions to the nominee for one week, until 5:00 p.m., March 

31, 2004. 

It is my hope to have you confirmed and sworn in on the target 

date of April 15 at four o’clock in the afternoon, in the ceremonial 

courtroom, if all goes well. 

That concludes our hearing. 

Mr. DIAMOND. Thank you, Senator. 

[Whereupon, at 9:32 a.m., the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.]

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(37)

NOMINATION OF WILLIAM DUANE BENTON, 

OF MISSOURI, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE EIGHTH CIRCUIT; ROBERT 

BRYAN HARWELL, OF SOUTH CAROLINA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF SOUTH CAROLINA; GEORGE P. 

SCHIAVELLI, OF CALIFORNIA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE CENTRAL 

DISTRICT OF CALIFORNIA; AND CURTIS V. 

GOMEZ, OF THE VIRGIN ISLANDS, NOMINEE 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

COURT OF THE VIRGIN ISLANDS 

THURSDAY, APRIL 8, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Lindsey Graham, 

presiding. 

Present: Senator Graham. 

OPENING STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. 

SENATOR FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. Good morning, everyone. We will call the Committee to order. I know this is a big day for a lot of people and their 

families, and there are a lot of distinguished Senators here who 

need to do other things. And we are glad to have everyone here, 

so I am going to call the Committee to order, and we are glad to 

have everyone, as I said. 

Our first nominee today is to the Eighth Circuit Court of Appeals, William D. Benton. He is well prepared to join the Federal 

bench. He presently serves as a judge on the Supreme Court of 

Missouri. With an excellent academic record, he holds four degrees: 

an LLM from the University of Virginia School of Law, a JD from 

Yale Law School, and an MBA from Memphis University—he has 

been a busy fellow—and a BA from Northwestern University. 

After graduating from law school, Judge Benton served in the 

United States Navy, then as an administrative assistant to Congressman Wendell Bailey, then moved to the private sector where 

38

he practiced general law with an emphasis in civil, State and local 

taxation, and appellate work. 

In 1989, Judge Benton became the first Director of Revenue for 

the Missouri Department of Revenue and was responsible for administering a large State agency. 

In 1991, he was appointed to the Supreme Court of Missouri and 

served as its Chief Justice from 1997 to 1999. Judge Benton is also 

an adjunct professor at Westminster College and the University of 

Missouri School of Law. He has received a unanimous rating of 

‘‘Well Qualified’’ from the American Bar Association. 

Rather than reading about the other nominees at this point, I am 

going to defer to Senator Bond because I know you are a very busy 

Senator, and we will allow you to testify at this point in time. 

PRESENTATION OF WILLIAM DUANE BENTON, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. 

CHRISTOPHER S. BOND, A U.S. SENATOR FROM THE STATE 

OF MISSOURI 

Senator BOND. Mr. Chairman, I very much appreciate the opportunity to testify at the beginning. I am supposed to be chairing an 

appropriations hearing due to start at 10 o’clock, and I thank you 

very much for giving me the opportunity to present to you a very 

distinguished Missourian, as you have indicated, Hon. Duane Benton, who has been nominated by the President to serve on the 

United States Court of Appeals for the Eighth Circuit. 

Judge Benton is a very respected jurist, a committed public servant, and a fine person that I know quite well. I am very pleased 

that President Bush has nominated him for this important position. 

You have already mentioned many of his accomplishments, but 

I am confident that the Members of the Committee will find Judge 

Benton to have an impressive record of public service and an exemplary judicial record. And I would share my belief that he would 

be an excellent addition to the Federal judiciary. 

Judge Benton currently serves on the Supreme Court of Missouri, having been appointed, as you indicated, in 1991, and he has 

also served as Chief Judge. He has participated in a number of important decisions. Throughout his career, he has earned a reputation as a judge with a distinguished intellect who has a skill for 

uniting his colleagues on difficult questions. His work ethic, approach, and reasoning are highly regarded by the lawyers of Missouri. 

In addition to his service on the judiciary, he has an impressive 

breadth of experience coupled with a judicial record giving him a 

command of a wide range of legal matters. He is a certified public 

accountant, I understand the only CPA serving on any Supreme 

Court in the United States. He had, as you indicated, served as the 

top tax collector, Director of the Missouri Department of Revenue, 

where, while holding the otherwise unpopular position of chief tax 

collector, he earned a reputation as an effective and efficient administrator. He has also lent his expertise to the multi-State Tax 

Commission where his colleagues elected him Chair. 

He was, as you said, a member of the United States Navy, serving as a judge advocate. In addition to that, he was in private legal 

39

practice where he primarily represented associations, nonprofits, 

cities, localities, school districts, and private entities, appearing in 

State and Federal court. 

You have mentioned his educational background. He was editor 

of a Yale law journal and has a master’s of business administration 

from Memphis State. And I am proud to say that he also earned 

his master’s of law at my law school alma mater, the University 

of Virginia. 

He found the time to be active in communities. They are too numerous to name, but he has done everything from coach baseball 

to serve on the Board of Regents of Central State Missouri State 

University. 

He retired from the U.S. Navy as a captain after 30 years of active and reserve duty. He is a Vietnam veteran, a member of the 

VFW, the American Legion, the Navy League, the Vietnam Veterans, and the Missouri Military Advisory Commission. 

As Members of this Committee know, the U.S. Court of Appeals 

truly is the second most important court in the land. Nearly every 

Federal case ends up before the court in some manner, and its decisions impact every aspect of society. 

To these positions, I believe it is imperative that the President 

nominate people of distinguished intellect and character with a 

breadth of legal experience. That has been far surpassed with the 

nomination of Judge Benton. With his knowledge and experience, 

he will be an outstanding addition to the Federal judiciary. 

I respectfully request that my colleagues promptly review his accomplishments and experience. Upon doing so, no other conclusion 

could be reached than that Judge Benton is extremely well qualified and fit for this position. 

I ask you to move on his nomination quickly and move it to the 

floor for an up-or-down vote by the full Senate. 

I thank you, Mr. Chairman, and the Committee for your kind 

consideration. 

Senator GRAHAM. Well, thank you, Senator. Thank you very 

much for that statement. 

At this point we will allow Senator Hollings, my senior Senator, 

to testify, and then we will go to Senators Talent and Boxer. But 

I would like to introduce Judge Harwell just a moment before Senator Hollings testifies. 

Robert Bryan Harwell, who has been nominated to the District 

of South Carolina, has exceptional qualifications for the Federal 

bench. Upon graduation from the University of South Carolina 

School of Law, Bryan clerked for State Circuit Judge Rodney 

Peeples and then for U.S. District Judge G. Ross Anderson. After 

his clerkships, Mr. Harwell entered private practice at the law firm 

of Harwell, Ballenger and DeBerry, where he currently practices. 

I will have more to say about Mr. Harwell later, but at this point 

in time I would like to recognize the senior Senator from South 

Carolina, Senator Hollings. 

40

PRESENTATION OF ROBERT BRYAN HARWELL, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. ERNEST F. HOLLINGS, A U.S. SENATOR FROM 

THE STATE OF SOUTH CAROLINA 

Senator HOLLINGS. I thank the distinguished Chair, and if the 

Chair would permit, I would like to recognize in the audience not 

only the nominee, Bryan Harwell, and his wife, Debra, and two 

children, but we have our distinguished former Chief Justice of our 

State Supreme Court, Chief Justice David Harwell, and his wife in 

the audience. We are delighted to have him, and if Bryan can do 

as good as the Chief Justice did, we have got a winner. 

Let me commend you, Mr. Chairman, on your selection. I had the 

distinction some years back of driving Maximum John, Judge John 

Sirica, around while he was writing his book. He was visiting down 

there in the low country. And as we rode about, he said, ‘‘Now, 

Senator,’’ he says, ‘‘don’t ever select a judge unless he has been in 

the pits.’’ He said, ‘‘You know, I had difficulty getting out of law 

school, took the bar exam three times before I passed it, and by the 

time I did pass it,’’ he said, ‘‘there wasn’t any law firm that was 

looking for me. I had to go down to the magistrate’s court and take 

what cases I could find.’’ 

And he said, ‘‘I did that, and I got pretty good at trying cases, 

and everything else like that, which caused Hogan and Hartson to 

get me to try their cases.’’ And he said, ‘‘After that first day of the 

Watergate hearings, I could tell exactly what was going on, having 

been in the pits. And I called those lawyers into my chambers at 

the end of the day and said, ‘Now, if you continue with that line, 

both sides, I am going to find you in contempt and put you in jail. 

There is not going to be any fine. You are going right straight to 

jail. You are not going to make a mockery of this court.’’’ And he 

said that broke the Watergate case. 

That is what I like about the distinguished Chairman’s choice of 

Bryan Harwell. He has been in the pits. As the Chairman says, he 

not only was an outstanding student at the law school, causing 

both the State Judge Peeples and the Federal Judge Anderson to 

choose him as a law clerk, but he immediately, in both Marion and 

Darlington—Florence and Darlington, and Marion and Darlington, 

as you were, Florence and Marion Counties, get into the pits. He 

got into the family court matters, workmen’s compensation, insurance, product liability, malpractice, negligence cases. He was both 

in general practice for individuals and small business, and at the 

end of all of that experience, he ends up with the highest rating 

from Martindale-Hubbell. 

And I think that perhaps it helped him also to be in the JAG section of the National Guard. I know the affinity that my Chairman 

has for that JAG section. But he not only did that and served with 

distinction, but he has been a professor over at my technical college, Florence-Darlington. I started that one as well as 15 others. 

And he has been a business law professor over there. So you cannot 

get a better rounded, more experienced young judge than Bryan 

Harwell. And it is my pleasure to commend you for your choice, 

and I look forward to his confirmation. 

Senator GRAHAM. Thank you, Senator Hollings. Thank you very 

much. Thank you for your statement. 

41

At this time, Senator Talent, would you like to testify on behalf 

of Judge Benton? 

PRESENTATION OF WILLIAM DUANE BENTON, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. 

JAMES M. TALENT, A U.S. SENATOR FROM THE STATE OF 

MISSOURI 

Senator TALENT. I sure would, Mr. Chairman. I would love to say 

a few words, and I will keep this brief because Senator Bond covered the waterfront so well. But Duane Benton has been a friend 

of mine for a long time and an outstanding public servant, and I 

wanted to just add my endorsement to Senator Bond’s views. 

I hope the Committee will expeditiously consider and recommend 

him to the Senate, and I will just say three things about Duane. 

One of them is he is just one of the smartest people I have ever 

met. And if you look at his record, you will see what I am talking 

about. He is just a brilliant guy. And if you check around Missouri 

lawyers of all different kinds, they will all say that. And I think 

that is helpful on the bench. 

He has a great sense of humor and a good sense of humble, too, 

which is very important. It is one of the reasons, as Senator Bond 

mentioned, he is very good at the collegial aspects of serving on an 

appellate court. He knows how to get people together, and that is, 

sadly, lacking very often in the system today. And a lot of it is that 

he has a good sense of humor. He doesn’t take himself too seriously. 

Then the third thing with that I think is so important, he has 

the right temperament to be a judge. You know, Mr. Chairman, 

you practiced law and so did I, and I always used to be frustrated 

by judges who were rude to people because, you know, when you 

are in that position, it is kind of cowardly, really, to be rude to 

somebody when they are not in a position to be rude back to you. 

And I think judges ought to show especial restraint. To be firm, 

that is very important, to run the courtroom, but to be at least civil 

to the attorneys and, of course, to the litigants who come before 

them. And Judge Benton has just been unfailingly of the right temperament as a judge, and I know he will do the same thing on the 

Court of Appeals. 

So I really want to recommend him highly to the Committee for 

expeditious consideration and, I hope, approval. 

Senator GRAHAM. Thank you very much, Senator Talent, for that 

statement. 

One of our panel members will be George P. Schiavelli—I apologize to the family there—our nominee to the Central District of 

California. He has an admirable record and is a great choice for the 

Federal bench. After graduating from UCLA Law School in 1974, 

Mr. Schiavelli spent the next 20 years in private practice with distinguished law firms in the Los Angeles area. From 1994 until 

2000, Mr. Schiavelli served as a Log Angeles Superior Court judge. 

Since 2000, Mr. Schiavelli has practiced principally in the area of 

alternative dispute resolution and has been of counsel to the appellate group of Reed and Smith. 

We are delighted to have him at today’s hearing, and it is my understanding that Senator Boxer is here to testify on his behalf. 

42

PRESENTATION OF GEORGE P. SCHIAVELLI, NOMINE TO BE 

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA BOXER, A U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator BOXER. I am, Mr. Chairman. Thank you so much. I am 

very pleased to offer my support for this nominee for the Central 

District Court of California, George P. Schiavelli, Judge Schiavelli. 

And with your permission, Mr. Chairman, I would like him to 

stand, as well as his wife, Holli, his son, Peter, and his daughter, 

Olivia. 

I just want to say what a great day I know it is for the family, 

and I am very happy to be supporting you, Judge. 

Judge Schiavelli is very well regarded by those who know him 

and know his work. He has a reputation which is just terrific. He 

has a reputation as a very tolerant and a very kind person as well 

as very skilled. 

I am confident that, should he be confirmed, which I very much 

hope he will be, he will discharge his responsibilities with dignity, 

integrity, and intelligence. 

I would like to briefly comment on the process that brought this 

accomplished individual before you today, Mr. Chairman. In a truly 

bipartisan fashion, something that we seek more and more around 

here, we, Senator Feinstein and I, worked together with the White 

House Counsel to create four judicial advisory committees for our 

State, one in each Federal judicial district in the State, so that 

when we come up here with nominees for the district court, you 

will see always that the Democrats and Republicans support the 

nominee, because each Committee has a membership of six individuals, three appointed by the White House and three appointed by 

Senator Feinstein and me. Each member’s vote counts equally, so 

a majority is necessary for recommendation of a candidate. The 

nominee before you today was reviewed very carefully by the Central District Committee and strongly recommended. I continue to 

support this excellent bipartisan process and the high-quality 

nominees it has produced, including the one before you today. 

Judge Schiavelli has deep roots in my State. He is a graduate of 

Stanford University and UCLA Law School, where he graduated 

first in his class. UCLA, first in his class—I think that says a lot. 

It is a tough school. From there, he has embarked on a very impressive legal career and served the people of our State with distinction. 

Before returning to private practice, he served on the L.A. Superior Court. In both private practice and on the bench, the judge developed an equally respected reputation due to his character, his 

decency, and his legal expertise. 

So, in sum, the Central District will benefit greatly from the exemplary service of Judge Schiavelli, and I fully support his nomination and his quick confirmation. 

I thank you, Mr. Chairman, for your courtesy. 

Senator GRAHAM. Thank you very much, Senator Boxer, for that 

statement. Thank you. 

Our final nominee, Curtis V. Gomez, has been nominated to be 

judge for the District Court for the Virgin Islands. This position is 

for a term of 10 years. A native of St. Croix, Mr. Gomez graduated 

43

from George Washington University and Harvard University Law 

School. He has practiced law in both the private and public sector. 

He presently served as an Assistant United States Attorney in the 

United States Attorney’s Office for the District of the Virgin Islands and previously served as an Assistant U.S. Attorney in the 

Eastern District of Virginia. 

We welcome Mr. Gomez and note that he will be introduced by 

his supporter, Hon. Donna M. Christensen, Delegate of the United 

States Virgin Islands, to whom we also extend a special welcome. 

Thank you very much, Delegate Christensen, and if you would like 

to make a statement at this time, you may do so. 

PRESENTATION OF CURTIS V. GOMEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS, BY HON. DONNA M. CHRISTENSEN, A DELEGATE IN 

CONGRESS FROM THE VIRGIN ISLANDS 

Delegate CHRISTENSEN. Thank you and good morning, Mr. Chairman. And I thank you for the honor to appear before the Committee this morning and for the extraordinary honor and pleasure 

to be able to present Attorney Curtis V. Gomez, the nominee to the 

U.S. District Court of the Virgin Islands. This is not only a proud 

day for his wife, Simone, who is with him in the audience, other 

family and friends, but for our entire Territory. Curtis is widely respected and loved, and we are all proud to have such an outstanding son of the soil being nominated to this position of high respect, authority, and influence. I assume you, colleagues, that despite his relative youth, the gentleman whom you will hear from 

later this morning, educated, as you have said, in some of the best 

schools in our Nation, including my alma mater, the George Washington University, and then Harvard University School of Law, is 

fully equal to the task. 

Not born to privilege, Curtis is from a hardworking family of 

public servants, including his dad, Victor Gomez, and sister, Judy, 

a former Virgin Islands Senator. 

Having served in both the private and public practice of law as 

an Assistant U.S. Attorney, Curtis does bring a broad array of experience to the post, and that experience includes private practice 

here in D.C. with the well-known firm of Patton, Boggs and Blow, 

and as an Assistant U.S. Attorney for the Commonwealth of Virginia. 

His former V.I. firm of Dudley, Topper and Feuerzeig as well as 

his colleagues from the U.S. Attorney’s Office in the Virgin Islands 

are among those beaming with pride today. 

There has also been greater diversity in the cases he has successfully handled, from contract to other civil litigation, including 

criminal cases involving crimes of violence, illegal alien smuggling, 

and drug trafficking. His courtroom demeanor, diligence, and effective practice of the law have earned him the respect of other counsel, of his opponents before the bench, of the Federal and local judiciary, and of the general public. He comes to you with a highly 

qualified recommendation of the V.I. Bar, and I would ask permission to submit the written letter of support from its current president, Attorney Amos Carty, who holds Curtis in the highest regard. 

44

Senator GRAHAM. Without objection, the statement will be introduced. 

Delegate CHRISTENSEN. Thank you. 

Others, such as retired Territorial Court Judge Ishmael Meyers, 

whose opinion reflects those of his colleagues on the territorial 

bench, spoke to me of his competence and exemplary temperament, 

well suited to the bench. 

Retired Senator Eric Dawson, whose testimony I also request 

unanimous consent to introduce into the record, speaks of his 

steadfast determination, love of the practice of law, excellence in 

understanding of it, and his commitment to his home, the U.S. Virgin Islands, and to this Nation. 

The U.S. Attorney, David Nissman, under whom he now serves, 

is quoted as saying, ‘‘He has a keen intellect, a good work ethic, 

and he cares deeply about the community.’’ 

One of his peers whose counsel I often seek, my brother, Attorney Adam Christian, echoed all of these sentiments and spoke 

fondly of his calm and imperturbable manner, his generous spirit, 

and his humility. 

While our community is more often divided than united on some 

issues, and the issue of Federal appointments has frequently been 

a matter of controversy and conflict, on the nomination of Curtis 

Gomez we speak with one voice of solid support, a voice that 

crosses party lines and expands across the breadth and depth of 

our community. 

Members of the Committee, I began my political life fighting for 

the opportunity for our local attorneys to have their fine qualities, 

their talents and skills, their years of exemplary service, their demonstrated knowledge of the law and commitment to upholding it to 

be recognized and rewarded with the opportunity to serve on the 

Federal judiciary. Beyond the recognition of the individual lawyer, 

it says so much about respect for us, your fellow Americans. Such 

appointments further highlight those who, like Curtis, are role 

models for our children, thus inspiring them to strive just that little bit harder and to give them hope. 

Finally, let me say that the first native Virgin Islander to serve 

as a judge of the U.S. District Court in the Virgin Islands, my father, Judge Almeric Christian, who led the way so that fine young 

men and women like Curtis Gomez could be here today seeking 

confirmation before this august body, if he were alive today, would 

be pleased with this nomination and would be among Curtis’ 

strongest supporters. 

Chairman and Members of the Committee, on behalf of the people of the U.S. Virgin Islands whom I am privileged to represent 

in the Congress, I thank President George W. Bush for nominating 

this excellent lawyer, great human being, and dedicated public 

servant, and I am proud to present Attorney Curtis Vincent Gomez 

to you with our highest recommendation and unqualified support 

for confirmation to the U.S. Court, the District of the Virgin Islands. And we know that after hearing from Attorney Gomez, you 

will concur with us. 

Thank you. 

[The prepared statement of Delegate Christensen appears as a 

submission for the record.] 

45

Senator GRAHAM. Thank you for that outstanding statement. 

Thank you very, very much. 

Also for the record, I will introduce statements from our ranking 

member, Senator Leahy, and from Senator Feinstein, to make their 

statements part of the record. 

At this time I guess we will start with Judge Benton, if you 

would please come forward. 

Please raise your right hand. 

Do you solemnly swear that the testimony you are about to give 

before this Committee is the truth, the whole truth, and nothing 

but the truth, so help you God? 

Judge BENTON. I do. 

Senator GRAHAM. Welcome to the Committee, Judge. You have a 

distinguished background and we’re honored to have you here. If 

you would like to make a statement at this time, you may do so. 

STATEMENT OF WILLIAM DUANE BENTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT 

Judge BENTON. I have no opening statement, but I would, if the 

Chair would permit, introduce to you, of course, my loyal spouse of 

many years, an educationally mentally handicapped nurse educator, Sandra Benton, Grant Benton, my son, Megan Benton, listening somewhere in college, hopefully doing homework. Bryan 

Tramont is at the FCC, a former clerk of mine, and Linda Coffen, 

who has been with a couple of law firms here in D.C., another 

former clerk of mine. 

Senator GRAHAM. Welcome to you all. 

Judge BENTON. That would conclude my opening remarks. 

[The biographical information of Judge Benton follows:]

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Senator GRAHAM. Judge, you do have a very distinguished background, and Senators Talent and Bond spoke glowingly of you. I 

think you will make an outstanding circuit court judge. 

Tell me a little bit about being the only Certified Public Accountant. How has that influenced you as a lawyer, good or bad. 

Judge BENTON. When the tax cases come to our court, they all 

look to me. Some attorneys are allergic to numbers. I’m not. 

Senator GRAHAM. I’m one of those, yes. 

Judge BENTON. My first few years of practice, Mr. Chairman, I 

was able to help support my family, because in several complicated 

cases I was hired where there were a lot of numbers. So it’s been 

very good. It makes you understand that there are a lot of statistics. 

Of course, statistics can be used in a lot of different ways, as 

Mark Twain, a native Missourian, said more colorfully. But I like 

numbers. 

Senator GRAHAM. Outstanding. 

Being Chief Justice, that has a certain requirement beyond just 

serving. Could you enlighten the Committee a bit about how that 

job requires you to bring people together and how you think judges 

should interact? What experience does that bring to your job? 

Judge BENTON. In our court, the Chief Justice leads the discussion and tries to forge a consensus. I have been fortunate, in that 

all the chief justices I have worked with on our court have done 

that, and I tried very hard to do that. 

In addition, the Chief Justice presents a face to the public. It was 

during my 2 years as Chief Justice that I really learned what supports the judiciary is public faith and confidence in the judiciary. 

I have never turned down going to speak to a chamber of commerce, a civic club, a service organization, and I think that’s important, too. 

Being chief does make you feel more and more that you do need 

to speak with one voice. I am very proud that in my 13 years we’ve 

only had one case on our court where we did not muster a majority, 

a clear four, five, six or seven vote majority. I might add that sometimes I’ve been in the dissent. But only in one case in that time. 

That is collegiality, so we can speak to the Bar in Missouri with 

one voice. 

Senator GRAHAM. Outstanding. 

You have been on the edge of legal reform. How do you see the 

development of the law in terms of how can we make the process 

more user friendly and more professional? 

Judge BENTON. Thank you for the question, because I am very 

committed to computerizing our courts. When I came to our court 

system in Missouri, there were no computers, or almost no computers, in two-thirds or three-fourths of Missouri’s courts. Now almost all our courts have computers. 

Not only do we have computers, but we have an infrastructure 

to support the computers. We have procedures, standards, and we 

would like to think we’re a leader in court automation. 

Senator GRAHAM. Outstanding. 

Now, this is a part of your legal experience that is near and dear 

to me. I was a Judge Advocate in the Air Force, serving on active 

duty, the Guard and Reserves. I am still part of that body. 

82

As a military lawyer, can you tell me how that experience has 

helped you develop as a lawyer and how does it play in your current role that you’re seeking? 

Judge BENTON. Well, the great thing about being a military lawyer is, as you may know, I finished Justice School and went to do 

legal aid. The military calls it legal assistance, but it’s truthfully 

legal aid. It is the servicemember who has been ripped off by the 

car dealer, it is the then door-to-door sales—I date myself there, 

Senator, sorry. It was the door-to-door sales rip off, and several 

other rip offs of that kind. That’s what I did the first year. 

Then in the second year, a typical military career progression, as 

you well know, I was a defense lawyer. I defended people accused 

of crimes, a few very serious crimes, mostly serious misdemeanors, 

to be frank. Most of them, the maximum they could get was 6 

months to a year in jail. So that was the next stage. 

Then next I was prosecuting a little bit, and then after that I advised commands. In the last 20, 25 years, being in the Navy, I advised commands of various size, sort of like small businesses. Of 

course, some were pretty big businesses. I was a JAG as a reserve 

for the Sea Bees up and down the Atlantic Coast and Europe, 

which was a very big job. So I really appreciated the breadth of experience that it does give you. 

Senator GRAHAM. Thank you. I totally concur. It is a great way 

to be introduced to the law and a good value system. 

One final question. When I use the word or term ‘‘strict constructionist’’, what does it mean to you and how does it apply in your 

philosophy? 

Judge BENTON. Well, in think in terms of statutory construction, 

it means finding the legislative intent, and the legislative intent is 

most clearly expressed in plain language is where we start, and the 

plain meaning of words. So that’s where I start with it, Senator. 

Senator GRAHAM. Thank you. 

The fact that no one else is here is good news. Because we have 

found a consensus apparently in you. People are very busy in this 

job, just like everyone out in the audience, having a thousand 

things to juggle every day. The Senate schedule from the time you 

get off the plane until the gavel bangs and you go back home is 

running from one event to the other. But you come highly recommended by the two Senators from your State, and colleagues 

who have served with you have a high regard for you. You are obviously a well-qualified person. 

To you and your family, I wish you the best because you’re embarking on a great journey where our Nation needs well-qualified 

and reasonable judges now more than ever. So God bless and the 

best of luck to you. 

Judge BENTON. Thank you, Mr. Chairman, for your charity. 

Senator GRAHAM. The next panel, please, if the other judges will 

come forward. I would like to have each of you sworn in. Would you 

please raise your right hands. 

Do you, Robert Harwell, George Schiavelli, and Curtis Gomez, 

each swear that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. HARWELL. I do. 

83

Judge SCHIAVELLI. I do. 

Mr. GOMEZ. I do. 

Senator GRAHAM. Please be seated. Welcome to you all, and we’ll 

give you a chance to introduce your families properly here and 

make any statements you would like before the Committee. 

We will start with Mr. Harwell. 

STATEMENT OF ROBERT BRYAN HARWELL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA 

Mr. HARWELL. Thank you, Mr. Chairman. 

I don’t have an opening statement, but I would like to introduce 

my wife, Debbie, my two children, Carson and Sarah Nell, if they 

would stand. They’re a little shy. 

Senator GRAHAM. It’s a handsome group there. 

Mr. HARWELL. Thank you. And, of course, my father, David 

Harwell, a retired Chief Justice from South Carolina— 

Senator GRAHAM. We’re not going to hold that against you. 

Mr. HARWELL. —and his wife, Debbie. 

[The biographical information of Mr. Harwell follows:]

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Senator GRAHAM. Welcome to you all. 

To our former Chief Justice, I know this is a huge day in your 

family’s life, and I have great admiration for you, sir. Justice 

Harwell was the Chief Justice of our Supreme Court and I have an 

intimate working knowledge of his legal background. Bryan, you 

have a wonderful family and I’m glad to have you here today. I will 

speak about you in just a moment. 

Judge SCHIAVELLI. 

STATEMENT OF GEORGE P. SCHIAVELLI, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge SCHIAVELLI. Thank you. I have no official opening statement at this point. I do want to again thank the President, and I 

want to thank Senator Boxer for her very kind introductory remarks, and for Senator Feinstein’s statement. I thank the Committee for having this hearing. 

I would also again like to introduce my family here. My wife, 

Holli, my daughter Olivia, my son Peter, and a very close friend 

of 30 years, Roy Wuchitech from the firm of Sheppard, Muller, 

Richter and Hampton in Los Angeles. 

[The biographical information of Mr. Schiavelli follows:]

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Senator GRAHAM. Welcome. Welcome to you all. Thank you. 

Mr. GOMEZ. 

STATEMENT OF CURTIS V. GOMEZ, A NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS 

Mr. GOMEZ. Good morning, and thank you, Mr. Chairman. 

I also do not have an opening statement, but I would like to introduce some family and friends who are here. 

I would like to start with my wife, Simone Francis, who has traveled from St. Thomas; her aunt, my aunt-in-law, Betty Dawson and 

her husband, Eric Dawson, who live in the Virginia area; my 

friends who I practiced with in the Eastern District of Virginia, 

Morris Parker and Rebecca Bellows, who are still at the Eastern 

District of Virginia, U.S. Attorneys Office. I see my friends from 

many years ago who are also in the D.C. metro area, Maria Wallace and Dean Wallace. I hope I didn’t miss anyone. 

Also, Mr. Chairman, I would like to thank my Delegate, who I 

understand was in the middle of conducting a health forum in the 

Virgin Islands and came up just for this. I truly appreciate her 

doing that. I appreciate the opportunity to be here. 

[The biographical information of Mr. Gomez follows:]

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Senator GRAHAM. Welcome to you all. She made a very good 

statement on your behalf. 

Before we start—and we’ll try to make this as short as possible—

I would like to make a statement on behalf of Mr. Harwell. 

PRESENTATION OF ROBERT HARWELL, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY 

HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE 

OF SOUTH CAROLINA 

Senator GRAHAM. Senator Hollings and I have had two opportunities to recommend people to President Bush for opening since I’ve 

been in the Senate in the last year-plus. Senator Hollings is the 

senior Senator from South Carolina, a member of the Democratic 

party. 

I would just like to state for the record that he has been a joy 

to work with on such matters. He is a larger than life figure, as 

you can understand from his testimony. We have worked well together, and in a fashion that I think most South Carolinians would 

appreciate. He will be retiring at the end of this term and he has 

served his State and Nation with great distinction. I want to publicly acknowledge all the help he has been to me and the great 

service he has given to our State. 

When it came time to find a suitable nominee for the Florence 

region, one of the reasons that we recommended together Bryan 

Harwell is that I have known Bryan for many years. His association as a judge advocate in the National Guard led us together. I 

was a judge advocate in the Air Force, the Air National Guard, and 

had an opportunity to work with Bryan on numerous occasions regarding National Guard issues and attended many forums with 

him. 

When it comes time to pick a judge and make a recommendation 

to the President, you want someone who, number one, won’t embarrass you, two, that will serve your citizens well, and three, wear 

the robe humbly. I am totally convinced that Bryan Harwell has 

all those qualifications. 

He will wear the robe humbly. He’s a lawyer’s lawyer. He’s been 

in the courtroom representing many interests, big and small. He is 

a well-grounded person who has contributed to his community. 

Once you put the robe on, service to the community doesn’t stop. 

There are many ways that you can serve your community, and I 

would expect that to continue. 

I know his family very well. They are extremely decent people. 

I know, Bryan, you will serve the citizens of South Carolina well. 

You have an awesome challenge ahead of you, and all the experiences that you’ve had in life will come together, from being a good 

lawyer, a good member of the military, a good husband, and a good 

father, and will serve our State well. 

I am so pleased that President Bush agreed to this request and 

has nominated you, and I want to publicly thank President Bush 

and his team for allowing this to happen. 

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

Senator GRAHAM. At this point in time I will ask a few questions 

of our panelists. I do appreciate you all being here. This is a big 

190

day for you and your families and we join you and relish the opportunity to be part of it with you. 

As I mentioned to Judge Benton, when I mentioned the term 

‘‘strict constructionist’’, could you tell the Committee what that 

means to you? We’ll start with Mr. Harwell. 

Mr. HARWELL. Thank you, Mr. Chairman. Yes, sir. 

I believe my interpretation is to give something its plain meaning, its plain ordinary meaning, not to torture its meaning. 

Senator GRAHAM. Well said. 

Judge Schiavelli? 

Judge SCHIAVELLI. Yes, thank you, Mr. Chairman. It’s a matter 

of concern, of course, for everyone on the judiciary. 

I view the role of the District Judge as one of learning a law and 

applying the law and not of making the law, and in doing that, I 

think the first place you look is to the plain meaning or the words 

of the statute that you are construing. The legislature is well capable of saying what it means, and I think the starting place is to 

assume the legislature has said what it means, that you all know 

how to say what you want us to apply, our job to apply it, and to 

look first to the terms of the statute. 

Senator GRAHAM. Thank you. 

Mr. Gomez? 

Mr. GOMEZ. Thank you, Mr. Chairman. I believe the term refers 

to a statutory construction principle and looking to the four corners 

of the document for the plain meaning of the statute. 

Senator GRAHAM. Mr. Harwell, you spent most of your time as 

a private attorney. You have done some arbitration mediation. How 

do you see the challenge of ascending to the bench without any 

prior judicial experience? How do you think your time as a lawyer 

has prepared you for the role that lies ahead? 

Mr. HARWELL. Mr. Chairman, I think my practice over the past 

20 years has been varied. I’ve had a lot of different legal issues 

thrown at me, and I think, as a judge, you will have a variety, a 

broad spectrum of issues thrown at you. So I think my practice, in 

and of itself, has very well prepared me for the challenge that lies 

ahead. 

I have also, as you know, Mr. Chairman, served as an arbitrator 

in a number of cases. I would expect that that experience would be 

of some help to me as well. 

Senator GRAHAM. Judge Schiavelli, as a member of the Los Angeles Superior Court, could you maybe share with us one of your 

more challenging cases and tell us how you think that will prepare 

you for the next step in terms of the Federal judiciary? 

Judge SCHIAVELLI. I think one of the more challenging cases—

and I believe its in the materials we have submitted—was a seven 

week trial involving an eminent domain situation between Southern California Edison and CALTRANS, regarding the taking of a 

freeway back in 1969. 

In that case, the question was whether or not compensation was 

going to be paid and from what point. It was an area that I had 

never had experience with, and that’s one of the things that I think 

that you learn very quickly on the bench, when you’re suddenly 

down the road but you don’t have any more knowledge than you 

did before. You really do have to look to the lawyers to educate you. 

191

In that complicated eminent domain case, I was very much looking 

and, luckily, had very able lawyers on both sides in litigating that 

case. 

I think that experience, plus the other experience on the Superior Court, is educational, in teaching that you do really have to 

take the time and to spend the time once you go on the bench to 

learn the law. You don’t stop reading the advance sheets, learning 

what the developing law is, working with the attorneys and recognizing that you do need their assistance, that they are there to help 

educate you and you have to be willing to accept that education. 

I think that’s a critical criteria to take to the bench, and I think 

the experience on the Superior Court has been a big help in that 

regard. 

Senator GRAHAM. Thank you. 

Mr. Gomez, tell us about the Street Law class and what that 

whole program is about. 

Mr. GOMEZ. Thank you, Mr. Chairman. Certainly. 

I was born and raised in the Virgin Islands. It’s a small community. One of the things that I think is important in any community, 

especially a small one, is community service. 

One of the things that the U.S. Attorneys Office in the Virgin Islands does is teach a street law class. What we do is we staff a 

class with lawyers, who teach various principles of the law to high 

school students. It’s a program that we’ve been running for several 

years, and it’s an adjunct to our other program which we have, 

which is to coach high school students in moot court competitions. 

Senator GRAHAM. You have been an Assistant U.S. Attorney in 

a variety of capacities. Could you tell us how you think that experience will help you in your new job? 

Mr. GOMEZ. Certainly, Mr. Chairman. If I’m fortunate to be confirmed, I would hope that the breadth and depth of my various experiences in my career would help me. 

In the U.S. Attorneys Office in the Virgin Islands, I was responsible for the financial litigation unit. That was responsible for getting all collections for the United States on judgments. I was also 

responsible for criminal prosecutions, a wide variety of criminal 

cases, violent crime, white collar, public corruption. 

In addition to that, though, Mr. Chairman, there has been considerable experience where I worked in the private sector, starting 

in the Washington, D.C. area with Patton Boggs, and then in the 

Virgin Islands as well. I think that breadth and depth of that experience will certainly help, should I be confirmed. 

Senator GRAHAM. To each of the nominees, we have two more 

questions. 

As you know, the Federal courts are facing enormous pressure as 

their caseload mounts. If confirmed, how do you intend to manage 

your caseload? Let’s start with Mr. Harwell. 

Mr. HARWELL. Mr. Chairman, I think alternative dispute resolution is always helpful, and that is being pushed in our particular 

district right now. I would continue to encourage mediation by the 

parties, or ADR. I think that has to be continued. 

Senator GRAHAM. As a judge, what role do you believe you would 

serve beyond mediation arbitration in terms of making people move 

the process along? What’s going to be your philosophy there? 

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Mr. HARWELL. Well, I think judges can certainly encourage mediation. Some judges issue standing orders in our district for mediation. So I think the judges, as a rule, can certainly encourage the 

parties to use other processes. 

Senator GRAHAM. Judge Schiavelli? 

Judge SCHIAVELLI. Thank you, Mr. Chairman. 

The problem of court management is a big one in the Los Angeles Superior Court, that being the court, the largest general jurisdiction court in the world actually. At one time, many of our judges 

had up to 500 cases in their inventories at a given time on the civil 

side, so we were very concerned about that. 

There are a number of things that I think can be helpful. First, 

there’s an old saying, and that is that nothing settles as case faster 

than an open courtroom. By that I mean, if trial dates are certain, 

that people know they’re going to trial and not going to be continued, absent reasonable circumstances—I’m not saying never continued—but as long as they know, when they get a trial date, that’s 

going to be a trial date, that moves cases along. 

I think the judge has to take an active role. We changed from 

a master calendar to a direct calendaring system, and it cut the 

caseload tremendously. The judge has to be involved in the case, 

keeping abreast of what’s going on, moving the case towards settlement at every chance, using, as has been mentioned, the ADR techniques, which are mandatory in many cases in Los Angeles now, 

depending on the size of the case. That is very helpful, both mediation and arbitration. 

Finally, enforcing the rules, ensuring that the lawyers are observing the rules and are following those rules, because that’s what 

moves cases along. 

Senator GRAHAM. Thank you. 

Mr. Gomez. 

Mr. GOMEZ. Thank you, Mr. Chairman. 

I would adopt the comments made by the other nominees, but I 

would also add this. I think it’s important that the District judge 

have a good working relationship with the magistrates who serve 

with the District judge. I think that’s one way, where you can set 

a clear objective and a clear goal to moving your calendar. 

Senator GRAHAM. A final question. Given your background and 

prior experience, could each of you speak for a moment about the 

role and significance of judicial temperament and indicate what 

elements of judicial temperament you consider to be the most important.. 

Mr. HARWELL. I think, Mr. Chairman, that judicial temperament 

is very important. I think judges should be respectful of the litigants, the lawyers, and the jurors. You know, jurors are giving up 

a lot of their time and it’s inconvenient to a lot of them. We have 

to be ever mindful of that fact and we cannot forget that. 

In South Carolina, I have appeared in front of some judges who 

have suffered from the disease of ‘‘robitis’’, that we call. I think 

judges, when they step into the courtroom, or whether they’re in 

chambers, or whether out in public, I think they’ve got to have a 

good disposition and a good temperament. 

Judge SCHIAVELLI. Thank you, Mr. Chairman. I think that is an 

issue of great importance. I think that the atmosphere of the courtVerDate 0ct 09 2002 10:53 Nov 17, 2004 Jkt 096683 PO 00000 Frm 00202 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\96683.TXT SJUD4 PsN: CMORC
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room flows from the bench outward. I think that’s from the appellate bench or from the trial bench. I think there is no excuse for 

a judge to lose his or her temper, to refuse to be courteous, and I 

think the lawyers and the participants take their cue from that. 

I think the judge must remain in control of the courtroom at all 

times, to be sure, but also can do that while remaining courteous 

and fair to the people before him or her. I believe that when a 

judge loses his or her temper, the judge has, in fact, lost the control 

of the courtroom and is now being reactive instead of proactive. So 

I think judges have a duty to be courteous to the litigants and also 

among themselves. I think it sends a bad message. 

I have seen situations where courts on appeal, for example, 

where judges have gone after each other personally in various opinions. I think that sends a bad message as well to the litigants and 

to the bar. Thank you. 

Mr. GOMEZ. Mr. Chairman, thank you. 

In addition to what the other nominees have said, I would add 

this. That it’s important that any trial court judge be mindful of 

everyone to whom they speak in their courtroom, not just the litigants and the jurors, who are integral parts of the process of any 

ongoing trial, but also the people in the audience. As a prosecutor, 

there are so many times when I have seen parents crying at sentencing hearings, and a loose word by a judge has such a profound 

effect on those people and the other people who may be watching. 

So I think it’s important not just to be mindful of the things you 

do and say to those who appear before you as parties and jurors 

who are involved in the process, but also those who may be witness 

to your actions. 

Senator GRAHAM. Thank you all very much. You have given outstanding testimony to the Committee and you all have unique and 

very solid backgrounds to be an integral part of a democracy, 

where the rule of law is our foundation. As we look throughout the 

world, there are many places who would love to have a courthouse 

to go to, where you had no fear, you could be heard and listened 

to, regardless of your station in life, where your fellow citizens have 

a chance to evaluate the merits of your claim, where someone 

would preside with dignity and with a humble hand. That is missing in many places on Earth, but it thrives here in the United 

States. I think all of you will be a great addition to that concept. 

The record will remain open for one week, on 5:00 o’clock, April 

15th, for further statements or questions for the record. 

If there is no further business, the Committee is adjourned. 

[Whereupon, at 10:50 a.m., the Committee adjourned.] 

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

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NOMINATION OF MICHAEL H. WATSON, OF 

OHIO, NOMINEE TO BE DISTRICT JUDGE 

FOR THE SOUTHERN DISTRICT OF OHIO 

FRIDAY, JUNE 4, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Michael DeWine, 

presiding. 

Present: Senator DeWine. 

OPENING STATEMENT OF HON. MICHAEL DEWINE, A U.S. 

SENATOR FROM THE STATE OF OHIO 

Senator DEWINE. The Committee will come to order. 

It is my pleasure and honor today to introduce Judge Michael 

Watson, who currently serves on the Tenth District Court of Appeals in Franklin County, Ohio. President Bush has nominated 

Judge Watson to serve as a Federal judge in the Southern District 

of Ohio. 

Before I speak about Judge Watson, I would like to welcome to 

the Committee several people who are here today to support him. 

Judge Watson’s wife, Lori Watson, is here. We would like to welcome her. His two staff attorneys, Dorci Gass and Carrie 

Wambaugh, and his administrative assistant, Karen Waldrop, we 

would welcome all of them here. We thank you all for coming. 

I am sorry that none of Judge Watson’s three sons could make 

it today. Grant and Tommy are both at Ohio State and Harrison 

is at Thomas Worthington High School. All are either taking or 

preparing for final exams this week. 

Judge Watson has had a long and distinguished career as a public servant. He has been a judge on the Tenth District Court of Appeals in Franklin County since Governor Bob Taft appointed him 

in May of 2003. 

From 1996 to 2003, Judge Watson served on the Franklin County Common Pleas Court, a position he was appointed to by then 

Governor George Voinovich, and to which he was re-elected twice. 

In Ohio, the Common Pleas Court is the highest trial bench. It 

is a court that tries all the major civil and criminal cases. During 

his last 3 years on the trial court, Judge Watson served as administrative judge with responsibility for the administrative management of the 16-member court and its staff. He dealt with literally 

thousands of cases during his time as a State trial court judge. 

226

Before serving on the bench, Judge Watson worked for the office 

of then Governor George Voinovich, first as Deputy Chief Legal 

Counsel and then, from 1994 to 1995, as Chief Legal Counsel. Prior 

to that, he was Chief Legal Counsel to the Director of the Ohio Department of Commerce. 

Judge Watson also spent several years in private practice, focusing primarily on personal injury litigation, employment disputes, 

workers compensation, and criminal defense. 

Without question, Judge Watson has had an impressive legal career. What really impresses me about him is how hard he has 

worked throughout his entire life. Judge Watson has genuinely 

lived the American dream. He has lived that dream by working 

hard and overcoming odds. He came from a working class family, 

where he was the first in his family to graduate from college. Now 

he is here before us as a nominee of the President of the United 

States, to be a Federal District Court Judge. 

When we get to questioning, I will ask Judge Watson about his 

beginnings, his humble beginnings. I would like for him to fill in 

the gaps about his life for us. But for now, I just want to say to 

Judge Watson that he should be very, very proud of his achievements. 

Judge Watson, I believe, will be a fine addition to the District 

Court. In his time on the Ohio Court of Common Pleas and on the 

Ohio Court of Appeals, Judge Watson has distinguished himself 

through his thoughtful legal reasoning and his great integrity. This 

experience and his temperament make Judge Watson highly qualified for the Federal District Court. 

Let me at this point ask Judge Watson to come forward. Judge, 

if you will remain standing, and raise your hand and take the oath. 

Judge do you swear that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing 

but the truth, so help you God? 

Judge WATSON. I do. 

Senator DEWINE. Judge, if you will please be seated, you can 

make any opening statement you would like to make, or introduce 

anyone else that you would like to introduce at this point, and then 

I will get to our questions. 

STATEMENT OF HON. MICHAEL H. WATSON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO 

Judge WATSON. Thank you, Mr. Chairman. 

First of all, I want to thank you personally for holding this hearing today, and the other members of the staff of the Committee for 

being present today. It is a distinct privilege to be in the United 

States Senate this morning, having the opportunity to talk about 

my beginnings and where I have come from. So I very much appreciate that. I also want to extend my thanks to President Bush for 

nominating me for this position. 

In addition to the individuals you previously identified, Mr. 

Chairman, I have with me today two law school classmates of 

mine, Hon. John M. Peterson, who is sporting the ‘‘ZZ Top’’ beard 

in the back, and along with him is Mr. David Ahrendt. 

Senator DEWINE. We welcome them. 

227

Judge WATSON. Thank you. They have always been great supporters of mine and it really touches me that they are here this 

morning. So thank you very much for the opportunity. 

[The biographical information of Judge Watson follows.]

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Senator DEWINE. Well, Judge, let me start by asking a question 

about your background, first of all, how you came to be an attorney 

in the first place. You don’t come from a long line of attorneys, but 

let me ask you how you were raised and describe the environment 

that you grew up in. 

Judge WATSON. Thank you, Mr. Chairman. 

My father left his family when we were young. I was raised by 

my mother and my stepfather. My stepfather managed auto parts 

stores, and my mother was a middle manager at Riverside Hospital 

in Columbus. They brought together two families, five kids, and we 

knew that we would not have the opportunity to got to college unless we saw to it ourselves somehow. Our parents could not afford 

it. 

So the opportunity presented itself for me to enlist in the Air 

Force and I enlisted in the Air Force approximately 8 months after 

I graduated from college and went away to basic training, about 13 

months after I graduated from high school, at Whetstone High 

School in Columbus, OH. 

I served in the United States Air Force for 3 years and several 

months. I had the opportunity to go to Germany and spent 2 years 

in Germany. When I left the Air Force, I had the opportunity to 

have the GI bill assist me in paying for college. In addition, I joined 

a program with the Ohio National Guard at that time, known as—

I received what was, I suppose, a discharge from the active duty 

Air Force, and I what they called ‘‘palace chased’’ into the Ohio Air 

National Guard, where I spent another roughly 6 years. 

I ultimately got out of the Air Force and the Air National Guard 

in 1984. During that period of time, Mr. Chairman, I was married 

in 1979 to the wife of my youth, who sits behind me, and we had 

three children. I had my first son, Grant, when I was a junior in 

college, at Ohio State University. I was working full time during 

my undergrad years at the Franklin County prosecuting attorney’s 

office, and then when I received my degree from Ohio State, I went 

to the only law school in town that offered a night program for a 

young man that was working full time and raising a family. That 

was Capital University Law School. 

Senator DEWINE. What was your job at the prosecutor’s office? 

You said you had a job at the prosecutor’s office? 

Judge WATSON. Yes. Several things initially, Mr. Chairman. I 

started on the administrative staff, but eventually developed into 

the management of law clerks who were doing discovery, providing 

discovery to criminal defense counsel for the cases that were being 

prepared. I worked there under the tutelage of Bill Curlis, was 

hired by now Senior United States District Judge George C. Smith 

when he was the Franklin County Prosecutor, and I worked for 

him for a period of time, and then his successor, Michael Miller. 

That was my tenure at the prosecuting attorney’s office. 

Senator DEWINE. So you went to Capital University that had a 

night law school? 

Judge WATSON. That is correct. It was a 4-year program. I was 

fortunate to go to school with a number of second career professionals and other adults who were working their way through law 

school. I met a number of wonderful people who remain friends to 

this day. 

267

Senator DEWINE. During that period of time, you continued to 

work for the prosecutor’s office? 

Judge WATSON. I worked at the prosecutor’s office until I graduated from undergrad. I began working for Judge Thompson as his 

bailiff and eventually developed into a bailiff/law clerk position for 

the entirety of my 4 years at Capital. 

Senator DEWINE. What impact did this experience have on your 

ability to be a judge, do you think, both your experience as a bailiff 

and your experience in going to night law school? 

Judge WATSON. Thank you for the opportunity to explain, Mr. 

Chairman. 

I was fortunate enough to meet the lion’s share of the practicing 

bar in Franklin County as a bailiff. I worked for the administrative 

judge of the court, who was very well regarded, who provided me 

a phenomenal example of how to be a judge. He was patient. His 

listened to people. He didn’t force people to accept guilty pleas. He 

had empathy for the folks who appeared before him. He had a work 

ethic that was one that I chose to emulate. So I had the opportunity to observe, as opposed to reading about the practice of law. 

I had the opportunity to participate in it, without violating any of 

the—Well, I had the opportunity to participate and watch other 

lawyers practice, saw trials conducted, watched experts in their 

craft performing voir dire. I listened to some fantastic closing arguments. It was a tremendous opportunity and one that other members, other peers, did not enjoy. 

Senator DEWINE. After you finished law school, what did you do 

then? 

Judge WATSON. I had the opportunity to go to work for several 

law firms, and eventually selected the Lane, Alton & Horst firm. 

Actually, they selected me. Lane, Alton & Horst is primarily an insurance defense firm—it was at that time—although the practice 

of law has changed, and so, too, has some of their practice. 

In any event, I learned how to be a lawyer there. I did the things 

that a first and second year associate would do. I did not have the 

opportunity to choose who my clients would be. I simply worked on 

the cases that the partners assigned to me. I prepared interrogatories; I did deposition summaries; sometimes I conducted depositions; sometimes I interviewed expert witnesses; sometimes I carried partners’ suitcases to court; sometimes I sat in the second 

chair at trial. I learned how to write there, you know, motion drafting and so forth. So that is the type of experience that I had at 

Lane, Alton & Horst. 

Senator DEWINE. What kind of cases were those, Judge? 

Judge WATSON. Well, they were primarily personal injury cases. 

It would be the defense of personal injury cases. But it was the defense of whatever case an insured had. If it was a property dispute 

of some sort, we dealt with that. I also did some medical negligence 

defense, because several of the partners focused on medical negligence. 

We did some employment law work, where I had the opportunity 

to participate to some degree in those cases. I also did workers’ 

compensation representation before staff hearing officers and district hearing officers of the Bureau of Workers Compensation. I 

268

also did some felony criminal appointments as they were offered to 

me by certain members of the Common Pleas Court. 

Senator DEWINE. How long then were you with that firm? 

Judge WATSON. A year-and-a-half, 15 months, something along 

those lines, Senator. 

Senator DEWINE. After that, where did you go, Judge? 

Judge WATSON. I changed sides, so to speak, and went to work 

for a firm that focused primarily on personal injury representation 

of plaintiffs. 

Senator DEWINE. What firm was that? 

Judge WATSON. It would have been Delligatti, Hollenbaugh, 

Briscoe & Milless at that point. 

Senator DEWINE. What did they do? 

Judge WATSON. They did primarily personal injury work. They 

did some small business representation. They did some employment representation. 

Senator DEWINE. What was your role there? 

Judge WATSON. More of the same, really, in terms of case preparation. I had more client contact there. But primarily it was the 

working up of a case and trying to get it ready for trial, motion 

practice and so forth. I also continued with my criminal defense 

work there as well. 

Senator DEWINE. And were you in court then during a part of 

that period of time? 

Judge WATSON. Yes, I had the opportunity to attend—I sat second chair in cases at Lane, Alton and I believe we were prepared 

to go to trial in a personal injury case in Franklin County that settled. I’m sorry, but the names escape me at this point. But it would 

have been with Mr. Delligatti and Mr. Hollenbaugh on a particular 

case. 

I was in court regularly when I was handling the criminal cases. 

I had the opportunity to attend a number of status or pretrial conferences in some of the outlying counties around Franklin County, 

as well as status conferences in Franklin County. 

Senator DEWINE. And where did you go from there, then, Judge? 

What was your next— 

Judge WATSON. In early 1991, I had the opportunity to go to 

work for the Voinovich administration. I was offered a position 

working for the Ohio Department of Commerce, as the Chief Counsel, and I held that position until some time in 1992. 

Senator DEWINE. What does a chief counsel do? 

Judge WATSON. Well, the Chief Legal Counsel had responsibility 

to the Department Director and dotted line responsibility to the 

Governor’s legal staff for all of the legal issues that arose within 

out of the regulatory work that took place in Ohio. 

Senator DEWINE. Did you give legal advice to people inside that 

department? 

Judge WATSON. I regularly gave legal advice on labor relations 

matters to the Director. I served as a go between and assisted the 

Division Chiefs when they had legal issues that they wanted to 

present to the Director, and I assisted them in the presentation of 

their issues to the Director. 

Senator DEWINE. Within that department, then, you would be 

basically that department’s lawyer? 

269

Judge WATSON. Correct. 

Senator DEWINE. You’re the chief lawyer of that department? 

Judge WATSON. Among a number of lawyers, keeping in mind 

that the division chiefs, the Commissioner of Securities, was at 

that time a lawyer, and he employed an enforcement staff. They 

were lawyers as well, but I was the chief lawyer in the department, 

yes. 

Senator DEWINE. So your work was the work of a lawyer?I mean, 

you were doing legal work. You weren’t just a person who happened to be a lawyer who was in a particular position. You were 

doing legal work every day, is what you were doing? 

Judge WATSON. That is correct. That is correct. I did have administrative responsibilities, but I also had regular legal work that I 

was involved in. 

Senator DEWINE. And your next position was what, then? 

Judge WATSON. Judge Lisa Sadler was appointed by Governor 

Voinovich to the Municipal Court bench, and I succeeded her as the 

deputy chief legal counsel in the Governor’s office in 1992. I held 

that position until I succeeded Kurt Tunnell as the chief legal counsel to then Governor Voinovich. 

Senator DEWINE. Tell us a little bit about those two positions. 

Judge WATSON. As the deputy chief counsel, I was responsible 

primarily to the chief counsel to coordinate information. We had 

oversight responsibilities in the Governor’s office for clemency matters, all legislative matters that were presented to the Governor for 

his signature. We also served as liaison between each of the cabinet 

directors and their legal staffs. So whatever the ‘‘crisis de jure’’ 

would be, we would need to become intimately familiar with the 

issues so that we could relay those issues cogently to the chief 

counsel and on to the Governor at that time. 

Senator DEWINE. But when you were the chief legal counsel, you 

were the Governor’s, as the term indicates, chief legal counsel? 

Judge WATSON. I was, correct. Yes. I succeeded Mr. Tunnell 

when he went back to Bricker & Eckler, and I became the chief 

legal counsel. I had others working on my staff who— 

Senator DEWINE. Other lawyers? 

Judge WATSON. Other lawyers. They assisted me and I was the 

primary conduit of information to the Governor. 

Senator DEWINE. The lawyers for the other departments, you 

had some coordinating authority in regard to them as well? 

Judge WATSON. At the beginning of the Voinovich administration, we asserted a role in the hiring of those individuals and the 

screening of those individuals, and where expertise existed, we left 

that expertise in place. They reported through us—they weekly reported to us, and then, of course, if there was a particular issue 

that rose to the level of the Governor’s attention, then they were 

daily on the phone with us or meeting in our offices, or we were 

in their offices dealing with those issues. 

Senator DEWINE. You became a Common Pleas judge in 1996? 

Judge WATSON. Thank you for the opportunity to address that, 

Senator. 

I had the privilege of replacing the judge who I worked for during law school upon his retirement. Judge Tommy Thompson 

served for 24 years on the Common Pleas bench, and I was fortuVerDate 0ct 09 2002 10:53 Nov 17, 2004 Jkt 096683 PO 00000 Frm 00279 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\96683.TXT SJUD4 PsN: CMORC
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nate enough to be appointed by now Senator but then Governor 

Voinovich to replace him, yes. 

Senator DEWINE. And you served as Common Pleas judge for 

how long? 

Judge WATSON. Approximately 7 years, 5 months. 

Senator DEWINE. Judge, tell us about that experience. In Ohio, 

the Common Pleas court is the top trial court in the State. 

Judge WATSON. That is correct. 

Senator DEWINE. And you hear what kind of cases? 

Judge WATSON. We hear criminal cases, from garden variety 

thefts to capital murder cases, and we hear all manner of civil 

cases, exclusive of—I had no family law jurisdiction, and I had no 

probate jurisdiction. But there were 16 members on the court. Each 

of us carried dockets in excess of 700 cases on a constant basis, 

both civil and criminal. We faced dockets—In a typical criminal 

week, we would have anywhere between 10 and 16 cases set per 

day. Our civil dockets typically had five to ten cases set per day. 

It was the busiest trial court in the State. 

What I learned there was—I had had the opportunity to observe 

Judge Thompson on a daily basis, and so I knew what kind of 

judge I wanted to be. I wanted to be a fair-minded individual who 

would listen to litigants, who had empathy for litigants, but who 

also knew how to move a docket along. 

One of the alternative dispute resolution techniques, it is my understanding, that has swept the country, settlement week, started 

in our court. It then spread to the U.S. District Court in Columbus, 

and then from there out to the hinterlands, I suppose. 

Senator DEWINE. Judge, how do you think that seven-plus years 

experience would prepare you to serve on the Federal District 

Court? 

Judge WATSON. I believe, Senator, that it would serve me very 

well. I know how to handle a busy docket. I know how to manage 

a docket and move it along. I know how to deal with busy lawyers, 

and I know how to deal with litigants, whose most important case 

on my docket that day is their case. I think it would serve me well. 

The Rules of Civil Procedure in Ohio are not dissimilar to the 

Federal Rules. The sentencing structure is similar and yet distinct, 

in that we don’t have the type of sentencing matrix that exists at 

the Federal level, but I don’t believe it would cause me any difficulty in following the sentencing guidelines, however. 

Senator DEWINE. Judge, last year you were appointed to Ohio’s 

Tenth District Court of Appeals. Has this experience given you a 

perspective that would help you as a Federal District Court Judge? 

Judge WATSON. I believe it has. I have worked with six other 

wonderful individuals who have served as mentors on that court, 

and I believe it has given me deep insight into how to be a better 

trial judge. 

Senator DEWINE. Judge, let me ask you about your reversal rate. 

In your Judiciary Committee questionnaire, you list, I believe, 37 

cases on which you have been reversed. 

Put this in a little context for us. For example, how many cases 

do you think you have dealt with on the Common Pleas Court 

bench? These 37 cases were Common Pleas cases where you’ve 

been reversed? 

271

Judge WATSON. That’s correct. 

Senator DEWINE. What kind of reversal rate is this that you’ve 

had? 

Judge WATSON. Thank you. First and foremost, I think it would 

compare very favorably with the other members of the court. Secondarily, I believe it is statistically not that significant. If you assume a constant 700 case docket and you assume that you take in 

approximately 100 new cases each month, while getting rid of, on 

average, 105, 115 cases a month, you’re dealing with 1200 cases a 

year that are moving through the docket, times seven-and-a-half 

years. Thirty-seven out of 9600 cases is where I come out on that. 

No one really keeps those statistics, but— 

Senator DEWINE. So that’s just an approximation? 

Judge WATSON. It’s an approximation, and that’s all it is. But 

that 700 number is constant, and as administrative judge for the 

last 3 years, I had a three-quarter docket. So everybody else on the 

court probably had a quarter more cases than I did even. I mean, 

they’re facing dockets at 750 and some of them 800 cases now. 

Senator DEWINE. Of course, the numbers you gave us, to keep 

it in perspective, that would not include all cases that had been appealed. So if you took just the cases that had been appealed, how 

do you think your statistics come out? 

Judge WATSON. Very well. I don’t have a number, Senator, but 

I am very well— 

Senator DEWINE. Do you think you’re in the average range? 

Judge WATSON. I think I’m probably above average, in a good 

way. That’s the best way that I can say that. I thumb through 

some of the advance sheets—For instance, one of the members of 

the court—you know, at one point I was looking at five cases a 

year. If you take the 37 and divide it by seven-and-a-half, I was 

looking at five cases a year and one individual had three cases reversed in 1 day. So I think I would show favorably in those statistics. 

Senator DEWINE. Since you have been on the Court of Appeals, 

have you had any cases reversed? 

Judge WATSON. Not to my knowledge, Senator. 

If I might amplify that, there are seven judges on the Tenth District Court of Appeals. We sit approximately 17 times a year. Each 

time we sit, we sit for 3 days out of the week and we hear approximately 21 cases and, therefore, author a third of those cases. I 

don’t know what that totals up to, but that’s a pretty good approximation of what that workload has been like. 

Senator DEWINE. When we look at your answers to the reversal 

questions in the Judiciary Committee questionnaire, some of these 

case summaries do look very similar. Does this mean you were reversed on the same issues repeatedly? I’m a little confused by that. 

Judge WATSON. No, it should not, Senator. Those cases are all 

factually distinct. In fact, the only thing that would bear any resemblance might be—I think there are four sentencing cases of the 

37. That whole sentencing law changed in July of 1996. It changed 

in July of 1996 and the Tenth District was somewhat lenient until 

the Supreme Court determined that we were to find case-specific 

facts to support our sentencing decisions. So then things tended to 

272

clear up in terms of the sentencing issues. But there are only four 

of those cases, and everything else was factually distinct. 

Senator DEWINE. There is another matter, Judge, that I would 

like to ask you about, and that is your ABA evaluation. Frankly, 

to my surprise, given what I believe are your excellent qualifications to be a Federal District Court judge, the ABA gave you a substantial majority of qualified, but a minority not qualified rating. 

This rating is not secret and, frankly, none of my colleagues have 

told me they are particularly concerned about this rating. But I do 

want to ask you about it for the record and get this out. 

Do you know why the ABA gave you this rating—why a minority 

gave you this rating is what I should say. Let me state for the 

record—and I think everyone knows this—that there are 14 voting 

members on the ABA committee. We don’t know how the vote 

broke down, but at least 10 must have voted qualified for you. We 

don’t know what the rest could have been. It may have only been 

one who voted not qualified, or it could have been up to four. We 

don’t know. 

Judge WATSON. Thank you for the opportunity to address that, 

Senator. 

I don’t know what the reason is is the fairest answer. I’m not 

privy to the committee’s vote. I don’t wish to speculate on why that 

might have taken place. I’m as surprised, I suppose, as anyone. 

Senator DEWINE. Did they give you any reason? 

Judge WATSON. No, there was no reason given at all. I was told 

to expect the opportunity, if something had come up—I was told 

that when I had my personal interview. I had a wonderful interview with a very nice gentleman, and I was led to believe that everything was fine and there were no problems. 

Senator DEWINE. No issue was raised with you— 

Judge WATSON. No issue was raised with me. 

Senator DEWINE. —in that exit interview, whatever it’s called? 

Judge WATSON. Absolutely not. 

Senator DEWINE. Now, Judge, you testified that you were an administrative judge—is that the term? 

Judge WATSON. Correct. 

Senator DEWINE. You were an administrative judge for how 

long? 

Judge WATSON. The last 3 years that I was on the trial court, 

so it was 2001, 1902 and 1903. 

Senator DEWINE. How is that person selected? 

Judge WATSON. By a vote of his peers. 

Senator DEWINE. What does that person do? 

Judge WATSON. You serve as the manager of the court, of the 

court’s business and the court’s employees. 

Senator DEWINE. So you were selected by the other—how many 

judges? 

Judge WATSON. The other 15 judges. 

Senator DEWINE. The other 15 judges. 

Judge WATSON. I voted for myself as well. 

[Laughter.] 

Senator DEWINE. So you were selected by the other judges to be 

the administrative judge, then? 

Judge WATSON. That’s correct. 

273

Senator DEWINE. Tell me a little bit about your approach to 

docket management a little bit more. You talked about this, but I 

wonder if you could expand on how you see your role with this on 

the Federal District Court. Because it’s a problem with any court, 

and it certainly is a problem, as you pointed out, in Franklin County Common Pleas Court. But it is a problem at the Federal District 

Court as well. 

Tell us as little bit about your attitude on that, and tell us a little bit about the alternative dispute resolution, too. 

Judge WATSON. In the nearly 20 years that I have been around 

courts and around the law, I have had the opportunity to see a 

number of techniques, alternative dispute resolution and docket 

management techniques tested, some successfully, others not so 

successfully. 

Franklin County employed what was known as a ‘‘rocket docket’’, 

where you got a trial date and all of the attendant hearing dates 

the day you file your lawsuit, and then everything works towards 

the trial date. If managed correctly, which means regular contact 

with the lawyers, you can fairly efficiently move a case through to 

resolution. 

Along the way there are a number of opportunities through mediation, through this settlement week concept, through arbitration, 

both private and then arbitration with court magistrates and so 

forth to resolve cases. 

As the case nears trial, oftentimes the judge would sit down with 

counsel and see if there wasn’t any last minute ability to settle a 

case. Many cases have a tendency to settle on the morning of trial 

on the courthouse steps, as I’m sure you’re aware. Judge Thompson 

was a very effective negotiator, but he did it without twisting people’s arms very hard. So I learned how to do it in a manner that 

left open the opportunity for people to try the case, if that’s the 

route they wanted to continue to pursue. 

Senator DEWINE. Judge, we often hear lawyers complain about 

judges who won’t allow lawyers to try their own case. On the other 

hand, a judge clearly has to keep control of the courtroom. 

How do you balance the two? 

Judge WATSON. Senator, I think you have identified perhaps a 

key distinction between conducting a trial at the State level and 

conducting a trial at the Federal Court. My understanding of the 

practice in the Southern District is that a number of the judges 

conduct voir dire for the lawyers, where in the State court the practice is much more left to the lawyers themselves. 

Unless I am bound by some rule that I’m currently unfamiliar 

with, my intention would be to allow the lawyers to choose their 

own jury, because I think it’s a key aspect of the case. I believe 

that lawyers should be allowed, once they get to trial, they should 

be allowed, within the bounds of the rules of evidence and the rules 

of procedure and proper decorum, to present their case without my 

interference, only ruling on the objections that come before me and 

properly administering the case. 

Senator DEWINE. What about the rest of the trial itself, besides 

the selection of the jury? What about the general running of the 

case? How would you describe yourself, as to what kind of judge 

are you? 

274

Judge WATSON. My tendency as a trial judge has been not to 

allow questions from witnesses—I’m sorry, is that what I mean? I 

mean questions of witnesses to a jury. I am willing to be edified 

on that. I know that it has been tried by a number of my peers and 

I know there are folks who experiment with those things from time 

to time. 

But in the conduct of the case itself, I have on rare occasions 

interjected a question when I had a question, but I think the trial 

judge, in doing so, has to be very careful not to evidence-bias in the 

question that you ask. You have to be very careful about how you 

put your question. 

Senator DEWINE. Judge, you have been on the Common Pleas 

Court. You have now been on the Court of Appeals, and you have 

had the experience of watching trials from a great seat, and that’s 

the seat of a bailiff. You have had all those experiences. 

Why do you want to be on the Federal Court? 

Judge WATSON. Senator, thank you for the opportunity to answer 

that question. 

I sit here today because this is a highly sought after position in 

our profession. I view this as the crowning achievement of a career, 

a capstone of a career, if you will. I have dedicated my life to public 

service. This is an opportunity that I simply could not ignore. I believe that my skills and my temperament qualify me, that my experience qualifies me for this position. I think that most lawyers, at 

some point in their career, would say that this is a coveted position. I respect that and that is why I am seeking this position. 

Senator DEWINE. Judge, in general, Supreme Court precedents 

are binding on all lower Federal Courts and Circuit Court precedents are binding on the District Courts within the particular circuit. 

Are you committed to following the precedents of higher courts 

faithfully and giving them full force and effect, even if you personally disagree with such precedents? 

Judge WATSON. Absolutely, Senator. 

Senator DEWINE. Judge, I thank you very much. 

Let me just say that the record will remain open for one week 

for additional statements or questions. We would ask, if members 

of the Judiciary Committee do submit questions for you, that you 

respond to these promptly. The record will close at 5:00 p.m., on 

June 11th. 

I do have a written statement for the record to be submitted by 

Senator Voinovich, who regrets that he could not be here today. 

That will become a part of the record. 

Judge WATSON. Thank you very much, Mr. Chairman. I appreciate all you have done and I thank you for having this hearing 

today. 

Senator DEWINE. If there is no other business to come before the 

Committee today, the Committee will stand adjourned. 

[Whereupon, at 10:50 a.m., the Committee adjourned.] 

[Questions and answers and a submission for the record follow.] 

[Additional material is being retained in the Committee files.]

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(313)

NOMINATION OF RICHARD A. GRIFFIN, OF 

MICHIGAN, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SIXTH CIRCUIT; DAVID W. 

MCKEAGUE, OF MICHIGAN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; 

AND VIRGINIA MARIA HERNANDEZ COVINGTON, OF FLORIDA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT 

OF FLORIDA 

WEDNESDAY, JUNE 16, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:07 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Cornyn, and Leahy. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Today, the Committee will conduct a hearing 

on the nominations of three outstanding lawyers to be Federal 

judges. I commend President Bush for nominating each of them 

and I look forward to their testimony. I welcome the nominees, 

their family members and guests, and, of course, our distinguished 

colleagues who will be here, I believe, to testify today, as well as 

Members of the House who will introduce two of our nominees. 

On our agenda today are two nominees for the United States 

Court of Appeals for the Sixth Circuit: Mr. Richard A. Griffin and 

Mr. David W. McKeague. In addition, we will consider the nomination of Virginia Maria Hernandez Covington, to be United States 

District Judge for the Middle District of Florida. We are happy to 

have you all here today. 

I might add that it was over two-and-a-half years ago, on November 8, 2001, that President Bush nominated Judge McKeague for 

a seat on the Sixth Circuit. Judge Griffin was first nominated to 

this position by President George W. Bush on June 26, 2002. Both 

of these nominees have been rated Well Qualified by the American 

Bar Association. 

Let me be frank. I am aware that many people have strong feelings about the status of the Sixth Circuit Court nominees. For 

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more than 2 years, I have been working with many, including the 

Senators from Michigan, to bring an acceptable resolution to these 

issues. I believe the best way to continue at this point and to 

progress toward a resolution is to move forward with this hearing, 

report the nominees from the Committee and place them on the executive calendar. 

I am mindful that Senators Levin and Stabenow have concerns 

about the Sixth Circuit nominees. The Michigan Senators’ negative 

blue slips have been and will continue to be accorded substantial 

weight. Indeed, the timing of this hearing is due, in part, to the 

views of the Michigan Senators. While negative blue slips are not 

dispositive under the Committee’s Kennedy-Biden-Hatch blue slip 

policy, they certainly are a significant factor. 

Since I first became Chairman of the Committee in 1995, I have 

followed the same blue slip policy crafted by two former Democratic 

Chairmen of this Committee, Senator Kennedy and Senator Biden. 

Here is the Committee’s blue slip policy, as explained in a letter 

by former Chairman Joe Biden to the first President Bush, dated 

June 6, 1989, quote, ‘‘For many years, under both Democratic and 

Republican chairmanships, the return of a negative blue slip meant 

that the nomination simply would not be considered. That policy 

was modified under Senator Kennedy’s chairmanship so that the 

return of a negative blue slip would not preclude consideration of 

the nomination. A hearing and vote would be held, although the return of a negative blue slip would be given substantial weight,’’ unquote. 

Chairman Biden continued to explain the blue slip policy that 

the Committee would follow under his chairmanship as follows, 

quote, ‘‘The return of a negative blue slip will be a significant factor to be weighed by the Committee in its evaluation of a judicial 

nominee, but it will not preclude consideration of that nominee unless the administration has not consulted with both home State 

Senators prior to submitting the nomination to the Senate. If such 

good-faith consultation has not taken place, the Judiciary Committee will treat the return of a negative blue slip by a home State 

Senator as dispositive and the nominee will not be considered,’’ unquote. 

In the case of Judge McKeague, Judge Griffin and other Michigan nominees, there is a clear record of consultation by the Bush 

White House with the Michigan Senators. Over 3 years ago, on 

April 10, 2001, White House Counsel Alberto Gonzales began discussions with the offices of the Michigan Senators regarding the 

vacancies on the Sixth Circuit and in the Eastern District of Michigan. 

I understand that on May 17, 2001, Judge Gonzales provided the 

names of the individuals being considered for the Michigan vacancies and invited both Senators to provide feedback. The record is 

clear that over the next year, through subsequent telephone conversations as well as written correspondence, there was extensive 

consultation and repeated invitations to the Michigan Senators to 

provide their input into the nomination process. 

In fact, I understand the White House offered to consider nominating both of the individuals championed by the Michigan Senators to Federal judgeships. Although President Bush ultimately 

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did not nominate those individuals, one can only conclude the consultation requirement was meaningfully fulfilled in the cases of 

Judge McKeague, Judge Griffin and other Michigan nominees. 

I will continue to work with my friends and colleagues from 

Michigan—Senators Levin and Stabenow—the White House, Members of the House of Representatives, Senator Leahy and others on 

the Committee to reach an acceptable resolution for the vacancies 

in Michigan and the Sixth Circuit. I view resolution of the Sixth 

Circuit situation as important as any other judicial nominations 

matter pending before the Committee. I remain hopeful that we 

can reach an acceptable outcome. 

Toward that end, this morning we welcome to the Committee 

Richard Allen Griffin, whom President Bush has nominated for a 

seat on the Sixth Circuit Court of Appeals. Judge Griffin has exceptional qualifications for the Federal appellate bench. 

After graduating from the University of Michigan Law School in 

1977, Judge Griffin spent 11 years in the private practice of law. 

In 1985, Judge Griffin founded the firm Read and Griffin, in Traverse City, Michigan. During his private practice, Judge Griffin 

specialized automobile negligence, premises liability, products liability and employment law. Additionally, he provided pro bono 

legal services as a volunteer counselor and attorney with the Third 

Level Crisis Center. In 1988, Judge Griffin was elected to the 

Michigan Court of Appeals. He was elected to retain his seat in 

1996, and again in 2002. We are pleased to have him before us and 

look forward to hearing from him. 

Of course, we note that his father is here with us, the former 

Senator from Michigan, a man whom I have always had a great 

deal of respect for, Senator Griffin. 

We welcome you here to the Committee today. 

I would be remiss if I hadn’t mentioned that because Judge Griffin’s father was a very distinguished member of the United States 

Senate. 

I know how proud you must be, Senator Griffin, of your son 

today. 

Our second nominee to the Sixth Circuit is David W. McKeague, 

who presently serves as a Federal district court judge for the Western District of Michigan. This is Judge McKeague’s second appearance before this Committee, his first having occurred when he was 

nominated to his current position more than a decade ago. 

In 1992, this Committee voted him to the floor with several other 

district court nominees en bloc, without any objection, and the full 

Senate confirmed him to the Federal bench by unanimous consent. 

Since 1992, he has served with distinction in the Western District 

of Michigan, and since 1994 has regularly been designated to sit 

on panels and draft appellate opinions for the Sixth Circuit Court 

of Appeals. 

Judge McKeague graduated from the University of Michigan in 

1968 and then attended the University of Michigan Law School. 

Upon graduation, in 1971, he joined the law firm of Foster, Swift, 

Collins and Smith, P.C., in Lansing, Michigan. He also served 6 

years in the United States Army Reserve. 

Since 1998, Judge McKeague has also served as an adjunct professor of law at Michigan State University’s Detroit College of Law. 

316

Judge McKeague is a distinguished and well-respected Federal 

judge who, in the words of one of his current colleagues on the Federal district court, quote, ‘‘let’s the law and the facts take him 

where they take him,’’ unquote. He will make an outstanding addition to the Sixth Circuit and I look forward to hearing from him 

this morning. 

I will submit letters of support into the record for all nominees. 

Judge Virginia Maria Hernandez Covington is our nominee for 

the Middle District of Florida. Judge Covington has had a distinguished career on both sides of the docket and is a pioneer of sorts. 

She became the first Cuban-American woman ever appointed to 

Florida’s appellate courts. She is the highest-ranking Hispanic 

woman serving in Florida’s judiciary, presently serving as a judge 

on the Second District Court of Appeal. 

Prior to her appointment to the bench, Judge Covington served 

in various legal positions. After graduation from Georgetown University Law School, where she was the editor of the Tax Lawyer 

Law Review, Judge Covington worked for the Federal Trade Commission as a trial attorney, where she was responsible for ensuring 

that compliance agreements were enforced. 

In 1982, she became an Assistant State Attorney for 

Hillsborough County, Florida, where she prosecuted traffic and 

misdemeanor cases. In 1983, Judge Covington became an Assistant 

United States Attorney for the Middle District of Florida, where 

she rose to the position of chief of the Asset Forfeiture Division. 

In addition to her prosecutorial and managerial duties, Judge 

Covington has lectured extensively on asset forfeiture, money laundering and complex prosecutions to prosecutors and law enforcement personnel throughout the United States and abroad. 

Throughout her career, Judge Covington has received more than 70 

accolades and commendations for her professional and civic work. 

She is well deserving of the ABA’s unanimous Well Qualified rating. 

Again, I am pleased to welcome these distinguished nominees to 

the Committee and I look forward to hearing her testimony. 

We will now turn to the Democrat leader on the Committee, Senator Leahy, before we turn to our witnesses. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. I welcome our 

two Senators from Michigan and the others. It is good to see my 

former colleague, Senator Griffin. We served together back a long, 

long time ago, and I remember his calm demeanor, his courtesy, especially to this, the junior-most member of the Senate when I arrived. 

I recall that you were as kind and as forthcoming to me as you 

were to the far more senior members, and I appreciate that. My 

good friend, the senior Senator at that time, Bob Stafford told me 

you would be that way, and he was right, as always. 

Seeing Senator Levin and Senator Stabenow here, I can’t help 

but mention that the basketball fans in Detroit and throughout 

Michigan are probably still celebrating that extraordinary triumph 

of the Pistons last night, the NBA championship. The Pistons’ win 

317

was an example of great teamwork. It was hard work. Actually, I 

can’t help but say I wish the White House would work with the 

same kind of teamwork and we would be a lot further along. 

In some ways, these hearings—and I hate to mention this, but 

having listened to the statement of my good friend from Utah, Senator Hatch, I worry that we are just one more time breaking longstanding precedent and Senate tradition. In the past year-and-ahalf, with the Senate and the White House under control of the 

same political party, we have witnessed rule after rule broken or 

misinterpreted. 

The list is long. Whether it is from the way home State Senators 

are treated, to the way hearings are scheduled, to the way the 

Committee questionnaire has been altered, to the way our Committee’s historic protection of the minority by Committee Rule IV has 

been violated—something that the Democrats, when they were in 

the majority, followed assiduously to protect the rights of the Republicans—in every one of these cases, the Republicans on the 

Committee have destroyed virtually every custom, and I must say 

every courtesy that used to help create and enforce cooperation and 

civility in the confirmation process. 

Some are even now beginning to talk openly about ignoring another longstanding practice, one that was followed very carefully, 

the Strom Thurmond rule. Every time it came up, we were told, 

out of respect, this is what we all agree to. And now they think 

that maybe they might not follow the Thurmond rule for the first 

time in this particular presidential election year. 

It has been a strange time, these 3 years, during which Republican staff stole Democratic files off the Judiciary computers during 

what has been a ‘‘by any means necessary’’ approach. Their approach to the rules and precedents seems to follow a new kind of 

golden rule; that is that he with the gold rules. That has not been 

helpful to the process or the Senate or the country. 

In the past several weeks, we have begun to see how the administration, at the Department of Defense, at the Department of Justice and at the White House, reinterpreted our laws and our treaties that govern our Nation’s policies and practices for the detention and interrogation of prisoners, and how that led to torture and 

abuse. That has severely undercut and endangered our brave men 

and women serving in Iraq and around the world. 

I can’t remember a time when the United States has faced more 

criticism abroad. As Secretary Ridge stated in his own testimony 

at our hearing last week, these kinds of abuses have had the effect 

not of making us safer, but instead they have increased recruiting 

by anti-American and terrorist organizations. 

It is as if those in power believe that they are above our constitutional checks and balances, and they can reinterpret any treaty, 

any law, rule, custom or practice that they do not like or find inconvenient, today’s hearing being an example of that. 

Nearly a year ago, the Chairman crossed a line that he had 

never before crossed when he held a hearing for Henry Saad, a 

nominee to the U.S. Court of Appeals for the Sixth Circuit. He was 

opposed by both of his home State Senators. I said at that time I 

thought it may not only have been the first time this Chairman 

held a hearing for a nominee without two positive blue slips indiVerDate 0ct 09 2002 10:53 Nov 17, 2004 Jkt 096683 PO 00000 Frm 00327 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\96683.TXT SJUD4 PsN: CMORC
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cating support from home State Senators, but it may have been the 

first time any Chairman on any Senate Judiciary Committee, Republican or Democrat, proceeded with a hearing on a judicial nominee over the objection of both home State Senators. It was certainly 

the only time we could find in the last 50 years. I know it is the 

only time during my 30 years in the Senate. 

Today, having broken a longstanding practice of this Committee 

founded on a respect for the wishes of a home State Senator, 

whether in the case of a district or circuit court nominee, we are 

doing it again, but we are doubling the ante this time because both 

judicial nominees are opposed by their home State Senators. 

The Michigan Senators, highly respected, have come to this Committee. They have stated their very real grievances with the White 

House and their honest desire—and I know because I have sat in 

on some of these meetings—to work toward a bipartisan solution 

to the problem of filling vacancies in the Sixth Circuit. 

I think we should respect their views, just as we have respected 

the views of Republican and Democratic Senators for decades. I 

have urged the White House to work with them. I have proposed 

solutions that might work. Even the Republican Governor of their 

State has said that he thought those solutions were extremely 

workable. For one thing, they have proposed reasonable solutions, 

including a bipartisan commission used in many other States, and 

the White House rejects that. 

I mention this because it is telling that another nominee today 

is the result of a bipartisan commission. Judge Virginia Maria Hernandez Covington, who has been nominated to a Federal district 

court in Florida, has the full support of both of her home State 

Senators, both Democrats. I congratulate the Senators from Florida 

for their efforts to maintain this important mechanism for promoting experienced and consensus candidates to the bench. 

The President promised—and I found this a hopeful promise—on 

the campaign trail to be a uniter, not a divider. That promise apparently stopped after the campaign, because his practice in office 

with respect to judicial nominees has been often most divisive. 

Citing the remarks of a White House official, the Lansing State 

Journal reported that President Bush is simply not interested in 

compromise on the existing vacancies in the State of Michigan. It 

is unfortunate that there is no effort to unite and not divide. 

I have talked about this before, but given the continued flaunting 

of precedent, it bears repeating. When Republicans chaired this 

Committee and we were considering the nominations of a Democratic President, if there was just one negative blue slip from just 

one home State Senator, that doomed the nomination and there 

wasn’t even a hearing. This included all nominations, including 

those to the circuit court. 

There is no other way to explain the failure to schedule hearings 

for such qualified and non-controversial as James Beaty and James 

Wynn, African-American nominees from North Carolina. There had 

been a failure to return one blue slip. There was an objection from 

one Senator, so we didn’t have hearings. 

What other reason could plausibly be found for what happened 

to the nominations of Enrique Moreno and Jorge Rangel, both 

Latino, both Harvard graduates, both highly rated by the ABA? A 

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Senator from Texas objected, so we didn’t having hearings in the 

Judiciary Committee. 

Now, that was the rule during the time of the Clinton administration. Apparently, now that there is a Republican in the White 

House, the Republicans in the Senate have changed the rule. They 

used the rule against more than 60 of President Clinton’s judicial 

nominees. They never had a hearing, never had a vote. More than 

200 of his executive branch nominees never had a hearing, never 

had a vote, through the enforcement of rules and precedents which 

the Republican majority said at that time were sacred. But now 

they find it is only inconvenient because the White House has 

changed. 

The Republican Senate majority refused for over 4 years to consider President Clinton’s well-qualified nominee Helene White to 

the Sixth Circuit because a Republican Senator from Michigan objected. Judge White has served on the Michigan Court of Appeals 

with Judge Griffin since 1993. Prior to her successful election to 

that seat, she served for nearly 10 years as a trial judge, handling 

a wide range of civil and criminal cases. She was first nominated 

by President Clinton in January 1997, but the Republican-led Senate refused to act on her nomination. She waited in vain for 1,454 

days for a hearing, before President Bush withdrew her nomination. 

President Clinton had also nominated Kathleen McCree Lewis. 

She is the daughter of a former well-respected African-American 

Solicitor General of the United States and a former Sixth Circuit 

judge. She was also passed over for a hearing for years. No effort 

was made to accord her consideration for 18 months. Now, we have 

a double standard at work. 

Under our Constitution, the Senate has an important role in the 

selection of our judiciary. The brilliant design of our Founders established that the first two branches of Government would work together to equip the third branch to serve as an independent arbiter 

of justice. That is why the U.S. Senate rejected some of George 

Washington’s judges—the most popular President this country ever 

had. When there was a huge Democratic majority in the Senate, 

they rejected the judicial plans of Franklin Roosevelt at the height 

of his popularity. 

As columnist George Will wrote, ‘‘A proper constitution distributes power among legislative, executive and judicial institutions so 

that the will of the majority can be measured, expressed in policy 

and, for the protection of minorities, somewhat limited.’’ 

The structure of our Constitution and our own Senate rules of 

self-governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party is not acting in a measured way, but in 

complete disregard for the traditions of bipartisanship that are the 

hallmark of the Senate. It has acted to ignore precedents and reinterpret longstanding rules to its advantage. This practice of might 

makes right is wrong. 

Thank you, Mr. Chairman. I do look forward very much to Judge 

Covington. That was followed through in a bipartisan effort to get 

her nomination here, and I suspect that she will probably get a 

unanimous vote. 

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Chairman HATCH. Thank you, Senator. I will put my responses 

to your comments in the record. 

Senator Levin, we will turn to you. 

STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE 

STATE OF MICHIGAN 

Senator LEVIN. Mr. Chairman, thank you for inviting us to testify here today. Thanks to both you and to Senator Leahy for your 

efforts on this Committee. We know how difficult they are and we 

all appreciate them. 

As we have expressed to you, Mr. Chairman, and expressed to 

the Committee in a lengthy statement last July 30, and reflected 

by our negative blue slips on these nominations, we believe that 

moving forward on these nominations without addressing the existing impasse in a bipartisan manner could deepen partisan differences and make future efforts to resolve this matter more difficult. 

The number of Michigan vacancies provides an unusual opportunity for bipartisan compromise. Efforts to forge compromise so 

far have not been successful. We hope these efforts will continue. 

The Pistons’ victory last night as underdogs only reinforces my optimistic streak. If they can do it, we all can do it. 

Chairman HATCH. Let’s hope we can. 

Senator LEVIN. Two of President Clinton’s nominees—Michigan 

Court of Appeals Judge Helene White and Kathleen McCree 

Lewis—stood without a hearing before this Committee for more 

than 4 years, in one case, and one-and-a-half in the other. No questions or concerns were raised about either nominee’s qualifications. 

In the case of Judge White, her nomination went without a hearing 

longer than any other in the history of the United States Senate. 

The Senate’s failure to consider these nominations in the first instance was a direct result of Senator Abraham’s refusal to return 

his blue slips on the nominations of Judge White and Ms. Lewis. 

Senator Abraham’s refusal did not relate to either woman’s qualifications. Rather, it stemmed from his repeated efforts to persuade 

the Clinton White House to nominate Jerry Rosen, a district court 

judge in the Eastern District of Michigan, to the Sixth Circuit. The 

record shows that this Committee honored Senator Abraham’s refusal to return the blue slips. The Clinton administration gave serious consideration to Senator Abraham’s recommendation, but ultimately decided to nominate someone else—Kathleen McCree Lewis. 

During the years in which Judge White’s and Ms. Lewis’ nominations were pending, Senator Leahy as Ranking Member of this 

Committee delivered at least 16 statements on the Senate floor regarding the Sixth Circuit nominations. During the same period, I 

frequently asked Senator Abraham to return his blue slip and 

Chairman Hatch to hold Committee hearings for the nominees. 

Those efforts were futile. 

Also troubling was that after Senator Abraham finally returned 

his blue slips on the two nominations, the two women were still not 

given hearings. To that point, I had understood that Senator Abraham’s decision not to return blue slips on the two nominees prevented them from being granted a Judiciary Committee hearing. 

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So the day that Senator Abraham returned the blue slips, I 

wrote Senator Hatch, reminding the Chairman that both slips had 

now been returned on the two nominations and urging that they 

be placed on the agenda of the next Judiciary Committee confirmation hearing. That effort and the many that followed were unsuccessful. 

Over the next several months, Senator Leahy went to the floor 

ten times to urge action on the Michigan nominees. More than 

once, I also raised the issue on the Senate floor. None of our statements prompted the Judiciary Committee to act. 

On at least one version of Judge White’s and Ms. Lewis’ blue 

slips read the following, quote, ‘‘No further proceedings on this 

nominee will be scheduled until both blue slips have been returned 

by the nominees’ home State Senators.’’ That was right on this 

Committee’s blue slip, and during the entire Clinton presidency it 

is my understanding that not a single judicial nominee, not one, 

got a Judiciary Committee hearing if there was opposition by one 

home State Senator, let alone two, as there are here. 

So the unreturned blue slips of one Republican Senator precluded Judiciary Committee consideration of two nominees of a 

Democratic President. Surely, two negative Democratic blue slips 

should not be ignored by this Committee simply because we have 

a Republican President making the nominations. 

Inconsistencies in the Committee’s blue slip policy are deeply 

troubling, but equally troubling, Mr. Chairman, is that even after 

the blue slips were returned by Senator Abraham, Judge White 

and Ms. Lewis were still denied hearings. Why? 

Please listen to the testimony of Kent Marcus, of Ohio, about 

President Clinton’s Sixth Circuit nominees. Professor Marcus was 

nominated by President Clinton to fill an Ohio vacancy on the 

Sixth Circuit. Both home State Senators indicated their approval 

of that nomination. Nevertheless, he was not granted a Judiciary 

Committee hearing. His troubling account of his experience—and it 

was an account in his testimony before the Senate—sheds added 

light on this Michigan situation. 

Here is what his testimony was before this Committee, quote, 

‘‘To their credit,’’ Professor Marcus said, ‘‘Senator DeWine and his 

staff, and Senator Hatch’s staff and others close to him were 

straight with me. Over and over again, they told me two things. 

One, there will be no more confirmation hearings to the Sixth Circuit during the Clinton administration. Two, this has nothing to do 

with you. Don’t take it personally. It doesn’t matter who the nominee is, what credentials they may have, or what support they may 

have.’’ 

He went on, ‘‘On one occasion, Senator DeWine told me this is 

bigger than you and it is bigger than me. Senator Kohl, who had 

kindly agreed to champion my nomination within the Judiciary 

Committee, encountered a similar brick wall. The fact was a decision had been made to hold the vacancies and see who won the 

presidential election. With a Bush win, all those seats could go to 

Bush rather than Clinton nominees,’’ close quote. 

Senator Stabenow are not alone in our view that what occurred 

with respect to Judge White’s and Lewis’ nominations were fundamentally unfair. Even Judge Gonzales, the current White House 

322

Counsel, acknowledged that it was wrong for the Republican-led 

Senate to delay action on judicial nominees for partisan reasons, at 

one point even calling the treatment of some nominees during the 

Clinton administration, quote, ‘‘inexcusable.’’ 

Senator Stabenow and I are determined to do what we can to see 

to it that the tactic used against the two nominees from Michigan 

does not succeed. But we are also determined to seek a bipartisan 

solution, and we have proposed a bipartisan commission to recommend nominees to the President. Similar commissions have 

been used in other States. That commission would not guarantee 

that the recommendation, much less the nomination of any particular individual would occur, but it has thus far been rejected. 

I also want to thank you, Mr. Chairman, because you have made 

some real efforts to seek a bipartisan solution to this problem. It 

has not yet succeeded, but again I think it is incumbent on all of 

us—and I know the Chairman agrees with this—to keep on trying. 

Again, with this number of Michigan vacancies, we have an unusual opportunity to find a better path for the consideration of judicial nominees. Finding that path would be of great benefit not just 

as a solution to this problem, but to set a positive tone for the resolution of other judicial disputes as well. 

I again thank you, Mr. Chairman, for inviting us to speak this 

morning. A much lengthier statement was given by me on July 30 

with many more details, and I would refer the Committee to that 

statement for those details. 

Chairman HATCH. We will incorporate that statement in the 

record. 

Senator Stabenow. 

STATEMENT OF HON. DEBBIE STABENOW, A U.S. SENATOR 

FROM THE STATE OF MICHIGAN 

Senator STABENOW. Well, thank you, Mr. Chairman, and I too 

want to thank you for allowing Senator Levin and I to once again 

speak before the Committee. 

We have had some references to the Pistons and I wanted to say 

as someone who has watched them very closely and is very excited 

about the win last evening that they did show us what you can do 

when you can work together. 

Chairman HATCH. Well, they really did. Sorry to interrupt you, 

but I have been a big fan of Larry Brown for years. 

Senator STABENOW. Terrific. 

Chairman HATCH. He is one of the great coaches in the game. We 

have one of the greatest coaches in Utah, in Jerry Sloan. In fact, 

I think probably the two of them are the two greatest coaches in 

the game. 

That was a truly remarkable win. I felt badly for my dear friend, 

Karl Malone. You guys were really nasty to him, is all I can say, 

in not getting his ring finally, because he has been the greatest 

power forward who ever lived. But I congratulate Detroit. What a 

team. Did they play well together? Like you say, it was pure teamwork. 

You know, if we could do that around here, if we just had a little 

teamwork around here— 

Senator STABENOW. I agree. 

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Chairman HATCH. —I think we could be champions, too. 

Senator LEVIN. Even when the odds are against us. 

Chairman HATCH. Even when the odds are against us. 

Senator STABENOW. It shows what we can do when we work together, no question about it. 

Mr. Chairman, once again I completely agree with Senator Levin’s testimony, and I want to thank Senator Levin for his leadership in trying to bring fairness in the nomination process for the 

Sixth Circuit Court of Appeals. I personally deeply regret that after 

many hours of meetings and discussions—and I thank the Chairman for all of your efforts—there is not yet a solution or a willingness from the administration to work with us to create a solution, 

which I believe that there is and I believe that people of good faith 

can find a solution. 

Mr. Chairman, I still believe the best way to end the impasse is 

to have a bipartisan compromise. I fear that without a fair compromise, this struggle between the two branches of Government 

will continue for some time. As you know, Senator Levin and I 

have proposed to settle this conflict by appointing a bipartisan commission to make recommendations to the White House on judicial 

nominations, similar to the commission that is up and working just 

across the lake in Wisconsin. Unfortunately, the White House has 

rejected this proposal, despite having agreed to similar commissions in other States with other Senators. 

I went into detail at the July 30, 2003, Committee hearing about 

how this type of commission could break this impasse. I won’t repeat my earlier testimony, but I simply would ask that my statement from the July hearing be included in today’s record. 

Chairman HATCH. Without objection, we will put it in the record. 

Senator STABENOW. Mr. Chairman, I want to thank you again for 

allowing us to testify. I really do believe that if we continue to 

work together in good faith, we can find an acceptable bipartisan 

compromise, and I am hopeful that the Chairman will continue to 

pursue that course. 

Thank you. 

Chairman HATCH. Well, thank you, Senator. I appreciate that. As 

you know, I have tried to resolve this. I tried to resolve it before, 

and the problem before was that Senator Abraham said there was 

zero consultation. And under those circumstances, it was very difficult to break through. 

I want to personally express my regard for both of you in trying 

to work with me to resolve it. We just haven’t been able to find the 

right combination to do it, but I will keep working on it because 

these are well-qualified people and should have the right to confirmation. I promise I will do my very best. 

Senator LEVIN. Thank you so much. 

Chairman HATCH. Thank you so much. 

I don’t know which one of you two is more senior. Well, I have 

got to go to Senator Nelson first, and then I will go to Representative Camp and then Representative Rogers. I thought maybe I 

would just continue with Michigan, but we will let you go, Senator 

Nelson, and then you can leave. 

Senator NELSON. I don’t mind waiting, Mr. Chairman, if you 

want to continue with— 

324

Chairman HATCH. No. We will go with you and then we will finish with them. 

PRESENTATION OF VIRGINIA MARIA HERNANDEZ COVINGTON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. BILL NELSON, A U.S. 

SENATOR FROM THE STATE OF FLORIDA 

Senator NELSON. Well, thank you, Mr. Chairman. I am here on 

behalf of a nominee for judge that is an American success story, for 

Judge Covington’s family left Cuba in 1953, not speaking a word 

of English, and it is a story, as you would expect, to be nominated 

to this high court. 

She comes with extraordinary recommendations that are bipartisan in nature. She has a master’s in business administration, a 

law degree from Georgetown, and then she worked as a trial attorney for the Federal Trade Commission and as an Assistant State 

Attorney back in our State of Florida. For 12 of those 20 years, she 

was at the U.S. Attorney’s office, so an enormous amount of Federal experience there. In addition to Judge Covington’s experience 

as a prosecutor, she has lectured extensively; numerous honors. 

I would like to introduce her two children who have accompanied 

Judge Covington, Laura and Stephen. Where are they? 

Thank you for being here. 

Chairman HATCH. We are happy to have you young folks with 

us. 

Senator NELSON. So I could keep going on in. I know Judge Covington. She is from Tampa. She is close friends with many of my 

close friends there. She has Senator Graham’s—both of our unqualified support. 

Chairman HATCH. Well, thank you so much. 

Judge Covington, that is high praise. We have a lot of respect for 

Nelson, and we appreciate you taking time from what we know is 

a busy schedule to be here today and to give this testimony. It is 

very favorable and helpful here. 

Senator NELSON. Thank you, Mr. Chairman. 

Chairman HATCH. We will turn to Representative Camp, and 

then we will go to Representative Rogers. 

PRESENTATION OF RICHARD A. GRIFFIN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT, BY HON. DAVE 

CAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF MICHIGAN 

Representative CAMP. Thank you very much, Mr. Chairman. 

Senator Bob Griffin and ladies and gentlemen, it is an honor to 

introduce circuit court nominee Judge Richard Allen Griffin. Judge 

Griffin is a life-long resident of Traverse City, Michigan, which is 

in my 4th Congressional district. I have known Rick and his family 

for a number of years and I am pleased to recommend him to the 

Committee. 

Judge Griffin is already an experienced court of appeals judge. 

He is currently serving his 16th year on the Michigan Court of Appeals. In support of his nomination for the Sixth Circuit, Judge 

Griffin has received the very highest recommendation of the American Bar Association of Well Qualified. 

325

In addition to the ABA, his supporters are many and from both 

sides of the aisle. They include President Gerald R. Ford, who 

wrote the following to the Chairman of this Committee. ‘‘I write to 

strongly support the nomination of Richard Allen Griffin to the 

United States Court of Appeals for the Sixth Circuit. He is a highly 

qualified nominee and I can say with conviction that Judge Griffin 

is a person of highest-quality character. As the record shows, he 

has been a very excellent judge with unquestioned integrity.’’ 

Also, the Chief Justice of the Michigan Supreme Court, Maura 

Corrigan, who served with Judge Griffin for 7 years on the court 

of appeals, has said, ‘‘Judge Griffin is intellectually gifted. He is a 

spirited questioner who cuts to the chase. Judge Griffin brings a 

depth of practical experience and a grasp of real-life problems to 

the decision of cases. His thinking assists his colleagues in their 

deliberations. Richard Allen Griffin is a man of integrity and probity who is fully capable of discharging the duty of protecting our 

Constitution and laws. He is deserving of the public trust. I have 

every confidence that he will serve our country with honor and distinction.’’ 

Finally, the former Democrat mayor of the city of Detroit and 

former court of appeals judge Roman Gribbs has written the following in support of Rick. ‘‘I have known Judge Griffin for many 

years and have worked with him as a colleague on the Michigan 

Court of Appeals for 14 years. Working together on hundreds of 

opinions has given me the opportunity to observe and know Rick 

very well. He is in many respects a judge’s judge—integrity personified, intelligent, hard-working, fair, sensitive with level temperament and good judge, plus the uncanny ability to decide and 

write in a clear and understandable manner that resolves complex 

and obscure issues. He is a dedicated public servant.’’ 

Senator as a Congressman, as a citizen and as a lawyer, I cannot 

urge more strongly the immediate confirmation of Judge Richard 

Griffin to the Sixth Circuit. The Federal Court of Appeals for the 

Sixth Circuit is in desperate need of additional judges. Twenty-five 

percent of the seats on the bench are currently vacant. The Sixth 

Circuit is the slowest circuit in the Nation in deciding cases. Justice delayed is justice denied is now the rule, not the exception for 

the Sixth Circuit. 

Judge Griffin is an exceptional, well-qualified individual who is 

ready, willing and able to serve all the people as judge of the Sixth 

Circuit. Judge Griffin’s nomination has already been pending for 2 

years. Without further delay, I urge this Committee to act promptly to confirm this well-qualified nominee. 

Mr. Chairman, I want to thank you for your leadership on this 

and many other issues. Thank you for the time today. 

Chairman HATCH. Well, thank you, Representative Camp. We 

appreciate you taking time to come over here. Your praise of the 

judge is very meaningful here today and I appreciate your appearance. 

Representative CAMP. Thank you. 

Chairman HATCH. Representative Rogers, we will turn to you. 

326

PRESENTATION OF DAVID W. MCKEAGUE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT, BY HON. MIKE 

ROGERS, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF MICHIGAN 

Representative ROGERS. Thank you, Mr. Chairman. 

Chairman HATCH. If you need to leave, feel free. 

Representative ROGERS. Before I begin— 

Chairman HATCH. Maybe I could just say one thing before you 

do leave. There is a lot of misunderstanding about this situation. 

You know, the one rule we have on this Committee—and everybody 

in Michigan needs to know this—is that the President, whoever 

that President may be, has to consult with both home State Senators. 

In the case of the two Democrat nominees, there was absolutely 

zero consultation, and they had made an agreement with Senator 

Abraham and they just completely blew it away and didn’t pay any 

attention at all. There was no choice in what happened there. It 

was, some thought, an arrogant approach toward the judiciary, and 

I, as Chairman, had no choice. 

Now, some think that the withholding of blue slips by two Senators from the home State in the case of a circuit court of appeals 

judge, or in this case four of them, should automatically end the 

matter. Well, it doesn’t because Presidents reserve their right to 

demand that circuit court of appeals judges be voted upon, regardless of withholding of blue slips. 

We have had two Democrats set the rules on this Committee—

Senators Kennedy and Biden—that those negative blue slips 

should be given great consideration and heavy weight, but they are 

not dispositive in and of themselves; that the nominees do deserve 

to be heard and have an opportunity for a vote up and down. Now, 

suddenly, the approach here has become, in the eyes of some, a 

breach of the rules. Well, it isn’t a breach of the rules. 

I don’t know what else to do, other than to proceed and hopefully 

work with everybody to try and resolve this matter. I am going to 

work with the two Senators from Michigan to see if I can resolve 

it, and they have expressed a desire here to work with me to resolve it. If I can, I certainly am going to do that, and resolve it so 

that they can be happy as well. 

But we shouldn’t hold up people who are well-qualified by the 

American Bar Association, the gold standard that the Democrats 

have set, and that is what these people are who are nominated, 

and certainly the two here today, Judges Griffin and McKeague. 

In fact, Judge Covington, I will tell you I don’t see any reason 

for you to have to sit here any further, because I am not going to 

ask you any questions. I know your background, I know you are 

qualified. Senator Leahy has basically said that he will support you 

and that you are qualified, and I believe every member of this 

Committee will support you. 

So if you would like, you can relax, take it easy and leave, if you 

want to. Otherwise, you can stay and listen to this. But, frankly, 

I don’t see any reason to ask you any questions because I understand your background and I am very proud of you and proud of 

your background. This may take a little bit of time here today and 

I just want you to know that we are very proud of you and we will 

327

support your nomination and try to get you through before the end 

of this year, although that is going to be difficult, I have got to tell 

you, with the way things are breaking down right now. But I will 

do my best. 

I am sorry to interrupt you, Representative Rogers. We will turn 

to you. 

Representative ROGERS. Thank you, Mr. Chairman. It has been 

a privilege to work with you during this process. I want to just say 

I am proud of you and I hope America is proud of you. You recognize that clinging to the past serves no purpose to the lives of the 

people today, and I appreciate that. 

I have watched you look under every rock for a solution and I 

have watched you reject the bitterness of partisan negotiation to 

seek consensus, and I want to applaud you for that. Thank you 

very much, sir, for digging your heels in and working so hard to 

find that solution. 

Chairman HATCH. Thanks for your kindness. 

Representative ROGERS. It is my distinct privilege and honor 

today, Mr. Chairman, to introduce David McKeague to this distinguished panel. David is not only a constituent of Michigan’s 8th 

Congressional District, he is a good friend and a widely respected 

member of Michigan’s legal community and a distinguished jurist 

over the last decade with experience on the Federal bench. 

At this time, Mr. Chairman, I would ask David to introduce himself to you, if I may. 

Chairman HATCH. Sure, and your family, as well, if you wish. 

STATEMENT OF DAVID W. MCKEAGUE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT 

Judge MCKEAGUE. Thank you, Representative. 

Unfortunately, my family was unable to be here. They are all 

working. 

Chairman HATCH. Well, that is fine, or any friends or anybody 

else. 

Judge MCKEAGUE. I am very pleased to introduce Ted Lidds, who 

you may know as head of the Defender Services Division. 

Chairman HATCH. We are happy to have you here, Ted. 

Judge MCKEAGUE. I have been privileged to be on that Committee now for 4 years and work closely with Ted to provide assistance to those who can’t afford a lawyer. 

[The biographical information of Judge McKeague follows.]

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Chairman HATCH. We are happy to have both of you here. 

Representative ROGERS. Mr. Chairman, I would be remiss if I did 

not thank and applaud you for your principled decision to continue 

hearings for President Bush’s nominees from Michigan to the Sixth 

Circuit Federal Court of Appeals. This hearing is evidence of 

progress toward filling vacancies that have been deemed judicial 

emergencies by the Administrative Office of United States Courts. 

An independent Federal judiciary is the hallmark of America’s 

tripartite system of Government. A judiciary free of partisan political wrangling stands as a counter-weight to the political passions 

of the Congress and the executive branch. 

Appearing before the Committee today is a nominee to the Federal appellate bench who embodies the temperament, compassion 

and intelligence implicit in Article III’s creation of an independent 

judiciary. Judge David McKeague is a distinguished Federal district court judge with over a decade of experience on the bench. 

In 1992, Judge McKeague was unanimously confirmed by the 

United States Senate to serve on the U.S. District Court for the 

Western District of Michigan. Additionally, the American Bar Association has rated Judge McKeague Well Qualified to sit on the 

Sixth Circuit. 

Prior to his service on the bench, Judge McKeague practiced law 

first as an associate and later as a partner with the respected Lansing, Michigan, law firm of Foster, Swift, Collins and Smith. He 

had a diverse practice, handling a variety of matters involving financial transactions, mergers, regulations of public utilities, commercial litigation and bankruptcy. David earned both his undergraduate and law degrees from the University of Michigan. 

Before offering my opinion, however, Mr. Chairman, on why 

Judge McKeague is an ideal nominee for the Federal appellate 

bench, I believe it is best to hear from those in Michigan’s legal 

community who have observed or worked with David during his 

time in the Federal district court. Here are what a number of David’s colleagues have said regarding his fitness for the Sixth Circuit. 

I quote, ‘‘Judge David McKeague possesses the character, intellect, experience and judicial demeanor to serve with distinction on 

the Sixth Circuit.’’ I quote again, ‘‘Although we had very different 

political beliefs and associations, the law was always Dave’s guide 

and he studied it carefully and interpreted it fairly,’’ unquote. 

I quote again, Mr. Chairman, ‘‘Despite the fact that Judge 

McKeague and I do not share party affiliation, he will bring experience and boundless wisdom to the United States Court of Appeals.’’ 

It must be noted that the preceding testimonials are all from 

prominent Democrats in Michigan’s legal community. In addition, 

here is what one Detroit news columnist said regarding Judge 

McKeague’s nomination, and I quote again, ‘‘David McKeague is an 

uncontroversial and respected district judge from western Michigan. He deserves a prompt hearing and, if approved by the Judiciary Committee, an up-or-down vote in the Senate.’’ 

Well, cognizant of the significant restraints Federal judges face 

on non-judicial activities, David has given much back to his profession, Mr. Chairman, and the legal community. He has been at the 

377

forefront in mentoring tomorrow’s legal leaders, while training and 

educating his peers. 

In mentoring and developing the legal minds of tomorrow’s leaders, David is a longtime adjunct professor at the Michigan State 

University School of Law. Additionally, David is a founding master 

and president of the American Inns of Court at the Michigan State 

University School of Law. 

Leaders within the Federal judiciary have also recognized Judge 

McKeague’s intellect and leadership abilities. United States Supreme Court Judge Rehnquist has appointed Judge McKeague to 

two positions of prominence. He currently serves on the Defender 

Services Committee, which is responsible for ensuring adequate 

representation to all persons accused in Federal court of having 

committed a crime. He is the Chairman of the budget Subcommittee of this important committee. He also just completed 6 

years of service on the District Judge Education Committee of the 

Federal Judicial Center, the last five of which he served as chairman. 

Judge McKeague has proven an excellent steward of the court’s 

resources, as he has led his district to a national reputation for innovation in technology and as leader in modernization of dispute 

resolution. As Chairman of the Automation Committee of the Western District of Michigan, Judge McKeague instituted a pilot civil 

electronic filing program which allows attorneys in civil cases in 

the district to file case documents electronically. It is the first such 

program in Michigan and only the seventh nationwide. 

David also serves as Chairman of the Alternative Dispute Resolution Committee of the Western District of Michigan, where he is 

recognized as a leader in reforming the system, encouraging parties 

to settle disputes short of trial. The cost of litigation and trial can 

be immense, as you know, Mr. Chairman, both economically and 

psychologically for the involved parties. 

In terms of both tax dollars and case backlog, settling a case before trial can improve the administration of justice in the Federal 

district court system. Through a facilitative mediation program advocated by Judge McKeague, countless parties in the Western District have been able to resolve their disputes before reaching trial. 

In fact, facilitative mediation has resulted in the settlement of over 

two-thirds of the cases referred, resulting in a savings of approximately $25 million for the Western District of Michigan since 

1996—no small accomplishment, as you know, Senator. In fact, the 

Bar Association of Michigan has began instituting facilitative mediation in the Michigan courts, following suit. 

Mr. Chairman, in addition to filling a declared judicial emergency in the Sixth Circuit, it is clear that Judge McKeague is a 

highly respected and eminently qualified jurist who would be an 

excellent addition to the Federal appellate bench. 

Again, I applaud your decision to continue hearings for Michigan’s nominees to the Sixth Circuit, and steadfastly urge without 

delay the swift confirmation of Judge David W. McKeague to the 

U.S. Court of Appeals for the Sixth Circuit. 

One personal anecdote, Senator. In the busy lives of Representatives and elected officials and our distinguished jurists, I happened 

to attend an event with Mr. McKeague where he swore in new citiVerDate 0ct 09 2002 10:53 Nov 17, 2004 Jkt 096683 PO 00000 Frm 00387 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\96683.TXT SJUD4 PsN: CMORC
378

zens to this country. I watched his compassion and his general caring as he individually welcomed each new citizen to America, took 

the time to talk to their families and take photos and welcome 

them in a way that I think will have a lasting impact on each and 

every one of those citizens. That certainly spoke to the character 

and heart of someone who is a great, fair jurist. 

I again applaud all of your efforts and will look forward to the 

opportunity of working with you further as you determine to find 

a consensus solution to this problem. Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you. I have appreciated both of 

you Congress people, and, in fact, your whole Republican Congressional delegation who have tried to work with us to achieve a compromise. We may still be able to do that. I hope so. Both Senators 

from Michigan have indicated that they would still like me to try 

and work one out. I will try my best. I just you will support whatever I can get done, if I can get it done. From my experience with 

you, I think you will, if I can do this. 

So I just want to thank you both for being here. It means a lot 

to me that you would take time to come over from your respective 

positions on Capitol Hill. Both of your testimonies have been great. 

These are two individuals who have the highest ratings from the 

American Bar Association, as, of course, does Judge Covington. I 

am just grateful you would take the time. So thanks so much. 

If I could have the two nominees take their seats, I am going to 

swear you in. In fact, let’s swear you in also, Judge Covington. Why 

don’t you raise your hand, too? I don’t plan on asking you any questions, but we will swear you in so that you have that privilege. 

Do all three of you solemnly swear to tell the truth, the whole 

truth and nothing but the truth, so help you God? 

Judge MCKEAGUE. I do. 

Judge GRIFFIN. I do. 

Judge COVINGTON. I do. 

Chairman HATCH. Thank you. 

As stated, I am not going to ask Judge Covington any questions. 

I have tremendous respect for you, for what you have come 

through, for how you have made such a success out of your life, for 

the work that you have done on the bench. I am going to support 

you with everything I have got, so just know that. I know you very 

well and know your background very well, and I know that you are 

very well-qualified, as the American Bar Association has said as 

well. 

Judge McKeague, you did introduce your friend, and I would like 

you to introduce your wife and anybody else you would care to, including your father, Judge Griffin. 

STATEMENT OF RICHARD A. GRIFFIN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT 

Judge GRIFFIN. Thank you, Chairman Hatch. I would like to introduce my wife, Chris. 

Chairman HATCH. Chris, we are glad to have you here, finally. 

And your father? 

Judge GRIFFIN. And my father, Senator Griffin. 

Chairman HATCH. We are honored to have you here, Bob. 

379

He is one of the reasons I went on the Labor Committee when 

I got here, because he is the author of the Landrum-Griffin bill, one 

of the most important and significant pieces of legislation in the 

history of this country, and has kept us safe and secure in many 

ways ever since. So we just want to acknowledge the greatness of 

your father. 

[The biographical information of Judge Griffin follows.]

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Chairman HATCH. Judge Covington, I would appreciate it if you 

would introduce your family, as well. 

STATEMENT OF VIRGINIA MARIA HERNANDEZ COVINGTON, 

NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA 

Judge COVINGTON. Thank you very much, Senator. I have my 

two children with me—my son, Stephen, who is going into his senior year at Jesuit High School in Tampa, Florida, and my daughter, 

Laura, who is going into her sophomore year at Florida State University. And I have an older son who has just begun law school at 

Stetson. My husband, Doug, is at home with my mother, who was 

too ill to travel. 

Chairman HATCH. Well, we are grateful to have your kids with 

you, and wish your mom well. And we are very proud of you. 

Judge COVINGTON. Thank you very much. I appreciate that. 

[The biographical information of Judge Covington follows.]

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Chairman HATCH. Now, let me just say this. I don’t know of anybody who has any objections to any of the three of you on this Committee. I don’t know anybody who has a substantive objection. All 

three of you are rated Well Qualified by the American Bar Association, the highest rating that the Bar Association gives. All three of 

you are people of immense experience. 

Judge Covington we have covered. The two of you are both 

judges who are highly respected in the State of Michigan. It is almost a crime that this has been held up this long. Again, I will 

mention that the reason that the two Democrat judges were held 

up was clearly a matter of failure to consult with the existing Senator, and he felt, and I felt, they breached an agreement—that is, 

the then-White House breached an agreement with Senator Abraham that should not have been breached. And they certainly 

should have consulted. 

Now, there has been plenty of consultation with both Michigan 

Senators, and so that is not an issue here. As you will notice, they 

did not raise that as an issue. I have not heard one ounce of comment from either Michigan Senator against either of you. And, 

frankly, I think it is pathetic that we are at this position where we 

are having such a difficult time getting both of you and Judge Saad 

confirmed. 

We are going to proceed with Judge Saad’s nomination this week 

in Judiciary, and hopefully we will pass him out of Judiciary on 

Thursday, tomorrow. I will move as rapidly ahead as I can with 

your two nominations. In fact, I expect all three of you to be on the 

Judiciary Committee docket next Thursday, not tomorrow, but next 

Thursday. It is too early to do it for tomorrow. Hopefully, we will 

have votes out of the Committee at that particular time. 

You will probably be put over for a week, which is standard practice—it is not standard practice, but it has become common practice since this administration has taken over and it was used by 

Republicans at times in the past. So you will be put on next week’s 

agenda, and undoubtedly you will be put over another week after 

that. But then we should vote on you. 

Now, that gives me a couple of weeks to see what I can do to resolve this impasse, and hopefully I can do that. If not, we intend 

to report you from Committee and bring you up on the floor. I don’t 

see how anybody really can vote against either of you. But without 

resolving the impasse, I think we would find probably further filibusters. 

Now, that is one thing that hasn’t been mentioned. I listened 

carefully to Senator Leahy’s comments, but never in the history of 

the Judiciary Committee, in the history of this country or in the 

history of the Senate have we had substantive filibusters on the 

floor against Federal judges—never, not once. 

We have had people who wanted to do that in the Clinton administration and in prior administrations, but I personally stopped 

that with the few who did. And to their credit, my colleagues on 

the Republican side said we are not going to filibuster anybody, 

certainly not Federal judges, because Article II, Section 2, of the 

Constitution basically calls for a vote up and down under the Advise and Consent Clause. 

459

The Founding Fathers knew what a super-majority vote was because just a line or two above the Advise and Consent Clause was 

the requisite two-thirds vote for the ratification of treaties. So it 

was quite apparent that advise and consent means a vote up and 

down. 

Now, I know both of you well. I know both of your reputations. 

I have studied and read a lot about you. I don’t see any reason to 

even ask you any questions today, and I don’t think anybody on the 

other side has wanted to either. I don’t think anybody doubts your 

qualifications, and it would be an absolute crime if you are not confirmed. But I will do my very best to get you confirmed and I will 

do my very best to work with the two Michigan Senators and hopefully break through this impasse that has occurred. 

I know it is a long way here and that you would probably love 

to answer a lot of questions, but what I am going to do is hold the 

record open for one week so anybody can send you written questions who might have any questions of you both. And I would suggest to you that you get those answers in as quickly as possible, 

if you do get written questions. It is very important that you get 

those answers back immediately because I don’t want anything to 

stand in the way of our best attempts to get you both confirmed. 

I know that both of you would serve beautifully and well on the 

Sixth Circuit Court of Appeals, which is in dire need of judges. It 

is 25-percent lacking in judges right now, so it is critical that you 

get you through and I am going to do the best I can to do that. 

So I will keep the record open for one week, until 5:00 p.m. on 

June 23, for additional statements or questions by members of the 

Committee. I may have some written questions myself, but I doubt 

it because I am very personally aware of both of you. 

Judge Covington, we are proud of you, as well. 

With that, we are going to recess until further notice. 

[Whereupon, at 11:08 a.m., the Committee was adjourned.] 

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

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